United Services for the Handicapped

UNIT ll) SRVICT S F()R 1IIF tIANI)ICAPPIAt'I) United Services for the Handicapped and Joseph McHenry and Kevin Ward arid United Food and Commercial Workers International Union, Local No. 698, AFL-CIO t. Cases 8-CA-11710, 8-CA-11756-3, and 8-CA-11762 August 27, 1980 DECISION AND ORDER B CHAIRMAN FANNING ANI) MFliBI:RS JENKINS ANI) TRUF.SDAI-E On October 9, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief. Respondent subsequently filed cross-exceptions, a brief in sup- port thereof, and an answering brief to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, 2 and conclusions of the Administrative Law Judge only to the extent consistent herewith.3 The Administrative Law Judge found that Re- spondent violated Section 8(a)(3) of the Act by dis- charging employees Adrian Coleman, Mary Gattis, Elvis Hollinger, Joseph McHenry, Richard Ter- rass, and Kevin Ward for engaging in union activi- ties. Additionally, the Administrative Law Judge concluded that Respondent violated Section 8(a)(l) of the Act during February and March 1978 by the following conduct: (1) Director of Transportation Joseph Scherer's statement to McHenry that the union movement would cause Respondent to close down; (2) Supervisor Melvin Owens' separate threats of discharge to employees Guy Boles, Miller Horns, Ward, and Coleman if they became involved in protected activities; (3) Owens' coer- ' The name of the Charging Party, formerly Retail Clerks Internation- al Union. ILocal No 698. AFL-CIO. is amended to reflect the change resulting from the merging of Retail Clerks International Un itand Amalgamated Meatcutters and Butcher Workmen of North America. on June 7 1979. i Respondent has excepted to certain credibility finldiig, niade hby tI Adminlistrativec I a Juldge is the Board's essablished policy not to overrule an adminlstralle las judge's resolulions with rlecl to redi- nility unless the clear prepolllerance of all of the relevant evidcnce coin- ,inces us that the reslutlllons aIre incorrect Standurd Dr,, Ifall ProdliL Inc. 91 NRB 544 (1950). enfd lX, F 2d 362 (d Cir 1951) We hae carefully examined Ihe record and find no basis fr reversing his flidings :' he General Counsel hae xcepted to the Adrilliliril ise l.as Judge's failure to recomnmend hat itelcrest ilI hackpa) should b cnomput- ed at the rle of perlent per annln We fiutilt lo merit i1 this coitei- tlon See Iorid Seel Crporltliotl. 231 NRB I 651 (19771 Member Jenkins sould aard lltcrest on the backpa, due i a.ccord ance wsith his dTisseit i Ovinpw icdwal (orporauio, 25t NI R N II (198)) 251 NLRB No. 117 cive interrogation of employee Jessica King as to why she became involved in protected activities; and (4) Operations Supervisor Janet Holeman's im- plied threats to Terrass that, as a probationary cnl- ployee, he would lose his job if he engaged in pro- tected activities. We adopt these findings of the Administrative Law Judge. The General Counsel has excepted to the Ad- ministrative Law Judge's failure to find additional 8(a)(1) and (3) violations, and to his failure to rec- ommend a bargaining order remedy. As discussed below, we find merit in these exceptions. The Administrative Lacw Judge did not consider certain conduct engaged in by Respondent which. according to the General Counsel, further violated Section 8(a)(l) and (3) of the Act. Although those activities alleged as unlawvful by the General Coun- sel were not described with specificity in the com- plaint, the matters were fully litigated at the hear- ing. We have long held "that when an issue relat- ing to the subject matter of a complaint is fully liti- gated at a hearing . . . the Board [is] expected to pass upon it even though it is not specifically al- leged to be an unfair labor practice in the com- plaint."4 Accordingly, we find that Respondent further violated Section 8(a)(l) and (3) of the Act as follows: 1. The record establishes that employee McHenry drafted a petition on behalf of employees for improved working conditions5 which he handed to his supervisor on February 7, 1 97 8 . ; McHenry's uncontroverted testimony is that laiter that day he was warned that drivers would not be able to tolerate the additional work rules Respond- ent planned to impose if they selected a union as their bargaining representative. He was also given a verbal warning for excessive tardiness and absen- teeism. The following day, although he arried at work early, McHenry was given a written repri- mand and placed on 90 days' probation, allegedly for the same offenses. Previously, McHenry had been orally warned about tardiness once in January but had received no other reprimands. With respect to the General Counsel's allegations concerning these incidents, we note that the record is replete with evidence of Respondent's animus toward its employees' exercise of their Section 7 rights. Indeed, McHenry's unrebutted testimony es- tablishes an unlawful threat directed to him on February 7 to use more onerous working condi- tionF, if employees selected the Union, a threat I llfof r, Ied SIru. 112 NI R II lii t. 1137 l h5;l) 1 iet petitionl as igned hy it driv etrs .ainld speciiitld 'i1e rod . s.liich inludCd a As.lgC Ilicre.. oveIrilmc pay. proper u.llIilllell , .1 huskes .ld dl. , vlo ntiti ' hasmcitll. to be met inin tlditelX All L.lc, lhereill ie ill 117S. utlles othersisc illIdCi.ilt s2 " 824 DI). CISI()NS ()1: NA I()NAL. .ABO(R RELATIONS BOARD) which was coupled with Respondent's oral repri- mand concerning tardiness. Given the evidence of Respondent's animus, its knowledge of McHenry's activism on behalf of his fellow employees, and the timing of Respondent's disciplinary action, we are satisfied that the General Counsel has made out a primna Jaicie case that Respondent's reprimand and its decision to place McHenry on probation were in retaliation for his protected activity and hence violated Section 8(a)(l) of the Act. Additionally, we conclude that Respondent further violated Sec- tion 8(a)(l) by threatening its employees with more stringent work rules in the event they selected a union to represent them. 2. Driver Gattis testified that, on or about Febru- ary 7, Owens told her that all those employees who had signed the employee petition would prob- ably lose their jobs. Linda Wiley, another driver, also stated that Owens had made a similar remark to her that same day. Since O)wens did not testify at the hearing, this testimony is uncontrovcrted, and we find that ()Owenls' relmarks constituted a threat to discharge employees for engaging in pro- tected activities in violation of Section 8(a)(1) of the Act. 3. Wiley further testified that Director of Trans- portation Scherer told her, on or about February 8, that even if the Union did win the election, the Company would go bankrupt, and all the employ- ees would lose their jobs anyway. Additionally, Wiley stated that on two other occasions Scherer threatened her with reprisals, including discharge, if she continued her involvement in union activi- ties. Although Scherer denied having any conver- sations with Wiley concerning the employees' union activities, the Administrative Law Judge dis- credited his testimony in other respects. Thus, we credit Wiley's testimony and find that Respondent violated Section 8(a)( 1) by threatening to close down operations or to discharge employees be- cause of their union activities. 4. Terrass testified that, on February 24, Scherer told a group of striking drivers, "I hope you realize that you have blown your free coffee." Scherer stated that, in January, he had indicated to employ- ees that he would try to get coffee for them, but claimed that he did not mention anything concern- ing this matter during the employees' strike. Since the Administrative Law Judge resolved other con- flicts between the testimony of Terrass and Scherer in favor of Terrass, we credit Terrass' testimony concerning this incident. Accordingly, we find that Respondent, by threatening employees with loss of benefits in retaliation for their work stoppage, vio- lated Section 8(a)(l) of the Act. 5. Terrass also testified that, while on strike in late February, he and two other employees went to the local headquarters of United Cerebral Palsy, one of Respondent's largest clients, to meet with that organization's executive director, Betty Raven- scroft. The employees asked Ravenscroft for per- mission to solicit union authorization cards from Respondent's nonstriking drivers who might be waiting for patients outside the building. Raven- scroft granted the request. As Terrass and the others were discussing the Union with several non- striking drivers, Scherer arrived at the entrance of the building. Scherer asked one of the drivers, Mary Davis, whether the strikers were interfering with her work. After Davis replied that they were not, Scherer asked the strikers what they were doing there. The strikers responded that they had gotten permission from Ravenscroft to meet with the nonstriking drivers in front of the building. Scherer remarked, "Well, we'll see about that," shook his head, and left. In his testimony, Scherer not only corroborated Terrass' version of the inci- dent, but also admitted that someone might have told him that the strikers were passing out union cards in front of the United Cerebral Palsy build- ing. Based on these facts, we find that Scherer went to the United Cerebral Palsy headquarters to determine the identities of the strikers who were soliciting cards and to interrogate them concerning their union activities. Thus, we conclude that Re- spondent engaged in unlawful surveillance and in- terrogation of its employees in violation of Section 8(a)(1) of the Act. 6. After unlawfully discharging Terrass for dis- criminatory reasons on March 1, Respondent subse- quently recalled him to part-time work at the end of the month. In early July, as the Administrative Law Judge found, Terrass complained to Scherer that newly hired drivers under the Comprehensive Employee Training Act (CETA) were working full time while he continued to work only 2 or 3 hours per day. Terrass subsequently informed CETA offi- cials that Respondent was not complying with its regulations. Thereafter, on July 28, Respondent's administrator, Rick Miller, issued a written warn- ing to Terrass for his failure to follow the griev- ance procedure established by Respondent. Ac- cording to Miller's memorandum, "[T]his violation occurred when [Terrass] went directly to Coy Stewart of CETA with [his] complaint without taking the proper steps outlined in the grievance procedure which [Terrass] signed." Miller also stated that Respondent would take disciplinary action, including suspension or termination, if Ter- rass continued to engage in such activities. The personnel committee of Respondent's board of UNITED SERVICES FOR 'I HE HANI)I('APPEI'iD s trustees subsequently denied Terrass' request that the written reprimand be removed from his person- nel records. The Board has held that, when an employee makes a complaint concerning working conditions to a governmental agency, he is acting not only in his own interest, but is also attempting to enforce governmental regulations for the mutual aid and protection of all employees.7 Thus, Terrass' action in protesting his part-time status to CETA officials plainly constituted protected concerted activities within the meaning of Section 7 of the Act. We therefore conclude that Respondent has further violated Section 8(a)(l) of the Act by issuing Ter- rass a written reprimand and by threatening to dis- charge him for engaging in such activity. 7. The record further shows that Wiley was due for a semiannual wage increase in April. After Scherer denied her raise, Wiley asked him why he had done so. Wiley testified that Scherer stated she would not get a raise because of her union activi- ties. According to Scherer, he did not recommend Wiley for a pay raise due to her failure to cooper- ate with supervisors. For the reasons set forth above, we credit Wiley's version of this conversa- tion. Accordingly, we conclude that Respondent has violated Section 8(a)(3) of the Act by refusing to grant Wiley a wage increase for discriminatory reasons. Finally, we find, contrary to the Administrative Law Judge, that Respondent has refused to recog- nize and bargain with the Union in violation of Section 8(a)(5) of the Act. We find that this viola- tion, as alleged in the complaint, occurred on Feb- ruary 27 when the Union, with a card majority, de- manded recognition and bargaining, and Respond- ent refused. We further find that the unfair labor practices Respondent committed preclude the hold- ing of a fair election and that the lingering effects of Respondent's past coercive conduct render un- likely the possibility that traditional remedies can insure a fair election. We therefore conclude that the Union's card majority provides a more reliable test of employee representation desires and better protects employee rights than would an election, and that the policies of the Act will be best effectu- ated by imposition of a bargaining order to remedy such violations. In so finding, we find unpersuasive the Adminis- trative Law Judge's analysis that a bargaining order is not warranted because Respondent's offi- cials had a "dual purpose" for engaging in unlawful conduct in that they "were as well concerned with the public welfare as they were with the statutory concept of collective bargaining." We find, con- 7 Rodalt', Ixtpros. Inc, 217 Nt R 27. 27 (197 '5) trary to the Administrative Law Judge, that Re- spondent's status as a nonprofit charitable organiza- tion cannot excuse its pervasive unfair labor prac- tices. Whether or not Respondent genuinely feared that its employees' involvement in union and other protected activities would tend to discourage public contributions, such fears are irrelevant to the employees' right to engage in conduct protected by the Act, and are insufficient cause for us to deviate from our normal standards for fashioning a remedy for Respondent's extensive and egregious unfair labor practices. As the Administrative Law Judge found, Respondent violated Section 8(a)(1) by re- peatedly threatening employees with discharge and by engaging in coercive interrogation; and violated Section 8(a)(3) by discharging six employees he- cause of their union activities. We have concludled that Respondent further violated Section 8(a)(1) of the Act in other instances when it threatened em- ployees with discharge and additional work rules if they supported the Union, withdrew its promise to provide employees with free coffee, engaged in co- ercive interrogation and surveillance of employees' union activities, and issued written reprimands to employees and placed them on probation for en- gaging in protected concerted activities: and violat- ed Section 8(a)(3) by discriminatorily denying an employee a wage increase. It is our opinion that Respondent's employees, regardless of the work they perform, have the same Section 7 right to engage in union or other protected activities as do employees of commercial enterprises and, thus, are entitled to any remedial measures, including the im- position of a bargaining order, which may be re- quired to remedy unlawful interference with such rights. We note that the unfair labor practices described above were committed by Respondent's supervi- sors at all levels, including its administrator, direc- tor of transportation, and operations supervisor. Moreover, the consistent repetition of the same un- lawful conduct, e.g., various threats of discharge, suggests, and we so find, that the violations were part of a general campaign to destroy employee support for union and other protected activities. It is also clear that many of these violations were of an extremely serious nature. The Board and the courts long ago determined that threats to close a facility because of union activity are among the most serious forms of interference with protected employee rights,8 and the Supreme Court has noted that they are among the most effective means for destroying election conditions for a s l;.'xth '0rl. 'Ar lcrs ,Unt,, cr . , Mrl xl )arrugrm. AI.fJnu M !fr,,.la ' ( . ISO LI S 263 (1I6'5) lrwg N I , ) d h IrR ' %I.rkr . 17 t1 NLRII S2 (lt969)2. tuffd 434 : 2d 1051 tlN h lr 17Till tI)tCISIO(NS ()1 NA I ()NAI. I AIi()R RI.A I I()NS l()ARI) longer period of time than any other unfair labor practices. Furthermore, Respondent's conduct in threatening to discharge and discharging employees because of their protected activity constitutes un- lavful activities which have long been classified as misconduct going "to the very heart of the Act.""' These unfair labor practices make it clear to the employees that the penalties for engaging in union or other protected activities will be severe. Thus, applying the criteria set forth by the Supreme Court il Gissl. supra, we conclude that the possi- bilitv of erasing the effects of the past unfair labor practices and ensuring a fair election by the use of traditional remedies is slight. Rather, the employee sentiment expressed through the authorization cards is a more reliable indicator of the employees' desire for representation and will be better protect- ed by a bargaining order. Tti R.MIi)Y Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(l), (3), and (5) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to ef- fectuate the purposes of the Act. Thus, having found that Respondent has unlaw- fully refused to bargain collectively with the Union, we shall order that Respondent, upon re- quest, recognize and bargain collectively i good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with United Food and Commercial Workers Internation- al Union, Local No. 698, AFIL-CIO, as the exclu- sive bargaining representative of the employees ii the unit found appropriate, and, if an understanding is reached, embody such understanding in a signed agreemient. Further, we shall require that Respond- ent offer Adrian Coleman, Mary Gattis, Joseph NMcHcnryv, and Kevin Ward immediate and full re- instatement to their former positions or, if such po sitions no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges. Respondent will also make whole these employees, together with Elvis Hollinger. Linda Wiley, and Richard Terrass, for any loss of earnings they may have suffered by reason of Respondent's discrimination against them in the manner prescribed in Af W Woolworth Com- pany, 90 NLRB 289 (1950), together with interest as provided in F'lorida Steel Corporation, supra. I I We shall further direct that Respondent expunge "%I R B s (o I P, ( Im 195 Lt S 75 ( I'4) IG Sc. cS. \ / R I:.n, wh , t% nu/a, ii.. i (G', 12() I: 21 5s2. A6 (411 (l I 941 ) ' S-. gnrall I Plmlwhn l & llcumlm (o, 18 NRB 716 (1 62) from its records any documents relating to the written reprimands issued to employees Richard Terrass and Joseph MctHenry. Finally, we shall issue a broad cease-and-desist order since the wide- spread misconduct engaged il by Respondent clearly "demonstrates a general disregard for [its] employees' fundamental statutory rights."12 CONCI C:SIONS ()I IAW 1. The Respondent, United Services for the Handicapped, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Food and Commercial Workers Inter- national Union, Local No. 698, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following conduct, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(I) of the Act: (a) Threatening employees with reprisals, includ- ing discharge, if they supported the Union. (b) Threatening employees that Respondent would be bankrupt and that all employees would lose their jobs if they selected the Union as their collective-bargaining representative. (c) Threatening employees with additional work rules if they selected a union to represent them. (d) Interrogating employees about their union ac- tivities and sympathies. (e) Engaging in surveillance of its employees' union activities. (f) Creating less favorable working conditions for employees by revoking privileges previously grant- ed in order to induce them to refrain from support- ing the Union. (g) Issuing written reprimands to employees, and placing them on probation, for engaging in union or other protected activities. 4. By discharging employees Adrian Coleman, Mary Gattis, Elvis Hollinger, Joseph McHenry, Richard Terrass, and Kevin Ward for engaging in union activities, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(3) of the Act. 5. By refusing to grant employee Linda Wiley a wage increase because of her union activities, Re- spondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. All full-time and regular part-time bus drivers, dispatchers and maintenance men, but excluding all office clerical employees and professional employ- ees, guards and supervisors as defined in the Act, l! Sc Iti /t [ -du . 1rc . I 242 NI RH 1357 (1979) 8 2 ( UNItIEI) SF:RVICEtS )R tit IIANI)I(A I'I'II) constitute a unit appropriate for the purposes of collective bargaining wvithin the meaning of Section 9(b) of the Act. 7. Since February 27, 1978. the Union has been the duly designated representative of a majority of the employees in the collective-bargaining unit de- scribed above. 8. By refusing to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of its employees in the above-defined unit, Respondent, since February 27, 1978, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, United Services for the Handicapped, Akron, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or in any other manner discrimi- nating against employees because of their union or other protected activities. (b) Threatening employees with closure of its op- erations in retaliation for their union activities. (c) Threatening its employees with discharge be- cause of their union or other protected activities. (d) Threatening its employees with additional work rules if they select a union to represent them. (e) Coercively interrogating its employees con- cerning their union sympathies and activities. (f) Engaging in the surveillance of its employees' union activities. (g) Creating less favorable working conditions for its employees by revoking job-related privileges because of their union activities. (h) Issuing written reprimands to employees, and placing them on probation, because of their in- volvement in protected activities. (i) Refusing to grant its employees wage in- creases in retaliation for their involvement in union and other protected activities. 0i) Refusing to recognize and bargain in good faith with United Food and Commercial Workers International Union, Local No. 8)X, AF L-CIO. as the excluLsive representati ive of its enlploces iii the following appropriate unit: All full-time anid regular part-time bus drivers. dispatchers and ainitenrance men, but exclud- ing all office clerical eiployces ad profes- sional eploees. guards and super- isors is defined in the Act. (k) Ini any other manner interfering itnh. r- straiinig. or coercing eniployees in tile exercise ()f their right to self-organization to form, joinl, o, assist United Food and Commercial Workers Inicr- national Union, Local No. 698, AFL.-CI(). or a, other labor organization, to bargain collectivcl5 through representatives of their own choosing and to engage in other concerted activities for the pur- pose of collective bargaining or other mnltual aid or protection, or to refrain from any and all such ac- tivities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Adrian Coleman Mary Gattis, Joseph McHenry, and Kevin Ward immediate and full re- instatement to their former jobs or, if those jobs no longer exists, to substantially equivalent positions without prejudice to their seniority or any ohrc rights and privileges previously enjoyed. (b) Make whole the employees named abovcc, to- gether with Elvis Hollinger, Richard Terra.s, and Linda Wiley, for any loss of earnings they maN have suffered by reason of the discrimination prac- ticed against them, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Expunge from its records all documents relat- ing to the written reprimands given to Richard Terrass and Joseph McHenry in retaliation for their involvement in protected activities. (d) Upon request, recognize and bargain collec- tively in good faith concerning rates of pay, xsagcs. hours, and other terms and conditions of empllo!- ment with United Food and Commercial Workers International Union, Local No. 698, AFL-CI(). as the exclusive bargaining representative of the emii- ployees in the appropriate unit, and, if an under- standing is reached, embody such understandinig il a signed agreement. The appropriate collecti c-hal- gaining unit is: All full-time and regular part-time bus drix -rs. dispatchers and mainternance mien. butl cxclud ing all office clerical employees anid profes- sional employees, guards ad supervisors as defined in the Act. (e) Preserve and, upoin request. lllake available to the Board or its agents. for exainatiion and cop!- ing. all payroll records. social security paylnlClll Ire- cords, tillitecar-ds. persoiInl records illd repot'lls, and all other records mlecCCsar\ to ilvly/C tc amount of ;ackpa dluti under the ells o(1 thls (rder. t) Post iat its place of businescs in Akron. ()hio,. copic's of Ic attached notiCe Illilke 'Al'ppii- , 11 X2X I)ECISIONS ()F NATI()NAL LAI()R RELATIONS BOARI) dix." :' Copies of said notice, on forms provided by the Regiona! Director for Region 8, after being duly signed by its representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. I l Ih cc l Ihatl l (his ()rdcr is enforced by a Judgment of a United Stlat. , C l't of Appeals, the wods i the notice reading "Posted hy Order of( the Natialll I.ahir Relltiontlh Bl ard" shall read "Polsted Pursu- Alit i I .a lIudgIl IIl 1' o lihc lnited States Court il' Appeals Enforcing all ()i1 li 1 of 1th 1 Naionlil [.lllr Relatills B;kard APPENDIX No-rici: TO EMPLOYEES POSTF.I) B ORDERI) OF THE NATIONAI. LABOR RgI' ATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage ill self-organization T'Io form, join, or assist any union ''o bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WEi wlli NO-I discharge or in any other manner discriminate against employees because of their union or other protected activities W'I Wll NOT' threaten our employees with the closure of our operations in retaliation for their union or other protected activities. We will not threaten our employees with discharge because of their union or other pro- tected activities. Wi. wvii I NO[' threaten our employees with additional work rules if they select a union to represent them. WE WIl.L NOT coercively interrogate our employees concerning their union sympathies and activities. WI: Will. NO'I engage in the surveillance of our employees' union activities. WE Wll.l NOT create less favorable working conditions for our employees by revoking job- related privileges because of their union activi- ties. W: WIll NOT issue written reprimands to our employees, or place them on probation, because of their involvement in protected ac- tivities. WE WILL NOT refuse to grant our employees wage increases in retaliation for their involve- ment in union and other protected activities. WE WILL NOT refuse to recognize and bar- gain in good faith with United Food and Com- mercial Workers International Union, Local No. 698, AFL-CIO, as the exclusive repre- sentative of our employees in the unit de- scribed below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to join or assist United Food and Commercial Workers International Union, Local No. 698, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining and other mutual aid or protec- tion, or to refrain from any or all such activi- ties. WE WL offer Adrian Coleman, Mary Gattis, Joseph McHenry, and Kevin Ward irn- mediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions without preju- dice to their seniority or any other rights and privileges previously enjoyed. WE WlltI make whole each of the four above-named employees, together with Elvis Hollinger, Richard Terrass, and Linda Wiley, for any loss of earnings they may have suf- fered by reason of our discrimination practiced against them, plus interest. WE Will.l. expunge from our records all doc- uments relating to the written reprimands given to Richard Terrass and Joseph McHenry in retaliation for their involvement in protect- ed activities. Wi. wii.i, upon request, recognize and bar- gain collectively in good faith concerning rates of pay, wages, hours, and other terms and con- ditions of employment with United Food and Commercial Workers International Union, Local No. 698, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate bargaining unit, and, if an un- derstanding is reached, embody such under- UNITED SERVICES FOR THE HANDICAPPEI'D standing in a signed agreement. The appropri- ate bargaining unit is: All full-time and regular part-time bus driv- ers, dispatchers and maintenance men, but excluding all office clerical employees and professional employees, guards and supervi- sors as defined in the Act. UNITED SERVICES FOR THE HANDI- CAPPED DECISION STATEMENT OF THE CASE THOMAS A. RICCI, Administrative Law Judge: A hear- ing in this proceeding was held before me in Akron, Ohio, on June 25-27, 1979, on complaint of the General Counsel against United Services for the Handicapped, herein called the Respondent. The complaint issued on January 31, 1979, upon three separate charges-Case 8- CA-11710 filed by Joseph McHenry, an individual, on February 15, 1978; Case 8-CA-1762 filed by Retail Clerks International Union, Local No. 698, AFL-CIO, on March 6, 1978, herein called the Union; and Case 8- CA-11756-3, filed by Kevin Ward, an individual, on March 8, 1978. The issues raised are whether the Re- spondent violated Section 8(a)(1) of the Act by making coercive statements to employees, whether it violated Section 8(a)(5) by illegally refusing to bargain with the Union on request-and thereby subjecting itself to a re- medial bargaining order now, and whether it violated Section 8(a)(1) and (3) by discharging employees and by discriminating against them because of their concerted and/or union activities. Briefs were filed by the General Counsel and the Respondent. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. JURISDICTION United Services for the Handicapped is a nonprofit corporation operating under the laws of the State of Ohio. It is a United Way agency which operates both a preschool for children aged 2-5 years old with learning disabilities, and a transportation division, which services its own school, The Akron Headstart Program, and the clients of Akron area public services agencies. The money which funds this service operation, in excess of $800,000 in the year 1978, comes from governmental sources, Federal and local, and from contributions made by the public through charitable groups. The word "rev- enue" in the complaint is a misnomer, there is no income from investments here, or profits. The organization made purchases directly from points located outside the State of Ohio of at least $3,000 in 1978. During the same period, the Respondent purchased goods valued in excess of $50,000 indirectly from points located outside the State. Of the $800,000 gross amount spent annually, ap- proximately S620,(X) is allocated to the Respondent's transportation department. I find that the Respondent is engaged in commerce within the meaning of the Act, and is subject to the juris- diction of the National Labor Relations Board. 11. THE I AHOR ORGANIZATION INVOI VI) I find that Retail Clerks International Union, Local No. 698, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. InI. THE NFAIR I AHOR PRACTICES A. . Picture of the Case The dispute which gave rise to this case arose when the approximately 25 bus and van drivers who were em- ployed by the Respondent organization decided to take joint action to improve their working conditions. They first submitted a petition-signed by many of them-to management on February 7, 1978, listing their complaints and demands. Denied the opportunity to deal with the managers collectively-i.e., as a group-they struck on Friday, February 24. On Monday, February 27, still on strike, they turned to the Union for support. That day, and the next, the Union demanded recognition as exclu- sive bargaining agent, but was rejected. Also on Tues- day, February 28, all the strikers made unconditional offers to return to work, and most of them in fact were restored to their regular jobs the next day. Apace with this, on February 27 the Respondent dis- charged a striker named Kevin Ward. The complaint al- leges that he was dismissed for having participated in the concerted activities, and for having joined the strike, a statutory violation. Denying illegal motive, the Respond- ent asserts, in defense, that Ward was discharged for just cause, because of his unsatisfactory performance as an employee. On March 1, as the drivers were starting to work again, Mary Gattis, one of the dispatchers, was also discharged. Again the complaint alleges this dismiss- al was a violation of Section 8(a)(3), the discharge of a striker because she was a striker. Here the Respondent admits-as indeed its personnel records show-the reason for her release was the fact that she took part in the strike. But in defense the Respondent contends she was a supervisor within the meaning of the Act, and that, therefore, it had a right to discharge her. When the overall group of strikers presented them- selves to start work on NWednesday, March 1, four of them were told they had been replaced and were there- fore no longer needed; these were Joseph McHenry, Adrian Coleman, Elvis Hollinger, and Richard Terrass. As to each, this denial of reinstatement that day is called a violation of Section 8(a)(3). There came a time when every one of these drivers was invited to come back. Hollinger was recalled to his regular full-time job 1 week later. McHenry was recalled on or about March 8, but only given part-time work; he left in August because the Respondent persisted in refusing to reinstate him to his regular job. Terrass was recalled on about March 30, but he too was only given part-time work; on July 17, the Respondent did return Terrass to his regular job. Cole- 8 29 .~0 I) ISIO)NS ()1F NAI I()NA I ABOR RELATIONS OARKI) man was recalled on April 1, also to do only part-time work: he protested in aill and 3 days later left to seek work clsevlhere because of the denial of his regular clm- ployment. This refusal, or ailure tlo reinstate all four of tlhese drivers to their old, full-time jobs, is called a multiple violation of Section (a)(3) in the complaint. The theory in support is tofold The first is that this was an unfair labor practice strike, if not from its inception cerlaiily from Monday on, at least a protest against the illegal firing of one of the ringleaders-Kevin Ward. Alterna- tively, the argument goes, if it was no more than an co- nomic strike, the strikers were entitled to reinstatement anyway, and it is not true that any of the men had really been replaced before that morning on Tuesday, February 28. As to these four, at the hearing the managing agents advanced more than one affirmative argument in excul- pation of the refusal to give quick and full reinstatement. The contentions made are at times inconsistent, and more often not really proved by objective evidence. And finally, there is the matter of refusal to bargain. The complaint is aimed at winning an outright bargain- ing order without holding an election.' This allegation, however phrased,2 calls into play the Gissel principle. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575 (1969); did the Respondent commit such unfair labor practices apart from the fact it refused to bargain that it must be ordered to bargain now? B. Demand, Rejusal, Majority The uncontradicted and, therefore, perfectly credible testimony of George Hennigen, secretary treasurer of I.ocal 698, is that on the afternoon of February 27, he telephoned the Respondent's attorney, Edward Kemp, said the Union represented a majority of the employees, and asked would the employer extend recognition. Kemp called back to say no, because the Respondent doubted the National Labor Relations Board could exercise juris- diction over its activities. The next morning Kemp called Hennigen to reaffirm that position on the part of his client. It was at that point, still during the early morning, that Hennigen informed Kemp the employees would be going back to the United Services location to start work immediately. There followed written correspondence- on March 1 and 3-between the parties reaffirming their respective positions, demand again followed by refusal. I find that both on the afternoon of February 27 and again in the morning of February 28, the Respondent refused to bargain with the Union on request. There is no dispute as to the appropriate bargaining unit. I find, as alleged in the complaint, and as admitted in the ans wer, that all full-time and regular part-time bus drivers, dispatchers and maintenancemen, employed at the Respondent's Akron, Ohio, facility, but excluding all I t Ih Unill filed a plentioll fi r a flioard-col ducled lectlion shortly after Ihe rnlpl)iee. abandolilell d the ,triker roulte, but after wvinning a liBoard I)ecsion and )ircctiorl of Flectilon holding hat he Board quill asserl ulridiiliii ovCr his operillin. Ihe Unlion ithdrc. its Ilcetioll r- ( liipparc', ' /-t-ah /It . 212 NRHI 3,63 (1974). where the Hoard said a IC. lliicatl S(a )(5 ,ilatiin s irrle il t t a hbarga inig order RIsuc office clerical employees and professional employees, guards and supervisors as defined in the Act. constitute a unit appropriate for purposes f collective bargaining. The parties stipulated that, as of the morning of Fbchru- ary 27, there were 22 employees in this unit. They are il dispute over Gattis--was she a supervisor? and over Ward-was he illegally fired on February 27'' This agreement, as to a 22 employee-unit, holds firm even as to the next day, except that the Respondent would add to it some employees it says were hired either on the afternoon of February 27 or on the morning of February 28. These would be Kester, Hooks, Calabrias, and Bowles. For purposes of testing majority on either February 27 or 28, there is no need to resolve these separate issues over inclusion or exclusion of the seven so listed persons. If Ward and Gattis were added, as the General Counsel argues, the majority claim gets better because both signed union cards on February 27. If they are left out, and the next five drivers-named here-were added, as the Respondent would have it, it means that the total complement in the unit was 27. Of the agreed upon 22 employees, 2 signed regular union cards dated February 26, 8 signed such cards dated February 27, ad 5 signed on February 28. This means that no matter how the numbers be used, 15 employees out of a maximum of 27-assuming for the moment inclusion of all 5 part-time drivers the Respondent claims to have hired as strike re- placements-had authorized the Union by the morning of February 28. 1 find that the Union represented a ma- jority of the employees in the appropriate bargaining unit when the Respondent refused its bargaining request. C. Violations of Section 8(a)(l) Concerted activity started on February 6, when 16 drivers signed 2 documents, one addressed "To whom it may concern," and one "To Michael A. Scocos," the di- rector of the employing organization. The second, in copies, was handed to Scocos on February 7, as well as to Janet Holeman, the operations supervisor. It specifies seven demands "to be met immediately," among them a wage increase, overtime pay, "buses maintained more ef- ficiently," "discontinued harassment," etc. To give great- er clout to their attack upon management, the employees turned to newspapers and radio for publicity and ap- pealed for support also to the parents of preschool handi- capped children, a major category of their passengers, or "clients," as the witnesses called them. The result was very descriptive articles in the local newspapers, report- ing, in the usual inflammatory manner, charges and countercharges-now back and forth-between the em- ployees and management. Between February 7, when these petitions, with their accompanying publicity cam- paign, surfaced, and February 24, when the employees struck, there were many conversations about the dispute between employees and supervisors. A number of drivers testified as to these talks, during which, according to the complaint, coercive and therefore unlawful statements were made by management. Joseph Scherer, director of transportation and principal authority over the drivers, denied having said anything to anyone violative of the UNITED SERVICES F()OR THE HANDICAI'I'ED 831 Taft-Hartley Act, and attempted to explain all this talking as relating to problems other than unionism, or collective activity as such. In order to evaluate what happened here in proper perspective, it is important to keep in mind the very un- usual and distinctive nature of the employing authority in this case, as well as the function served by the work per- formed by these bus and van drivers. To start with, this is not a business; there is no profit-and-loss factor in- volved at all. The money all comes from public funds Federal grants, as some one said. Although many organi- zational and charitable groups were mentioned through- out the hearing-United Cerebral Palsy, Community Action Councils, Head Start Program, Welfare Depart- ment, Dial-A-Ride, United-Way, etc.-their precise rela- tion, control, or contributions were not fully explained. But that is not important; what is important is that while the drivers are without question plain employees-no dif- ferent from anyone who works for General Motors or Uncle Sam-the managers, as their bosses, control their destinies only in a very limited sense. In the end, how generously the drivers are treated is decided by the liber- alism largesse of the government of the times, and by the charitable inclination of the public at any given moment. There is another relevant, unusual, but very significant element in this situation that must not be overlooked. The passengers-or clients, whatever they are called- carried by these drivers are all handicapped, that is, they require very special handling. Many are in wheelchairs and many are little children under school age who suffer from one kind of handicap or another. The parents, or other family members of such passengers, will naturally be much more concerned, and easily alarmed, about the safety of their transportation. One of the more heated issues debated between the employees and management here was the condition of the buses; as the newspaper re- porters quoted the drivers, the vehicles were "too dan- gerous to drive," they had "bad tires, bad brakes, faulty steering, bad wiring and equipment." The managers, also quoted in the papers, said all this was untrue, just a lot of exaggeration. The matter of defective buses was, of course, only one of the items touching upon their em- ployment of which the drivers complained. The newspa- per articles also reported on the subject of wage de- mands, other economic issues, and general attitudes on the part of management. Experience has shown that a collective dispute of this kind always in the end involves the rate of pay for work performed, each side will puff and strain in defense of its position. What matters here, however, is the pertinence of this factual aspect of the dispute to the testimony about what was said by the actors. Driver Coleman testified that early in February Scherer "called me into his office and said that some statements prior to this that we gave them, to the papers, . . .were very untrue and there is no way we could get anything from what we said in the papers, and that was it .... He said to me that the statements that were made concerning USH were untrue in this paper, and that there is no way that they would uphold anything we said in there." Coleman also quoted Melvin Owens, an- other supervisor: "Melvin Owens told me that because of what was written in the paper also . . . he don't under- stand how I could get myself involved and I shouldn't get involved in anything that the drivers are getting ready to do, and that I shouldn't ask him for any more favors." As a witness Coleman kept rephrasing what Owens had told him: ". . . he also said that he shouldn't get involved in this, and because you got involved, you are getting in this and I'm going to do my best to see that you don't get involved in this, and don't work for us, something to that effect." Jessica King testified that 3 days after she signed the employee petition Owens asked her "... why I signed it, if I knew what I was doing when I signed it . . ." Miller Horns recalled that Owens talked to him after he signed the petition: "He informed me that I shouldn't sign the petition because it could result in me losing my job. And those who were thinking about signing also the same thing could happen to them, loss of job." Richard Terrass testified that as he was discussing the merits of the petition with another employee on February 13, Ho- leman, the supervisor, cut in with, "Before you answer that, I want you to remember one thing. You are still a probationary driver. I want you to pay close attention to that before you make any decisions." This driver also re- called Scherer calling him to the office on February 23: ". . . he showed me a copy of the article in the Beacon Journal on unsafe buses. He asked if I had seen the arti- cle . . . . He asked me what I thought of the article, and I said that I agreed with the article and the charges that were in the article . .. . He asked me how I could make that judgment with the amount of time that I had been there .... He also asked me if I knew the article had hurt the agency's reputation, and since the agency did basically depend on public contributions for their operat- ing money, that it could jeopardize money coming into the agency. We were trying to hurt the agency by it, and I said no, I didn't want to hurt the agency .. .. He said that he didn't agree with me, basically." Scherer also talked to McHenry, on February 13: "1 was called into his office and told that the article was irresponsible. I was told that it was a very serious offense and it was a low blow .... I said, if you had listened, we already asked you to come to a couple of our meetings. If you had listened to our demands, we wouldn't have gone through the newspapers. He just repeated it was a low blow . . . At that time, also, he alluded to the idea that a union wouldn't work. That they would request higher wages, that the agency wouldn't be able to pay, which would then force the agency to close and we would all be out of jobs." There were like conversations during February 24, when the drivers sat all day long in the lounge, refusing to work and refusing to leave, as well as during the fol- lowing week. Gattis was discharged on March 1. A few days later, according to Guy Bowles, Owens said to him "that I shouldn't become involved in the Union with the people, that I wanted the union. He pointed out that Mary Gattis lost her job and he said that I could lose my job, and he said he didn't want to see me lose my job." Owens did not testify and the above statements attrib- uted to him therefore stand uncontradicted. Holeman re- 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD called none of it. Scherer's defensive testimony on this question of whether he improperly interrogated the driv- ers or made coercive statements interfering with their statutory rights is vague, evasive, and by no means in clear conflict with the witnesses' versions. The only defi- nite thing Scherer did was deny having threatened any employee in any way. To what extent his concept of threat-in the special circumstances of this case-jibes with the purport of Section 8(a)(l) of the statute-is an- other matter. However he may have phrased it, Scherer did not deny having found fault with the drivers because of their having gone to the news media. I credit the em- ployee witnesses. I find that by Scherer's statement to McHenry that the union movement could cause the employer to close down-a threat of discharge; by Owens' (1) statement to Coleman not to become involved in the concerted activi- ties, and that he, Owens, would do his best to see that Coleman no longer worked-also a threat of discharge, (2) interrogation of King as to why she signed the em- ployee petition, (3) statement to Horns that signing the employee petition could cause the loss of his job, and (4) to Bowles that he, like Gattis, could be discharged; and by Holeman's implied threat to Terrass that as a proba- tionary employee he could lose his job if he joined in the concerted activity, the Respondent violated Section 8(a)(l) of the Act. 1. The discharge of Kevin Ward Ward was among the drivers who sat in the lounge all day on Friday, February 24, starting from 7 a.m., and re- fused to work. There was much argument between the strikers and Scherer that day, the director demanding, futilely, that they either work or get out of there. At one point Ward stood up and personally told Scherer the men were not leaving, and that they were not going to leave until Scherer agreed to their demand that he dis- cuss their problems with them as a group. At the end of the day, about 4 p.m., as the men were about to go home, Scherer told Ward he had "something" for him, but did not give him anything. On Monday morning, when the group returned intending again to continue their sit-down strike, Scherer handed Ward a formally written discharge letter dated February 24. It states three grounds for dismissal: "Activities ... unbecoming a United Services for Handicapped . .. employee .... " "refused to cooperate in an investigation, ... " and "re- fused to transport Timmy Wade on February 23 .... " The allegation in the complaint that the real reason why Ward was discharged was his persistence in adher- ing to the concerted activities of the drivers is supported by a number of related facts. The first is the timing. If Ward was as undesirable an employee as the three de- fense witnesses who spoke about him at the hearing would now have it, why did management wait until that significant moment to release him? Shortly after Ward signed the February 7 employee petition given to Scherer, Supervisor Owens said to him: ". . . that I shouldn't get involved with any of the people trying to form the Union. That I stood a chance of losing my job." And, of course, there is the clear evidence running throughout the record of pervasive opposition by the managers to the entire program of concerted action car- ried on by the employees. As to the affirmative contention that the reason was just cause, the total picture presented is unconvincing. Three witnesses talked about this question-Holeman, Richard Miller, the company administrator, and Scherer. Among the faults in the employee which they listed, and one they stressed most as the immediately provoking cause, was a disagreement Ward had had with the dis- patcher about a boy named Wade, whom Ward used to pick up regularly. Approximately 3 or 4 weeks before February 24, the boy's mother asked that I day a week, Wednesday, according to Miller's testimony, he not be picked up, she would look after him herself that day only each week. The established system in the depart- ment is that when there is a change in instructions of each driver as to what persons he is to pick up and where, he will be given a written slip-a cancellation note for a person who is not to be picked up tomorrow, or a resume note for a passenger to be picked up again. Holeman thought that in this case-the boy to be by- passed the same day each week-no written notice was necessary. But Ward insisted he be given the written re- minder every time the change in his routine was to occur, because he feared he might forget and make a mistake. He persisted in that view, but testified, at the close of the hearing, he never actually refused to pick up the boy. Holeman, the dispatcher, said he did refuse- during the last week before the strike. For purposes of evaluating the credibility question, why was Ward dis- charged?-I will assume he failed to pick the boy up that week. The Respondent offered into evidence a written repri- mand notice from Ward's personnel file, written by Ho- leman and dated February 23. She wrote this that day- Thursday-after Ward had returned from his run during which he had not picked up the boy because he had not been given a resume slip. The reprimand criticizes him for doing so, and closes with the phrase: "You are hereby notified that your continuous refusal to comply with route changes or direct orders from a Supervisor will result in disciplinary measures up to and including dismissal action." In the face of this document, made before the start of the strike the next morning, Adminis- trator Miller, after listing Ward's derelictions in great number, said the driver's failure to pick up the Wade boy on Thursday "was the final blow," which precipitated the discharge. Scherer phrased it differently but said the same thing, ". . . what capped this termination was the fact that Mr. Ward had failed to resume by verbal com- mand, Timmy Wade." On Thursday afternoon Ward's dereliction merited no more than a reprimand. On Friday evening-or was it during the weekend that Scherer's discharge letter was written?-the same offense becomes cause for dismissal. The only thing that happened between the two moments was that Ward took part in the strike. A causal relation- ship between the strike and the dismissal is virtually compelled. There is more. The Respondent offered a third document to prove its affirmative defense, a termi- nation notice written by Scherer and dated February 24, UNITED SERVICES FOR THE HANDICAPP'I) 8 3 3 and, apparently. simply placed into the employee's file, for Ward testified crediblv he had never seen it before. This one says nothing at all about the Wade boy inci- dent. the so-called final blow. It speaks only of "past record of activities," of "unauthorized use of USH agency van," and of failure to "uphold the image of United Services for Handicapped." What became, in this formal termination document, of the incident that ac- cording to the man who wrote it-"capped the termina- tion?" The more the supervisors belabored Ward's terrible record, the less persuasive their story became. If, as Miller said, he was "thoroughly uncooperative," had "bad attitude" throughout his employment, committed all the offenses detailed at the hearing, why was he not released sooner? The witnesses could not even keep their facts straight. Scherer's note accused Ward of unauthor- ized use of a company van, but Miller testified Ward was never charged with having done that. On the total record I find Ward was discharged be- cause of his concerted activities with fellow drivers and that by dismissing him the Respondent violated Section 8(a)(3) of the Act. I also find that by threatening him with discharge 2 weeks earlier for "trying to form a union," Owens, the supervisor, committed an unfair labor practice chargeable to the Respondent, in violation of Section 8(a)(l). 2. The discharge of Mary Gattis The only question to be decided with respect to this employee is whether, at the time of her termination, she was a supervisor within the meaning of the Act. as the Respondent contends. That the reason \shy it dismissed her was because she acted in concert with the other em- ployees in striking, and because she chose to be repre- sented by the Union is proved directly by the termin;a- tion notice given her on March I. If she was not a super- \isor it follows of necessity that her dismissal was a vio- lationi of Section 8(a)(1) and (3) as alleged. For the ra- sons set out belowx, I find that Gattis A'as not a slupervi- sor and, as to her, the complaint is correct It may well be, however, that, even if she was a super- visor. her dismissal was unlawful nevertheless, because there is evidence management used her dismissal as a technique to further restrain and coerce the others in their exercise of statutory rights. This would be Bowles' testimony, set out above, of Owens telling him "Mary Gaittis lost her job and . . I could lose my job, and he didn't want to see me lose my job." But it is not necessary to reach that question here. Gattis worked as a driver from May 1977 until about mid-February 1978. She was never criticized for her work but she did receive more speeding tickets than was proper. She ras made a dispatcher a week or two before the February 24 strike. In the new assignment she was charged with keeping the drivers advised of continuing changes in their assignments during the day, by radio and in person. She made changes in their routes as calls came into the office from the "clients." She had done this kind of work in the past, even while driving a van; she estimated that she had spent about 20 percent of her time in such dispatching work even before February In her new position Gattis was hourly paid and contin- ued to punch the timeclock, as did all the rank-and-filers. The supervisors, at least most of them, were salaried. If on the phone during the day Gattis received any com- plaints about the work performance of the drivers. she simply passed them on to Supervisor Holeman. As a driver Gattis was paid $2.78 per hour; before a certain day after her discharge no one ever told her she was going to receive any kind of a raise. The hourly pay of the drivers as a class ranged from $2.68 to $3. In con- trast, Owens, the conceded supervisor who also did dis- patching, was paid $4.34 per hour, as was also Tom Walker, the maintenance supervisor. Holeman received $5.64 per hour. There is no evidence, nor indeed any claim. showing that from the day of her so-called promotion to the day of discharge, Gattis in fact exercised any of the normal indicia of supervisory status. The Respondent seeks to avoid the adverse finding that must flow from these facts by contending Gattis was in a probationary period, that there was an intent to have her exercise more authority in the future. Such statements will not do to excuse what is otherwise so clearly an illegal discharge. Not even the title "supervisor" was ever used in connection with this lady at the time of the events. An entry in her personnel file says only she was made a "dispatcher," and that the man who made the decision suggested she be paid $3 10 an hour. After her discharge, Gattis was paid for what time she had worked up to the start of the strike. The check swas in her usual amount, calculated at her old rate. It was not until after she received this check that she was given another, a supplemental one. to bring her pay for that period up to 3. I() per hour. And even later, in June, when Miller, the administrator, filled out a refer- ence for her from a company planning to hire Ciattis, he stated her "position held"'' as "dispatcher and drixer." (athis testified no one cever told her she was to exercise any IIunusual authority as a dispatcher and Miller latelr ad- milltted he never discussed any new responsibilities .s ith her. In light of the facts such as these, a printedI job (de- scription. dated a ear earlier, which Gattis ne'ver saw; and which was neer sho wn her, pros es nothing to the contrary. I find that Gattis w.as never a supervisor in the emnploy of this company. And I also conclude that b discharg- ing her the Respondent oiolated Section 8(a)(1) aid (3) of the Act. I). Rlitul[ 1i, Reilnltwt' Rrinl'g Sittricr It will he recalled that earl o the morning of lIucs- day, February 28. the strikers gathered again at the Union's office. It \, as then -aboutl 1 am . accordinig to sonic of thel the Unio, n reci cd tile Re- spondent's firm response that it Would refuse to accord recognitionl. Then and there there the decidel to ieturl to vwork unconlditionalls. [Thex arried at the place of husi- ness between I) anid 10(:30) a i. Informed that all were reaidy to start driving irnmecdiatcl , Scherer told them they could lot butl should return the next morning. There is no question. on this record, but that the Re- 834 I)ECISIONS OF NATIONAI. LABOR RELATIONS BOARD spondent knew at that moment that all the drivers were ready and willing to work without condition. When the entire group returned again the next day, four of the men were given discharge slips reading: "Your bus driver position has been filled. There is no further need for your services. Your position was filled prior to your request to return to work." In a sense, the issue as to these four men is similar to that raised by Gattis' discharge. If they had not in fact been replaced by regular employees before that very hour, or if in law the employer had no right to reject their offer to return on that asserted ground, the denial of work must be deemed an unlawful discrimination in violation of Section 8(a)(3), because the reason for dis- missal is clear in the dismissal notices-for having par- ticipated in the union strike. I will first consider the second question. In their testi- mony a number of driver witnesses said the reason why they struck in the first place, on February 24, was be- cause the managers had "harassed" them too much, be- cause of the excessive number of unwarranted disciplin- ary suspensions, because of threats and mistreatment at the hands of the supervisors, and because of the Compa- ny's refusal to negotiate the conditions of employment with them as a group, as distinguished from individual dealings with employees. A first question is whether, when the drivers-on the morning of Friday, February 24-started the strike, was it an economic strike or was it an unfair labor practice strike? The Company had re- fused to negotiate collectively with them, but it is not clear whether, sitting in the lounge on Friday, there were a majority of the employees in an appropriate bar- gaining unit. More than one witness said there were about 10 or 12 employees; the record indicates about 24 drivers all tolled. Next, when an employer refuses to rec- ognize the collective voice of employees-is it necessary that they have a labor organization as their spokesman before a violation of Section 8(a)(5) of this statute can be found, or need he recognize a collective voice-if they are a majority-at the risk otherwise of committing an unfair labor practice? The complaint does not allege il- legal refusal to bargain before February 27, and I will therefore leave it at that. There were many suspensions for misconduct on the job, reprimands i great number, during February. One employee after another said these were wrong, unwar- ranted; they even hinted that some of them came as a result and in reprisal for their redress petition of Febru- ary 7. But again. the complaint does not allege the Re- spondent did anything wrong, under the statute, in doing all that-unprecedented as it may have been. The fact that some of the employees may not have deserved the reprimands as disciplinary measures, therefore, cannot be grounds for calling the mass sit down an unfair labor practice strike. But unfair labor practices before February 24 the Re- spondent did commit. As found above, Owens, Scherer, and Holeman did, on a number of occasions, threaten to shut down the entire operation if the employees adhered to the concept of collective bargaining, that they threat- ened to discharge employees outright if they did not stop the collective action, and that they illegally interrogated them to ferret out the unioneers. When the employees strike, and their resentment rests upon multiple grounds-the employer's refusal to concede economic demands and his coercive threats or other conduct re- straining the statutory rights of employees-it is difficult, if not possible, to separate the two and hold the strike to be purely of an economic nature. I think it correct to hold, therefore, as the General Counsel contends, that even if this record showed nothing more than the 8(a)( I) violations committed by the Respondent before February 24, this strike was, from its inception, in part at least, a protest against unfair labor practices. And surely on the second day of the strike, early on the morning of February 27, the outright discharge of Ward, an outspoken supporter of the concerted move- ment, in the presence of all the strikers, undoubtedly af- fected their thinking. Just as the discharge of one union- eer will inevitably carry a radiating coercive effect on his fellow workmen-even if not always so untended- even so, it will presumptively harden the resolve of strik- ers to continue their fight to restore him to his rightful employment. I therefore find that this was at all times an unfair labor practice strike. Mastro Plastics Corp., and French-American Reeds Mfg. Co., Inc. v. .L.R.B., 350 U.S. 270 (1956). With this, when all the strikers made an unconditional offer to return to work early on the February 28, they were all entitled to full reinstatement under Board law, and the Respondent's duty was to dismiss any replace- ments, if any, who may have been hired before February 27. 1 find that on the morning of February 28, when the Respondent discharged these four returning strikers, it violated Section 8(a)(3). Of the four men then discharged, two were recalled on March 9, Hollinger and McHenry. Hollinger was re- stored to his regular full-time job, and has therefore suf- fered only loss of pay between February 28 and March 9. McHenry was given only part-time work; by this time several new drivers had been added to the payroll. In August McHenry, still on part-time, left because he had to find regular, full-time work. He must be made whole for all loss of earnings from February 28, minus what- ever he earned in the interim, be it with this compan or with any other. And he must be offered complete rein- statement. The third man, Coleman, was not recalled until March 28, and then given only 2 hours of work each day instead of the 8 hours he worked before. He quit in protest 3 days later. Like McHenry, he must be made whole on or after February 27. if necessary. The last man, Terrass, was also recalled to part-time work at the end of March. In the beginning of July, be- cause he saw newly hired drivers working full-time, he complained again to Scherer. Scherer told him that CETA Regulations, another charitable type organization, through which part of the funds are received, required that outsiders be hired. Terrass said he would complain to the officials of CETA, and he did. He was finally re- stored to his full-time job 3 days later. As to him, there- fore, reinstatement is not required, but he too must be made whole for the wages he lost for not being given a full 8-hour a day job between February 28 and July 16. UNITNF1 SR\'ICU'S FO()R 1111'- HtANDICAPPl''l) X15 IV. I II ICi O I III NAIR I ABHO PRAC IICI-S UPON COMMNINRCI The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1. above. have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. TI RN1ME11)Y Considering the total picture of the case, I do not think the unfair labor practices committed were of such a nature as to make it improbable that there could be a fair election among the employees tomorrow. It is an area of Board law in which no two cases are alike, and therefore in which no single prior decision of necessity requires similar holding in a later one. The question-as phrased in legal precedent-is whether the Respondent's coercive acts were so "outrageous and pervasive" as to preclude rational expectation of a fair election after the usual remedial, corrective order has been carried out. See, Gissel, supra. Another way of putting the question in terms of pertinent employee understanding-is wheth- er the workmen were given to understand that their em- ployer would never cease resorting to illegal acts be- cause of his opposition to their collective or union activi- ty. A Board election is concerned only with union activi- ty, and not with other matters that may also involve con- ditions of employment but that stand apart from rights with which this statute is concerned. When the management agents here, led by Scherer, the director of transportation, told the employees to stop what they were doing. and even threatened to fire them for it if they persisted, they were as much talking about the danger of damage to, or even complete destruction of, the social, welfare objective being served by the entire operation all these people-management as well as rank-and-file-were engaged in. One can understand em- ployee gripes about the defective conditions of the vans and the buses, for such matters affect their conditions of employment. But unlike the usual commercial operation, here these elements, deliberately publicized in the media, had engendered a divisive attitude between the beneficia- ries of work performed and the so-called business itself. It is one thing for striking employees to invite the public to boycott a commercial employer's saleable product, but it is something else again to discourage the contributing public-taxpayers or charitable "givers"--whose money sustains the whole enterprise. Scherer and Owens should not have said the things they said to the employees, but if the transcript be ap- praised fairly, it must be said the drixcrs appreciated the managers were as well concerned with the public ecl- fare as they were with the statutory concept of oillec- tive bargaining. The best way to start it is that maInage- meit had a dual purpose in its reaction-one prohibited by the statute and one having nothing to do with this law. And what is no less clear is that the employees un- derstood this, all of them. For this the evidence lies not only in their own testimony at the hearing. but also in the fact the United Services attorney told the Union's agent the reason for the refusal to bargain was a belief that the Labor Board could not apply this lasw to this "business." The message certainly became even clearer to the employees when their employer adhered to this view to the point of litigating it in the RC proceeding And perhaps the best way of stating the test now is: What are the chances the Respondent will not repeat its past offense? I think very high, and I think the employ- ees know it. If in consequence of collective bargaining these drivers must be paid more money if also. in conse- quence, more money must be spent to maintain the buses in better condition, it will be no skint off the backs of the supervisors. It is not their nioney, and it is not a loss of profits to them. I am satisfied that after Ward and Gattis are returned to work and made whole, and after the 60()-day posting period, these employees will vote in any Board election freely and without coercive restraint. CONCI.USIONS oF LAw I. By discharging Kevin Ward, Mary Gattis, Joseph McHelry. Adrian Coleman, Elvis Hollinger, and Rich- ard Terrass for engaging in union activities the Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By the foregoing conduct. by threatening to discon- tinue its operations in retaliation for union acti ,itics, by threatening to discharge employees in retaliation for their union activities, and by interrogating employees concerning their union activities, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( I) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommened Order omitted from publication.]