Bunker, Greg, a Sole Proprietor d/b/a Photo Drive Up, 329 (1983)

PHOTO DRIVE UP

Greg Bunker, a Sole Proprietor d/b/a Photo Drive Up and United Food & Commercial Workers Union, Local 428, affiliated with United Food & Commercial Workers International Union,

AFL-CIO. Cases 32-CA-2914 and 32-CA3136

24 August 1983 DECISION AND ORDER

BY MEMBERS JENKINS, ZIMMERMAN, AND HUNTER

On 25 June 1982 Administrative Law Judge Jesse Kleiman issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge I Respondent asserts that the Administrative Law Judge's resolutions of credibility, findings of fact, and conclusions of law are the result of bias, and otherwise excepts to certain credibility findings made by the Administrative Law Judge. After a careful examination of the entire record, we are satisfied that the allegation of bias is without merit. There is no basis for finding that bias and partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses. As the Supreme Court stated in NLRB v. Pittsburgh Steamship Co.. 337 U.S. 656. 639 (1949), '[T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact.' Furthermore, it is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).

We find no basis for reversing his findings.

Member Hunter agrees that Respondent's no-solicitation rule was unlawfully broad and. therefore, violative of Sec. 8(aXI) of the Act, but does not endorse the holding of T.R. W Bearings, 257 NLRB 442 (1981), subscribing instead to the standard announced in &sex International, 211

NLRB 749 (1974). See his separate opinion in Intermedies. Inc., 262

NLRB 1407 (1982).

Member Hunter also notes that the General Counsel, who bears the burden of proof throughout the case, met that burden with respect to the discharge of employee Ellen Starbird.

' In sec. C,4 of his Decision, the Administrative Law Judge made the alternative finding that Respondent's owner. Greg Bunker, 'engaged in surveillance of his employees or at the least created the impression [of surveillance] among his employees .... ' We agree with the Administrative Law Judge that Respondent actually engaged in surveillance of its employees. The record shows that: (I) prior to the union activity, Bunker never stayed an entire night shift at the plant, or if you credit his testimony, which the Administrative Law Judge did not do, he stayed only once or twice previously for a holiday rush; (2) he spoke individually with employees, soliciting their grievances, and indicating that they would be remedied; (3) he assumed a position from which he could observe the employees, and in which he could be observed by them; (4) he watched employee Jensen go out to dump the trash and deliver an authorization card to Starbird, who was not then 'on company time'; and (4) he admitted that he came to the plant, at least in part, to ascertain the cause of 'morale' problems, 'unrest,' and purported harassment by union adherents. In light of all these facts, we find sufficient evidence from which to conclude that Respondent engaged in actual surveillance in violation of Sec. 8(a)(1) of the Act that evening, and find it unnecessary to pass upon 267 NLRB No. 65 and to adopt his recommended Order, as modified herein.

AMENDED CONCI.USIONS OF LAW Delete Conclusions of Law l(c) and (d), and substitute the following:

'(c) Threatening his employees with unspecified harm, discharge, and plant closure if they engaged in union and/or protected concerted activities, or supported the Union.

'(d) Engaging in surveillance of the union and/or protected concerted activities of his employees.' ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent,

Greg Bunker, a sole proprietor d/b/a Photo Drive Up, San Jose, California, his agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified:

1. Substitute the following for paragraphs l(c) and (d):

   '(c) Threatening his employees with unspecified harm, discharge, and with plant closure if they engage in union and/or protected concerted activities or supported the Union.

   '(d) Engaging in surveillance of the union and/or protected concerted activities of his employees.' 2. Substitute the attached notice for that of the Administrative Law Judge.

   the Administrative Law Judge's alternative finding that Respondent thereby also created the impression of surveillance.

   The Administrative Law Judge also inadvertently failed to include in his Conclusions of Law, the finding in sec. C,3 of his Decision. that Respondent threatened his employees with unspecified bodily harm. In light of this error, and our determination in the preceding paragraph, we will amend the Conclusions of Law, modify the Order, and issue a new notice.

   APPENDIX

   NOTICE To EMPLOYEES POSTED BY ORDER OF THE

   NATIONAL LABOR RELATIONS BOARD

   An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice.

   329

   DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Act gives employees the following rights:

   To engage in self-organization To form, join, or assist any union To bargain collectively through representatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutaal aid or protection To refrain from the exercise of any or all such activities.

   I WILL NOT interrogate my employees regarding their own and other employees' union or protected concerted activities.

   I WILL NOT solicit my employees' grievances and promise that the grievances will be adjusted for the purpose of influencing the employees' selection of a labor organization as their bargaining representative.

   I WILL NOT threaten my employees with unspecified bodily harm, discharge, or plant closure if they engage in union or protected concerted activities.

   I WILL NOT engage in surveillance of the union or protected concerted activities of my employees.

   I WILL NOT promulgate or maintain an invalid no-solicitation rule, or apply it in a discriminatory manner.

   I WILL NOT expressly or impliedly promise wage increases or other benefits to my employees for the purpose of discouraging their support of the Union.

   I WILL NOT discourage membership in or support of United Food & Commercial Workers Union, Local 428, affiliated with United Food & Commercial Workers International Union, AFL-CIO, or any other labor organization, by discharging employees or otherwise discriminating against them in their hire or tenure.

   I WILL NOT refuse to recognize and, upon request, bargain with the Union as the exclusive collective-bargaining representative of my employees in the following unit:

   All full-time and regular part-time laboratory employees and drivers employed by me at my Meridian Avenue, San Jose, California facility; excluding all retail clerks, retail sales clerks, guards and supervisors as defined in the Act.

   I WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act.

   I WILL offer Ellen Starbird immediate and full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed, and I WILl make Ellen Starbird whole for any loss of pay suffered by her as a result of the discrimination practiced against her, with interest.

   I WILL expunge from my files any reference to the discharge of Ellen Starbird on July 23, 1980, and notify her in writing that this has been done, and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against her.

   I WILL rescind my invalid no-solicitation rule.

   I WILL, upon request, recognize and bargain with the Union as the exclusive collective-bargaining representative of my employees in the appropriate bargaining unit set forth above, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody that understanding in a written, signed agreement.

   GREG BUNKER, A SOLE PROPRIETOR D/B/A PHOTO DRIVE UP DECISION

   STATEMENT OF THE CASE

   JESSE KLEIMAN, Administrative Law Judge: Upon charges filed in Cases 32-CA-29141 and 32-CA-3136 2 on July 29, 1980, and October 17, 1980, respectively, by United Food & Commercial Workers Union, Local 428, affiliated with United Food & Commercial Workers International Union, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 32, Oakland,

   California, duly issued an order consolidating these cases, an amended consolidated complaint and notice of hearing on March 10, 1981, against Greg Bunker, a Sole Proprietor d/b/a Photo Drive Up, herein called the Respondent, alleging that the Respondent engaged in certain unfair labor...