UNITED NATURAL FOODS, INC.

National Labor Relations Board - Board Decisions

Sep 3, 2014

361 N.L.R.B. 387 (N.L.R.B. 2014)

UNF WEST, INC. 387
UNF West, Inc. and Teamsters, Chauffeurs, Ware-
housemen, Industrial and Allied Workers of
America, Local 166, International Brotherhood
of Teamsters. Cases 21–CA–079406, 21–CA–
081350, and 21–CA–089959
September 3, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On April 24, 2014, Administrative Law Judge William
L. Schmidt issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.2
1 The Respondent has excepted only to the administrative law
judge’s credibility findings. The Board’s established policy is not to
overrule a judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d
Cir. 1951). We have carefully examined the record and find no basis for
reversing the judge’s findings. Further, we reject the Respondent’s
contention that the judge failed to assess the credibility of Supervisor
Jeff Popovich. By expressly crediting employee Edgar Acosta’s testi-
mony, which was contrary to Popovich’s, the judge discredited Popo-
vich and resolved the conflict in the testimony. See Electri-Flex Co. v.
NLRB, 570 F.2d 1327, 1331 (7th Cir. 1978) (enfg. 228 NLRB 847
(1977)); see also Amber Foods, Inc., 338 NLRB 712, 713 fn. 7 (2002).
Member Johnson finds the resolution of the Edgar Acosta-Jeff Po-
povich credibility dispute by the judge troubling, because the structure
of the judge’s opinion suggests that a dispositive adverse inference was
drawn against Popovich’s testimony simply because former manager
Mike Cusey did not testify (i.e., the judge seemed to reference Cusey’s
absence as an “obvious tie-breaker”). However, the judge’s independ-
ent, positive reflections upon Acosta’s demeanor at trial, and thus his
credibility, contrasts with his total lack of positive discussion concern-
ing Popovich, or any discussion of him at all, except in the context of
noting that the absence of former manager Cusey “seriously impaired”
the employer’s factual account. Member Johnson does not believe the
absence of Cusey should have had any effect on the case, as Popovich
was present for the salient verbal exchange as well. However, the judge
expressly credited Edgar over Popovich (ALJD at 3:33—35), and Re-
spondent has not shown under a “clear preponderance” standard that
that overall credibility determination was incorrect. Member Johnson
thus agrees to adopt the judge’s credibility findings insofar as Edgar
Acosta’s version of events was credited for specific demeanor-based
reasons in one-on-one comparison with Supervisor Popovich’s testimo-
ny. He would not rely on the judge’s findings to the extent they sug-
gest an adverse inference should have been drawn against Popovich
because former manager, Cusey, did not testify.
In addition, some of the Respondent’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, UNF West, Inc., Moreno
Valley, California, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
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 Federal labor law and has ordered us to post and
obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT coercively question you about your ac-
tivities on behalf of Teamsters, Chauffeurs, Warehouse-
men, Industrial and Allied Workers of America, Local
166, International Brotherhood of Teamsters (Teamsters
Local 166) or any other labor organization.
WE WILL NOT threaten you that it would be futile to se-
lect Teamsters Local 166 to represent you by stating that
we would not negotiate or sign any contract with that
union if you did.
WE WILL NOT threaten the loss of your 401(k) benefit
or any other benefits if you select Teamsters Local 166 to
represent you.
WE WILL NOT threaten you by telling you we are look-
ing for a way to fire you because you engage in activities
on behalf of Teamsters Local 166.
WE WILL NOT threaten you by suggesting that your
working conditions will not improve until you quit com-
plaining to Teamsters Local 166 and the National Labor
Relations Board.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you for exercising the rights
guaranteed by Section 7 of the Act.
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Respondent’s contentions are without
merit.
2 We shall substitute a new notice in accordance with our decision
in Durham School Services, 360 NLRB 6 (2014).
361 NLRB No. 42

388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
UNF WEST, INC.

The Board’s decision can be found at
www.nlrb.gov/case/21–CA–079406 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.

Jean C. Libby, Esq., for the General Counsel.
Douglas M. Topolski, Esq. (Ogletree, Deakins, Nash, Smoak,
and Stewart, P.C.), of Washington, DC; Amy Pocklington,
Esq. (McGuire Woods, LLP), of Richmond, Virginia; and
Jeffrey S. Shapiro, Esq., UNFI General Counsel, of Provi-
dence, Rhode Island, for the Respondent.
William Y. Sheh, Esq. (Reich, Adell & Cvitan), of Los Angeles,
California, for the Charging Party.

DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. Team-
sters, Chauffeurs, Warehousemen, Industrial and Allied Work-
ers of America, Local 166, International Brotherhood of Team-
sters (Teamsters Local 166, Union, or Charging Party) filed the
unfair labor practice charges in Cases 21–CA–079406, 21–CA–
081350, and 21–CA–089959 on April 24, May 18, and Sep-
tember 26, 2012, respectively.1 The Acting Regional Director
for Region 21 of the National Labor Relations Board (Board or
NLRB) consolidated the first two cases and issued a consoli-
dated complaint on December 12, 2012. Subsequently, the
Regional Director consolidated all three cases and issued an
amended consolidated complaint (complaint) on February 15,
2013. The complaint alleges that UNFI2 engaged in conduct
that violated Section 8(a)(1) of the National Labor Relations
Act (Act).
The Regional Director originally consolidated this complaint
for hearing with a post-election objections proceeding that grew
out of the representation election conducted by the Region on
May 17, 2012, at Respondent’s Moreno Valley, California,
facility, in Case 21–RC–078342. Teamsters Local 166 filed the
petition in Case 21–RC–078342 on April 6, 2012, and the Re-
1 Teamsters Local 166 amended each of the charges multiple times.
2 At the hearing, the pleadings were amended to reflect this employ-
er’s correct corporate name, UNF West, Inc., hereafter Respondent or
UNFI, its official tradename.
gional Director approved a Stipulated Election Agreement on
April 17 providing for a secret ballot election among the eligi-
ble employees in an appropriate unit comprised of the ware-
house workers at that location. Approximately 259 employees
were eligible to vote in the election. The Union lost by a mar-
gin of 152 to 88, with 1 challenged ballot.
The Union then filed timely objections to the conduct of the
election. After an investigation, the Regional Director issued a
Report on Objections on February 22, 2013, concluding that the
Union’s objection warranted a hearing. Accordingly, the Re-
gional Director consolidated this unfair labor practice com-
plaint and the objections proceeding for hearing before an ad-
ministrative law judge. I conducted that hearing on April 2, 3,
and 4, 2013, at Moreno Valley.
Subsequently, the Union filed a motion with me dated April
4, 2014, to sever and approve its request to withdraw its objec-
tions in Case 21–RC–078342, or in the alternative to sever and
remand to the Regional Director for consideration of its request
to withdraw the objections. After considering the responses to
my April 4 Order to Show Cause, I granted the Union’s request
to sever and remanded Case 21–RC–078342, to the Regional
Director for further action consistent with the Union’s motion
and the Board’s Rules and Regulations.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Union, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a California corporation with a facility in More-
no Valley, California, and throughout other locations in the
United States, has been engaged in the nonretail distribution of
natural, organic, and specialty foods at relevant times. During
the 12-month period ending July 25, 2012, a representative
period, Respondent sold and shipped from its Moreno Valley
facility goods valued in excess of $50,000 directly to points
outside the State of California. Respondent admits, and I find,
that it is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act. Respondent also ad-
mits, and I find, that the Local 166 is a labor organization with-
in the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Credibility
The complaint contains five allegations that Respondent vio-
lated Section 8(a)(1) by the conduct of supervisors during en-
gagements with two employees actively involved in the Team-
sters Local 166 unsuccessful organizing effort in early 2012.
Two of the three supervisors involved appeared and flatly de-
nied the conduct attributed to them by the two employees, Ed-
gar Acosta (Edgar) and his Uncle Sergio Acosta (Sergio), ever
occurred. The General Counsel’s case relies entirely on the
credibility of the Acostas. For the reason setforth below, I
found the Acostas’ accounts more reliable and credible than
those of the two supervisors, Jeff Popovich in Edgar’s instance,
and Javier Oliver in Sergio’s instance.

UNF WEST, INC. 389
In resolving the diametrically conflicting accounts, I recog-
nize that the witnesses here are laden with obvious biases. But
in the context of issues arising in the arena of labor relations
law, that is almost the norm. Only rarely do truly independent
observers appear to testify. In the course of this type of litiga-
tion, tie-breakers frequently emerge in the form of reliable doc-
umentary or video evidence, substantial and reliable corrobora-
tion, significant inconsistencies, or the like that tend to tip the
scales to one side or the other. With perhaps a single excep-
tion, no obvious tie-breaker emerged in this litigation that
would ease the task in deciding who told the truth and who did
not.
Having considered Edgar’s significant potential for bias
based on the added fact that UNFI terminated him allegedly for
low productivity in the middle of the organizing effort and the
fact that his uncle was the leading employee organizer at the
warehouse, I found his manner and tone while testifying
amounted to an unusually restrained effort to respond to the
questions asked without overt exaggeration that would suggest
his answers had been tailored to suit his or his uncle’s cause.
He exhibited little outward hostility over the fact that he had
been discharged by UNFI, did not appear argumentative while
testifying, gave every indication that he listened carefully to the
questions asked, and then answered courteously and forthright-
ly.
The Respondent called only Supervisor Popovich to respond
to the incident involving Edgar. Popovich denied that it ever
occurred or that he did what Edgar described as a predicate
leading to the alleged unlawful interrogation by Shift Manager
Cusey in Popovich’s presence. Cusey no longer works for
Respondent and has not since April or May 2012. Although
Respondent solicited that fact during Popovich’s testimony, it
made no effort to explain his unavailability as a witness, or to
otherwise explain why Cusey may have become an individual
hostile to its defense of this allegation. By contrast, Respond-
ent called another manager long gone from its employ to ad-
dress other issues present in the case at the time of the hearing.3
Counsel for the General Counsel’s brief calls attention to this
circumstance but makes no formal plea that I apply the “miss-
ing witness” rule, or draw an adverse inference from Respond-
ent’s failure to call Cusey or adequately explain his absence.
Regardless, in measuring Edgar’s impressive demeanor given
his background against the Respondent’s answering evidence
obviously weakened by Cusey’s absence, I find the failure to at
least explain its efforts to obtain Cusey’s testimony seriously
impairs Respondent’s case. It is one thing if the trier of fact has
confidence that a party made sincere efforts to secure the testi-
mony of the primary witness to an event; it is quite another if,
as here, the trier of fact is not even apprised of the efforts made
to secure a primary witness’ testimony.
So in sizing Edgar from the appearance he made before me
against the countering evidence provided by Respondent, I find
his account reflects an honest rendition of an incident that oc-
curred between him and Shift Manager Cusey in early February
2012.
3 The former manager Respondent called as a witness was Frank
Manzano.
Although Sergio’s English language skills fall far short of his
nephew, I found nothing in his demeanor that would cause me
to question his truthfulness. In every respect he struck me as a
sincere and humble person. Sergio also appeared to make no
effort to exaggerate the incidents about which he testified. But
my conclusion that Sergio’s accounts should be credited over
that of Maintenance Manager Oliver rests to a large degree on
the fact that I have almost no confidence in the truthfulness of
Oliver’s pat answer denying the incidents at issue, explaining
that he avoided speaking to Sergio at all because he knew him
to be very pro-union worker. He repeated the same explanation
when denying assertions made by another pro-union worker.
Respondent’s contentions that Oliver should be credited be-
cause he claimed to have never broken the law, had been
trained on the dos and don’ts of an organizing campaign and
was otherwise held in esteem by the others are offset by his
hesitation to admit candidly that he did not believe the employ-
ees needed representation. I find that his conduct, as described
by Sergio, consistent with his strongly held belief.
Accordingly, the accounts below are based on the credited
testimony of the Acostas.
B. The Edgar Acosta Allegation
Complaint paragraph 6 alleges that UNFI Second-Shift Man-
ager Mike Cusey and Lead Supervisor Jeff Popovich interro-
gated an employee about the employee’s union membership,
activities and sympathies and the union membership, activities,
and sympathies of other employees in February 2012. The
allegation pertains to an alleged verbal exchange that occurred
in early February 2012.
Relevant facts. Edgar worked at UNFI Moreno Valley facili-
ty as an order picker from late April 2010 until early March
2012 when the Company terminated him for low production.
He worked the second shift, normally scheduled for the period
from 1 to 9:30 p.m. but he often worked longer hours, some-
times as many as 16 hours a day.
Along with his uncle and another UNFI worker, Edgar met
with Teamster Organizer Ruben Luna just before the 2011
Christmas holiday season to discuss organizing the workers at
the UNFI Moreno Valley warehouse. After that initial meeting,
Edgar talked to coworkers about unionizing, informed the un-
ion about worker attitudes, distributed union cards, and attend-
ed the union meetings held for the UNFI workers.
In early February 2012, while Edgar spoke to Brian Redman,
a fellow UNFI worker, about unionizing during their lunch
break in the facility’s breakroom. About 35 or 40 other work-
ers were in the breakroom at the time but only two other em-
ployees were at the table with Edgar and Redman. While
speaking with Redman, Edgar noticed Jeff Popovich, who su-
pervised him from time to time, enter the break room, and walk
around the area, and then pause for a “couple of seconds” by
his table. After the pause, Popovich walked out of the break-
room without saying or doing anything. During Popovich’s
presence, Edgar continued to talk with Redman about the union
in a normal tone of voice. Because he did not see Popovich
stop at any other tables, he later came to suspect that Popovich
may have been eavesdropping on his talk with Redman when
he paused at their table.

390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The following day Mike Cusey, the second shift manager,
summoned Edgar over the warehouse intercom to a conference
in his office in the presence of Popovich. After the two super-
visors greeted him, Cusey went “straight to the point.” He told
Edgar that he had heard “there’s Union talk going around the
warehouse” and asked if Edgar “knew or have heard anybody
talking or trying to bring in the Union.” Edgar 30`0denied
knowing anything about the subject. Cusey then told Edgar
that if he heard anything like that or anyone talking about the
union to please let him know. Edgar told him “okay” and then
returned to his work.
Popovich flatly denied that he ever overheard or listened to a
conversation in the breakroom between Edgar and Redman
involving a discussion about the union. He also denied meeting
with Edgar and Shift Manager Cusey in the latter’s office when
the shift manager questioned Edgar about union activity in the
warehouse. Instead, Popovich claimed that the three met
around March 9 in Cusey’s office but this discussion involved
only Edgar’s low production record and his attitude, and that no
discussion of the union activity occurred on this occasion.
Instead, Popovich claimed that he knew nothing about any
union organizing until a day or so before the Union filed the
petition for an NLRB election when there was widespread dis-
cussion of this soon-to-be development throughout the ware-
house.
Analysis and Conclusions. Counsel for the General Coun-
sel’s argument places heavy emphasis on the Bourne factors.4
But for more than 30 years, the Board has said that it looks to
the “totality of the circumstances” in determining the coercive
nature of a supervisor’s questioning of an employee about em-
ployee protected activities. Rossmore House, 269 NLRB 1176
(1984), affd. sub nom. Hotel Employees Union Local 11 v.
NLRB, 760 F.2d 1006 (9th Cir. 1985). Although the Board has
frequently said that it is appropriate to consider the Bourne
factors, it has also reminded its judges from time to time that
the Rossmore analysis involves much more than a formalistic
application of the Bourne factors. Medcare Associates, Inc.,
330 NLRB 935, 939–940 (2000), and the cases discussed there.
However, applying the Bourne factors to the credible evi-
dence here leads to the conclusion that they overwhelmingly
support the General Counsel’s allegation based on the totality
of circumstances standard. That evidence shows that the shift
manager (apparently second in command locally after the
warehouse general manager) summoned Edgar to his office
over an intercom system (presumably overheard throughout the
4 The Bourne factors derive their name from a court opinion in
Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964). Those factors are:
(1) The background, i.e., is there a history of employer hostil-
ity and discrimination?
(2) The nature of the information sought, e.g., did the interro-
gator appear to be seeking information on which to base taking
action against individual employees?
(3) The identity of the questioner, i.e., how high was he in the
company hierarchy?
(4) Place and method of interrogation, e.g., was employee
called from work to the boss’s office? Was there an atmosphere of
unnatural formality?
(5) Truthfulness of the reply.
working floor) and commenced questioning the employee in
the presence of another supervisor as to whether he knew of or
heard anyone talking about the union, which the employee
denied, and then instructed the employee to report back if he
heard any such talk. For that alone, I credit the General Coun-
sel with providing strong evidence in support of Bourne factors
2 through 5. And, based on the subsequent hostility Respond-
ent demonstrated toward employee union activity, the General
Counsel arguably gets the edge even with respect to Bourne
factor 1.
In short, I find that Cusey’s questioning interfered with, and
coerced Edgar in his exercise of Section 7 rights by summoning
the employee to his office and interrogating him about union
talk around the warehouse and instructing him to report union
talk he may hear in the future. See Swan Coal Co., 271 NLRB
862, 864 (1984). Accordingly, I conclude Respondent violated
Section 8(a)(1), as alleged, by this early February 2012 conduct
of Cusey.
C. The Sergio Acosta Allegations
Complaint paragraphs 7(a) through (d) pertain to unlawful
statements Maintenance Manager Javier Oliver allegedly made
to employees in two separate time frames, two in early May
2012, and two in mid-October 2012. Based on the evidence
presented by the General Counsel, these four complaint allega-
tions pertain to statements Oliver made to Sergio.
Relevant facts: Sergio initiated contact with Teamsters Lo-
cal 166 that eventually led to its organizing drive at the UNFI
warehouse in Moreno Valley and the NLRB representation
election held there on May 17. He was widely recognized as
the most active employee organizer throughout and served as
the Union’s observer at the election. Even Maintenance Man-
ager Oliver was well aware of Sergio’s support for the Union.
On May 2, while working alone in the warehouse aisles, Oli-
ver approached Sergio to ostensibly ask a work-related question
for which Sergio had no answer. Before walking away, Oliver
told Sergio that UNFI would not negotiate or sign any contract
with the Union and that they do not “want to know anything
about the Union.”
The next day Oliver approached Sergio again supposedly to
speak with him about some broken pallets. After that brief
discussion, Oliver told Sergio that if the employees voted for
the union they would lose their 401(k) benefit, and that they
would lose everything.
On October 12, Oliver approached Sergio at his work loca-
tion in one of the warehouse isles to ask whether Frank Manza-
no, the warehouse manager at the time, had spoken to him
about transferring to the maintenance department. Sergio
acknowledged that he had met with Manzano but he told Oliver
that they had spoken only about a recent write-up he received
rather than a transfer. Oliver then warned Sergio to be careful
because when the supervisors and managers held closed door
meetings they were looking for a way to fire him.
About a week later, Eddie Ochoa, a leadman in the mainte-
nance department, stopped to speak with Sergio at his work
location in one of the warehouse aisles. During their exchange,
Sergio related an emotional story about his young daughter. He
told Ochoa that the little girl, after overhearing a discussion

UNF WEST, INC. 391
between Sergio and his wife about his troubles at work in the
warehouse, told him that when she grew up she would take him
away from working in the warehouse for the company. Ochoa
sympathized with Sergio’s story briefly and then left.
Shortly afterward, Oliver summoned Sergio to the mainte-
nance office. When Sergio arrived, Ochoa was in the office
with Oliver but soon left.5 Oliver then asked Sergio what was
wrong. Sergio recounted the story about what his young
daughter had said to him. Oliver too expressed sympathy but
then he told Sergio that the solution was to “[s]top complaining
to the Labor Board and the Union.” Sergio responded by say-
ing that he only wanted someone to represent him. To that,
Oliver responded only by saying, "Well, I already gave you the
solution." Sergio said nothing further and returned to work.
Analysis and Conclusions: Both of Oliver’s statements to
Sergio in May violated the Act. His warnings on successive
days that UNFI would not negotiate or enter into an agreement
with the union, and that the employees would lose their 401(k)
plan as well as other benefits amounted to the type of classic
threats the Board finds unlawful. Telling employees that the
employer will not honor its statutory obligation to bargain if the
employees choose to unionize interferes with the Section 7
right of employees to bargain through a chosen representative.
As Oliver’s conduct sought to persuade Sergio that it would be
futile for employees to select a union and warns that engaging
in activity protected by Section 7 might even place existing
benefits in jeopardy, I have concluded that his conduct violated
Section 8(a)(1) as alleged. Taylor Chair Co., 292 NLRB 658,
662 (1989).
Oliver gave another double-barreled warning to Sergio in
October. Although his initial statement to Sergio that the man-
agers and supervisors were seeking to find a way to fire him,
stripped of all context, is arguably ambiguous, Oliver removed
any ambiguity a week later by seizing the occasion to tell Ser-
gio that the solution to his work place problems was to quit
complaining to the Union and the Labor Board. This evidence
provides strong support for the conclusion that at least some of
the UNFI managers continued to harbor animus toward Ser-
gio’s union activity 5 months after management’s lopsided
victory at the May 17 election. Accordingly, I find Oliver’s
warnings to Sergio in October violated Section 8(a)(1) as al-
leged.
CONCLUSIONS OF LAW
By coercively questioning an employee; by warning an em-
ployee that it would not negotiate or sign any contract with the
Union; by warning an employee that all workers could lose
benefits if they selected union representation; by warning an
employee that management was looking for a way to fire him;
and by impliedly warning an employee that his working condi-
tions would not improve unless he stopped complaining to the
Union and to the Labor Board, UNFI engaged in unfair labor
practices affecting commerce within the meaning of Section
8(a)(1) and Section 2(6) and (7) of the Act.
5 Ochoa, who was described as a lead person in the maintenance de-
partment, did not testify.
REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, my recommended order requires UNFI to cease
and desist and to take affirmative action designed to effectuate
the policies of the Act. The affirmative action requires UNFI to
post the notice attached as the “Appendix” at its Moreno Val-
ley, California, warehouse.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended6
ORDER
The Respondent, UNF West, Inc., Moreno Valley, Califor-
nia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively questioning employees concerning their activ-
ities on behalf of Teamsters, Chauffeurs, Warehousemen, In-
dustrial and Allied Workers of America, Local 166, Interna-
tional Brotherhood of Teamsters (Teamsters Local 166) or any
other labor organization.
(b) Threatening employees by telling them that it would be
futile to select representation by Teamsters Local 166 because
it would not negotiate or sign any contract if that happened.
(c) Threatening employees with the potential loss of their
401(k) and other benefits if they selected Teamsters Local 166
to represent them.
(d) Threatening employees who engage in activities on be-
half of Teamsters Local 166 by telling them that management is
looking for a way to fire them.
(e) Threatening employees by telling them that their working
conditions would not improve until they quit complaining to
Teamsters Local 166 and the National Labor Relations Board.
(f) In any like or related manner interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
warehouse facility in Moreno Valley, California, copies of the
attached notice marked “Appendix”7 in both English and Span-
ish. Copies of the notice, on forms provided by the Regional
Director for Region 21 after being signed by the Respondent’s
authorized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are customarily
posted. In addition to physical posting of paper notices, the
notices shall be distributed electronically, such as by email,
posting on an intranet or an internet site, and/or other electronic
means, if the Respondent customarily communicates with its
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees by such means. Reasonable steps shall be taken by
the Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event that, dur-
ing the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since February 1, 2012.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.