Purolator Armored, Inc.

National Labor Relations Board - Board Decisions

Feb 29, 1984

268 N.L.R.B. 1268 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Purolator Armored, Inc. and Local 299, Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 7-CA-
17895
29 February 1984
DECISION AND ORDER
By, CHAIRMAN DOTSON AND M. MBF RS
ZIMMERMAN ANI) HUNTI.R
On 24 June 1981 Administrative Law Judge
Norman Zankel issued the attached decision.' The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
Thereafter, by Order dated 4 February 1982 the
National Labor Relations Board remanded this pro-
ceeding to the judge for further findings by him
with respect to credibility of witnesses and the
weight of the evidence as a whole with regard to a
consideration of the applicability of Textile Workers
v. Darlington Mfg. Co., 380 U.S. 263 (1965), to the
closing at issue in this case. On 25 March 1982, the
judge issued the attached supplemental decision on
remand in this proceeding. Thereafter the Re-
spondent filed exceptions to this supplemental deci-
sion and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and sup-
plemental decision on remand in light of the excep-
tions and briefs and has decided to affirm the
judge's rulings, findings, 2 and conclusions:' and to
adopt the recommended Order as modified.
I On 6 July 1981 the judge issued an addendum to the decision in
which he concluded that the Supreme Court's decision in First .National
Corp., 452 U.S. 666 (1981), did not affect his finding that the Responderat
had unlawfully refused to bargain.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 Nl RB 544 (1950). enfd IX8 F.2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings.
3 In his initial decision herein, the judge concluded that the Respond-
ent, inter alia. violated Sec. 8(a)(3) of the Act by closing its coin change
service. The judge relied on the Wright Loine analysis in reaching that
conclusion. See Wright Line, 251 NL.RB 1083 (1980) In his supplemental
decision on remand the judge also concluded that under Darlingtson,
supra, the Respondent violated Sec 8(a)(3) by closing the coin change
service. In so deciding, the judge stated that his findings isased ion Dar-
lington were not intended to supplant his findings il his initial decision
based on Wright Line. The judge determined that the two ainalyses of the
case stood independent of each other, and either 'icse of the case was
valid. We do not agree. Thus, to be a violation under Darlington, a partial
closing must not only be discriminatory, but must be liotivated by a
desire to chill unionism of an employer's other employees, and it must be
reasonably foreseeable that the closing will have that chilling effect.
However, we agree with the judge's conclusion that the Respondent's
partial closing here violated the Act under the standards set forth in lDr-
268 NLRB No. 191
The judge found, inter alia, that the Respondent
violated Section 8(a)(3) and (1) of the Act by clos-
ing its coin change service. We agree with this
finding. In order to remedy this violation, the
judge recommended that the Respondent be or-
dered to "immediately reopen and reinstitute" its
coin change service, and that the Respondent offer
full and immediate reinstatement to all employees
who were laid off as a result of the closing. Al-
though he found that the Respondent had suffered
long and extensive financial losses in the operation
of its coin change service, the judge nonetheless
concluded that a status quo ante remedy should be
ordered, that is, that the Respondent should be re-
quired to reopen its coin change service. We do
not agree.
The evidence that the Respondent's coin change
service operation was financially distressed is con-
vincing. By April 1980,4 the time of the events
herein, the Respondent was expending an average
of about $21,000 on its coin change service, but re-
alizing only an average of about $2100 of revenue
from that operation. Projected over a year's basis,
the Respondent's net loss from its coin change
service would approximate over $200,000. Further-
more, a study done by the Respondent in March
noted that the commitment of $500,000 to the coin
change service as a standing cash balance meant
that the Respondent was losing $100,000 per year
that it would earn had that balance been invested
at the prevailing prime interest rate.
Despite these established facts, the judge deter-
mined that the Respondent should be ordered to
reopen its coin change service. The judge reasoned
that reinstitution of the coin change service would
not require the Respondent to acquire new space
or equipment. Additionally, the judge noted that
the Respondent had tolerated the economic losses
suffered at its Detroit location for some time prior
lington. In so doing, however, we do not rely on the judge's finding that
the Respondent's cost-benefit study was a subterfuge.
In addition, on 6 July 1981, the judge issued an addendum to his initial
decision. In the addendum, the judge determined that the Supreme
Court's recent opinion in First National Corp., supra, was inapplicable to
the instant case We find it unnecessary to pass on this issue because, as-
suming arguendo that the Respondent had a duty to bargain, we would
find, contrary to the judge, that the Respondent did not violate Sec.
8(a)(5) concerning the closing of its coin change service. By letter dated
5 June 1980 the Respondent notified Union Business Agent George
lIangkil of the Respondent's decision to discontinue providing change
service and to lay off employees in the coin department as of 20 June
1980 hI response, the Union. by letter dated 6 June 1980, acknowledged
the forthcoming closing and requested only that the Respondent employ
those who would be laid off, prior to employing "outside parttime help."
Based oin the foregoing, wve find that the Union had sufficient notice of
the Respondent's decision to close its coin change service, but failed to
exercise its right to request bargaining on the issue. Therefore, we con-
clude that the Respondent did not violate Sec 8(a)(5) by failing to bar-
gain C(itizens National Bank of Willmar. 245 Ni.RB 389. 390 (1979).
' All dates hereinafter are in 1980 unless otherwise indicated. The coin
change service under consideration here was initiated in April 1979.
1268
PUROLATOR ARMORED, INC.
to the advent of the Union. In sum, the judge con-
cluded that the Respondent failed to demonstrate
mitigating circumstances which would warrant the
continued closing of its operations.
Contrary to the judge, we do not believe that, in
the circumstances of this case, the Respondent
should be required to reopen its closed operations.
We find that such an order here would likely be
unduly burdensome and is unnecessary to effectu-
ate the policies of the Act. Instead of requiring the
Respondent to reopen a financially unprofitable op-
eration, we conclude that the Respondent's unfair
labor practices will be sufficiently remedied by a
full make-whole order covering the employees of
the closed operation. 5
AMENDED REMEDY
We shall order the Respondent to make whole
all employees employed in the coin change service
who were terminated as a result of the Respond-
ent's discriminatory decision to close that oper-
ation. We shall require the Respondent to offer re-
instatement to each of the discriminatees by either
(1) reinstituting its coin change service operation
and offering reinstatement to each of the discrimin-
atees to his or her former position or, if such posi-
tion no longer exists, to a substantially equivalent
position, without prejudice to his or her seniority
or other rights and privileges previously enjoyed;
or (2) offering reinstatement to each discriminatee
to any position in its existing operations which he
or she is capable of filling, giving preference to the
discriminatees in order of seniority; and in the
event of the unavailability of jobs sufficient to
permit immediate reinstatement of all the discrimin-
atees, place those for whom jobs are not now avail-
able on a preferential hiring list for any future va-
cancies which may occur in jobs the said discrimin-
atees are capable of filling. In addition, we shall
order the Respondent to make the discriminatees
whole by paying each of them a sum of money
equal to the amount that would have been earned
as wages from the date of termination to the date
the discriminatee either secures equivalent employ-
ment or the Respondent makes an offer of rein-
statement, computed in accordance with the
Board's usual formula set forth in F. W Woolworth
Co., 90 NLRB 289 (1950), with interest thereon
computed in the manner set forth in Florida Steel
Corp., 231 NLRB 615 (1977).6
' See, e.g., Great Chinese American Sewing Co., 227 NLRB 1670 (1977).
Contrary to the judge, we do not believe that Great Chinese American
Sewing is distinguishable because there respondent would have been re-
quired to expend funds in acquiring new equipment. The Board explicitly
held that it would not "force the reestablishment of an unprofitable oper-
ation." Id.
I See, generally, Isis Plumbing Co., 138 NLRB 716 (1962).
ORDER
The National Labor Relations Board orders that
the Respondent, Purolator Armored, Inc., Detroit,
Michigan, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Interrogating employees, threatening them
with economic reprisal, promising them benefits,
implying their union activity is under surveillance,
or engaging in any other conduct in violation of
Section 8(a)(1) of the Act.
(b) Discriminating against its employees because
they engage in union activities.
(c) In any other manner interfering with, re-
straining, and coercing employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act.
(a) Offer backpay and reinstatement to all per-
sons employed in the coin change service, and
make them whole for any losses suffered by reason
of the discrimination against them in the manner
set forth in the section of this Decision and Order
entitled "Amended Remedy."
(b) Preserve and, on request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its Detroit, Michigan facility copies of
the attached notice marked "Appendix."7 Copies
of the notice, on forms provided by the Regional
Director for Region 7, after being signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
Inasmuch as the former coin room employees
presently are dispersed and do not report to a cen-
tral location for work, and it is likely some delay
well may attend implementation of the "Amended
Remedy" herein, provisions shall be made to assure
that all affected employees are aware of the notice
at the earliest date. Amshu Associates, 218 NLRB
7 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
1269
DECISIONS OF NATIONAL LABdR RELATIONS BOARD
831, 836-837 (1975). Accordingly, the "Appendix"
shall be prepared by the Regional Director in suffi-
cient numbers to permit mailing to each unit em-
ployee. Such notices shall be forwarded by the Re-
gional Director to the Respondent. Within 5 days
of receipt thereof, the Employer shall mail a copy
of the notice to each of its former Detroit coin
room employees. Upon completion of such mailing,
the Employer shall forthwith submit to the Region-
al Director a list of the names and addresses of the
employees to whom the notices were mailed, to-
gether with a certification signed by an authorized
employer representative that the Employer has
completed the mailing in accordance with the
terms of this Order.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegation in
complaint paragraph 10(e) is dismissed.
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 violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT question you concerning your ac-
tivities on behalf of Local 299, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organi-
zation.
WE WILL NOT threaten that we will take repris-
als against you for engaging in union activities.
WE WILL NOT promise you any benefits in order
to induce you to refrain from engaging in union ac-
tivities.
WE WILL NOT say anything to you which indi-
cates your union activities are under surveillance.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer full and immediate reinstatement
to each of the employees who worked in our
closed coin change service by either (1) reinstating
our coin change service operation and offering re-
instatement to each of the discriminatees to his or
her former position or, if such position no longer
exists, to a substantially equivalent position, with-
out prejudice to his or her seniority or other rights
and privileges previously enjoyed; or (2) offering
reinstatement to each discriminatee to any position
in its existing operations which he or she is capable
of filling, giving preference to discriminatees in
order of seniority, and in the event of the unavail-
ability of jobs sufficient to permit immediate rein-
statement of all the discriminatees, place those for
whom jobs are not now available on a preferential
hiring list for any future vacancies which may
occur in jobs the said discriminatees are capable of
filling.
WE WILL make whole the discriminatees men-
tioned above by paying each of them a sum of
money equal to the amount that would have been
earned as wages from the date of termination to
the date the discriminatee either secures equivalent
employment or we make an offer of reinstatement,
together with interest thereon.
PUROLATOR ARMORED, INC.
DECISION
STATEMENT OF THE CASE
NORMAN ZANKEL, Administrative Law Judge: This
case was heard before me on March 11 and 12 and April
21, 1981, at Detroit, Michigan.
Upon an original charge filed on June 17, 1980' by the
Union, the Regional Director for Region 7 the National
Labor Relations Board (the Board) issued a complaint
and notice of hearing on July 24.
In essence, the complaint alleges the Employer violat-
ed Section 8(a)(1) of the National Labor Relations Act,
as amended (the Act), by unlawfully interrogating its
employees, issuing threats of economic reprisal, making
promises of benefit, impliedly indicating union activity of
employees was under surveillance and engaging in other
miscellaneous acts of interference, restraint, and coer-
cion. Also, it is alleged the Employer discriminated
against employees in violation of Section 8(a)(3) and (1)
of the Act by closing down its Detroit coin room oper-
ation on or about June 21 and laying off the employees
who worked there. Finally, the complaint alleges the
Employer unlawfully refused to bargain collectively
with the Union by unilaterally closing the Detroit coin
room on or about June 21 without discussion with the
Union as collective-bargaining representative of those
coin room employees.
t All dates hereinafter are 1980 unless otherwise stated.
1270
PUROLATOR ARMORED, INC.
The Employer's timely answer to the complaint admit-
ted certain matters but denied the substantive allegations
and that it committed any unfair labor practices.
Additionally, the Employer interposed certain affirma-
tive defenses. Those defenses consist of (1) a claim that
no bargaining obligation exists herein because the coin
room unit includes guards and the Union admits non-
guard employees to membership; (2) in any event, the
Employer fulfilled any bargaining obligation which may
have existed by complying with the Union's requests that
the Employer follow certain procedures in effecting the
layoff of the coin room employees; and (3) the layoffs
were economically motivated.
All parties appeared at the trial. Each was represented
by counsel and was afforded full opportunity to be
heard, to introduce and to meet material evidence, and
to examine and cross-examine witnesses, to present oral
argument, and to file briefs. I have carefully considered
the contents of the briefs on June 2, 1981, filed by coun-
sel for the General Counsel and the Employer's counsel.
Upon consideration of the entire record and the briefs
and my observation of the witnesses and their demeanor,
I make the following
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Based on the admissions contained in the Employer's
answer, there is no issue as to jurisdiction or labor-orga-
nization status.
The Employer is a Texas corporation with an office
and place of business in Detroit, Michigan. Although the
Employer maintains other installations in other States,
only the Employer's Detroit, Michigan operation is in-
volved in this case. The Employer's business consists of
providing armored car and related services.
During the calendar year immediately preceding issu-
ance of the complaint, a representative period, the Em-
ployer's gross revenues exceeded $500,000. In the same
period of time, the Employer performed services valued
in excess of $50,000, which services were performed in
and for various enterprises located in States other than
Michigan.
Upon the foregoing, I find the Employer is an Em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) and that the Union is a labor orga-
nization within the meaning of Section 2(5) of the Act.
II1. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Scenario of Events
The recitation of facts below is a composite of rele-
vant unrefuted oral testimony, supporting documents,
and other undisputed evidence. Wherever material con-
flicts exist they are resolved. Not every bit of evidence is
discussed. Nonetheless, I have considered all of it togeth-
er with all arguments of counsel. Omitted matter is con-
sidered irrelevant or superfluous.
The Employer provides armored car and related serv-
ices to numerous customers requiring transportation and
safeguarding of funds and valuables. As noted, the in-
stant case relates only to the Employer's Detroit, Michi-
gan terminal.
The classifications of employees at the Detroit termi-
nal are messengers, vault persons, check cashiers, coin
room employees, mechanics, and clerical employees.
Drivers, messengers, vault personnel, and supervisors
customarily carry firearms.2
Since at least October 1977, the Union has been the
recognized and contractual collective-bargaining repre-
sentative of the Employer's Detroit drivers and messen-
gers. Additionally, since approximately July 16, 1979, the
Union has been the recognized and contractual collec-
tive-bargaining representative of the mechanics at the
Detroit terminal.
Prior to April 1979, the Employer used its armored
cars to provide its customers with a change service. Mes-
sengers on each of approximately 30 trucks at the termi-
nal were dispatched with a coinbox containing several
thousand dollars from which they provided change to
customers. The Employer found this operation financial-
ly unsound. Thus, the operation was discontinued.
In April 1979, the Employer replaced the former
change service operation by establishing its coin room.
The money previously used on the armored cars was
consolidated in the coin room. Under this new system,
change bags prepared in the coin room in response to
customer orders were given to the drivers for delivery
during their regular rounds.
Several new employees were hired to fill positions in
the new coin room department. The coin room operation
was more efficient than the former method of providing
change to customers. Orders were filled for customers in
a more controlled, businesslike manner. Each day the
coin room employees balanced the "banks" from which
they made change. Individual orders were sewn into
bags so they could not be tampered with. Customers
could place regular orders or increase their orders. For
the first time, customers were charged for this service.
Before the coin room opened, messengers merely sold
whatever change they had on hand.
However, even from its inception, the coin room was
financially unprofitable to the Employer. Various wit-
nesses testified on the Employer's behalf to show this.
Thus, A. Young, terminal manager at Detroit, wrote as
early as June 22, 1979, after 2 months of operation of the
coin room:
The new procedure for the change order depart-
ment [coin room] was not designed to necessarily be
revenue producing; but in my opinion it should at
least be self-supporting. After a brief study of the
operation, it appears that we are still losing in that
department. The main reason being the large
number of people on the staff (labor costs).
D. Vacca, assistant terminal manager, reported in Jan-
uary or February 1980 that certain improvements in
2 Only one coin room employee, Elias, testified he carried a firearm.
As will be demonstrated below, the status of coin room employees, as
guards, is in dispute.
1271
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
service could be made. His report was not submitted into
evidence.
In March 1980, T. J. Loyal, division vice president for
the Employer's southeast division, conducted an inspec-
tion of the Detroit coin room operation. He was then
considering opening a coin and currency operation at the
Employer's Washington, D.C. terminal. Loyal concluded
that the Detroit coin room operation was a "serious loser
financially." Loyal observed that the commitment of
$500,000 to the coin room as a standing cash balance de-
prived the Employer of interest of approximately
$100,000 per year that it might be earning by investing at
the then prevailing prime interest rate of 20 percent.
On April 23 and 24, D. Cichalski, the Employer's as-
sistant comptroller, visited the Detroit terminal. The pur-
pose of this visit was "to overlook the operations of the
coin room and to obtain an understanding of the oper-
ation."
Cichalski submitted his report on May 21. In that
memorandum, Cichalski stated the purpose of his April
visit to the Detroit terminal was: "To study the oper-
ation and accounting for the several bank accounts that
are used for customer change funds, check cashing and
change services."
Problems which Cichalski studied include the comin-
gling of funds in the three operating accounts. The
report suggests ways of acquiring new customers for the
service, changes in the method of charging customers,
and installation of different accounting methods.
Cichalski's report contains, inter alia, a recommenda-
tion to conduct a cost-benefit study of Detroit's coin
room operation. His report does not directly allude to
consideration of terminating the coin room operation.
Cichalski's above-stated recommendation received
quick response. On May 27, W. Tulko, vice president of
finance and the Employer's chief financial officer, direct-
ed that a cost-benefit study be completed as soon as pos-
sible.
Accordingly, a cost-benefit study was immediately un-
dertaken. It revealed the Detroit coin room operation
was losing money. Thus, the study shows the average
monthly revenue of the coin room was $2,114, while av-
erage monthly expenses were $21,400. The coin room
was experiencing a monthly net loss from operations of
$19,286.
Meanwhile, in March 1980, the Union began an orga-
nizational campaign among the coin room employees.
They had been unrepresented for collective-bargaining
purposes since the coin room opened in April 1979.
Thus, then Union Business Agent G. Langkil asked
union steward F. Smith to canvass the coin room em-
ployees on the question of union membership. Smith dis-
cussed the matter with employee M. Longas who, in
turn, discussed unionization with many of the coin room
employees. Longas gave them authorization cards to
sign. The Union's campaign was in progress in March
and early April..
On April 29, the Union filed a petition for a certifica-
tion election with the Board. The petition was docketed
as Case 7-RC-15907. A copy of the petition was sent to
the Employer on April 30 by the Board. The petition re-
quested an election among the employees in a unit con-
sisting of all regular full-time and part-time coin room
personnel at the Detroit location.
G. Rudich, the Employer's vice president of personnel
and industrial relations, testified he learned of the
Union's representational interest in "late April, early
May" through a phone call from R. E. Dyer, the Em-
ployer's divisional vice president for the Detroit location.
Dyer told Rudich he had received a copy of the petition
with a letter from Langkil. From the foregoing, I find
the Employer knew of the Union's campaign approxi-
mately 3 weeks before ordering the cost-benefit study
based on Cichalski's report.
On May 16, the Employer signed a Stipulation for
Certification Upon Consent Election.3
The stipulation contains the following unit description:
All full-time and regular part-time coin personnel
in the coin room employed . . . [at the Detroit Ter-
minal] . . . but excluding office personnel, clerical
employees, guards and supervisors as defined in the
Act; and all other employees.
In addition the stipulation contains a provision, as fol-
lows:
If a majority of valid ballots are cast for the in-
cumbent union, they will be taken to have indicated
the employees' desire to be included in the existing
vaultmen, messengers, and drivers unit currently
represented by . . . [the Union]. .... If a majority
of valid ballots are cast against representation, they
will be taken to have indicated the employees'
desire to remain unrepresented. In any event, a cer-
tification of results of election will be issued. [Empha-
sis added.]
It was agreed an election among the above-described
unit employees would be conducted by the Board on
May 29.
Meanwhile, several conversations regarding the Union
ensued between management representatives and coin
room employees. On or about May 8, employee C.
Donovan was asked by Vacca what she (Donovan) had
heard about the Union. During this conversation, Vacca
asked Donovan to talk to the other employees regarding
the union activity.4 This last statement was made in the
context of Vacca advising Donovan that management of-
ficials recently held a meeting to consider Donovan's
work progress and noted several positions opening for
her advancement.
In early May, employee Longas was also asked by
Vacca if he knew anything about the Union or who was
involved. 5
a Langkil signed an identical stipulation on May 13.
Vacca was not asked to refute Donovan's account. He testified
merely he had no recollection of directly asking Donovan how she felt
about the Union. I credit Donovan's forthright narration.
I Based on Longas' uncontradicted testimony, Vacca, who appeared as
an Employer witness, was not asked to refute this conversation.
1272
PUROLATOR ARMORED, INC.
On or about May 15, J. Larsen, coin room supervisor,
asked Longas whether he knew anything about the union
activities. s
There is no evidence the Union conducted an overt
preelection campaign. The Employer, through Rudich,
instructed the Detroit management officials, in Rudich's
words, "to run a low-key campaign, no coercion, leave
the people alone, no literature, just-really just doing
nothing and go about their general business."
However, in apparent disregard of this directive,
Vacca distributed campaign literature at work to the
coin room employees.7
On May 28, the Employer held a meeting for the coin
room employees. Most of them attended. The Employer
claims the meeting was delayed half an hour in order
that union steward Smith and Langkil could be present.
Smith did not recall whether he had been invited, but
doubted it because of his work schedule. Smith had no
knowledge of any invitation to Langkil, who did not tes-
tify.8
Dyer presided over the May 28 meeting. Other super-
visory officials present were: J. Larsen, operations super-
visor; A. R. Young, operations manager; D. Delpier,
coin room supervisor; and Vacca. My findings of what
transpired during this meeting are derived from a com-
posite of the testimony of employees Donovan, L. Brad-
ley, and Elias who testified on behalf of the General
Counsel. Each of them presented spontaneous, candid,
and comprehensive versions of what occurred. In materi-
al respects, their testimony is mutually corroborative. To
the extent inconsistencies exist, they are minor. In con-
trast, the Employer officials who testified relative to the
events of the May 28 meeting did so in generalization
and self-serving denials. In some respects (as noted
throughout my narration of facts and as will be more
fully explicated in the discussion of the specific 8(a)(l)
allegations below) they were not even asked to deny the
explicit testimony of these General Counsel witnesses.
Dyer opened the May 28 meeting by telling the em-
ployees that he had been instructed not to threaten or
promise them anything but he could predict that if the
Union were voted in the Company would be required to
reevaluate the situation in the coin room.9 Dyer opined
such reassessment would be followed by a cost increase
to customers, which would cause a loss of customers and
would result in the employees losing their jobs. In this
regard, Dyer said:
6 Larsen, who testified on behalf of the Employer, was not asked to
deny this part of Longas' testimony.
I I reject the General Counsel's contention Rudich's testimony should
be discredited because the existence and distribution of the antiunion lit-
erature contradicts his earlier testimonial claim that the Employer did not
campaign. Nonetheless, I find the Employer did distribute such literature
on or about May 27, based on Elias' and Donovan's testimony. In par-
ticular, Elias' rebuttal testimony to that effect stands uncontradicted by
Vacca.
s Langkil was no longer business agent at the time of trial.
* This statement provides another basis for crediting the General
Counsel's witnesses, because it logically and reasonably flows from the
Employer's various financial and operational analyses then pending and
previously made.
* . . let me promise you, no I can't use prom-
ise.... I think I can promise this to you. Let me
promise you this, that if in fact we do have a union
here and costs go up we will transfer those costs to
the customers, and if in fact we do that we will
have to make adjustments elsewhere. Let me assure
you this is where we will make the adjustments that
you will bear the brunt of the new expenditures,
and that if we lose customers that this is the place
where those results will be felt. I feel safe I can
promise you that.
Dyer also told the employees there was no need for a
third party to intervene in their problems, and, depend-
ing on how the election went, it would be a good idea to
talk to the employees individually to see how things
were going and deal with any problems. Dyer also told
employees they could check around and make certain
that, compared with employees doing comparable work,
they were properly paid.
Dyer also spoke of a dental and retirement plan. Elias
asked for clarification. Dyer responded those benefits
were not actually in effect for the employees but they
were being considered. Dyer noted that other Employer
facilities did not have a unionized coin room. Employee
Bradley observed that the Chicago facility did have a
unionized coin room. Young acknowledged that fact, but
said Chicago's coin room was operating at a loss. Then,
Dyer said that Detroit also was losing money. Young
confirmed this.
Vacca commented the coin room operation was not
intended to make money; it was a service-oriented pro-
gram. Young then said it would not be to the advantage
of part-time employees to vote for the Union because
they would be paying union dues but would not be enti-
tled to representation by the same union collecting them.
Dyer concluded the meeting with a statement that the
employees who would vote yes for the Union could stay
home the next day, the election day, but those who
would vote no could come to work.
On May 29, before the election, Donovan was asked
separately by both Larsen and Vacca if she (Donovan)
knew how employees McDonald and Greason would
vote. Donovan told Larsen and Vacca she thought those
two employees would vote no.
Also on May 29, the election was conducted between
1:30 and 2:15 p.m., as scheduled. Of the 14 eligible
voters, 13 cast ballots in favor of representation by the
Union and one voted against it.
Larsen announced the results to the employees. He ex-
pressed surprise at the outcome. Larsen then went to his
desk where he was joined by Longas who had been the
Union's principal distributor of authorization cards and
solicitor of signatures. Larsen told Longas he could not
believe he (Longas) did "it," that he had the most to
lose. Elias entered the conversation. Larsen repeated
Longas had the most to lose since he had been there the
longest time, made the most money, did not have a high
school education, and would find it very difficult to get
a job somewhere else.
Some time between May 27 and June 5, the cost-bene-
fit study ordered (as noted above) on May 27 by Vice
1273
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
President Tulko had been completed. The undated study
shows coin room revenues of approximately $1600, com-
pared with approximately $21,400 expenses. 'o
On June 5, Dyer wrote Langkil:
The Detroit-area economic condition and its ad-
verse effect on our business has forced Purolator to
take a close look at the operating costs required to
provide various service to our customers.
After a detailed cost analysis of our operation,
we conclude that we must discontinue providing
change service to our customers.
Effective June 20, 1980, we must therefore indefi-
nitely lay off approximately 12 employees in our
coin department. We will do this in reverse order of
seniority.
On June 6, the Board's Regional Director issued a
"Certification of Results of Election" which indicated
the Union "may bargain for the . . . (coin room employ-
ees) . . . as part of the group of employees which it (the
Union) currently represents."
Also on June 6, Young held a meeting among the coin
room employees. An invitation to attend the meeting had
been extended to union steward Smith and Business
Agent Langkil. Neither attended.
There is no substantial dispute concerning what oc-
curred during the June 6 meeting. Young told the assem-
bled employees that the coin room would be shut down
effective June 20. He said that eventually the Employer
would offer part-time employment to the employees ac-
cording to their seniority. He denied the advent of the
Union had anything to do with the coin room closing.
Some employees attempted to suggest alternatives to
make the coin room profitable. However, Young would
not discuss them. Instead, Young informed the employ-
ees that there could be a need for the continuation of the
services of two employees on a part-time basis, and that
these offers would be made by seniority. In addition,
Young advised the employees that, if qualified, they
would be offered positions on the Employer's trucks.'I
Some time between June 6 and 20, Larsen told Longas
and Elias that the Employer was planning to open a non-
union coin room in its Flint, Michigan terminal. Larsen
admitted that he, indeed, may have "joked" about such a
thing. 12
Both Elias and Longas testified that they were told by
Larsen that it was their own fault that the coin room
was closed and that it was closed because they had
voted for the Union.' s
1' Dyer explained the expenses would be greater if interest from lost
investment potential were added.
" The State of Michigan imposes certain requirements upon armored
vehicle personnel. This was the qualification to which Young referred.
" This finding is based on the mutually corroborative testimony of
Longas and Elias, and Larsen's admission that he may have jocularly re-
ferred to a nonunion operation.
"S Elias testified extensively regarding the conversation from which
this conclusion is drawn. He fully narrated the colloquy between him and
Larsen. Larsen's account of the conversation was generalized. Moreover,
he was not asked to refute the particulars of the conversation. Larsen
only was asked whether he told any employee the coin room was being
closed because of any activity "relating to Teamsters 299." Larsen's self-
serving reply was "no, I did not." I credit Elias.
As noted, Langkil did not attend the June 6 employee
meeting. However, by letter dated June 6, Langkil re-
sponded to Dyer's June 5 letter. Thus, Langkil wrote:
In response to your letter of June 6, 1980 it is my
understanding that because of the Bargaining Unit
that was included in your operation of... Detroit,
Michigan, you are putting into effect a layoff as of
June 20, 1980.
Therefore, I am requesting you to use all union
members that were organized into your operation
before calling any outside part-time help.
Any questions or information regarding this letter
you may have. Please feel free to contact me at
Local Union No. 299.
The Employer, in an undated letter addressed "Dear
Customer," advised them of the impending coin room
closing. In salient part, the letter, signed by Dyer, states:
After careful analysis, we discovered that our
change service operation costs significantly more
than we can afford. This is caused by today's high
cost of money complicated by a recent vote of our
coin room employees to become Teamster members.
[Emphasis added.]
On or about June 17, Vacca asked Donovan to tell
him who instigated the union.' 4
On the same date, Vacca told Donovan that he
(Vacca) wished she had talked sense to the other em-
ployees before the election, and that if the Union had not
been voted in and even if the coin room would have
closed, she (Donovan) probably would have a job
"someplace in the Company."" 5
Bradley testified D. Delpier told her (Donovan), on
June 20, that if the Union had not been voted in the em-
ployees would still have their jobs. '8
Longas' conversation of the same import with Larsen occurred on or
about June 20, 2 weeks after that of Elias. Longas was sure and specific
concerning what was said by Larsen. Larsen was not asked to refute the
particulars of Longas' version. Larsen answered, "No, I didn't," when
asked whether he told Longas he was losing his job because he joined
the Union. I cannot credit this generalized denial in the face of the more
specific account provided by Longas.
Finally, I find the testimony in this regard presented by Elias and
Longas to be inherently consistent.
14 This finding is based on Donovan's credible and uncontradicted tes-
timony.
'5 Vacca simply unequivocally denied making this statement. Howev-
er, I find he did so, based on Donovan's generally more impressive de-
meanor and the credited testimony of employee Bradley who, as noted in
the text immediately following, testified supervisor D. Delpier made a
comment to the same effect 3 days later. Additionally, I find it plausible
Vacca made this statement to Donovan because, as noted hereinabove,
Vacca had asked Donovan (on or about May 8) to speak to the other
employees regarding the union activity.
'6 During direct examination as an Employer witness, Delpier un-
equivocally denied he made such a statement. However, Bradley's posi-
tive recollection of the conversation, coupled with Delpier's equivocation
when questioned by the bench that he did not remember any conversa-
tion with Bradley, persuade me Bradley is the more credible of these two
witnesses. See, also, discussion of Larsen's comment of similar import to
Elias and Longas (complaint par. 10-k) and Vacca's similar remark to
Elias on July 3 (complaint par. 10-1).
1274
PUROLATOR ARMORED, INC.
There was no contact between the Union and the Em-
ployer between Langkil's June 6 letter to Dyer and June
17. On June 17, the Union filed the charge in the present
case. Notice of this charge was received by the Employ-
er on June 18.
On June 20, Dyer wrote Langkil. This letter contains
the names and layoff dates proposed for each of the 14
coin room employees. Ten were to be laid off on June 20
and four on June 27.
Dyer's June 20 letter claimed 13 of the employees had
been offered part-time employment in the coin room fol-
lowing his or her layoff. 7 Also, Dyer's letter claimed
that, if qualified, each laid-off employee had been offered
part-time driver postions.
Dyer's June 20 letter ended with an invitation for
Langkil to meet with Rudich in Detroit on June 30 "for
the purpose of negotiating a coin room contract for
those eligible persons remaining on the job."
On or about July 3, Vacca told Elias that the coin
room was closed because the employees had joined the
Union. Vacca then said that the Employer could not
afford to have the coin room go out on strike and take
the entire terminal with them. '8
Some time during the week ending July 7, Supervisor
D. Delpier spoke to Elias, apparently regarding the
Union. Elias' uncontradicted account, in salient part, fol-
lows: "Dwayne [Delpier] asked me who started this s-t
and I said I couldn't tell him. He [Delpier] says c'mon
just out of curiosity tell me who started it."'9 Dyer re-
ceived no response from the Union to his June 20 offer
for Langkil to meet with Rudich for negotiations on
June 30. Thus, on June 30 Rudich phoned Langkil, but
received no response. Accordingly, on June 30 Rudich
dispatched a telegram to Langkil. The telegram, in rele-
vant part, states "please be once again advised that I am
ready to meet with you at your convenience to discuss
the coin room situation and to negotiate an addendum to
the . . . [collective-bargaining agreement]." Rudich re-
ceived no response from Langkil.
Ultimately, Rudich made contact with James Morisette
who had replaced Langkil as the Union's business agent.
They arranged to meet.
Rudich and Morisette met on July 7 or 11 and August
4. During each of these sessions, Morisette requested re-
instatement and backpay for the laid-off coin room em-
ployees. 2 0
By letter dated September 9, Rudich wrote Morisette.
Rudich outlined his version of what occurred between
the parties regarding the coin room since June 5. The
letter concluded with a renewed request that the Union
"1 It apparently was not feasible to totally end all coin room service.
'8 Vacca unequivocally denied making these statements, but was not
asked to deny that he had any conversation with Elias on this date. I
credit Elias' comprehensive, relaxed, and forthright account of this con-
versation. Moreover, as already noted, it is consistent with testimony of
other witnesses who ascribed similar remarks to Larsen.
I This apparent interrogation is not alleged as a violation of Sec.
8(a)(1).
2o I consider the various testimony regarding what else transpired at
these meetings irrelevant, in the absence of a theory that the Employer
engaged in surface bargaining. I reject the Employer's arguments that
conduct is probative evidence of its good faith. Indeed, much of that evi-
dence is recriminatory, seeking to impute bad faith to the Union.
"immediately commence good faith bargaining with the
Company in accordance with a concentrated schedule of
meetings to discuss the Coin Room closing. To advance
the discussions, the Company proposes payment of two
weeks' pay to each of the affected employees."
Thereafter, negotiations were conducted for a renewal
of the drivers', messengers', and mechanics' collective-
bargaining agreement. Those negotiations culminated in
a new collective-bargaining agreement dated October 2,
1980, effective to October 1, 1983. This new agreement
incorporates the coin room employees into the recogni-
tion clause and provides for customary terms and condi-
tions of employment, including wages, for coin room
personnel.
B. Analysis
1. Interference, restraint, and coercion
In paragraph 10 of the complaint, numerous activities
of the Employer are alleged as violations of Section
8(a)(1) of the Act. They will be discussed separately, ac-
cording to categories of unlawful interrogation, threats
of reprisal, promises of benefits, implied surveillance, and
miscellaneous activity.
The Board's test for 8(a)(l) conduct is whether it rea-
sonably tends to interfere with, restrain and coerce em-
ployees in the exercise of their statutory rights. Keystone
Pretzel Bakery, 242 NLRB 492 (1979); Hanes Hosiery, 219
NLRB 338 (1975).
Credibility of the respective witnesses is a key element
in my resolution of the 8(a)(1) allegations. The recitation
of the scenario of events, supra, contains my credibility
resolutions as to some of the alleged 8(a)(1) conduct.
That discussion will not be reiterated but, where appro-
priate, reference will be made to it.
The ultimate choice in making findings of fact based
on credibility is based on my observation of witness de-
meanor, unrefuted testimony, the weight of the respec-
tive evidence, established or admitted facts, inherent
probabilities and reasonable inferences which may be
drawn from the record as a whole. Northridge Knitting
Mills, 223 NLRB 230 (1976); V WCastings, 231 NLRB
912, 913 (1977); Gold Standard Enterprises, 234 NLRB
618 (1978).
(a) Interrogation
In complaint paragraph 10(c) it is alleged that Vacca
and Larsen interrogated an employee concerning her
knowledge of union activity and how employees would
vote.
I have found hereinabove that the subject conversation
occurred on May 8 as described by Donovan. The Em-
ployer intimated, but did not prove, that Vacca was in
Chicago on the date. Donovan remained unshaken
during cross-examination even when confronted with the
possibility Vacca might testify (which he did not do) that
he was out of state on the day Donovan claimed Vacca
spoke with her. Vacca was not asked to deny whether
he asked who instigated the Union or how anyone would
vote. Moreover, he was not asked whether he spoke to
Donovan regarding McDonald or Greason. Instead,
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when Vacca testified, he was asked whether he ques-
tioned Donovan regarding how she felt about the Union.
Even to this question, Vacca equivocated, "I don't know
if I asked her [Donovan] what she felt about Teamsters
299. I don't remember ever asking her that directly."2'
In view of Donovan's general demeanor, her direct
and sure testimony, Vacca's admitted vague recollection
and his failure to address part of the allegation, I credit
Donovan. Similarly, I credit Donovan's specific testimo-
ny regarding Larsen who did not make any attempt to
refute it.
It is legion that interrogation of employees which re-
quires them to reveal or betray their union sentiments or
those of other employees is unlawful under Section
8(a)(l). It is clear that the questions posed to Donovan
by Vacca and Larsen on May 29 have such an effect.
Accordingly, I find merit to the allegations contained in
complaint paragraph 10(c).
Complaint paragraph 10(j) alleges that Vacca unlaw-
fully interrogated an employee as to who instigated the
union's campaign. This allegation is based on Donovan's
testimony, described supra that on June 17 Vacca asked
her "who had instigated the Union." Donovan testified
that this remark followed Vacca's comment that he was
shocked to see the employees had voted yes. As previ-
ously observed, Vacca was not specifically asked to
refute this part of Donovan's testimony.
With Vacca, as with all other employer witnesses who
did not seek to rebut testimony which implicated them in
alleged unlawful activity but who appeared as witnesses
on other matters, I have inferred that their testimony
would have been adverse to the Employer. Interstate Cir-
cuit v. U.S., 306 U.S. 208, 225-226 (1939); Teamsters
Local 959 (Northland Maintenance), 248 NLRB 693, 698
(1980); Monahan Ford Corp., 173 NLRB 204 (1968). Ac-
cordingly, Donovan's testimony demonstrates that Vacca
interrogated her concerning who instigated the Union.
Such interrogation is violative of Section 8(a)(1). Sentry
Investigation Corp., 249 NLRB 926, 930. I find merit to
the allegations of complaint paragraph 10(j).
In complaint paragraph 10(m) it is alleged that on or
about May 15 and 20 Vacca unlawfully interrogated em-
ployees concerning the Union. This allegation is based
on Donovan's testimony that, on May 8, Vacca asked
her whether she heard anything about the Union activity
and asked Donovan to talk to the other employees re-
garding it. Also, this allegation is based on Longas' testi-
mony that in early May, Vacca asked him if he knew
anything about the Union or in Longas' words, Vacca
asked "if I knew of anybody that was involved in gener-
al."
As previously noted, as to Donovan, Vacca was
merely asked whether he had asked Donovan how she
felt about the Union. Vacca was not asked to refute the
comprehensive pertinent ingredients of Donovan's testi-
mony.
Vacca did.not at all address this part of Longas' testi-
mony.
Inasmuch as I have found Donovan and Longas inde-
pendently credible witnesses and their testimony regard-
" Larsen was not questioned concerning this alleged interrogation.
ing this allegation remains virtually uncontradicted, I
have credited their versions. Such interrogation is inher-
ently coercive, in violation of Section 8(a)(l). Permanent
Label Co., 248 NLRB 119, 129 (1980); Durango Boot, 247
NLRB 361, 363 (1980). Thus, I find merit to the allega-
tion in complaint paragraph 10(n).
Complaint paragraph 10(n) alleges that on or about
May 15, Larsen unlawfully interrogated an employee.
This allegation is based on Longas' testimony that, on
the subject date, Larsen asked him who had initiated the
Union and whether Longas knew anything about the
Union.
Although he appeared as a witness for the Employer,
Larsen was not questioned about this aspect of Longas'
testimony. Accordingly, I find merit to this allegation.
(b) Threats of reprisal
In complaint paragraph 10(a) it is alleged that on or
about May 28, Dyer threatened employees that the coin
room would be closed if they selected the Union as their
representative. This allegation is based on Dyer's re-
marks during the May 28 meeting. In salient part, I have
found that Dyer told the employees if the Union were
voted in, the employees would have to "bear the brunt"
of new expenditures and loss of customers, that if the
Union were selected by the employees the Employer
would reevaluate its costs in the coin room and that
would be "the place where those results will be felt"2 2
and a loss of customers would result in employees losing
their jobs.
As to these remarks, Dyer was simply asked "did you
threaten employees that you would shut down the plant
operation if the Union was voted in?" Dyer responded,
"I did not." I conclude Dyer's self-serving denial is in-
sufficient to overcome the credible accounts presented
by the General Counsel's witnesses who testified on this
subject. In particular, Elias, Bradley, Longas, and Dono-
van presented precise accounts of what Dyer is alleged
to have said on May 28. I consider it incumbent upon
Dyer to have had his testimonial direction addressed to
those specifics which involved more than the bare ques-
tion posed to him regarding closing of the coin room.
Based on the credited testimony, I conclude Dyer
made the comments attributed to him. I have considered
Rudich's testimony, which I have credited, that he in-
structed the Detroit management officials to conduct a
low-profile campaign. This suggests the Employer under-
stood it must remain scrupulously aloof. Nonetheless,
there is overwhelming credible evidence that a variety of
Detroit officials misconstrued or misunderstood the full
scope of Rudich's directive. In general, I find that the
actual words spoken by various Employer representa-
tives were more accurately portrayed by the General
Counsel's witnesses than by those implicated in them.
Considering the import of Dyer's words leads me to con-
22 Dyer also said "that is not to say all the employees would be laid
off, but there is no way of telling." I conclude the effect of his suggestion
that selection of the Union would result in layoffs is not diminished by
Dyer's comment "there is no way of telling." The seed of coercion had
been sewn. His exculpatory phrase is inadequate to comprise a disavowal
of the earlier-expressed unlawful words.
1276
PUROLATOR ARMORED, INC.
elude he, at least impliedly, issued a proscribed threat to
close the coin room operation. (Russell Stover Candies,
221 NLRB 441, 442, 443 (1975)). 2 3
Upon all the foregoing, I conclude there is merit to
the allegations in complaint paragraph 10(a).
In complaint paragraph 10(e) it is alleged that on or
about June 6 Supervisor D. Delpier threatened employ-
ees with loss of employment because of the Union.
This allegation is based on Longas' testimony, not
heretofore described, that the day before the coin room
closing was announced Delpier told Longas that the em-
ployees put Dyer's back up against the wall by joining
the Union and the Employer had no choice but to close
it down.
As to this allegation, I find Delpier's account more re-
liable and plausible than Longas'. On this issue, Longas
was rather vague in his description of the conversation.
Delpier was more comprehensive and certain. Thus, Del-
pier first unequivocally denied he made any such state-
ment to Longas. When questioned from the bench, Del-
pier candidly admitted he had a conversation about the
closing with Longas. However, Delpier claimed they ac-
tually had two such discussions on the same day. Delpier
claimed that the first time he spoke with Longas it was
Longas, not he, who speculated the closing was union-
related. According to Delpier, the first discussion oc-
curred before Delpier even knew of the decision to
close.
Delpier said that he confirmed the coin room would
be closed with superior management. He and Longas
then had their second conversation. Delpier testified he
learned that the closing was due to the Employer's finan-
cial losses in the coin room.
Given Longas' extent of prounion sympathies, it is not
unlikely he would accuse the Employer of closing the
coin room because of the Union. This probability, cou-
pled with Longas' vague account of his conversation
with Delpier, requires careful scrutiny of the testimony
of these opposing witnesses.
Delpier was firm in his denial that he made the alleged
unlawful statement. Moreover, I find Delpier candid.
Thus, he was implicated by Bradley (in connection with
complaint allegation 10(i)) in another alleged unlawful
conversation. Bradley's testimony stands uncontradicted
because Delpier frankly testified, though harmful to the
Employer, he did not recall whether he had the conver-
sation ascribed to him by Bradley.
Moreover, I found Delpier consistent and spontaneous
in his description of the subject conversation with
Longas.
Upon the foregoing I find it plausible that the conver-
sations occurred as described by Delpier.24
S3 In Russell Stover, there was an effort to cure the illegality by deny-
ing the formation of a union-caused plant closure. As noted in the imme-
diately preceding footnote, Dyer sought to do likewise. However, as in
Russell Stover, I conclude Dyer's effort is ineffective.
24 To the extent this conclusion is inconsistent with my earlier findings
Longas is generally credible, such division of credibility resolution is per-
missible. A trier of fact is not required to believe the entirety of a wit-
nesses' testimony. Maximum Precision Metal Products, 236 NLRB 1417
(1978).
Upon all the foregoing, I find the General Counsel has
not sustained his burden of proof that the Employer vio-
lated Section 8(a)(1) of the Act as alleged in complaint
paragraph 10(e).
Complaint paragraph 10(f) alleges that "in or about the
week of June 9" the Employer distributed a letter to its
customers which contained an indication that selection of
a collective-bargaining representative was a reason the
coin room was being closed.2 5 This allegation is based
on the Employer's "Dear Customer" letter, described
hereinabove, together with attendant testimony.
As earlier described, the Employer stated, in the sub-
ject letter, that the financial condition of the coin room
operation was "complicated" by the employees' Union
vote.
Donovan testified that on June 6 Larsen delivered the
subject letter to Longas. Longas read it and asked
Larsen if he could have a copy. Larsen agreed and "pro-
ceeded to run off some copies" which were delivered at
least to Donovan and Longas.
Bradley testified that "around June 10"26 Larsen asked
her if she could get along without the books containing
customer names and addresses. According to Bradley,
Larsen said he needed the books to send the subject
letter to the customers. Bradley recalled Larsen, shortly
thereafter, had a copy of the letter in his hand and
Donovan asked him if she (Donovan) could have a copy.
Bradley testified, Larsen agreed.
The Employer did not seek to adduce evidence to ex-
plain the letter or rebut any of the General Counsel's tes-
timony on this subject matter. Larsen's delivery of
Dyer's letter which connected, albeit in part, the coin
room closing to the union activity constitutes publication
of that remark to at least some of the employees. None-
theless, the Employer arguably could claim, but it did
not, that Dyer's written comment was not coercive be-
cause the layoffs had already been announced. I con-
clude this timing does not affect what I perceive to be
the inherently coercive character of Dyer's written state-
ment in the letter.
The Board was confronted with an analogous situation
in Joint Board of the Electrical Industry, 238 NLRB 1398,
1410-11 (1978). There, the Board left undisturbed an ad-
ministrative law judge's finding that Section 8(a)(l) had
been violated when the director of a dental clinic re-
marked "you fellows joined the Teamsters ... now you
go get jobs as truckdrivers." This comment was made to
a dentist employed at the clinic, after the clinic had been
closed for assertedly economic reasons during a repre-
sentational campaign.
It may be argued that the Joint Industry case is distin-
guishable. There, the alleged unlawful statement had
been made before the employees actually voted. Howev-
er, I consider this distinction irrelevant. It simply serves
25 This allegation is framed as a conclusion. Though the General
Counsel's theory of this violation was not explicated in the brief submit-
ted, I shall deal with the letters' potential as a threat of economic repris-
al.
26 I place little significance on the disparity of dates stated by Dono-
van and Bradley, or for that matter, any other witnesses. More important
is the fact that each of them substantially corroborated one another with
respect to the material and substantive aspects of their testimony.
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to underscore the concept that the employees of the
clinic would be deterred from future exercise of their
statutory rights. The distinction, nonetheless, does not
detract from another reasonable conclusion which may
be derived from the alleged unlawful statement; namely,
that the employees who see or hear it would be led to
believe they lost their jobs because of their union activi-
ty. I conclude the subject statement in Dyer's "Dear
Customer" is susceptible of this latter interpretation. In-
asmuch as the layoffs herein had not yet been effectuated
at the time the "Dear Customer" letter was published to
the employees by Larsen, I find the subject statement
constitutes an implied threat that the impending coin
room closure was due to the employees' selection of the
Union as their bargaining representative.27
Upon all the foregoing, I find there is merit to the alle-
gation contained in complaint paragraph 10(f).
Complaint paragraph 10(g) alleges that in mid-June
Larsen informed an employee that the Employer was
considering reopening its coin room operation elsewhere
as a nonunion facility. As indicated hereinabove, Elias
and Longas testified that some time after the announce-
ment to close was made Larsen told them the Employer
was considering opening a nonunion operation in Flint,
Michigan. As noted, supra, Larsen admitted that he
"may have joked about a nonunion operation." Interest-
ingly, it was Vacca, not Larsen, who was asked specifi-
cally to rebut Elias' and Longas' testimony on this issue.
The conclusionary allegation was not addressed in the
parties' briefs.
I conclude Larsen's reference to opening a nonunion
coin room is violative of Section 8(a)(1). This remark of
Larsen must be considered in connection with the sur-
rounding circumstances. I have already found the Em-
ployer engaged in 8(a)(l) violations before Larsen is al-
leged to have made his nonunion statement. Particularly,
the "Dear Customer" letter reflects that union activity
and financial stress were the causes of the decision to
close the coin room. For Larsen to say there might be a
nonunion coin room operation elsewhere, 2 8 I conclude,
clearly signals to the employees that their exercise of
statutory rights to engage in union activity might dictate
the Employer's future conduct. It strongly suggests to
the employees that the Detroit coin room operation
would or could remain open if they were to forbear in
the exercise of their statutory rights. In short, I conclude
Larsen's remark displays a predisposition to avoid deal-
ing with the Union as representative of the coin room
employees. As such, it reasonably tends to interfere with,
restrain, and coerce the employees in the free exercise of
the rights guaranteed them in Section 7 of the Act. Ac-
cordingly, I find the allegation in complaint paragraph
10(g) has merit.
Complaint paragraph 10(k) alleges Larsen attributed
the closing of the coin room to the selection of the
Union as bargaining representative. Elias and Longas
"I Whether deemed an implied threat, or some other form of coercion,
restraint, or interference, I conclude the subject statement reasonably
tends to have the necessary proscribed effect.
2' The record reflects the Employer already had a small facility in
Flint. This fact lends an air of plausibility to Elias' and Longas' testimony
on this subject.
presented testimony relating to this allegation. Their tes-
timony and Larsen's response (not heretofore described)
follows.
Elias testified that "after" the June 6 meeting he,
Longas, and Larsen had a discussion concerning the
layoff announcement.2a According to Elias, Larsen said
"it was your own fault for joining the Union." Longas
asked, "do you mean that if we hadn't have joined that
we could still have our jobs?" Larsen responded, "that's
right." Longas then said, "What you are saying is that if
we had voted no for the Union then there [sic] wouldn't
be laying us all off." Larsen replied, "Well, they
wouldn't have closed the operation down, I can tell you
that. They probably would have just laid some people
off, probably the part-timers."
Longas' testimony, though in summary form, corrobo-
rated Elias'. Thus, Longas testified Larsen said the em-
ployer really did not want to close down the coin room;
the reason it was closed was because the employees
joined the Union; and that if the employees had not
joined, should the Employer have decided to cut back,
Longas at least still would have a job.
I credit Elias and Longas. In addition to the reasons
set forth for this credibility resolution in footnote 13,
supra, I have considered the consistent, spontaneous and
apparently unrehearsed corroboration of Elias by
Longas. Supervisory statements which attribute layoffs
to the employees' union activity are violative of Section
8(a)(l). Hall of Mississippi, 249 NLRB 775, 780-781
(1980). I find merit to the allegations in complaint para-
graph 10(k).
Complaint paragraph 10(1) alleges Vacca, also, attrib-
uted the coin room closing to the employees' selection of
the Union. I have already found that Vacca told Elias
the coin room was closed because the employees had
joined the Union. (See fn. 18, supra, and accompanying
text.) Elias' specific narration, which I adopt, of this
event follows.
Elias made some suggestions as to how the Employer
could keep the coin room open. Vacca passed them off
saying, "the reason they [the Employer] are closing
down is because you joined the Union and that the
reason behind that is that there is no way that the Com-
pany could afford for you to go out on strike now and
take the whole terminal with you; they would lose too
many customers and too much money. Right now you
are just too much trouble."30 Inasmuch as my findings as
to this allegation clearly show Vacca blamed the coin
room closing to the advent of the Union, I find his state-
ment constitutes a violation of Section 8(a)(l). Hall of
Mississippi, supra.
(c) Promises of benefit
In complaint paragraph 10(b) it is alleged that Dyer
promised employees individual discussion concerning
'a Longas placed this conversation on June 20.
3o The specific question to which Vacca answered his unequivocal
denial was "did you ever say to any employees that if the coin room-if
they hadn't voted for the Union the coin room would still be functionalr'
It is noteworthy that Vacca was not asked to deny either that he had a
July 3 conversation with Elias or the particulars of Elias' account.
1278
PUROLATOR ARMORED, INC.
work problems and to remedy them if the Union were
rejected.
In testimony not heretofore described, Donovan
claimed Dyer told the employees during the May 28
meeting that "we" could talk on a one-to-one basis after
the vote (the next day) if the vote were in favor of the
Company.
Bradley testified that during the same meeting Dyer
said, "I will promise you that if you vote no tomorrow
that we will meet individually and discuss all of our
problems."
Elias, in more general terms, testified "depending on
how the election went it would be a good idea to speak
to us on an individual basis to see how things were for
us in the Company and where we are going."
To refute this testimony, Dyer was asked the single
conclusionary question, "did you promise to remedy em-
ployee problems conditional on their rejection of the
Union?" Dyer responded, "No."
I have already found Dyer digressed from the instruc-
tions as to how the Employer should conduct its preelec-
tion campaign. The totality of Dyer's activity during the
May 28 meeting (see discussion of complaint paragraph
10(a)) fairly may be characterized as antiunion. Thus,
Dyer instilled a fear of possible job loss. Also, he sug-
gested that only those employees who would vote
against the Union need report to work the following day
on which the election had been scheduled. In this atmos-
phere and, given my earlier observation that Elias, Brad-
ley, and Donovan presented precise and credible ac-
counts of what Dyer said on May 28, I find the employ-
ees' accounts of what Dyer said on May 28 as to the in-
stant allegation more reliable than Dyer's self-serving
denial.
Offers to negotiate directly with employees in order to
cause them to withdraw their support from a union vio-
lates Section 8(a)(l). Raley's Inc., 236 NLRB 971, 972
(1978). I conclude Dyer's statement that the Employer
would individually speak with the employees concerning
their problems is tantamount to solicitation of employee
grievances. Moreover, Dyer explicitly conditioned such
discussion upon rejection of the Union.
The essence of the underlying allegation is not the so-
licitation of grievances itself. Rather, it is the inference
created by such solicitation that the Employer is promis-
ing to correct those grievances. Uarco Incorporated, 216
NLRB I (1974); Reliance Electric Co., 191 NLRB 44, 46
(1971). This inference is rebuttable. However, the instant
record is devoid of any evidence adduced for the pur-
pose of such refutation. No history has been presented to
show the Employer at any earlier time engaged in a pro-
gram of individual discussion with employees. In this
context, I conclude there exists "a compelling inference
that . . . (the Employer was) . . . implicitly promising to
correct" (Reliance Electric, 191 NLRB at 46) the employ-
ees' problems if they would not elect the Union as their
bargaining representative.
Upon the foregoing, I find complaint paragraph 10(b)
has merit.
Complaint paragraph 10(d) alleges that on May 29
Larsen implied surveillance and possible retaliation
against employees for their union activities.
This two-pronged allegation is based on Larsen's con-
versation with Elias and Longas at the time Larsen an-
nounced the election results. As to the implied surveil-
lance, Longas, Donovan, and Elias credibly testified that,
after Larsen announced the vote's outcome, Larsen ex-
claimed he was surprised and did not believe "it." I con-
sider Larsen's remark is a predictable expression of shock
or dismay by a management official when confronted
with the overwhelming vote in favor of unionization.
However, Larsen said more. He said to Longas, "you
have more to lose than anybody, why would you be in-
volved in this?" (Emphasis added.) As previously noted
Longas had been the principal union activist. It is noted
this comment of Larsen was made approximately I week
before the decision to close the coin room and lay off
employees was announced.
The timing of Larsen's remark, together with the ab-
sence of evidence to show that Longas' union activities
were notorious, persuades me Larsen's words reasonably
are susceptible of meaning that the Employer, by some
manner of surveillance, became aware of Longas' activi-
ties.
As to the alleged implication of retaliation, Larsen told
Longas he would find it difficult to get another job some
place else. I find this remark comprises a threat of the
possibility of discharge as a result of unionization.
Meehan Truck Sales, Inc., 201 NLRB 780, 783-784. Ac-
cordingly, I find there is merit to the allegation of com-
plaint paragraph 10(d).
(d) Miscellaneous
Complaint paragraph 10(h) alleges that on June 17
Vacca indicated to employees they would still have jobs
even if the coin room closed. As earlier described,
Donovan testified that Vacca told her he wished she had
talked sense to the employees. Actually, Vacca said
"now that the Union had been voted in . . . there was
nothing he could do." This remark was followed by
Vacca saying that Donovan "probably would have
found a job some place in the company" if the coin room
had to be closed.
I conclude this statement of Vacca clearly imparts the
meaning that Donovan's imminent layoff was directly at-
tributable to the union activity and the result of the rep-
resentation election. Such statements violate Section
8(a)(1). Accordingly, I find merit to complaint paragraph
10(h).
In complaint paragraph 10(i) it is alleged that on or
about June 17 Supervisor D. Delpier told employees if
they had not voted for the Union the coin room would
not have closed. As earlier indicated, Bradley claimed
that Delpier made this comment to her on June 20. In
addition to making the statement already described,
Donovan testified that Delpier told her that the Employ-
er "would have just cut back."
Delpier claimed he could not recall having any con-
versation with Bradley. I have found Delpier generally
credible (see my analysis of complaint par. 10(e)). Thus,
whether Delpier's lack of recollection of a conversation
with Bradley is laid to a desire to be perfectly honest, to
protect himself from providing testimony adverse to the
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employer,3 1 or in reality, to having no present recall of
this conversation, this part of Bradley's testimony stands
uncontroverted.
Once again Bradley's credited testimony reflects the
Employer, through D. Delpier, tied the layoffs to the
employees' union activity, as alleged in complaint para-
graph 10(i). I find this remark violative of Section
8(a)(l).
Complaint paragraph 10(o) alleges that on or about
May 15 Vacca told an employee to persuade other em-
ployees not to vote for the Union.
Donovan testified that on or about May 8 Vacca
"asked me if I had the opportunity, if I would talk to
other employees regarding the Union activity." As
noted, Vacca made this comment when discussing Dono-
van's work evaluation which, Vacca said, placed Dono-
van in a promotional position.
An employer lawfully may request employees to vote
against union representation. However, Section 8(a)(l) is
violated when an employer enlists a rank-and-file em-
ployee to ask other employees to do the same. Montgom-
ery Ward & Co., 226 NLRB 184, 201 (1976); Unarco In-
dustries, 197 NLRB 489, 500 (1972).
I acknowledge that the quoted words used by Vacca
do not correspond, in haec verba, with the subject com-
plaint allegation. Thus, the allegation is that Vacca ex-
pressly solicited an employee to persuade other employ-
ees not to vote for the Union. As related by Donovan,
Vacca requested her simply to speak with other employ-
ees "regarding the union activity."
What meaning should be ascribed to Vacca's words?
The answer is derived by recourse to extrinsic circum-
stances. Thus, the certification petition was filed on April
29. Rudich acknowledged that, in "late April, early
May," he knew the petition had been filed. The Union
signed the Stipulation for Election on May 13. I have
found that Vacca interrogated Donovan on May 8 re-
garding what she heard about the union activity. I now
find the subject request to talk to other employees was
part of that other discourse between Vacca and Dono-
van.
The scenario depicted in the immediately preceding
paragraph gives meaning to Vacca's request of Donovan.
Moreover, the record as a whole demonstrates the Em-
ployer's repeated efforts, through various supervisors, to
learn of the union activities and to discourage them. In
this context, I conclude Vacca's request of Donovan can
be interpreted as an appeal to Donovan to "talk down"
the Union. I so find. Accordingly, I find merit to com-
plaint paragraph 10(o).32
2. Discrimination
The General Counsel contends the coin room closing
was motivated by antiunion considerations. AIso, it is
claimed the evidence shows the decision to close was
contrary to and defied sound business considerations.
sl Delpier was stiil employed by the Employer at the time of the hear-
ing.
s' If my analysis of Vacca's request is imprudent, then, in any event, I
find that it amounts to an enlistment of Donovan in Vacca's unlawful in-
terrogation. In either view, the remark violates Sec. 8(a)(1).
The Employer claims the closing was solely motivated
and, indeed, "mandated," by the severity of the financial
losses. Moreover, the Employer contends its closing was
fully consistent with its past business practices. Finally,
the Employer argues there exists no probative evidence
to prove it harbored animus toward the Union.
There is no dispute the coin room was closed. On June
5, Dyer wrote Langkil advising of the decision and ex-
pected layoffs. The next day, Young announced the clos-
ing during the meeting with the employees.3 3
The coin room employees were laid off according to
the following schedule contained in Dyer's June 20 letter
to Langkil:3 4
L. Bradley--6/20
Donald Delpier3 5 6/20
D. Elias--6/27
E. Greason-6/20
K. Kopp-6/20
G. Longas-6/20
M. Longas-6/27
S. Lyght-6/20
P. Person--6/20
R. Serra--6/20
M. Shannon-6/20
M. Thompson-6/27
B. McDonald--6/27
To date, none of the laid-off employees has been rein-
stated.
Contrary to the General Counsel's claim that this is a
"pretext" case, I consider it presents dual-motive consid-
erations. As seen below, I credit the Employer's virtually
uncontested evidence showing the magnitude of its coin
room financial losses. Yet, the substantial 8(aX1) viola-
tions which I have found committed provide a basis for
finding the presence of union animus motivating the
close and layoffs.3 6 Thus, the Board in Wright Line, 251
NLRB 1083 (1980), declared that in dual-motive cases
the General Counsel must first prove the existence of a
prima facie case showing the alleged discrimination was
motivated by antiunion considerations. Thereafter, the
burden of proof shifts to a respondent to demonstrate
that it would have taken the action alleged as discrimina-
tory, even in the absence of the employees' protected ac-
tivity. See also Herman Brothers, 252 NLRB 848 (1981).
Application of the Board's standards persuades me that
the General Counsel has proved the necessary prima
facie case and the Employer has not sustained its requi-
site burden of proof regarding the 8(a)(3) allegations.
s3 There is no testimonial or documentary evidence showing when the
decision to close was made or by whom.
:4 Although the letter indicates a layoff date of June 27 for Elias and
M. Longas,.they remained as part-time employees until July 5.
a3 Not to be confused with coin room Supervisor Duane Delpier.
ae In any event the Board recently had indicated the test to be applied
to dual-motive cases may apply, as well, to "pretext" cases. Limestone
Apparel Corp., 255 NLRB 722 (1981). See also Castle Instant Main-
tenance/Maid, 256 NLRB 130 (1981).
1280
PUROLATOR ARMORED, INC.
(a) The prima facie case
The following summary of evidence has led me to
conclude and find that the Employer harbored antiunion
motives in deciding to close the coin room and lay off
the employees working there.
1. Vacca unlawfully interrogated Longas in early May.
2. On May 8, Vacca asked Donovan to dissuade other
employees from union activities.
3. On May 15, Larsen unlawfully interrogated Longas.
4. On May 28, Dyer threatened to close the coin
room.
5. Dyer impliedly promised to correct employee griev-
ances.
6. On May 29, Larsen interrogated Donovan.
7. On May 29, Larsen implied surveillance of union ac-
tivities and possible retaliation against employees.
8. In early June, Dyer attributed the closing to the
advent of the Union in his "Dear Customer" letter.
9. On June 17, Vacca told Donovan she probably still
would have her job but for the Union.
10. On June 17, Vacca unlawfully interrogated Dono-
van.
11. On June 20, Larsen told Elias and Longas the coin
room closing was due to the Union.
12. In mid-June, Larsen indicated a predisposition to
remain nonunion by referring to the possibility of open-
ing a coin room in Flint.
13. On June 20, Delpier told Bradley the coin room
was closing because of the Union.
14. On July 13, Vacca told Elias the closing was due
to the Union and "right now 'you' [referring to Elias or
other employees] are too much trouble." 37
In assessing the Employer's motive for closing and
layoffs, I have also considered the following factors (not
alleged as unfair labor practices) which, I find, support
the General Counsel's prima facie case:
1. Dyer's suggestion on May 28 that those who would
vote for the Union could stay home and those who
would vote against the Union could come to work on
election day.
2. On June 20, when Donovan was receiving her final
paycheck, Larsen told her there would be no negotia-
tions for a closed room.3 s I conclude this comment com-
prises some probative evidence of union hostility. No
logical reason existed for Larsen to have said such a
thing. Such a comment is viewed as an indicator of the
depth of the Employer's union antipathy.
3. Dyer implied the Employer would grant benefits to
the coin room employees in order to dissuade them from
voting for the Union. Thus, during the May 28 meeting,
Dyer told the employees that retirement and dental plans
were under consideration. In the total context of Dyer's
comments during that meeting, it is reasonable that
Dyer's reference to these fringe benefits readily could be
interpreted by the employees as dependent upon how
they would vote. Arguably, Dyer's statement is protect-
" Evidence of animus toward unions made after the alleged discrimi-
nation occurred appropriately may be considered as bearing on the moti-
vational issue. Jenks Cartage Co., 219 NLRB 368, 369 (1975).
as This evidence was not heretofore described. It is based on Dono-
van's uncontradicted testimony.
ed under the Act's free speech provision (Sec. 8(c)).
Nonetheless, I conclude the generally coercive atmos-
phere created by Dyer at the May 28 meeting vitiates
such a contention.
The timing of the announcement of the closure is sig-
nificant. Le Roy Fantasies, 256 NLRB 211, 219 (1981).
The General Counsel contends the Employer's action
was precipitous. The Employer asserts it was the natural
consequence of the results of the cost-benefit study or-
dered on May 27. I1 agree with the General Counsel.
Initially, it is noted that the cost-benefit study is undat-
ed. There is no positive evidence to show the date on
which the decision to close was made. The May 27
memorandum ordering the cost-benefit study contains no
direct reference to the possibility the coin room would
have to be closed. This omission suggests, in the context
which follows, that the closing was considered only after
the election outcome became known and it was certain
the Union had been elected.
Although the cost-benefit study was ordered by Tulko
before the election, this fact is not significant. More per-
suasive are the extensive 8(al1) violations which began
in early May. I conclude those 8(a)(l) violations show
the Employer's concern that the election might be unfa-
vorable to the Employer. Thus, it is plausible that the
Employer, already faced with a dire economic situation
in the coin room, would have been concerned that
unionization would only serve to increase those already
excessive costs. Cichalski's report simply provided the
impetus for ordering the study.
In effect the study was a subterfuge. The Employer
was aware of the financial losses as early as June 1979,
when Terminal Manager Young, in illuminating terms,
expressed the notion that the coin room had not been de-
signed to make money. His statement reveals the Em-
ployer's intention that the coin room operation had been
conceived as a service organization. Indeed, Vacca con-
firmed this concept to the employees almost a year later
during the May 28 meeting.
All later reports depicted the abysmal nature of the
coin room's financial status. Despite this, it is significant
that there is no suggestion to consider closing contained
in Vacca's early 1980 report. He apparently only recom-
mended certain improvements in coin room service. Thus,
the certainty of the vote in favor of union representation
looms as the solitary intervening factor causing alteration
of the Employer's concept of the coin room operation.
Dyer's reference to the union vote in his "Dear Custom-
er" letter confirms this observation.
Further evidence relates to timing. Thus, as has been
reported, supra, some employees attempted to suggest al-
ternatives to closing. Those efforts were not considered.
Also, Dyer admitted the decision to close was made
without first consulting customers regarding their possi-
ble absorption of costs by a rate increase. I consider this
omission some, but not conclusive, evidence that the real
reason for the decision to close was to eliminate the
Union as a factor in the coin room operation. It is not
for me to transgress upon managerial judgment. None-
theless, the manner in which the Employer acted appar-
ently conflicts with sound business practices. As such,
1281
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those actions may be considered in an evaluation of the
issue of motivation.
I conclude the record as a whole, which includes the
various elements above, overwhelmingly demonstrates
the General Counsel sustained the burden of proving the
requisite prima facie case.
(b) The Employer's economic defense
As indicated, the Employer's claim the evidence
shows the coin room was financially distressed is virtual-
ly uncontradicted. Thus, I credit the combination of oral
testimony concerning financial matters and the corre-
sponding documentary evidence. Together, they show
that, since its inception, the coin room was losing money.
By April 1980, the average monthly revenue in the
coin room was $2,114 and average monthly expenses
were $21,114. The monthly net loss based on these fig-
ures, if extended on an annual basis, would result in a
loss of $231,432. Additionally, it was estimated the Em-
ployer lost approximately $100,000 from its inability to
invest the coin room's standing capital of $500,000.
In addition to the evidence showing the coin room's
financial status, the Employer adduced considerable evi-
dence, likewise uncontradicted and which I credit, as to
its history of closing unprofitable operations. Thus:
1. Its coin room in Baltimore, Maryland, was closed in
July 1978 because it was experiencing a monthly loss of
$500.
2. Its Knoxville, Tennessee terminal was closed in the
latter part of 1970 for financial reasons.
3. Its Dallas, Texas consolidated room was shut down
in June 1980 because it was losing $500 a month.
4. The coin room in New Orleans, Louisiana was
closed in April 1979 because it became unprofitable.
5. Its terminal at Lake Charles, Louisiana was closed
in April 1979 for financial reasons. 39
I find the evidence of past practice of little probative
value. The record shows that there are important distin-
guishing characteristics between some of the closed ter-
minals and Detroit. Thus, the evidence reveals that clos-
ing of the Baltimore, New Orleans, and Lake Charles
terminals were attended by some factor such as loss of
major customer or a need to consolidate the closed oper-
ation with similar operations at another of the Employ-
er's facilities. There is no evidence that such a justifica-
tion was present in the case at bar.
Upon the foregoing,40 I find the proffered defense to
the closing and layoffs unpersuasive and the Employer
has not sustained its burden of overcoming the General
Counsel's prima facie case.
Accordingly, I find that the June 20 closing of the De-
troit coin room and layoff of the employees working
there was discriminatory and in violation of Section
8(a)(3) and (1) of the Act, as alleged.
s9 I have discounted the fact that the Tulsa, Oklahoma Ground Ar-
mored Car Service was ended in late 1980 because this date is subsequent
to the alleged closing under consideration.
40 In evaluation of the economic defense, I have also considered the
clement of how long the coin room's losses had been tolerated before the
Employer acted upon them. This discussion is contained, supra, within
the motivation discussion.
3. Refusal to bargain
The Union was not invited to participate in the deci-
sion to close the coin room and lay off the employees.
The Employer contends it had no obligation to bargain
with the Union over those matters because (1) the unit is
inappropriate and (2) the Act bars the Union from certi-
fication because the Union admits, or is affiliated with an
organization which admits, to membership employees
other than guards.
Further, if an obligation to bargain exists herein, the
Employer contends it has been fulfilled by having pro-
vided the Union with Dyer's June 5 letter advising of the
decision to curtail the coin room operations and to lay
off the employees. As further evidence of compliance
with its duty to bargain, the Employer points to the fact
it acceded to the Union's request to offer the part-time
work first to the laid-off employees.
The General Counsel contends all the elements impos-
ing a duty to bargain exist herein and that the record sus-
tains the contention the Employer breached that duty.
I turn now to the elements of prima facie case refusal
to bargain.
A. The Unit-Appropriateness
The unit description, claimed appropriate by the Gen-
eral Counsel, appears, supra, in section IIA. There is no
disparity between the Stipulation for Election and the
Certification of Election Results.
At the hearing, the Employer sought to adduce evi-
dence, in the midst of The General Counsel's case-in-
chief, in support of the Employer's claim the unit is inap-
propriate. The General Counsel objected.
During discussion of the objection, the Employer's
counsel conceded the evidence he was attempting to
offer was neither newly discovered nor unavailable to
the Employer during the pendency of the representation
case proceedings. Thus, I sustained the General Coun-
sel's objection. The General Counsel then continued the
case-in-chief, and rested.
At the April 22 session of the hearing, the General
Counsel announced no objection would be interposed to
such evidence if adduced as part of the Employer's de-
fense. I invited the Employer to offer such evidence.
I stated I was concerned that the record then con-
tained minimal evidence relative to the guard issue.4t In
doing so, I announced my conclusion the record already
established a prima facie showing that the unit, on its
face, is appropriate.
I did not explicate my reasons for this conclusion. No
party requested such explanation. My determination was,
in fact, based on the record evidence developed during
presentation of the General Counsel's case, which shows
the coin room employees work in quarters separate from
other employees at the Detroit facility, under apparently
different supervision, and perform work different from
the other employees. Moreover, no evidence there was
employee interchange had been adduced. Accordingly, I
concluded there existed sufficient record evidence of ho-
41 The Employer predicated its claim of inappropriateness upon its
contention guards and nonguards are comingled in the coin room.
1282
PUROLATOR ARMORED, INC.
mogeneity among the coin room employees to establish
at least presumptive appropriateness.
Additionally, I had concluded the unit, as articulated
in the election stipulation, was appropriate inasmuch as
that description contains all applicable statutory exclu-
sions, including guards. Thus, by announcing my tenta-
tive conclusion, the Employer was afforded an opportu-
nity to present contravening evidence.
The Employer requested a recess to consider my invi-
tation and its tactics regarding this matter. Thereafter,
the Employer offered considerable defense evidence,
comparatively little of which was addressed to this par-
ticular issue. That evidence consists of Vacca's testimony
that he carried no weapon but that Elias always carried a
firearm. Elias confirmed he bore a weapon. Larsen car-
ried a firearm at the time when he earlier had served as
immediate supervisor of the coin room.
Based on this evidence adduced by the Employer, I
find the record contains direct evidence of only one non-
supervisory employee having been armed. On the other
hand, there is an abundance of credible and uncontradict-
ed testimony of witnesses who testified their duties in the
coin room consisted principally of counting money, fill-
ing customer orders for change, and reconciling ac-
counts. Also, Elias and Bradley credibly testified they
were told by management officials they were tellers.
To be a "guard" within the meaning of the Act, an
employee must enforce against employees and other per-
sons rules to protect the property of his employer's
premises (Petroleum Chemicals, 121 NLRB 630) or the
property of others (American District Telegraph Co., 160
NLRB 1130 (1966)).
I conclude that Elias' possession of a firearm is insuffi-
cient to conclude the entire coin room unit consists of
guards.42 This fact would merely require Elias' exclusion
from an otherwise appropriate unit. Capital Transit Co.,
105 NLRB 582, 587 (1953).
Section 9(b)(3) precludes the Board from certifying a
labor organization "as the representative of the employ-
ees in a bargaining unit of guards if such organization
admits to membership, or is affiliated directly or indirect-
ly with an organization which admits to membership,
employees other than guards."
The General Counsel conceded the Board cannot cer-
tify the Teamsters as the representative of the employees
in the coin room if they are guards or if the coin room
employees are not guards, and the driver unit is a guard
unit. Certification as to the first postulation is improper
because the Teamsters is a union which admits non-
guards to membership; and equally inappropriate in the
second postulation because the combination of guards
and nonguards into a single bargaining unit is proscribed.
Amoco Oil Co., 221 NLRB 1104 (1975); A. D. T. Co., 112
NLRB 80 (1955).43
" The reason Elias carried a firearm was not developed.
's In view of my conclusion, infra, that the Employer is estopped from
challenging the appropriateness of the unit, I find it unnecessary to re-
solve the issue whether inclusion of the coin room employees (whom I
deem nonguards) with the existing drivers, messengers, and mechanics
unit (claimed by the Employer to be guards) is appropriate.
Despite the foregoing, it is well established that the
Board may certify the arithmetical results of a represen-
tation election involving a union which admits non-
guards to membership. William J. Burns International De-
tective Agency, 138 NLRB 449, 452 (1962). Precisely that
is what was done herein. No certification of representa-
tive was issued. Instead, the Regional Director merely
certified the results of the election.
Thereafter, the Employer engaged in conduct which I
find is tantamount to an acknowledgement of the Union's
majority status. Thus, the evidence shows:
(1) Dyer acknowledged the Union's representational
interests and status when he sent his June 5 letter advis-
ing of the decision to close; (2) oral invitations were
issued to Langkil and union steward Smith to attend the
June 6 employee meeting; (3) the laid-off employees
were offered part-time work after the coin room closed
pursuant to the Union's request; (4) the Employer actually
engaged in collective bargaining with the Union and
consummated the 1980-83 contract on behalf of the coin
room employees.
I conclude the factors enumerated above are inconsist-
ent with the Employer's present claim no duty to bargain
exists.
There are other factors which militate in favor of ap-
plication of estoppel principles against the Employer.
Thus, the Employer signed the Stipulation for Election.
Such a stipulation has been held to bind the parties.
Bogner of America, Inc., 236 NLRB 822, 823 fn. 9 (1978).
By that act, the Employer agreed to the unit description.
Furthermore, the addendum to the stipulation provides
an affirmative employee vote will result in joinder of the
coin room employees with the then existing unit. Thus, I
conclude the Employer also signified agreement to the
propriety and breadth of the unit. Thereby, I conclude,
the Employer also acknowledged the Union's majority
status. The Employer's manner of participation in the
stipulation, I conclude, effectively indicated its agree-
ment that the coin room employees are not guards, espe-
cially because the unit description in the stipulation itself
expressly excluded guards.
Next, the voting list furnished by the Employer con-
tains the names of all 14 coin room employees including
Elias'. Each voted without challenge.
Finally, in the absence of newly discovered or previ-
ously unavailable evidence or special circumstances a re-
spondent in a proceeding alleging a violation of Section
8(a)(5) is not entitled to relitigate issues which were or
could have been litigated in a prior representation pro-
ceeding. Pittsburgh Glass Co. v. NLRB, 313 U.S. 146, 162
(1941). Board's Rules and Regulations Sections 102.67(f)
and 102.69(c).
During the aforementioned argument on the General
Counsel's objection to the introduction of evidence re-
garding the unit, the Employer's counsel cited Burns
Electronic Security Services v. NLRB, 624 F.2d 403 (2d
Cir. 1980) as authority for litigating this issue before me.
I stated, at the hearing, my analysis of that decision did
not comport with the Employer's conclusions. That
opinion is now reaffirmed.
1283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burns contains material distinctions from the case at
bar. A hearing had been conducted on the representation
petition. The parties litigated that issue. Based on the
representation case record, the regional director issued a
decision and direction of election. The disputed employ-
ees were included in the unit in which an election was
directed. The Board denied Burns' request for review.
An election was conducted. A certification of the peti-
tioner issued.
Burns refused to bargain, claiming the unit was inap-
propriate, as it contained guards. At a hearing before an
administrative law judge, Burns attempted to litigate the
guard issue. The judge ruled only evidence previously
unavailable on that issue at the representation hearing
could be presented. Nonetheless, the functions of the dis-
puted employees were, in fact, litigated before the ad-
ministrative law judge because he had before him an alle-
gation that Burns unilaterally altered their working con-
ditions.
In his decision, the administrative law judge expressly
refused to consider the validity of the unit determination.
On exceptions, the Board adopted the relevant rulings of
the administrative law judge.
On the Board's petition for enforcement, the circuit
court found that there existed unusual circumstances
which warranted remand. Thus, the court concluded the
representation record was incomplete-that the record
before the administrative law judge contained consider-
ably more evidence regarding the disputed employees
than was present in the representation case record. Ac-
cordingly, the court remanded the unfair labor practice
case stating the Board's reliance upon the rule against re-
litigation of representation case issues in an unfair labor
practice proceeding, 44 where the functions of those em-
ployees actually were relitigated in the unfair labor prac-
tice upon the subject matter of the refusal to bargain, re-
quired a less mechanical application of the Board's reliti-
gation proscription.
The instant refusal-to-bargain issue emanates from a
certification of results of election conducted by agree-
ment. No hearing on the underlying petition was held.
Thus, it cannot be claimed the unusual circumstances,
present in Burns, exist herein.
Most important, the Employer herein was provided
the opportunity to litigate the guard issue before me. As
noted, only sparse evidence was adduced. Thus, it
cannot be said that unusual circumstances similar to
Burns (e.g., the deficient representation case record in
Burns) exist herein.
Finally, in Burns, the employer's actions reflect it had
a doubt of the appropriateness of the unit which it pur-
sued at all stages of the representation and unfair labor
practice cases. Herein, Purolator's challenge to the ap-
propriateness of the unit was initiated after it had agreed
to its appropriateness, participated in an election pursu-
ant to that agreement, and took action consistent with
the Union's majority status. It was not until the Employ-
er had to defend the instant case that it first interjected
its attack upon the unit.
44 See, e.g., S Prawer d Co., 232 NLRB 495 (1977).
The foregoing are, in my opinion, relevant and critical
distinctions from Burns.
I perceive nothing within the court's opinion in Burns
which negates or criticizes the Board's rule against reliti-
gation. Indeed, the court expressly observed that the rule
is designed to protect the integrity of the administrative
process.
Upon all the foregoing, I conclude the result in Burns
must be confined to the peculiar facts of that case and
are inapplicable herein. Thus, the record as a whole per-
suades me the Employer should be estopped from chal-
lenging the appropriateness of the unit in the instant pro-
ceedings. Accordingly, I find the General Counsel's
burden of establishing this element of a refusal to bargain
violation has been sustained.
B. Request to Bargain
A request to bargain is prerequisite to establishing a
violation of Section 8(a)(5). An employer should not be
placed under a duty to bargain until put on notice that a
labor organization seeks to do so.
Certain circumstances, however, render a bargaining
demand a futile gesture. National Car Rental System, 252
NLRB 159 (1980) Marysville Travelodge, 233 NLRB 527,
532, 533 (1977).
It is true herein the Union did not literally request bar-
gaining over the decision to close. However, I conclude
circumstances exist herein which excuse that act. Those
circumstances are derived from the considerable Em-
ployer conduct which I have found violative of Section
8(a)(1), combined with the preemptive conduct of June 5
and 6.
I perceive Dyer's June 5 letter as having advised
Langkil of a fait accompli. Dyer, on June 5, unequivocal-
ly advised the Union that the Employer "must discontin-
ue providing change service" and that the employees
would be laid off on June 20. The next day, the Employ-
er continued this unrelenting position. Young announced
the same thing to the employees.
I consider these actions preemptive because the speed
by which the oral announcement to employees followed
the written notice to the Union reflects the Employer's
disregard for the Union's representational rights. Had the
Employer sincerely intended to provide the Union with
a chance to request bargaining, it is reasonable to pre-
sume more time should have elapsed between dispatch of
Dyer's June 5 letter and the announcement made at the
June 6 meeting.
Upon the foregoing, I find the evidence excuses this
requirement of an 8(a)(5) violation.
C. The Majority
The Union's majority is clear. Indeed, the Employer
does not seriously contest its existence. The tally of bal-
lots and certification of election results supports this
prima facie element.
Moreover, the Employer, at all times, acted pursuant
to such majority status. Those actions also support this
proposition. MRA Associates, 245 NLRB 676 (1979).
1284
PUROLATOR ARMORED, INC.
D. The Refusal to Bargain
As noted, the Employer claims if it had been obliged
to bargain with the Union, that duty was satisfied.
The Employer asserts it provided the Union with
"ample opportunity" to bargain. In this connection, the
Employer relies on the 2-week period between its an-
nouncement and actual closing. The Employer contends
it complied with the Union's June 6 request to offer the
expected part-time jobs to the laid-off coin room employ-
ees before hiring new employees. In effect, the Employer
claims the Union waived the right to bargain over any
other matter related to the closing because, as the evi-
dence shows, the Union "did not ask . . . (the Employ-
er) . . . to reconsider" its decision to close.
I reject the Employer's arguments for two reasons.
First, as found, the Employer virtually preempted the
Union from effective bargaining or even requesting it.
Second, the record contains evidence of the Employer's
bad faith in dealing with the Union regarding the closure
and layoff. Thus, the Board has held there exists an obli-
gation to apprise the employees' bargaining representa-
tive of its intentions to take action affecting the unit em-
ployees. In Walter Pape, Inc., 205 NLRB 719, 720 (1973),
the Board observed:
At the very least, Respondent should have advised
the Union that the termination of the routes was
under active consideration and was imminent. Re-
spondent's failure to do so demonstrates that Re-
spondent . . . [had . . . an intention of keeping the
Union] "on a string"....
I conclude the cost-benefit survey ordered on May 27
some evidence that the Employer was considering a
major alteration in the unit employees' employment
status. There is no evidence that the Union was provided
any information whatever regarding the institution of the
cost-benefit study. Also, there is no evidence to show the
Union had been advised the survey had been completed
or that the Employer was using its results to deliberate
the closing of the coin room. Instead, the first knowl-
edge of these events was presented to the Union by the
announcement the decision to close had been made.
In the above context, I cannot subscribe to the Em-
ployer's protestations that the record reflects it bargained
in good faith. All the Employer's evidence and argu-
ments in that connection are illusory.4 5 Thus, I conclude
the evidence sustains the General Counsel's claim that
the Employer refused to bargain.
The Employer argues, also, no obligation to bargain
existed because its curtailment of coin room operations
involved such a substantial withdrawal of capital as satis-
fies the Board's criteria in General Motors Corp., 191
NLRB 951 (1971), review denied sub nom. 470 F.2d 422
(D.C. Cir. 1972).
I conclude the evidence does not support the Employ-
er's reliance on General Motors. First, I perceive no with-
45 I find the evidence of the bargaining activity after the closing (in-
cluding the negotiations which resulted in the 1980-83 contract) of little
probative value on the good-faith issue. Those activities postdate the time
I deem critical to a fair evaluation of the material issue.
drawal of capital, herein, as contemplated by General
Motors. Instead, what the employer did in the instant
case was to "shift" its capital to take advantage of invest-
ment possibilities. Second, the extent the scope of enter-
prise was changed in General Motors is far different from
that herein. Thus, in General Motors, the employer re-
moved itself from the particular business in question.
Herein, the coin room activity continued, albeit on a
considerably reduced basis using the part-time employ-
ees. Moreover, I consider the inclusion of coin room em-
ployees in the 1980-83 agreement suggests the possibility
a coin room could sometime once again become an oper-
ational entity of the instant Employer. Third, the finan-
cial and operational mystique present in General Motors,
which made it difficult for the union there to provide
meaningful bargaining input, has not been shown to exist
herein. Indeed, the record reflects the contrary. Some
employees tried to suggest alternatives to closing but
were rebuked. Accordingly, I conclude the instant evi-
dence does not sufficiently support a contention that
nothing could have been achieved through collective
bargaining.
Even if incorrect in my analysis of General Motors, I
have found the closing and layoffs herein to have
evolved from the Employer's antiunion motivation.
Thus, I reject the concept, promoted by the Employer,
that its actions were motivated by labor cost problems.
In this context, I find General Motors inapposite.
On all the foregoing discussion concerning the 8(a)(5)
allegations, I find the General Counsel has proved the
Employer has refused to bargain, as alleged.
On the basis of the above findings of fact and on the
entire record in the case, I make the following
CONCLUSIONS OF LAW
i. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Employer unlawfully interfered with, re-
strained, and coerced its employees as alleged in com-
plaint paragraphs 10(a) through (d) and 10(f) through (o),
all in violation of Section 8(a)(1) of the Act.
4. The Employer discriminated against its employees
by closing its Detroit, Michigan coin room on June 20,
1980, and by laying off its coin room employees.
5. The Employer is estopped from challenging the ap-
propriateness of the bargaining unit alleged in paragraph
8 of the complaint.
6. All full-time and part-time coin room personnel of
the Employer's Detroit, Michigan coin room, but exclud-
ing office personnel, clerical employees, guards and su-
pervisors as defined in the act, and all other employees
constitute a unit appropriate for purposes of collective-
bargaining within the meaning of Section 9(b) of the
Act.
7. The Employer refused to bargain with the Union
concerning the decision to close the Detroit, Michigan
coin room operation on June 20, 1980, as alleged in com-
1285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint paragraphs 13 and 16, in violation of Section
8(aX5) and (1) of the Act.
8. The Employer did not unlawfully threaten employ-
ees with loss of employment as alleged in complaint
paragraph 10(e).
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.4 6
THE REMEDY
Having found the Employer violated Section 8(aXI),
(3), and (5) of the Act, I shall recommend it cease and
desist from engaging in such conduct in the future and
affirmatively take such action as will dissipate the effects
of its unfair labor practices.
I have found each of the coin room employees had
been discriminatorily laid off. To remedy that discrimina-
tion, the Order shall require the Employer to offer full
and immediate reinstatement to each of the 14 employees
to his or her former or substantially equivalent position
of employment, without prejudice to his or her seniority
or other rights, benefits, and privileges; and to make
each of them whole for any loss of earnings each may
have suffered as a result of his or her discriminatory
layoff by payment of a sum equal to that which each
would have earned, absent the discrimination, to the date
of the Employer's offer of reinstatement made to each.
Loss of earnings shall be computed as prescribed in F.
W. Woolworth Co., 90 NLRB 289 (1950), plus interest as
set forth in Isis Plumbing Co., 138 NLRB 716 (1962), and
Florida Steel Corp., 231 NLRB 651 (1977).
The General Counsel has requested the Order contain
a provision for restoration of the status quo ante. Specifi-
cally, the General Counsel contends the evidence war-
rants a requirement that the Employer be ordered to re-
instate its Detroit coin room operation. The Employer
opposes, contending implementation of such an order
would be unduly burdensome, unreasonable, and is puni-
tive.
In R & H Masonry Supply, 238 NLRB 1044 fn. 3
(1978), the Board stated:
We continue to adhere to the well-established
principles that, in cases involving discriminatory
conduct, the restoration of the status quo ante is the
proper remedy unless the wrongdoer can demon-
strate that the normal remedy would endanger its
continued viability. See N.C. Coastal Motor Lines;
Inc., 219 NLRB 1009 (1975), enfd. 542 F.2d 637
(C.A. 4, 1976); Townhouse T. V. & Appliance, 231
NLRB 716 (1974), enforcement denied 531 F.2d 826
(C.A. 7 1976).47
The Board entered a status quo ante remedy where an
employer discriminatorily shut down a department and
the record showed that employer began evaluating the
4" At hearing, I reserved ruling on the Employer's motion to dismiss
all complaint allegations. In view of the foregoing conclusions of law, the
motions to dismiss are hereby denied as to all allegations found meritori-
ous. The motion is granted, however, only to the extent I have found no
violation pertaining to allegations of complaint par. 10(e).
4 The Third Circuit, in Townhouse, found this remedy so financially
burdensome as to be punitive.
department's operation by an economic standard for the
first time after the advent of the union. Frito-Lay, 232
NLRB 753, 754 (1977), revd. 585 F.2d 62 (3d Cir. 1978).
As the Employer argues, such a remedy is not always
appropriate. Thus, in Production Molded Plastics, 227
NLRB 776 (1977), no such remedy was ordered. Howev-
er, I find the Production Molded case materially distin-
guishable from the instant matter. In Production Molded,
the Board explicitly found the General Counsel failed to
establish an 8(aX3) violation. 227 NLRB at 777. Accord-
ingly, the Board commented: "The Board . . . is reluc-
tant to order the resumption of operations, especially
where, as here, the closing is for nondiscriminatory rea-
sons." Though the Board considered that to require Pro-
duction Molded to reopen its closed operations would be
"unduly burdensome," it did so because the decision to
close was economically motivated.
The Employer has cited National Family Opinion, 246
NLRB 521 (1979).
There, the Board found a department closing discri-
minatorily motivated. Nonetheless, the status quo ante
remedy was not awarded because to do so would have
imposed an undue burden on the employer. The employ-
er would have been required to transfer another depart-
ment and/or construct or lease additional space to ac-
commodate the reopened operation and to purchase new
operating equipment.
Similarly, a restoration order was denied in Great Chi-
nese American Sewing Co., 227 NLRB 1670 (1977), be-
cause an order would have been unduly burdensome be-
cause of the necessity to purchase new equipment.
I find the National Family and Great Chinese cases in-
applicable. I have found that the instant Employer,
indeed, sustained the financial losses it claimed. Howev-
er, that is all that is shown herein. No evidence was ad-
duced to show that reopening the coin room would re-
quire acquisition of new space and/or equipment. In
view of the fact the Employer long endured the financial
losses from the Detroit coin room operations, I find no
basis for applying the principles of National Family,
Great Chinese, or Production Molded.
Additionally, there is no claim, nor evidence to sug-
gest, that reopening the coin room would imperil the
Employer's corporate existence or endanger any part of
the existing operations at the Detroit facility. Indeed, the
fact that the Chicago coin room is also losing money re-
flects no such claim is tenable.
Herein, as in Frito-Lay, supra, there is impressive evi-
dence that the Employer shifted its analysis of the De-
troit coin room operations from one of service orienta-
tion to financial only after it became aware of the em-
ployees' union activity. All studies and reports before the
advent of the Union were conducted with an eye to
service improvement. Although references to the Detroit
coin room's poor financial operations are contained in
those reports, there is no evidence to show the Employer
became concerned with those losses to consider closing
the operation until notified the Union's representation pe-
tition had been filed. Moreover, the Employer counte-
nanced the coin room financial losses for over a year
before attempting to do anything about them.
1286
PUROLATOR ARMORED, INC.
Upon the foregoing, I conclude the record as a whole
does not demonstrate the existence of such mitigating
circumstances to warrant denial of the traditional Board
remedy applied to discriminatory closings. Accordingly,
the Order shall require the Employer to resume its coin
room operations.
In order to remedy the Employer's refusal to bargain,
the Order shall require the Employer to bargain, upon
request, with the Union concerning the decision to close
its Detroit coin room operation.
Finally, I conclude the Employer's unfair labor prac-
tices reflect a total disregard for the employee's Section
7 rights. The Employer's entire course of conduct result-
ed in loss of employment for all 14 employees in the coin
room, have the tendency to create a lingering effect of
interference, restraint, and coercion upon them, and de-
stroyed the results of their free selection of a collective-
bargaining representative. I conclude this scenario dem-
onstrates the Employer's conduct was so egregious as to
warrant a broad proscriptive order. Le Roy Fantasies,
256 NLRB 211 fn. 3 (1981). Accordingly, the Order shall
require the Employer to refrain from, in any other
manner, interfering with, restraining, and coercing its
employees in the exercise of their Section 7 rights.
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION ON REMAND
STATEMENT OF THE CASE
I. INTRODUCTION
NORMAN ZANKEL, Administrative Law Judge: By
Order dated February 4, 1982 (not published in Board
volumes), the matter herein was remanded to me by the
Board to prepare and issue a decision supplementing an
original decision issued by me on June 24, 1981 (herein-
after referred to as JD). Specifically, the Board directed
me to make further findings "with respect to the credi-
bility of witnesses and the weight of the evidence as a
whole with regard to a consideration of the applicability
of" Textile Workers v. Darlington Mfg. Co., 380 U.S. 263
(1965), to the issues in the present proceeding.
I have considered the entire record herein, including
the official transcript, the exhibits, the parties' briefs to
me, the contents of my original decision (JD), together
with the Employer's exceptions to my decision, its brief
in support of the exceptions, and the General Counsel's
answering brief to the exceptions.
The remand order did not direct the taking of further
evidence. No party has requested the record to be re-
opened or that further briefs be filed. I have concluded
that the Employer's brief on exceptions and the General
Counsel's reply to it adequately present the parties' re-
spective positions and arguments pertinent to the Dar-
lington issue.
Accordingly, upon the entire record as described
above, I make the following supplemental findings and
conclusions.
II. CREDIBILITY
The factual findings relative to the background and se-
quence of events of the instant case are based on a com-
bination of factors. As recited in section IIA (JD) those
factors include oral testimony not rebutted, and support-
ing documents.
Also, in resolving the various allegations of alleged
8(a)(l) conduct in JD section IIB-I (a)-(d), I noted that
resolution of witness credibility was essential to my ulti-
mate findings on the merits.
Wherever material conflicts existed relative both to
the factual scenario and the independent 8(a)(1) allega-
tions, those conflicts explicitly were resolved in my
original decision. Moreover, the JD contains the basis for
each such resolution.
For example, I found as a fact that "Vacca asked
Donovan to talk to the other employees regarding the
union activity." (JD at 1273). In footnote 4, JD, I ex-
plained I credited Donovan based on the forthright char-
acter of her narration, the fact Vacca had not been asked
to refute Donovan's account and Vacca did not reflect
the precision of Donovan's account.
For brevity's sake, the remainder of my numerous ear-
lier credibility resolutions appear in my original decision,
as follows [omitted from publication].
I hereby reaffirm each and every credibility resolution
presented by the above citations to my original decision
and incorporate each by reference as though reiterated in
this supplemental decision.
Similarly, I adopt and reaffirm each earlier factual
finding which had been based on such credibility resolu-
tions.
I find no need to make new or further credibility reso-
lutions herein in order to consider the Darlington issue.
III. FURTHER FINDINGS OF FACT
In my original decision, I concluded that the credited
evidence shows the Detroit coin room closing was moti-
vated by discriminatory considerations. Certain specific
findings and conclusions are especially germane to con-
sideration of Darlington's applicability to the case at bar.
I consider the following earlier findings are among the
operative elements in evaluating whether or not to apply
Darlington principles:
A. The substantial 8(a)(1) conduct. In JD, B, 2, (a), 14
separate examples of unlawful conduct are enumerated.
Additionally, ibid., three other items appear as further
basis of my finding that the closing was motivated by
union hostility.
Each of those conclusions and elements has been re-
viewed. I perceive no reason to alter any of those con-
clusions, or the factual findings which comprise their
basis.
B. The coin room operations. Notwithstanding the fore-
going reaffirmation of my earlier factual findings, I con-
clude there is another fact, not heretofore found, which
bears upon the applicability of Darlington. Specifically, I
now find that the operations conducted in the Detroit
coin room consisted of two principal functions. One such
function was the so-called change service. The other
function was check cashing.
Further, I now find, as a matter of fact, that what has
been called a closing of the coin room actually involved
1287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only the elimination of the change service. In fact, the
check-cashing work continued to exist beyond June 20.
Inasmuch as the Darlington principles apply to partial
closings, these differing coin room activities are signifi-
cant. Based on the undisputed evidence, I conclude that
the coin room "closing" was a partial closing within the
intendment of Darlington.
The elimination of the change service, while concur-
rently continuing check cashing is a patent partial clos-
ing.
If, however, it is concluded that those distinctions are
not as significant as I have concluded, then termination
of the change service operation may be, at least, viewed
as a departmental closing. Thus, the Employer conduct-
ed other operations at the Detroit terminal in furtherance
of its armored car services. The activities of the Employ-
er's messengers, drivers, vault personnel, check cashing,
and clerical employees remained unchanged after the
change service was eliminated. Indeed, numerically
speaking, the employees laid off in June were only a
small number of the total employee complement at the
Detroit facility. Clearly, then, elimination of only the
change service without altering the other work per-
formed at that facility readily can be seen as a partial
closing. I so find.
C. The decision to close. A final issue exists relative to
the remand directive to make factual findings. In its brief
on exceptions (Exceptions br., fn. 3) to my decision, the
Employer implies the existence of some sinister signifi-
cance to my failure to make a finding that Loyal, in
March, observed (regarding the coin room) that there
was a need for the Employer to "increase [its] rates to
the customers by astronomical sums or . . . close the op-
eration down."
Indeed, Loyal did present the above-quoted testimony
to me, Loyal used the quoted words in addition to, and
contemporaneous with, his testimony, which I quoted
among the factual findings in my original decision (JD,
sec. II, A), to the effect he believed the coin room to be
a "serious financial loser."
Upon review, I conclude it is appropriate to find, as I
now do, both quoted statements actually were made. I
credit Loyal's testimony in this connection. Nonetheless,
these findings do not alter the character or probative
value of either statement. Thus, I reaffirm my earlier
placed reliance only upon "the serious financial loser"
comment. That remark was included in my original deci-
sion to support my finding that the Employer had been
suffering economic losses, as it contended.
Loyal's allusion to closing the operation, however, re-
lates to a different part of the Employer's defense. Spe-
cifically, the Employer asserts Loyal's latter observation
shows the Employer's consideration of coin room closing
predated the Union's advent. I find Loyal's remarks of
little probative value upon such issue. Two reasons exist
for this conclusion. First, it is undisputed that Loyal's re-
marks were made after his personal study of the Detroit
coin room operation. That study was conducted by
Loyal in connection with the Employer's contemplated
opening of a coin room at its Washington, D.C. terminal.
Loyal had not been commissioned to make recommenda-
tions regarding the Detroit operation.
Second, the record reflects no action regarding the
Detroit coin room had been taken upon, or contemplat-
ed, due to either of Loyal's March statements. There is
nothing in the May 27 order to conduct a cost-benefit
study at the Detroit operations which reflects that study
was ordered because of any concern over Loyal's March
observations.
I have previously found, and now reaffirm, that it was
Cichalski's May 21 report upon which the cost-benefit
study was ordered. Moreover, I now find there is no evi-
dence which connects Loyal's investigation of the De-
troit coin room operations to Cichalski's activities.
Indeed, Cichalski's stated purpose, quoted in my original
decision (JD, sec. II, A) tends to negate the existence of
any such link. Thus, Cichalski reported his purpose was
"to study the operation and accounting for the several
bank accounts...." As found in the original decision,
Cichalski's "report does not directly allude to consider-
ation of terminating the coin room operation." (JD, sec.
II, A.)
In the above circumstances, I conclude (I) it was un-
necessary to describe Loyal's "close the operation" state-
ment in the original decision; and (2) the Employer's im-
plied assertion that Cichalski's study emanated from, was
connected to, or formed a pattern with, Loyal's observa-
tion is illusory. Accordingly, I reaffirm my earlier find-
ings ". . . that the closing was considered only after the
election outcome became known and it was certain the
Union had been elected" (JD, p. 29, 11. 35-36) and that
the fact the cost-benefit study had been ordered before
the election is not as persuasive as the presence of the
considerable 8(a)(l) activity which began in early May
(JD, sec. B, 2, (a)).
To summarize, I have herein made the following addi-
tional findings of fact and conclusions relevant to the
Darlington issue, not expressly contained in my original
decision:
(1) The earlier findings of the substantial 8(a)(1) con-
duct may be used to assess the employer's motivation
under Darlington;
(2) Functionally, the Employer terminated (or closed)
only its change service operation in the coin room. The
checkcashing operation continued.
(3) All other operations of the Employer's armored car
services provided by, and at, the Detroit terminal contin-
ued to exist after the cessation of the change service.
(4) The facts described immediately above in para-
graphs (2) and (3) reflect the "closing" was partial within
the meaning of Darlington.
(5) In March, Loyal opined the customer rates for coin
room services needed to be increased or the operation
closed down, but this comment does not appear to be
any part of the underlying cost-benefit analysis which
purportedly resulted in the alleged unlawful "coin room"
closing.
IV. ANALYSIS
Counsel for the General Counsel contend that "strictly
speaking" Darlington does not apply "because the coin
room layoff was not the sort of partial closing involving
multiple plants which the Darlington Court analyzed."
1288
PUROLATOR ARMORED, INC.
Also, the General Counsel claim Darlington does not
apply because not all the coin room employees were laid
off. Alternatively, the General Counsel argues that the
evidence herein supports a finding of an 8(a)3) violation,
even under Darlington, because the record demonstrates
the foreseeability of a chilling effect on the employees'
organizational rights.
The Employer contends my original finding of an
8(a)(3) violation "cannot withstand the Darlington test."
The Employer's position is predicated upon the belief no
probative evidence of an intent to chill unionism is
present in the instant case.
Under Darlington, a partial closing is discriminatory
when two elements are present. Those elements are: (1) a
purpose on the employer's part to chill unionism in any
of the remaining parts of his business; and (2) the em-
ployer must reasonably have foreseen that the closing
would have such a chilling effect. (380 U.S. at 275)
Direct evidence of a chilling effect required by Dar-
lington is rarely available. To ascertain whether such an
effect is present, the Board may rely on "fair inferences
arising from the totality of the evidence considered in
the light of then-existing circumstances." (See the
Board's decision on remand from the Supreme Court,
Darlington Mfg. Co., 165 NLRB 1074, 1083 (1967). See
also Milo Express, 212 NLRB 313, 314 (1974)).
I am mindful of the Supreme Court's caveat (380 U.S.
at 276) that it does not suffice to establish the unfair
labor practice charged here to argue that "the . . . clos-
ing necessarily had an adverse impact upon unionization
. ." (among other parts of the employer's business).
[Emphasis supplied.] However, as long as there are facts
present upon which to base a fair inference that a partial
closing was motivated by an intention to chill unionism,
no "affirmative evidence of an actual, 'chilling effect' on
remaining employees" is required. (George Lithograph
Co., 204 NLRB 431 (1973)).
I conclude the credited and probative evidence in this
case satisfies the Supreme Court's two requisite elements
of the Darlington-type violation.
A. The "chilling effect." As in Darlington (165 NLRB
1074), the preelection period of the instant case was
punctuated by numerous and substantial incidents of con-
duct found by me coercive in violation of Section 8(a)(l)
of the Act.
As in Darlington, it has been found that the alleged un-
lawful closing was not seriously contemplated until the
Union's election victory.
In the instant circumstances, I find these facts lead
logically to the presence of the unlawful chilling effect.
This is the teaching of the Darlington case.
The task of assessing the Employer's motivation is dif-
ficult and delicate. In making my conclusions, I have
considered the evidence and the fair inferences which
emanate from it which the Employer asserts negates the
existence of the proscribed chilling purpose. Specifically,
I have considered the following:
(I) The invitation to the union representatives to
attend the May 28 meeting with employees. The Em-
ployer urges that this election-eve invitation demon-
strates its cooperative spirit regarding the Union and its
affection for that labor organization. I have found, how-
ever, that the content and character of that meeting dis-
pels such conclusions. It was at that meeting that the em-
ployees were threatened with economic reprisal.
(2) The parties negotiated and signed a collective-bar-
gaining agreement after the June termination of the
change service. The Employer emphasizes this factor to
demonstrate its benign attitude toward unionization and
the Union. Although this is some evidence of the Em-
ployer's intent, I do not consider it persuasive.
I perceive the critical question to be whether the Em-
ployer's activities occurring herein make it realistically
predictable that the remaining employees would fear
closing or other cogent restraint upon the exercise of
their Section 7 rights.
In George Lithograph, supra, the closed operation was
located in the same building where other employees, rep-
resented by a union, also worked. In considering wheth-
er or not a chilling effect existed, the Board observed
(204 NLRB at 432) "the fact that Respondent's remain-
ing employees are currently represented by other labor
organizations does not negate a finding that the Re-
spondent's action in closing . . . was aimed at chilling
the exercise of Section 7 rights by the remaining employ-
ees...." The Board noted "it is clear ... that no em-
ployee would feel free to exercise the right to replace an
incumbent union where the employer has already closed
down part of its business operations because of well pub-
licized hostility to one Union and equally publicized
preference for another."
The situation in the case at bar is analogous to George
Lithograph. Indeed, the posture of the parties herein
gives rise to an even greater probability that the unlaw-
ful message conveyed by the various 8(a)(1) conduct
would impede the employees' allegiance to the Union.
As noted, the Board, in George Lithograph, observed that
the partial closure there created an effective deterrent to
the employees' right to replace their incumbent collec-
tive-bargaining representative. I find the instant Employ-
er's partial closing no less effective in the clearly predict-
able result; namely, impairment of freedom to continue
their representation by the Union herein.
(3) The argument that the Employer's consideration of
the subject partial closing predated the Union's advent. 1
have already rejected that argument as based on pure
speculation during the evaluation of the Employer's de-
fense to this litigation. (See Findings of Fact, sec. III, C,
supra.)
Upon the foregoing, I find the presence of a chilling
purpose in the Employer's termination of the change
service herein. Ending that operation, in the instant cir-
cumstances, comprised a highly sophisticated, but im-
pressive, signal that the Employer does not look favor-
ably upon current efforts to support the Union. I con-
clude it is entirely logical that the probable effect of the
change service termination, immediately after a union
victory and in the context of the substantial 8(a)(l) con-
duct, upon the employees remaining at the Detroit facili-
ty, would be to chill their exercise of union adherence
and activity.
B. Proscribed consequences were foreseeable. In Bruce
Duncan Co., 233 NLRB 1243 (1977), the Board set forth
1289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the factors used to determine the reasonably
foreseeable effect of partial closings. They were, inter
alia:
(1) Contemporaneous union activity at the em-
ployer's remaining facility.
(2) Geographic proximity of other facilities to the
closed operations.
(3) Likelihood that employees will learn of the
circumstances surrounding the Employer's unlawful
conduct.
The instant case contains elements which meet each
criterion above. First, contemporaneous union activity
existed at the Detroit facility among the employees who
remained at work after the termination of the change
service. Indeed, the Union and the Employer were on
the threshold of negotiating a new collective-bargaining
agreement. There is no evidence of organizational activi-
ty at the Employer's Detroit (or for that matter any
other) facility. Nonetheless, it is unrealistically restrictive
to conclude the "contemporaneous union activity" factor
excludes all activities except those within an organiza-
tional framework.
The second and third criteria are readily demonstrat-
ed. There can be no greater geographic proximity than
herein. The closed operation was located at the precise
Detroit facility where those employees who remained
continued to work.
Also, it is beyond cavil that the Employer's unlawful
messages would have reached the remaining employees.
It is true there is no evidence that any of the substantial
8(a)(1) conduct was directly made known to the noncoin
room employees. However, in this connection it is im-
portant that the union making efforts to represent the
coin room employees is the very same labor organization
already representing the employees who remained after
the change service terminated. This fact virtually assures
that the Employer's activity found unlawful herein
would not escape the attention of those remaining em-
ployees.
I generally conclude the Employer's 8(a)(l) conduct
effectively admonished the employees that unionization,
especially in the instant backdrop of severe economic
losses, would inevitably place unreasonable economic de-
mands upon the Employer, thereby leaving it no choice
but to close down other operations burdened with the
combination of union demands and existing financial
losses. The Employer's message was strong, unequivocal,
and clear. The probability of communication of this mes-
sage to the remaining employees is enhanced by the fact
the closed operation functioned under the same manage-
rial structure in Detroit as the operations which contin-
ued to function after the subject partial closure.
Upon the foregoing, I conclude the totality of evi-
dence supports the inference that the closing had the rea-
sonably foreseeable consequence of chilling unionism.
In sum, I conclude the Darlington principles are appli-
cable to the case at bar, and that the record as a whole,
viewed in that light, does not require alteration of my
earlier conclusion in this proceeding that the termination
of the coin change service was discriminatory in viola-
tion of Section 8(a)(3) and (1) of the Act.'
Upon the basis of the foregoing factual findings and
conclusions on remand, and upon the entire record in the
case I make the following:
AMENDED AND ADDITIONAL CONCLUSIONS OF
LAW
1. Amend original JD, section III, Conclusion of Law
4, so as to delete it and substitute the following new
Conclusion of Law 4 (a) and (b):
"4(a) The principles of Textile Workers v. Darlington
Manufacturing Company, supra, are applicable to the in-
stant proceeding.
"(b) The Employer discriminated against its employees
by terminating the coin change service of its coin room
at its Detroit, Michigan facility on June 20, 1980, and by
laying off the change service employees, all in violation
of Section 8(a)(3) and (1) of the Act."
2. In all other respects, each of the other Conclusions
of Law contained in my original decision are hereby
reaffirmed.
THE REMEDY
All discussion contained in section IV, entitled "The
Remedy" of my original decision is hereby incorporated
herein by reference.
With respect to my conclusion that the Employer
should be required to resume the terminated operations
(JD, sec. IV), I have considered the Employer's conten-
tions and supporting evidence that its cessation of change
service in Detroit was consistent with past practice at
other locations and some of such similar activity was
either a total closing or tantamount to a partial closing.
Also considered is the claim, and supporting evidence,
which shows the closed Detroit operations had logged
financial losses of great magnitude almost from their in-
ception.
The Employer's arguments opposing a resumption of
operations are only superficially appealing. If, as herein,
facts exist to show that the Employer was continuing op-
erations at the same location where the closure occurred,
and at other facilities, it is appropriate (and not inequita-
ble, burdensome or punitive) that the remedy require a
return to the status quo ante (George Lithograph, supra at
432; cf. Rio Piedras Mfg. Corp., 236 NLRB 1198, 1200 fn.
1 (1978)) to fully rectify the Employer's discriminatory
conduct.
In recommending the status quo ante portion of the
remedy I have been mindful of the credited evidence as
to the extreme financial losses. As indicated in my origi-
nal decision, I have weighed such evidence against the
surrounding circumstances which include, inter alia, the
potent and substantial 8(aXl) violations, the chilling
I The discriminatory findings herein, based on Darlington, are not in-
tended to supplant the discriminatory findings in my original decision
based on a Wright Line analysis. The rationale underlying each analysis, I
conclude, is valid and independent of the other. The Wright Line theory
is, in my view, an alternative theory of violation to Darlington. As will be
set forth, infra, I conclude that the remedy should remain the same under
either theory in the circumstances herein.
1290
PUROLATOR ARMORED, INC.
effect upon unionism of the Employer's conduct and the
evidence tending to show that the closing in question
was a direct response to the May 29 election results.
Moreover, a factor not previously mentioned in this
regard is relevant to this aspect of remedy. Paradoxical-
ly, the Employer has claimed it exhibited its good faith
and absence of unlawful motivation as shown by the fact
it agreed to collective-bargaining terms covering coin
room employees after the closing (R. Exh. 12, effective
10/2/80-10/1/83). This contention tends to belie the
Employer's protestations that it would suffer an undue
and unconscionable hardship to resume the terminated
operations. Implicitly, the Employer itself appears to
have left open the way toward resumption of the closed
functions by having negotiated for, and agreed to, terms
and conditions of employment for the future incumbents
of the terminated positions (R. Exh. 12, art. I. sec. 1; art.
II and art. 20). The collective-bargaining agreement
makes no distinction between the check cashing and coin
change services. Thus, I presume the contractual refer-
ences to coin room personnel are sufficiently broad to
support my conclusion.
Upon the contents of the remedy discussion in my
original decision, and the remedy discussion in the sup-
plemental decision, I reiterate my conclusion that, in all
the circumstances of the instant case, the Employer
should be required, pursuant to Darlington and its proge-
ny, to resume the operations found herein to have been
discontinued in violation of Section S(aX3) and (1) of the
Act.
[Recommended Order omitted from publication.]
1291