Tufo Wholesale Dairy

National Labor Relations Board - Board Decisions

Feb 29, 1996

320 N.L.R.B. 896 (N.L.R.B. 1996)

896
320 NLRB No. 92
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 Given our findings regarding the seriousness and widespread na-
ture of the unfair labor practices and the likelihood of recurrence,
we shall modify the judge’s recommended Order to provide broad
cease-and-desist language. See Hickmott Foods, 242 NLRB 1357
(1979).
3 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
4 Highland Plastics, 256 NLRB 146, 147 (1981).
5 E.g., NLRB v. J. Coty Messenger Service, 763 F.2d 92 (2d Cir.
1985).
6 Many of the Respondent’s unfair labor practices were the type
that have come to be known as ‘‘hallmark violations’’ because they
are highly coercive and have a lasting effect on election conditions.
Highland Plastics, supra, 256 NLRB at 147.
7 Of the seven employees who the Respondent asserts were not
subjected to the ‘‘preponderance’’ of the misconduct, six attended
the employee meeting.
We also observe that 7 out of the 11 individuals remain employed
by the Respondent. This, in terms of the entire unit, is not a large
turnover rate. Given the small size of the unit and the substantial
number of employees that remain employed, it is foreseeable that the
Respondent’s record of coercion would become known to new em-
ployees and that the impact of the Respondent’s violations would be
likely to persist despite any turnover. See Bandag v. NLRB, 583 F.2d
765, 772 (5th Cir. 1978) (‘‘Practices may live on in the lore of the
shop and continue to repress employee sentiment long after most, or
even all, original participants have departed.’’).
8 Salvation Army Residence, 293 NLRB 944, 945 (1989), enfd.
mem. 923 F.2d 846 (2d Cir. 1990).
9 Eddyleon Chocolate Co., 301 NLRB 887, 891 (1991).
Tufo Wholesale Dairy, Inc. and Local 27, Paper
Products Drivers, Warehousemen and Mes-
sengers, International Brotherhood of Team-
sters, AFL–CIO. Cases 2–CA–26601, 2–CA–
26881, and 2–RC–21302
February 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On June 22, 1995, Administrative Law Judge Joel P.
Biblowitz issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in support of the judge’s
decision.
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as
modified.2
We agree with the judge that the Respondent en-
gaged in extensive violations of Section 8(a)(1) of the
Act during and after the Union’s election campaign at
the Respondent’s facility. We also agree with the judge
that the Respondent’s unfair labor practices have ‘‘a
tendency to undermine the union’s majority strength
and impede the election process,’’ that the holding of
a fair second election is unlikely, and that con-
sequently a bargaining order is appropriate.3
In opposing the bargaining order, the Respondent
points to the following. The record shows that there
were 11 employees in the unit at the time of the elec-
tion, 7 of whom continue to be employed by the Re-
spondent; and of the 4 unit employees who were the
objects of the majority of unfair labor practices, only
1 is currently employed by the Respondent. The Re-
spondent urges that the Board not grant a bargaining
order based on this evidence of turnover in its work
force since the time of the election.
The Board has consistently held that because ‘‘the
validity of a bargaining order depends on an evaluation
of the situation as of the time the unfair labor practices
were committed,’’ evidence regarding employee turn-
over is irrelevant to an assessment of the propriety of
a Gissel bargaining order.4 However, this proceeding
arises in the Second Circuit, which we recognize has
repeatedly held employee turnover to be relevant to
this issue.5 We shall, therefore, consider the Respond-
ent’s contention.
The unfair labor practices were serious,6 and, con-
trary to the Respondent’s assertion, the conduct di-
rectly affected the entire unit. The Respondent empha-
sizes that the majority of the unfair labor practices
were directed at four individuals. The remaining viola-
tions, however, were deliberately addressed to the en-
tire unit. First, the Respondent violated Section 8(a)(1)
by purposely scheduling a meeting to prevent employ-
ees from attending a union meeting. Second, the Re-
spondent violated Section 8(a)(1) by promising those
who attended the meeting a benefit if the Union lost
the election. In short, the Respondent’s unlawful con-
duct was widespread, touching directly on 10 of the 11
employees.7
Further, we find relevant that the Respondent contin-
ued its unlawful activities after the election.8 When re-
minded that he had not followed through on a promise
made before the election, the Respondent’s owner,
John Rapillo, blamed the pending union objections.
Perhaps even more significant in light of the serious-
ness of the violation, Rapillo continued to engage in
illegal activity up to the hearing date when on two oc-
casions he interfered with the Board’s processes by
discouraging an employee from complying with a sub-
poena to appear at the hearing. Such postelection mis-
conduct, particularly the interference with Board proc-
esses, reveals continued hostility to employee rights
and substantial likelihood of the Respondent again en-
gaging in illegal activities.9
897TUFO WHOLESALE DAIRY
10 Salvation Army, supra, 293 NLRB at 945.
11 See F & R Meat Co., 296 NLRB 759 (1989), where the Board
stated that ‘‘[t]he continued presence of the perpetrators of the un-
lawful acts could still exert a coercive effect over the unit employ-
ees.’’ This is particularly true here where the violations were com-
mitted by the Respondent’s owners. Employees would readily per-
ceive the Rapillos as representing company policy and as possessing
the ability to implement unlawful threats.
12 In opposing the bargaining order, the Respondent does not rely
on the passage of time since the unfair labor practices. The election
was in May 1993 and the judge’s decision issued in June 1995. This
passage of time is not due to delay, but rather is an ‘‘ordinary insti-
tutional time lapse[ ] inherent in the legal process.’’ America’s Best
Quality Coatings Corp. v. NLRB, 44 F.3d 516, 522 (7th Cir. 1995).
Member Cohen does not pass on the issue of whether employee
turnover should be a relevant factor in deciding the propriety of a
Gissel bargaining order. Assuming arguendo that it is, the turnover
here is insufficient to warrant the denial of the bargaining order.
In sum, the following factors convince us of ‘‘the
likelihood of recidivist behavior’’:10 The unfair labor
practices were serious and widespread. John and Steve
Rapillo, who engaged in the unlawful conduct, remain
the Respondent’s owners.11 The Respondent’s mis-
conduct persisted after the election and up to the time
of the hearing. To withhold a bargaining order in these
circumstances would, in effect, reward the Respondent
for its own wrongdoing.12
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Tufo
Wholesale Dairy, Inc., Bronx, New York, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(k).
‘‘(k) In any other manner interfering with, restrain-
ing, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.’’
2. Substitute the attached notice for that of the
judge.
IT IS FURTHER ORDERED that the election conducted
in Case 2–RC–21302 is set aside and the petition in
that case 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 or-
dered 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 representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT schedule meetings with employees in
order to prevent them from attending previously sched-
uled meetings of Local 27, Paper Products Drivers,
Warehousemen and Messengers, International Brother-
hood of Teamsters, AFL–CIO or any other labor orga-
nization.
WE WILL NOT promise our employees improved
benefits and working conditions if the Union loses the
election.
WE WILL NOT create an impression among our em-
ployees that we are keeping their union activities under
surveillance.
WE WILL NOT tell our employees that it would be
futile for them to attempt to select the Union as their
bargaining representative.
WE WILL NOT threaten to close our facility or threat-
en that the employees will be out of work if the Union
wins the election.
WE WILL NOT interrogate our employees about their
union activities or support.
WE WILL NOT threaten our employees that, if the
Union wins the election, the Union would try to pre-
vent all drivers without commercial drivers’ licenses
from working.
WE WILL NOT blame the Union and the objections
that it filed for not giving our drivers a 40-hour work-
week.
WE WILL NOT tell our employees that they do not
have to comply with a Board subpoena or otherwise
interfere with the Board’s processes.
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 recognize and, on request, bargain with the
Union for our employees in the following appropriate
unit:
All full-time and regular part-time warehousemen,
drivers and office clerical workers, but excluding
all other employees, supervisors, professional em-
ployees and guards as defined in the Act.
TUFO WHOLESALE DAIRY, INC.
Suzanne Sullivan, Esq., for the General Counsel.
Jedd Mendelson, Esq. and Kevin Casey, Esq. (Grotta, Glass-
man & Hoffman), for the Respondent.
Alfred Muscio, Esq., for the Charging Party Petitioner.
898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Unless indicated otherwise, all dates referred to here relate to the
year 1993.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOWITZ, Administrative Law Judge. This case
was heard by me on August 24 and November 3, 1994, and
March 28, 29, and 30, 1995, in New York, New York. The
consolidated complaint issued on November 15, 1993,1 and
was based on charges filed on June 8 and October 4 by
Local 27, Paper Products Drivers, Warehousemen and Mes-
sengers, International Brotherhood of Teamsters, AFL–CIO
(the Union). The complaint alleges that the following em-
ployees of Tufo Wholesale Dairy, Inc. (Respondent) con-
stitute an appropriate unit within the meaning of Section 9(b)
of the Act: All full-time and regular part time warehouse-
men, drivers and office clerical workers employed by the Re-
spondent at its facility at 4180 Boston Post Road, Bronx,
New York, herein called the facility, but excluding all other
employees, supervisors, professional employees and guards
as defined in the Act, and that since about April 9, a major-
ity of these employees selected the Union as their bargaining
representative. It is also alleged that on about April 27, the
Union, through its business agent, Richard Ruggiero, de-
manded that Respondent recognize the Union as the bargain-
ing representative of these employees and, on about that
date, Respondent, by its attorney, refused to so recognize the
Union. The complaint then recites a number of 8(a)(1) alle-
gations of actions by John Rapillo (Rapillo) and Steve
Rapillo, Respondent’s owners and officers in April, May, and
June. It is alleged that they promised employees a 40-hour
workweek and other unspecified benefits if they voted
against the Union in the upcoming election, threatened to
discharge all the drivers if the Union won the election, in-
formed employees that it would be futile to select the Union
as their bargaining representative, interrogated employees
about their union activities and the union activities of their
fellow employees, created an impression among their em-
ployees that their union activities were under surveillance by
Respondent, impliedly promised to pay an employee’s delin-
quent parking tickets if the Union lost the election, and inter-
fered with the Board’s processes by discouraging employees
from obeying the Board’s subpoenas. It is further alleged that
the extent of these unfair labor practices warrants a bargain-
ing order based on the Union’s majority status.
On November 18, the Region issued an order further con-
solidating cases and notice of hearing on objections. This
order recites that after the election here was conducted, the
Union filed timely objections as well as the unfair labor
practice charges referred to above, and that evidence was ad-
duced as to whether the Respondent engaged in the following
activity: promising the employees a reduced workweek if the
Union was rejected, informing its employees that it was fu-
tile to select the Union as their bargaining representative, of-
fering to meet the financial obligations of an employee if the
Union was defeated, threatening employees with more strin-
gent working conditions if the Union won the election, inter-
rogating employees about their, and fellow employees’,
union support, threatening to discharge employees if the
Union won the election, detaining employees at work for the
purpose of interfering with a previously scheduled union
meeting, and conveying the impression to its employees that
their union activities were under surveillance by the Re-
spondent. The Regional Director ordered that a consolidated
hearing be held to receive testimony with respect to the
Union’s objections as well as the unfair labor practices al-
leged.
FINDINGS OF FACT
I. JURISDICTION
Respondent admits, and I find, that it has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION STATUS
Respondent admits, and I find, that the Union has been a
labor organization within the meaning of Section 2(5) of the
Act.
III. FACTS
On April 22, the Union filed a petition with the Board in
Case 2–RC–21302 to represent employees employed by Re-
spondent at the facility. Pursuant to a Stipulated Election
Agreement entered into by the parties and approved on May
10, an election was conducted on May 21 in the following
unit:
All full-time and regular part-time drivers, warehouse-
men, and office clerical employees employed by the
employer at its facility at 4180 Boston Post Road,
Bronx, New York, excluding all other employees and
guards, professional employees and supervisors as de-
fined in the Act.
Pursuant to a stipulation entered into by the parties and ap-
proved on October 18, involving the challenged ballots, the
revised tally of ballots showed that five votes were cast for
the Union, six votes were cast against the Union, and there
were no remaining challenged ballots after the stipulation.
The Union filed timely objections to the result of the elec-
tion.
A. The Union’s Majority Status
The parties stipulated that there were 11 employees in the
above-mentioned unit during the periods relevant here. Rich-
ard Ruggiero, an organizer for the Union, testified that on
April 2, he met with six of these employees at a restaurant
in the Bronx. Present were Kenny Morales, a driver, Sonia
Richardson, a clerical employee, Hector Herrand and Jose
Brito, warehouse employees, and Oscar Turcios and Jean
Claude Kerrigan, drivers. The employees asked some ques-
tions about union representation, and Ruggiero passed out
union authorization cards. He told the employees that if they
wanted the Union to represent them, they had to sign the
cards and return them to him. He also told them that if a ma-
jority of the employees signed cards the Union would rep-
resent them, but if the Respondent refused to recognize the
Union based on the cards, there was a possibility that there
would be an election. At that time, Turcios, Kerrigan, Rich-
899TUFO WHOLESALE DAIRY
2 Brito incorrectly dated his card on April 2 and, because Ruggiero
had no additional authorization cards with him at that time, he gave
Brito another card a week later, which was signed and dated April
9.
3 Ruggiero had no explanation for the 3-week delay between his
alleged conversation with Tuohey and this letter.
ardson, Herrand, Morales, and Brito2 each signed union au-
thorization cards and returned them to Ruggiero. On April 5,
Richardson brought office clerical employee Dawn Giordano
to meet with Ruggiero at a McDonald’s restaurant. He gave
her a union authorization card, which she filled out, dated
April 5, and returned to Ruggiero. Ruggiero filed the petition
with the Board, with the cards, on April 22.
The evidence establishes, and Respondent does not argue
otherwise, that between April 2 and 9, the Union obtained
authorization cards from 7 unit employees out of the unit of
11. I therefore find that beginning on April 5, the Union rep-
resented a majority of these employees.
B. The Demand for Recognition
Ruggiero testified that on about April 27 he called the fa-
cility, identified himself as being from the Union, and asked
to speak with the owner. He believes that John Rapillo an-
swered and identified himself. Ruggiero told him that he had
authorization cards from a majority of his employees and
asked if he would recognize the Union; Rapillo said that he
would not recognize the Union. He said that he had turned
it over to his lawyer, Seamus Tuohey, and gave him his tele-
phone number and said that he should speak to Tuohey. He
then called the number that Rapillo gave him and asked to
speak to Tuohey. A man answered the phone saying that he
was Tuohey, and Ruggiero identified himself, said that he
had cards from a majority of Respondent’s employees, and
asked for recognition. ‘‘He said no, we are going to proceed
to an election. We don’t believe you have all the cards, and
that was the conversation.’’ On the second day of hearing,
about 3 months after the first hearing date, Ruggiero returned
as a witness and produced a letter dated May 193 to Tuohey,
stating:
As per our phone conversation on April 27, 1993, it
was to recognize Local 27, I.B.T. as the Bargaining
Agent representing the warehousemen, drivers and offi-
cer workers of Tufo’s Dairy. The employer and you
have refused to acknowledge Local 27 as the LEGAL
Bargaining Agent.
Ruggiero testified that he dictated this letter and personally
mailed it to Tuohey on May 19. Neither his testimony on the
first day of the hearing nor his affidavit given to the Board
refers to this letter. He testified that after he initially testified,
he looked through his files on this matter and found the May
19 letter, which he had forgotten about while testifying.
Rapillo testified that within 2 weeks of receipt of the peti-
tion he received no telephone call from either Ruggiero or
anyone else from the Union. It was not until much later on
that he knew of Ruggiero. The first that he learned of the
union movement at the facility was when he received the pe-
tition from the Board on about April 25 or 26. Shortly there-
after, he learned of Tuohey from a neighbor, called Tuohey,
and retained his firm as Respondent’s counsel. Tuohey testi-
fied that his representation of Respondent began in April
when he received a call from Rapillo saying that he had re-
ceived a petition from the Board. His firm’s time records in-
dicate that he had a telephone call with Respondent on April
27. Tuohey wrote to the Regional Office by letter dated May
3 stating that his firm was retained by Respondent that day.
He testified that prior to the election he did not receive a
telephone call from Ruggiero, or any other union representa-
tive, with respect to Respondent.
This is a rather difficult, although not crucial, credibility
determination. Ruggiero was an unimpressive witness whose
testimony was rarely direct and brief. Most answers came
with an explanation, whether requested or not. In addition,
portions of his testimony were not very believable. For ex-
ample, although he obtained the authorization cards by April
9, he allegedly waited until about April 27, 5 days after he
filed the petition, to call Rapillo and Tuohey and then alleg-
edly waited until May 19 to write to Tuohey to confirm the
call. Rapillo, as will be discussed more fully below, was also
not a very credible witness. Tuohey was a more credible wit-
ness, and I credit his testimony and find that Ruggiero never
called him. That being so, I find that it is more likely that
he did not call Rapillo either, and I so find. However, that
does not preclude the issuance of a bargaining order. The
Board finds that even in the absence of a bargaining request,
a bargaining order is warranted where the unfair labor prac-
tices are so extensive that they have made the holding of a
fair election unlikely, although the bargaining order will not
include an 8(a)(5) violation. Production Plating Co., 233
NLRB 116 (1977); Naum Bros., Inc., 240 NLRB 311 (1979).
I therefore find that if Respondent’s unfair labor practices
were so extensive to warrant a bargaining order under NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), such an order
would be warranted here as an 8(a)(1) bargaining order, even
in the absence of a bargaining request.
C. The 8(a)(1) Allegations and Objections
There are numerous 8(a)(1) allegations here as well as cor-
responding objections. While I would normally present them
chronologically, because of the nature of much of the testi-
mony, that is difficult as the date of the alleged events are
often hazy.
Richardson testified that shortly prior to the election she
was promoted to office manager at the facility and one of
the other employees told her that she got the promotion to
prevent her from voting in the election. On the following
day, she asked Steve Rapillo if that were true, and he said
that it was not true, that she was given the promotion on
merit. She then asked Rapillo why she was given the pro-
motion, and he said that he gave it to her because he needed
her. He then told her that he knew who started the Union;
he knew someone who worked in the union office and they
could tell him whose names were on the union cards. He told
her that he could tie up the union campaign for years in the
courts. Richardson also testified that in about the middle of
April to early May, she overheard a conversation between
Steve Rapillo and Serena Rapillo, Steve and John Rapillo’s
mother, in the office. Steve Rapillo told Serena Rapillo that
if the Union came in he would close the facility rather than
deal with the Union. Serena Rapillo testified that she could
not recollect any specific conversation with Steve Rapillo
about the Union, but that she did speak to Steve and John
900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Rapillo about the Union at the facility during that period, but
not in the presence of other employees.
Kerrigan testified that about 2 weeks prior to the election,
while he was in the office at the facility, Rapillo asked him
if he was going to vote and who he was going to vote for.
Kerrigan answered that he did not know, and Rapillo asked
him to vote for him. Rapillo testified that he never asked any
employee how they intended to vote in the election.
Herrand testified that in March (this is probably incorrect)
while he was in the warehouse at the facility, Rapillo asked
him if he had heard anything about the Union and he an-
swered no. Rapillo asked him if he was sure and he said that
he was.
Turcios testified that Rapillo spoke to him about the Union
every other day during that period; in April, while he was
outside the office at the facility, Rapillo asked him if he was
approached by someone from the Union to sign a union au-
thorization card, and he answered no. Rapillo then said that
he had received a letter saying that employees had signed
union cards, and he thought that it was the drivers. Turcios
asked him how he knew this, and Rapillo said that he had
friends in the Teamsters. Rapillo testified that he never told
any employee that he had received a letter or telephone call
from the Union or that he knew how they had voted because
he had friends at the Teamsters or at the Department of
Labor. In addition, he testified that he never asked Turcios
if he knew which employees were in the Union, although he
did ask him if he were aware that the Union was organizing
the employees at the facility. Turcios testified further that on
a Friday during this period, after he returned to the facility
after completing his route, Rapillo approached him and told
him that if the Union got in it would destroy his business,
his mother and brother would be out in the street, ‘‘and we’ll
be without a job.’’
There was testimony about an alleged threat by Rapillo
that if the Union won the election the employees could not
continue to work for him because they would need a com-
mercial driver’s license (CDL). Turcios testified that (pre-
sumably) during the preelection period Rapillo told him that
‘‘if the Union gets in, they’ll try to get rid of the drivers be-
cause we don’t have commercial driving licenses.’’ At that
time, he did not have a CDL; at the time of the hearing here,
he did. At about that time, Steve Rapillo was making ar-
rangements for the drivers to be trained and tested for their
CDLs. Rapillo testified that sometime in 1992, the State
changed a law and required drivers of vehicles over 18,000
pounds to have a CDL; the change was to be effective Janu-
ary 1, 1993. Because the State could not handle the large
number of applicants by that time, they extended the date by
5 or 6 months. During this period, he was making arrange-
ments for his drivers to obtain their licenses. He ‘‘pointed
out’’ to his drivers ‘‘that I did not believe that the Union was
going to allow them to drive for me unless they had their
license because it was actually breaking the law.’’
Turcios testified that about a week after the election, while
he was with Herrand, Kerrigan, and another employee out-
side the office at the facility, he said to Rapillo that the driv-
ers were still working a 45-hour week, even though Rapillo
had said at the May 19 meeting that it would change, and
Rapillo said that he could not make any changes because the
Union was suing him. Turcios said that didn’t have anything
to do with it, and Rapillo said that if he would get the Union
off his back they will have it. Kerrigan testified that some-
time after the election, he, Turcios, and Herrand approached
Rapillo in the office at the facility and they asked him if they
could work a 40-hour week rather than the 45-hour week that
they were working. Rapillo said that now that the Union was
‘‘involved,’’ he could not do it. On cross-examination, he
testified that Rapillo said that he couldn’t make the change
because of the union election and the ‘‘legal matter was
pending.’’ Rapillo testified that during the week following
the election, employees approached him and asked him what
was happening with the 40-hour workweek, and he told them
that he ‘‘was still involved with the Union,’’ and could not
do anything at that time.
It is alleged that Respondent, by Rapillo, in about May,
impliedly promised to pay an employee’s delinquent parking
tickets if the Union lost the election. The employee involved
is Herrand. The sole testimony on direct examination on this
allegation is as follows:
Q. Do you remember what John Rapillo said to you?
A. Yeah. He told me if I—if I have some problem
with my driver’s license and—
JUDGE BIBLOWITZ: Problem with your driver’s li-
cense and?
THE WITNESS: Yes—I owe tickets.
JUDGE BIBLOWITZ: You owe some tickets.
THE WITNESS: Yes.
JUDGE BIBLOWITZ: Okay. What did John say to you,
if anything?
THE WITNESS: I told him yes. So he said, ‘‘We’ll
talk after the election.’’
On cross-examination, Herrand was asked:
Q. Now, isn’t it the case that when you spoke with
John Rapillo about the unpaid tickets, you approached
him and raised the subject?
A. No.
On a related subject, Herrand testified that, on request, in the
past he and other employees were sometimes given advances
on their salary by Rapillo, and that he sometimes asked
Rapillo for advances. The cross-examination continued:
Q. And your testimony is that he came up to you
and said that he knew you had unpaid tickets, and—and
then the rest of the conversation followed?
A. Yes.
Q. Did he indicate to you how he knew that you had
the unpaid tickets?
A. No
Q. Did you ask him how he knew you had the un-
paid tickets?
A. No.
Q. When you got advances, that was as a result of
your going to him and asking for that?
A. Yeah.
Q. Okay, and isn’t it the case, sir, that you went to
him about the tickets in the same way?
A. No.
Q. Isn’t it the case, sir, that you went to Mr. Rapillo
and asked him for an advance so you could pay the
tickets?
A. No.
901TUFO WHOLESALE DAIRY
Herrand testified that the tickets, which amounted to over $1
thousand, were not related to his job, and that he paid them
out of his own money. Rapillo testified that prior to the
Union coming to the facility, he had a policy of loaning
money to employees or advancing them money on their
wages. Whether he would do so depended on the employees
involved, and the amount requested. Rapillo testified that
Herrand approached him and told him that his license was
taken away because he had over $1 thousand of parking tick-
ets, and he asked if he could borrow the money to pay for
the tickets. Rapillo told him that it was too much money, but
he did loan him $500, which Herrand repaid about $50 a
week for 10 weeks. He never promised to pay these tickets
if the Union lost the election.
Respondent held a meeting of most of its employees in the
office at the facility on May 19, 2 days prior to the election.
It is alleged that Respondent scheduled this as a mandatory
meeting in order to interfere with a previously scheduled
union meeting, and at the meeting promised employees a 40-
hour week and other specified benefits if they voted against
the Union in the upcoming election, and threatened to dis-
charge all the drivers if the Union was selected as their bar-
gaining representative. It is alleged that this conduct violates
Section 8(a)(1) of the Act and is objectionable conduct as
well.
Richardson testified that she was never told by Rapillo
that there was to be a meeting with the employees on May
19, and on that evening, after work, she went home and then
took a taxi to Herrand’s house for the union meeting that had
previously been scheduled for that evening. She was the only
employee present, along with Ruggiero and Herrand’s wife.
She could not recollect what time she arrived at this meeting,
although her affidavit states that she arrived there at about
8 or 8:30 p.m. Kerrigan testified that on May 19, after he
had finished work at about 5 or 5:30 p.m., he went to a gym
to work out. While he was outside the gym, Rapillo drove
up and told him that he was going to have a meeting of em-
ployees later that day and he wanted him to attend. Kerrigan
testified that the meeting began at about 7 or 7:30 p.m., and
he returned to the facility at about 7 p.m., and the employees
were waiting for the meeting to begin. At the meeting,
Rapillo said that he knew of the union meeting at Herrand’s
house that evening. He also said that if the Union gets in-
volved ‘‘there won’t be anymore favors,’’ because if the em-
ployees needed something, they would have to go to the
Union instead of going to him. If the Union were involved,
‘‘we won’t be able to speak to each other’’ and, if the Union
were involved, he could fire anybody he wanted, and could
fire any driver who did not have a CDL. He stayed at the
meeting for between 1 and 1-1/2 hours and left before the
meeting had concluded because he had other things to do.
Turcios testified that when he returned to the facility from
his route on May 19, Rapillo told him that there was going
to be a meeting of employees that evening; Turcios told him
that he could not remain as he had something to do, but
Rapillo told him that he had to stay. About 15 minutes later,
the meeting began. Rapillo began by telling the employees
that the Respondent didn’t need the Union because they
could not guarantee them anything; only Respondent could
guarantee them something. He then said that the Union was
involved because something was wrong. Turcios said that
they were working 45 hours before they received overtime
pay when they should get overtime pay after 40 hours, and
Rapillo said that was something that was there while his fa-
ther operated the business and he thought that it was okay
with the employees. Turcios said that he had complained
about it on three prior occasions. He testified that Rapillo re-
sponded that if the Union lost the election, they would be
paid overtime after 40 hours. Rapillo then asked the employ-
ees how they were going to vote, and all the employees said
that they were going to vote against the Union. Herrand testi-
fied that at this meeting, Rapillo ‘‘promised us a 40 hour
work week if we voted no on the election,’’ and said that
if the Union won the election, ‘‘we shouldn’t ask any per-
sonal favors or getting paid in advance.’’
Henry Jallum, who has been employed by Respondent for
over 2 years (off the books), testified that the meeting began
at about 5:45 p.m. Rapillo told the employees that he had a
new company and didn’t want to get involved with the
Union. He said that the Union would take dues out of their
wages, and that if the employees had any problems, they
should come to him first. One of the employees said that
they wanted to work a 40-hour week rather than a 45-hour
week, and Rapillo said that he would look into it, but would
not promise anything, ‘‘not now.’’ He never said that any
employee would lose his job if the Union were elected. Ann
Marie Szola, who has been employed by Respondent since
January, testified that she was told of the meeting earlier that
afternoon and that she attended the meeting. All the employ-
ees except for Richardson and Dawn Giordano, another of-
fice employee, attended, and Kerrigan arrived when the
meeting was finished. An employee asked about getting a
40-hour workweek, and Rapillo said that he would listen to
anybody, but could make no promises. He never threatened
to fire anyone, nor did he ever threaten to close the facility
if the Union won the election.
Rapillo testified that he decided to hold the meeting a few
days earlier, but told each of his employees about the meet-
ing on the day of the meeting, May 19. He told them that
he ‘‘would like everybody to attend if they could.’’ All the
employees except for Richardson and Giordano attended;
Kerrigan arrived at the end of the meeting. He had not seen
Kerrigan, a driver, all that day and somebody told him that
he was at the gym. Rapillo went there and told him about
the meeting and that he would like it if he attended it if he
could, and Kerrigan said that he had something to do, but
that he would try to get there. Richardson and Giordano were
asked to come and were not disciplined for missing the meet-
ing. He testified that earlier that week, Jallum had told him
that the Union was having a meeting that week, but he did
not know that the Union had a meeting scheduled that
evening. The employees who remained at the facility to at-
tend the meeting were paid for the time. The meeting began
between 6 and 6:15 p.m. and lasted for a little over an hour.
He began the meeting by telling the employees that while the
Union could make them promises, he could not do so. He
said that the Union would collect dues from them and would
negotiate with him on their behalf. It was a small company
and he did not believe that they needed a union to speak for
them. He said that the election was on Friday, that it was
a secret ballot, and encouraged everyone to vote. At this
meeting he never threatened to close the facility, fire anyone
because of their support for the Union, or that he would
change or withdraw benefits if the employees supported the
902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 I should note that at the conclusion of the second day of hearing
on November 3, 1994, when the parties were discussing resumption
dates caused by the failure of Turcios and Herrand to appear, coun-
sel for Respondent stated: ‘‘His instruction from us was not to talk
to Oscar about this case. And so whether Oscar was subpoenaed or
not, isn’t his business. If Oscar approached him, we told him that
he’s not to give any advice about it because we don’t want any fur-
ther allegations.’’
5 Counsel for the General Counsel and counsel for Respondent
each submitted their proposed transcript of the contents of this tape
(G.C. Exh. 14). Although there are understandable differences in
these proposed transcripts (portions of the tape are indecipherable),
these differences are not material to the issues here. Either way, they
show that Rapillo was evasive and was not being open and honest
about this conversation and, presumably, about the two earlier con-
versations on the subject, as well.
Union. During the meeting, Turcios said that he was not
happy about working a 45-hour week. Rapillo said that it
was the first that he had heard of it, that his father had it
while he operated the Company, and when he and his brother
took over the Respondent in 1988 they kept it that way being
unaware of any problem. ‘‘I made the point that I certainly
could not promise anything with regard to the 45-hour work-
week. After the election was over, we could bring up the
matter again in the future and discuss it further.’’
The final allegation is that in about late September and
October, Respondent, by Rapillo, interfered with the Board’s
processes by discouraging employees from obeying the
Board’s subpoenas. This allegation involves Turcios, whose
attendance the Board had difficulty obtaining. The hearing
here opened on August 24, 1994; Kerrigan, Herrand, and
Turcios, who had been subpoenaed to appear by counsel for
the General Counsel, did not appear at that time. Kerrigan
appeared at the second day of hearing, November 3, 1994.
By order of Honorable Robert J. Ward, United States District
Judge for the Southern District of New York, dated Septem-
ber 20, 1994, Turcios and Herrand were ordered to appear
before me for the second day of hearing on November 3,
1994. They did not so appear. Judge Ward issued further or-
ders dated January 10, 1995, wherein he found Turcios and
Herrand in civil contempt of his prior orders, and he further
ordered that if they did not purge themselves of this con-
tempt (by appearing as demanded) they would be fined and
imprisoned. They appeared at the third day of hearing, March
28, 1995.
Turcios did not work from about the beginning of August
through the end of September 1994 due to a work-related in-
jury that he incurred while employed by Respondent. He tes-
tified that, during this period, he did not receive any wages
or Workmen’s Compensation payments and at the end of
September he called Rapillo and told him that he had not re-
ceived Workmen’s Comp because they said that they had not
received the report from Respondent. Rapillo said that he had
sent in the report and would call Workmen’s Comp. Rapillo
asked him if he would be returning to the facility because
he heard that he was looking for another job. Turcios said
that he liked his job and wanted to return to it. Rapillo then
told him that the union hearing was coming up soon and that
‘‘he would appreciate it if I wouldn’t show up.’’ Turcios
said, ‘‘okay.’’ In the beginning of October 1994, after
Turcios had returned to work, he spoke to Rapillo in the of-
fice. He told Rapillo that he received the subpoena and
Rapillo told him: ‘‘Don’t worry about it, because they never
enforce that.’’ Turcios asked, ‘‘Do you think so?’’ Rapillo
answered: ‘‘Well, I can’t tell you what to do, but I would
appreciate it if you would skip it.’’ He told Turcios that the
Government would not do anything: ‘‘It’s not like you’re a
witness to a crime.’’
Rapillo’s testimony on this subject is far from clear.4 He
testified that prior to the first day of hearing, Turcios told
him that he was subpoenaed to appear at the hearing, but did
not want to get involved, and asked Rapillo what he should
do. Rapillo told him that, ‘‘it’s obvious that it’s in my best
interest that he didn’t go, but that he has to decide for him-
self if he wanted to go.’’ He testified further that, at about
the time of the second day of hearing, Turcios approached
him and said that he was told to appear, that he didn’t want
to get involved, and asked what would happen if he did not
appear. Rapillo answered: ‘‘I said my understanding from
talking to counsel was that they normally don’t enforce those
subpoenas but, again, he had to decide for himself. I couldn’t
decide for him.’’ Rapillo was initially cross-examined prior
to counsel for the General Counsel notifying the parties that
Turcios had tape recorded certain conversations with Rapillo
about a week before the March 28, 1995 hearing in which
Turcios testified. The contents of these conversations is not
alleged as a violation here, and therefore this tape recording5
was received into evidence solely on the issue of credibility.
However, because of the seriousness of the allegation that
Respondent interfered with the Board’s processes, as well as
Judge Ward’s orders, I note that in these conversations
Rapillo told Turcios that he did not have to appear because
the Government never enforces the subpoenas, and he re-
peated that point a number of times. He also told him on a
few occasions in these conversations that he could not stop
him from going, but it was in his best interest if Turcios did
not go. The implication from the latter statement is obvious,
while in the prior statement, Rapillo was recommending that
Turcios defy Judge Ward’s order and the Board’s subpoena.
D. Analysis of 8(a)(1) Allegations and Objections
I generally found the employee witnesses more credible
than Rapillo. Although portions of his testimony were rea-
sonable and understandable, at other times he was evasive
and, especially on the Turcios subpoena issue, clearly not
credible. On the other hand, I found Richardson, who is no
longer employed by Respondent, to be a bright and credible
witness. Turcios and Herrand were also direct and credible
witnesses, even if their testimony sometimes lacked specific-
ity and details.
The first allegation to be discussed here is that the Re-
spondent scheduled the May 19 meeting to conflict with the
union meeting and at the meeting promised employees a 40-
hour week and other unspecified benefits if they voted
against the Union in the upcoming election, and threatened
to discharge all of the employees if the Union was selected
as their bargaining representative. Initially, I do not credit
Kerrigan’s testimony that at this meeting Rapillo said that he
knew of the union meeting scheduled at Herrand’s house that
evening. I credit Szola’s testimony that Kerrigan arrived at
the conclusion of the meeting, and I find it highly unlikely
that Rapillo would make such an admission to his employees
2 days prior to the election. However, based upon all the evi-
903TUFO WHOLESALE DAIRY
dence on the subject, I find that Rapillo purposely scheduled
this meeting to prevent the employees from attending the
union meeting that evening at Herrand’s house. The election
date of May 21 was agreed to by the parties on May 10 and
yet Rapillo waited until the afternoon of May 19 to notify
his employees of the meeting to be held later that day. I do
not credit his testimony that he decided to hold the meeting
on that day a few days earlier; if that were true, why didn’t
he tell the employees of the date earlier than the afternoon
of May 19? Supporting my finding that this was a last
minute decision is the fact that Rapillo has to chase after
Kerrigan at his health club to tell him about the meeting.
There was also no testimony from Rapillo about why he
chose May 19, rather than any other day. I find that a rea-
sonable conclusion is that Rapillo learned earlier that day
(possibly from Jallum) that the Union was having a meeting
that day, and decided to have a meeting of his employees in
order to prevent them from attending the union meeting. I
therefore find that this constitutes objectionable conduct by
Respondent and violates Section 8(a)(1) of the Act. Alert
Medical Transport, 276 NLRB 631, 665 (1985).
It is next alleged that statements by Rapillo at this meeting
violated the Act. As Richardson did not attend the meeting,
and as I have credited the testimony of Szola that Kerrigan
arrived when the meeting had been completed, the only testi-
mony to support these allegations is from Turcios and
Herrand, whom I have found to be credible witnesses. On the
basis of their credited testimony, I find that after Turcios
brought up the 45-hour workweek issue at the meeting,
Rapillo told the employees that if the Union lost the election,
he would pay them overtime after 40 hours of work. Such
a promise of benefit clearly is objectionable conduct and vio-
lates Section 8(a)(1) of the Act as well. I find no credible
evidence to support the allegation that at this meeting Rapillo
threatened to discharge his drivers if the Union was selected
as their bargaining representative, and would therefore rec-
ommend that this allegation be dismissed and the cor-
responding objection be overruled.
Richardson testified credibly that shortly prior to the elec-
tion, during a conversation that she initiated with Rapillo to
learn why she was selected for a promotion, he told her that
he knew who started the union movement at the facility be-
cause he knew somebody at the union office who could tell
him the names on the union cards. In United Charter Serv-
ice, 306 NLRB 150 (1992), the Board stated that it applies
the following test in impression of surveillance cases:
‘‘Whether employees would reasonably assume from the
statement in question that their union activities have been
placed under surveillance.’’ The Board stated further that in
these cases it does not require the employees to keep their
activities secret, and does not require that the employer’s
words reveal that it acquired its knowledge of the employees’
activities by unlawful means. Rapillo’s words to Richardson
satisfies this test, and I therefore find that it violates Section
8(a)(1) of the Act and, correspondingly, I sustain the objec-
tion based on this allegation. In this conversation, Rapillo
also told Richardson that he could tie up the union campaign
for 2 years in the courts. This violates Section 8(a)(1) of the
Act as a warning that it would be futile for the employees
to attempt to select the Union as their bargaining representa-
tive. Atlas Microfilming, 267 NLRB 682, 685–686 (1983);
Sivalis, Inc., 307 NLRB 986, 1001 (1992). I find that this
constitutes objectionable conduct as well.
I credit Richardson’s testimony that in about mid-April to
early May, she overheard a conversation between Steve and
Serena Rapillo where Steve Rapillo told Serena Rapillo that
if the Union came in he would close the facility rather than
deal with the Union. In Nemacolin Country Club, 291 NLRB
456, 460 (1988), an employee overheard a conversation be-
tween an agent of Respondent and a member of Respondent,
wherein the agent said that they could fire all the employees
in order to keep the union out. The administrative law judge
stated: ‘‘It is well settled that the assessment of a statement,
for purposes of Section 8(a)(1) does not turn on the employ-
er’s motive, but the test of legality is whether the remark
tended to impede employees in the exercise of their Section
7 rights.’’ Steve Rapillo’s statement would clearly have that
effect, and I therefore find that it violates Section 8(a)(1) of
the Act. I also sustain the objection based on this conduct.
Kerrigan testified that about 2 weeks before the election,
while he was in the office, Rapillo asked him if he was
going to vote and who he was going to vote for. Although
I have previously discredited Kerrigan regarding the time
that he arrived at the May 19 meeting, I found him, overall,
to be more credible than Rapillo, and would credit his testi-
mony regarding this incident. As there were no open and ac-
tive union supporters here, and as this questioning was by
the boss and had no legitimate purpose, I find that it violates
Section 8(a)(1) of the Act. Rossmore House, 269 NLRB
1176 (1984). I would also sustain the objection based on this
conduct. I also credit Herrand’s testimony that Rapillo asked
him if he had heard anything about the Union. When he an-
swered that he had not, Rapillo asked him if he was sure,
and he said that he was. As discussed above, this questioning
by the boss, without a legitimate purpose, of an employee
who was not an active and open union supporter, violates
Section 8(a)(1) of the Act, and I sustain the objection based
on this activity. I also credit Turcios’ testimony that in April,
Rapillo asked him if he was approached by anyone asking
him to sign a union card. He had no legitimate reason to ask
Turcios this question other than to attempt to intimidate him
regarding his support for the Union. It violates Section
8(a)(1) of the Act, and I sustain the objection based on this
conduct.
Turcios also testified that during this period, when he re-
turned to the facility from his route, Rapillo approached him
and said that if the Union got in it would destroy his busi-
ness, his mother and brother would be out in the street, and
the employees would be out of a job. It requires no case cita-
tions to find that a statement by the boss to an employee that
the business would close and they would all be out of jobs
simply because the Union won the election violates Section
8(a)(1) of the Act.
Turcios testified that during this period, Rapillo told him
that if the Union got in they would try to get rid of the driv-
ers because they did not have CDLs. Rapillo’s testimony is
that he told the drivers that he did not believe the Union was
going to allow them to continue driving for the Respondent
because they did not have CDLs. The difference is minor,
but, again, I would credit Turcios. In NLRB v. Gissel Pack-
ing Co, 395 U.S. 575 (1969), the Court stated:
904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thus, an employer is free to communicate to his em-
ployees any of his general views about unionism or any
of his specific views about a particular union, so long
as the communications do not contain a ‘‘threat of re-
prisal or force or promise of benefit.’’ He may even
make a prediction as to the precise effect he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer’s be-
lief as to demonstrably probable consequences beyond
his control . . . .
Under this test, Rapillo’s statement clearly violates the Act.
There is absolutely no evidence that the Union was going to
prevent Respondent’s drivers lacking CDLs from driving if
it won the election. Rather, this was a bare threat by Rapillo
in attempting to convince the employees to vote no in the
upcoming election. The only difference is that in this threat,
as compared to the others here, he placed the onus on the
Union.
It is next alleged that in about June, Respondent promised
employees a 40-hour workweek if they put an end to the
Union’s attempt to be their bargaining representative. The
credited testimony of Turcios establishes that shortly after
the election, he, Herrand, and Kerrigan approached Rapillo
and told him that although he had promised them at the May
19 meeting that they would get a 40-hour workweek, they
were still working a 45-hour week. Rapillo said that he
couldn’t make any changes because the Union was ‘‘suing
him,’’ although I find it more likely that he said that he
couldn’t make the changes because of the pending Board
charges and objections. Turcios said that they didn’t have
anything to do with it, and Rapillo told them that if they got
the Union off his back, they would have it. It is in these
types of cases that employers allege that they have a ‘‘Hob-
son’s Choice’’; do they grant the benefits and risk a finding
of objectionable conduct based on unlawfully granting bene-
fits, or do they refuse to grant the benefit and risk a finding
of objectionable conduct for unlawfully withholding a bene-
fit? In Village Thrift Store, 272 NLRB 572 (1984), the Board
stated:
The Board has resolved this dilemma by permitting em-
ployers to tell their employees that those benefits pre-
viously provided in an indefinite manner will be de-
ferred during the pendency of organizational efforts
where they make clear that the purpose in doing so is
to avoid the appearance of interference.
That situation is not present here. The benefit here is not one
that had been regularly provided to the employees prior to
the union campaign. Rather, it was one that Rapillo first
promised to them only 2 days prior to the election. This was
not a Hobson’s Choice; this was a dilemma that Rapillo cre-
ated himself by unlawfully promising them a benefit if they
did not support the Union. I therefore find that by telling the
employees that he could not give them a 40-hour workweek
because of the pending union objections, Respondent violated
Section 8(a)(1) of the Act.
It is next alleged that in about May, Respondent violated
Section 8(a)(1) of the Act by impliedly promising to pay
Herrand’s parking tickets if the Union lost the election.
Whereas I have generally discredited Rapillo’s testimony, I
find Herrand’s testimony on this allegation so confused, un-
likely, and incredible that I credit Rapillo’s testimony and
recommend that this allegation be dismissed. Herrand testi-
fied that Rapillo initiated the conversation about his unpaid
tickets. These were tickets that Herrand incurred personally
and I can find no explanation of how Rapillo would have
learned of the tickets unless Herrand first told him about
them. I therefore recommend that this allegation be dis-
missed.
The final allegation is the one that was filed pursuant to
a notice of motion to amend complaint, dated January 18,
1995, that in about September and October 1994, Respond-
ent, by Rapillo, interfered with the Board’s processes by dis-
couraging employees from obeying the Board’s processes.
The credited testimony of Turcios establishes that in Septem-
ber, when he called Rapillo to complain about the fact that
he had not received any Workmen’s Comp, Rapillo said that
the hearing was coming up soon and that ‘‘he would appre-
ciate it’’ if Turcios did not show up (Rapillo learned at the
first day of hearing on August 24, 1994, that Turcios had
been subpoenaed, but had not appeared). In October 1994,
after Turcios told Rapillo that he had received the subpoena
(actually, he was probably referring to Judge Ward’s order
dated September 20, 1994), Rapillo told him that the Board
never enforces subpoenas and that the Board wouldn’t do
anything to him if he failed to appear because: ‘‘It’s not like
you’re a witness to a crime.’’ He also told Turcios, ‘‘Well,
I can’t tell you what to do, but I would appreciate it if you
would skip it.’’
In Mr. F’S Beef & Bourbon, 212 NLRB 462 at 466
(1974), Administrative Law Judge Walter H. Maloney Jr.
succinctly stated the applicable law here:
As Congress has never invested the Board or its exam-
iners with contempt powers, a notion occasionally
arises in the minds of some that subpoenas issued by
this Agency to compel the attendance of witnesses at
formal hearings do not impose upon the recipient an
obligation to comply, unless and until the subpoena is
enforced by an Order issued by a United States district
judge. The Board long ago laid this notion to rest in
Winn-Dixie Stores, Inc., 128 NLRB 574, when it issued
an admonition not to confuse the legal obligation to
honor a Board subpoena with the procedure spelled out
by Congress for enforcing that obligation. Hence, when
an employer informs an employee that he does not have
to comply with a Board subpoena, or when it tells him
that he is free to suit himself in deciding whether to go
or not to go to a Board hearing in response to the com-
mands of a subpoena, such statements constitute unlaw-
ful interference with Section 7 rights and are a violation
of Section 8(a)(1) of the Act.
Judge Maloney’s words certainly fit the facts here. Rapillo
told Turcios that he would appreciate it if he did not show
up for the hearing, and that the Board never enforces subpoe-
nas and would not do anything to him if he failed to appear
in court. I find Rapillo’s actions here extremely serious. Not
only was he advising Turcios to refuse to comply with the
Board’s subpoena, but he was also recommending that he
disobey the orders of Judge Ward and the Regional Office
might consider referring this matter to the United States at-
905TUFO WHOLESALE DAIRY
torney for the Southern District of New York. Regardless,
Rapillo’s statements to Turcios clearly were intended to con-
vince him to disobey the Board’s subpoena, and violates Sec-
tion 8(a)(1) of the Act. Bobs Motors, 241 NLRB 1236
(1979); Nestle Co., 248 NLRB 732, 740 (1980).
E. The Objections
On the basis of the above findings, I conclude that Re-
spondent has engaged in conduct warranting the setting aside
of the election conducted on May 21, 1993.
F. Gissel Bargaining Order
There were 11 employees in the unit during the period in
question. I have found that Respondent has committed the
following 8(a)(1) violations: affecting all the employees, Re-
spondent purposely scheduled the May 19 meeting to prevent
the employees from attending a union meeting that evening
and, at the May 19 meeting, promised the drivers a 40-hour
workweek if the Union lost the election. Respondent’s
8(a)(1) violation of telling the employees that he could not
give the drivers a 40-hour workweek because of the Union’s
objections was made to Turcios, Kerrigan, and Herrand. The
remaining violations were each made to individual employ-
ees: impression of surveillance and the futility of union rep-
resentation (Richardson), threat to close (Richardson), inter-
rogations (Kerrigan, Herrand, and Turcios), threat to close
(Turcios), threat that the Union will have the drivers who
lacked CDLs fired (Turcios), and interference with Board’s
processes (Turcios). I find that this conduct, while very seri-
ous, does not quite reach the level of ‘‘‘exceptional’ cases
marked by ‘outrageous’ and ‘pervasive’ unfair labor prac-
tices.’’ Gissel, supra at 613. However, the Court stated there
that the Board had the authority to issue bargaining orders
on a lesser showing of employer misconduct where, at one
point, the union had a majority. The Court concluded:
In fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration the
extensiveness of an employer’s unfair practices in terms
of their past effect on election conditions and the likeli-
hood of their recurrence in the future. If the Board
finds that the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by
a bargaining order, then such an order should issue.
I find that the extensiveness of the unfair labor practices here
makes the holding of a fair second election highly unlikely.
Additionally, I find it likely that if there were a second elec-
tion, Respondent would repeat the activities that are set forth
above. One reason for this finding is that Rapillo attempted
to convince Turcios not to comply with the Board’s sub-
poena and Judge Ward’s order, even though his counsel had
warned him against doing so. That convinces me that he is
incapable of allowing his employees to decide the issue of
union representation without his interference. I therefore find
that a Gissel bargaining order is warranted, and I therefore
recommend that the petition in Case 2–RC–21302 be dis-
missed.
CONCLUSIONS OF LAW
1. Respondent has been engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union has been a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the Act by
engaging in the following conduct:
(a) Scheduled a meeting of its employees at a time which
would prevent them from attending a previously scheduled
union meeting.
(b) Promised its drivers overtime pay after 40 hours of
work if the Union lost the election.
(c) Created an impression among its employees that their
union activities were under surveillance.
(d) Threatened to close the facility rather than deal with
the Union.
(e) Interrogated its employees regarding their union activi-
ties.
(f) Threatened its employees that if the Union won the
election they would be out of a job.
(g) Threatened its employees that if the Union won the
election the Union would prevent the drivers from working
unless they possessed commercial drivers’ licenses.
(h) Blamed the Union for the fact that it could not give
the drivers a 40-hour workweek.
(i) Interfered with the Board’s processes by telling an em-
ployee that he did not have to honor a Board subpoena.
(j) Informed the employees that it would be futile for them
to select the Union as their bargaining representative.
4. The Respondent did not violate the Act as further al-
leged in the consolidated complaint.
5. The following unit is appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part time warehousemen, driv-
ers and office clerical workers, but excluding all other
employees, supervisors, professional employees and
guards as defined in the Act.
6. Since on about April 5, 1993, and at all times thereafter,
the Union has represented a majority of the employees in the
above-described unit, and has been the exclusive representa-
tive of these employees for purposes of collective bargaining
within the meaning of Section 9(a) of the Act.
7. The Respondent’s unlawful conduct interfered with the
representation election conducted on May 21, 1993.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefore and that it take certain affirmative
action designed to effectuate the policies of the Act. As set
forth above, I shall recommend that Respondent be ordered
to recognize and, on request, to bargain with the Union as
the exclusive bargaining representative of its employees in
the above-described unit. As a bargaining order has been
found to be appropriate, I recommend that the election con-
ducted in Case 2–RC–21302 be set aside and that the petition
in that matter be dismissed.
906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Tufo Wholesale Dairy, Inc., Bronx, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Scheduling meetings with its employees in order to
prevent them from attending previously scheduled union
meetings.
(b) Promising its employees improved benefits if the
Union lost the upcoming election.
(c) Creating an impression among its employees that their
union activities were under surveillance by Respondent.
(d) Threatening to close the facility rather than deal with
the Union.
(e) Interrogating its employees about their union activities.
(f) Threatening its employees that they would be out of a
job if the Union won the election.
(g) Threatening its employees that, if the Union won the
election, the Union would try to prevent all drivers without
commercial drivers’ licenses from working for Respondent.
(h) Telling its employees that because of the Union and
its objections to the election, it could not grant them a 40-
hour workweek.
(i) Interfering with the Board’s processes by telling em-
ployees that they did not have to appear pursuant to Board
subpoenas.
(j) Informing its employees that it would be futile for them
to attempt to select the Union as their bargaining representa-
tive.
(k) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act.
(a) Recognize and, on request, bargain with the Union as
the exclusive bargaining representative of its employees in
the following appropriate unit:
All full-time and regular part time warehousemen, driv-
ers and office clerical workers, but excluding all other
employees, supervisors, professional employees and
guards as defined in the Act.
(b) Post at its facility in the Bronx, New York, copies of
the attached notice marked ‘‘Appendix.’’7 Copies of the no-
tice, on forms provided by the Regional Director for Region
2, after being signed by Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and shall be maintained for 60 consecutive days in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed as to allegations not specifically found here.
IT IS FURTHER ORDERED that the petition in Case 2–RC–
21302 be dismissed.