Dependable Wholesale Co., Inc.

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL, upon request, furnish to the NEWSPAPER Guu.D OF BOSTON, LOCAL 32, AMERICAN NEWSPAPER GUILD, C. I. 0., wage data concerning the names, work classifications , dates of employment, and salaries of all employees in the appropriate unit. The bargaining unit is : All employees in the editorial department in the Washington Street plant, exclusive of the executives and all supervisors as defined in Section 2 (11) of the Act. Dated -------------------- POST PUBLISHING COMPANY, Employer. By-------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered by any other material. DEPENDABLE WHOLESALE COMPANY, INC.' and GENERAL TEAMSTERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 483, A. F. L. Case No. 19-CA-613. January 27,1953 Decision and Order On June 20, 1952, Trial Examiner David F. Doyle issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent, Dependable Wholesale Company, Inc., had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There- after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-mem- ber panel [Chairman Herzog and Members Murdock and Peterson]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Interme- ' Certain documents in the record, apparently in error, refer to the Respondent as "Dependable Wholesale Grocery Company , Inc." The Respondent's name as given in the title hereof is that appearing on all procedural documents in the record. 102 NLRB No. 64. DEPENDABLE WHOLESALE COMPANY, INC. 657 diate Report, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications.2 1. We agree with the Trial Examiner's finding that the Respondent's refusal to recognize the charging union as bargaining agent of the employees in the appropriate unit herein a was based, not upon a good- faith doubt of majority, but rather upon a desire to gain time to under- mine the Union's majority status. The record facts show, as set forth in the Intermediate Report, that after the parties agreed to a consent election,' the Respondent made promises of wage increases and in- dividual promotions in an unlawful attempt to convince the employees to vote against the Union. The Respondent, in support of its contention that the Union has never represented a majority of the employees, points out that the Union did not gain a majority in the aforesaid election. While the record in the representation proceeding is not before us, the parties stipulated herein that the Board's Regional Director set aside the election therein on the basis of objections filed by the Union, which subsequently withdrew its petition.5 In view of our finding that the Respondent questioned the Union's majority in bad faith, we find that the election proceedings could not have related to a genuine question concerning representation 6 and did not affect the Union's prior ma- jority designation.? 5 Contrary to the Respondent 's contentions, we find nothing in the record , or in the In- termediate Report, reflecting bias or prejudice by the Trial Examiner in either his conduct of the hearing or in his findings , conclusions , or recommendations. Accordingly, we deny the Respondent's motion to dismiss the Intermediate Report and Recommended Order. 8 We agree with the Trial Exam&ner's findings that Myrtle Hay and Lewis Norton should be excluded from the unit. With particular reference to Myrtle Hay, the record discloses that she is an employee in the Respondent 's relatively small and intimate complement of approximately 14 warehouse employees , who are the only employees of the Respondent involved in the unit herein. She works under the direct supervision of Norton and her husband, who was identified by the Respondent 's general manager as the Respondent's representative having complete managerial control over all of the warehouse employees. Our adoption of the Trial Examiner's exclusion of Myrtle Hay from the unit on the ground of her close relationship to management is based upon these particular facts. See Grinnell Brothers, 98 NLRB 20. Case No. 19-RC-967, election held December 21, 195L a The Respondent contends that the action of the Regional Director was "arbitrary and capricious" in ruling, without hearing, upon the eligibility of certain employees to vote in the representation election . The record does not permit us to pass upon the Regional Director 's action ; however, inasmuch as we find hereinafter that no question concerning representation existed in the representation proceeding , we are satisfied that the Respondent has not been here prejudiced in any way by the Regional Director's ruling. With respect to the Respondent's contention that the Regional Director 's ruling deprived it of the re- quirement of due process , it is clear that the Respondent has had the opportunity to litigate fully, in this proceeding, all of its contentions as to the eligibility of Myrtle Hay and Norton for inclusion in the appropriate unit. 6 Muriel H. Rehrig d/b/a Rehrig-Pacific Company, 99 NLRB 163. 7 7 Joy Silk Mills, Inc., 85, NLRB 1263, enfd. as mod. 185 F. 2d 732 (C. A. D. C.), cert. den. 341 U. S. 914. 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. As to the Respondent's exception to that portion of the Inter- mediate Report relating to Gordon Lockhart, the record shows that Lockhart stated at the hearing herein that he does not desire reinstate- ment. We therefore modify that portion of the Intermediate Report entitled "The Remedy," by not requiring his reinstatement and by limiting his back pay from the date of the discriminatory action against him to the date he refused reinstatement at the hearing on May 5, 1952. Computation of the back pay due Lockhart shall be computed as described in "The Remedy" section of the Intermediate Report. Order Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Dependable Wholesale Company, Inc., Boise, Idaho, its officers, agents, successors and assigns, shall : 1. Cease .and desist from : (a) Refusing to bargain collectively with General Teamsters, Ware- housemen & Helpers Union, Local No. 483, A. F. L., as the exclusive representative of the following appropriate unit of its employees : All warehousemen, order clerks, checkers, packers, shipping and re- ceiving clerks, and truckdrivers, but excluding office and clerical employees, outside salesmen, Myrtle Hay, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment. (b) Discouraging membership in General Teamsters, Warehouse- men & Helpers Union, Local No. 483, A. F. L., or any other labor organization by discharging, demoting, laying off, or refusing to reinstate any of its employees, or by discriminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. (c) Interrogating its employees concerning their union affiliations, activities, or sympathies, or the identity of union members; or threat- ening its employees with reprisal or economic loss because of their union affiliations, activities, or sympathies; or promising its employees benefits on condition that they refrain from union activity; or sug- gesting that its employees voluntarily resign from employment because they had engaged in union activity. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form DEPENDABLE WHOLESALE COMPANY, INC. 659 labor organizations, to join or assist General Teamsters, Warehouse- men & Helpers Union, Local No. 483, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with General Teamsters, Warehousemen & Helpers Union, Local No. 483, A. F. L., as the exclusive representative of all its employees in the aforesaid ap- propriate unit at its Boise, Idaho, warehouse, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment, and embody in a signed agreement any understanding reached. (b) Offer to A. J. O'Connell, Jack Fleshman, and Herman Mulder immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. (c) Make whole, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, A. J. O'Con- nell, Jack Fleshman, and Herman Mulder, in the manner provided in the section of the Intermediate Report entitled "The Remedy," and Gordon Lockhart, in the manner provided in the Decision herein. (d) Post at its warehouse at Boise, Idaho, copies of the notice attached hereto and marked "Appendix A." a Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and main- tained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Nineteenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. In the event that this Order is enforced by a decree of a limited States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A NOTICE To ALL EMrLoyEEs Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT interrogate our employees concerning their union affiliations, activities, or sympathies, or concerning the identity of employees affiliated with or active in the GENERAL TEAMSTERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 483, A. F. L.; or threaten them with reprisal or economic loss because of their union affiliation, activities, or sympathies; or promise them benefits for refraining from joining or assisting the said union; or suggest to them that they resign from employment because of their activi- ties in behalf of the said union. WE WILL NOT discourage membership in GENERAL TEAMSTERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 483, A. F. L., or any other labor organization by discharging, demoting, laying off, or refusing to reinstate any of our employees, or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organ- ization, to join or assist GENERAL TEAMSTERS, WAREHOUSEMEN & HELPERS UNION, LOCAL No. 483, A. F. L., or any other labor or- ganization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer to A. J. O'Connell, Jack Fleshman, and Herman Mulder immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any senior- ity or other rights and privileges previously enjoyed. WE wiLL make whole Gordon Lockhart, A. J. O'Connell, Jack Fleshman, and Herman Mulder for any loss of pay suffered as a result of the discrimination against them. WE WILL bargain collectively, upon request, with the above- named union as the exclusive representative of all employees in the appropriate unit described herein with respect to wages, rates of pay, hours of employment, and other conditions of employ- DEPENDABLE WHOLESALE COMPANY, INC. 661 ment, and, if an understanding is reached, embody such under- standing in a signed agreement. The appropriate bargaining unit is : All warehousemen, order clerks, checkers, packers, ship- ping and receiving clerks, and truckdrivers, but excluding office and clerical employees, outside salesmen, Myrtle Hay, and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from becoming members in the above-named union or any other labor or- ganization except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any labor organization. DEPENDABLE WHOLESALE COMPANY, INC., Employer. By ------------------------------------------- (Representative ) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was heard at Boise, Idaho, on May 5 and 6, 1952, pursuant to due notice to all parties. The complaint, dated April 9, 1952, issued by the General Counsel of the National Labor Relations Board and duly served on the Respondent, was based on a charge filed by the above-named Union, and alleged in substance that the Respondent had violated various provisions of the Act by the following conduct: (1) Section 8 (a) (1), by interrogating its employees as to various aspects of their union activities ; promising benefits to employees for refraining from assisting the Union ; and urging the resignation from employment of certain employees whom it suspected of being interested in the Union; (2) Section 8 (a) (3), by the demotion of employees Gordon Lockhart and Herman Mulder and the termination of employ- ment of Gordon Lockhart, A. J. O'Connell, and Jack Fleshman; ( 3) Section 8 (a) (5), by refusing to bargain with the Union as the representative of its employees in an appropriate unit. The Respondent in its duly filed answer admitted the jurisdictional facts alleged in the complaint, and that the Union was a labor organization within the meaning of Section 2 (5) of the Act. The answer denied the commission of any unfair labor practices, and set forth certain defenses, which will be set forth in detail in the course of this report. All parties were represented at the bearing, were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce evidence bearing on the issues, to argue the issues orally 250983-vol 102-53-43 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon the record, and to file briefs and proposed findings. A brief oral argument was made by the General Counsel at the close of the evidence, and all parties waived the filing of briefs and/or proposed findings of fact. Upon the entire record in the case and from my observation of the witnesses, I make the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The complaint alleges and the answer admits that Dependable Wholesale Company, Inc., the Respondent, is an Idaho corporation having its principal place of business at Boise, Idaho, where it is engaged in the wholesale distribution of groceries and related products. In the course and conduct of its business it has continuously purchased and secured directly from sources outside the State of Idaho groceries and other products and commodities having a value in excess of $500,000 annually, and continuously has realized a gross income from the resale of such items in excess of $500,000 annually, including an amount in excess of $50,000 annually from the resale and delivery of such items to customers located outside the State of Idaho. Upon the pleadings, I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Upon the pleadings, I find that the Union is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Undisputed facts A large number of the facts upon which this case is based are not in contro- versy ; some were stipulated at the hearing and others established by uncon- troverted testimony. The issue between the parties is not as to the ultimate facts, but as to those occurrences which lead up to and explain the ultimate facts. Thus, there is no question but that the work assignments of certain employees were changed or that the employment of certain employees was terminated as of certain dates, but the issue raised is the legality of this conduct of the Respondent. A recital of these undisputed facts lends an immediate general understanding of the issues. Respondent conducts its operations at Boise, Idaho, where it maintains a large warehouse. Albert M. Bivens, secretary and manager of the corporation, is in active charge of these operations, with the assistance of William Hay, as warehouse foreman. Hay in turn has the assistance of Lou Norton, whose status as an employee or supervisor is at issue in the case. The employees here involved perform the various functions of warehousemen. They unload the merchandise as it is received at the warehouse, pile it in the places where it is stored, and deliver it at the loading docks for shipment to customers. Certain of them perform the necessary checking of invoices and orders incidental to that work. Not counting Norton, or Myrtle Hay the wife of the foreman, who is also an employee of the Company, there were 11 employees so occupied on November 30, 1951. Prior to that date, these employees were unorganized. A few days prior to November 30, 1951, F. T. Baldwin, secretary-treasurer of the Union, spoke to some of the employees about becoming members of the DEPENDABLE WHOLESALE COMPANY, INC. 663 Union.' On November 30, 1951, a meeting was held at the union offices at Boise. Five employees attended. They were : DeYoung, Fleshman, Lockhart, Mulder, and O'Connell. In the course of the meeting these five employees signed cards which authorized the Union to represent them in collective bargaining. On December 4, O'Connell obtained the signature of another employee, Terrell, to an authorization card, which he turned in to the Union. With six authoriza- tion cards in his possession, Baldwin, on December 5, notified Mr. Eli A. Wes- ton, an attorney at Boise, Idaho, whom Baldwin knew to be the attorney for the Company, that the Union represented a majority of the warehousemen in an appropriate unit and asked the Company to recognize the Union. There is some question as to Weston's reply at that time, but on a second call on December 8 Weston informed Baldwin that the Company would not recognize the Union as the representative of the warehousemen until the Union had proved its majority in an election conducted by the National Labor Relations Board. On Decem- ber 10, the Union filed a petition requesting certification for the unit of ware- housemen with the Regional Office in Case No. 19-RC-967. On December 17, the Union and the Company executed a consent agreement for an election to be conducted by the Board. Weston executed this agreement on behalf of the Com- pany. An election was scheduled and held by the Regional Office on December 21, 1952. The tally of ballots in the election was as follows : 5 in favor of the Union, 6 against the Union, and 2 ballots challenged by the Union! Shortly after the election the Union filed objections to the election which were sustained by the Regional Director of the Nineteenth Region, who thereupon set aside the election. Before another election was scheduled, the Union with- drew its petition for certification and filed the instant charge upon which this complaint is based. December 21, the date on which the election was held, was a Friday. On the following Monday, December 24, employee Fleshman was told by Foreman Hay that he should look for anothei job because the Company was dissatisfied with his performance of work. Two days later, on December 26, Hay announced to the warehouse force a series of changes. Mulder, who had been employed on the receiving dock, was assigned to making up orders. Lockhart, who had been employed as a checker, a job entailing little manual labor, was assigned also to the job of filling orders, which was heavy work. Terrell, who had the job of making up orders, was assigned on the receiving dock in place of Mulder. Rob- inson was assigned in the place of Lockhart. Hay then engaged in some conver- sation with O'Connell, which will be later set forth. As a result of this conversation, O'Connell's employment was terminated at that time. On January 1, 1952, employee Smith was raised from $1.40 to $1.50 per hour. On January 3, Fleshman informed Hay that he had another position and his employment with the Company was thereupon terminated. On January 4 the Respondent hired a new employee named Boyington who worked until February 24, and on January 9, a new employee named Edwards who worked until March 13. In the course of his employment, on January 10 Lockhart suffered a physical injury which necessitated his hospitalization and an operation for hernia. On March 10 he returned to duty and, after a conversation with Hay and Bivens, his employment was terminated. During the period that Lockhart had been ill, 1 The dates set forth in this section of this report are all in the months of November and December 1951, and the months of January, February, and March, 1952 2 There is no direct evidence or stipulation on the point , but presumably the challenged ballots were those of Myrtle Hay and Louis Norton, previously mentioned. 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on January 21 the Company had hired a new employee by the name of Harold Wolf. On March 15 the Company raised DeYoung from $1.40 an hour to $1.50 an hour, and on March 19 hired a new employee named Herbert R.eaman. Wolf and Reaman were still employed by the Company at the time of the hearing. It is also undisputed that Mountain States Wholesale Grocery Company is one of the Respondent's competitors, with its principal place of business at Boise, Idaho.' For some time past the Union has represented the warehouse employees of this Company. A contract between the Union and Mountain States signed September 1, 1950, set the following rates for warehouse employees : Shipping, receiving, and warehouse foremen-$1.50 per hour ; warehousemen, order clerks, checkers, and packers-$1.40 per hour ; truckdrivers-$1.40 per hour. On De- cember 15, 1950, a wage increase of 10 cents per hour was negotiated for these employees by the Union. On December 3, 1951, the Wage Stabilization Board approved a 21/2 cents per hour additional raise for the same employees. The last raise went into effect December 15, 1951. The rates of pay at Mountain States were frequently mentioned in this pro- ceeding because from all the evidence it is clear that the employees of the Respondent desired to receive the same rates of pay as those paid at Mountain States, and that was one of their objectives in joining the Union. It was the contention of the Respondent in this proceeding that the Respondent customarily adjusted its rates of pay to those paid by Mountain States, and that any action taken by it to raise wages after the Union began its organizational campaign was in furtherance of this traditional policy of the Company. B. The issues The allegations of the complaint alleging violations by the Respondent of Sec- tion 8 (a) (1), (3), and (5) of the Act have been previously referred to. The pleaded defenses of the Respondent consist of: (1) A general denial that the Respondent committed any acts of interference, restraint, or coercion; (2) a specific defense alleging that O'Connell, Fleshman, and Lockhart voluntarily quit employment, and that any transfer in the work assignment of Mulder and Lockhart was not a demotion as their old and new assignments were equal- paying and comparable; (3) a specific defense that the Union never represented a majority of the employees in the appropriate unit, and that therefore the Respondent was not required to bargain with it. This contention raises the issue as to the propriety of including Myrtle Hay, wife of Foreman Hay, and Louis Norton, previously referred to, as employees in the unit. The resolution of this issue is determinative of the Respondent's duty to bargain. C. Interference, restraint, and coercion; demotions and discharges Gordon Lockhart This employee was called as a witness by the General Counsel. He testified credibly that he began his employment with the Company in May 1948. There- after he was successively employed as a stock counter, office clerk, warehouse- man loading boxcars, and at the time of the election as a checker on the shipping dock. As checker it was his duty to compare the invoices of shipments to cus- tomers with the actual articles comprising the order. At the time of the election his rate of pay was $1.50 an hour. Lockhart testified that he attended the union meeting on November 30, 1951, and signed a card. A few days after this meeting, on approximately December 5, Hay, the foreman, engaged Lockhart Hereafter this company will be referred to as Mountain States. DEPENDABLE WHOLESALE COMPANY, INC. 665 in a conversation, saying that he understood that some of the men had joined the Union. Lockhart said that he did not consider that he had joined the Union because at that time he had not paid any money, and he didn't consider himself a member until he had paid some money. Lockhart and Hay then engaged in some general conversation concerning the Union. Lockhart told Hay that he understood what had inspired the union talk. He mentioned that when he was at the meeting at the union hall, Baldwin, the secretary-treasurer of the Union, had shown the men a contract which the Union had with Mountain States. According to the classifications and rates of pay in that contract, Mulder, who performed the duties of receiving clerk, and Lockhart, who performed the duties of shipping clerk, were entitled to 121 cents an hour more pay than they were then receiving from the Company. Lockhart told Hay that he felt that the responsibility of his job entitled him to more money. Lockhart also told Hay that he thought the Company was unfair in its treatment of Jack Fleshman and George DeYoung, who at that time were not receiving the full rate paid warehousemen, $1.50 an hour, whereas some other employees who had been hired after both Fleshman and DeYoung were getting the full $1.50 rate. Prior to his conversation with Hay, Lockhart had observed Hay in conversation with another employee, Terrell. Later in the day Terrell came to Lockhart and told him that Bill Hay had "cornered" him and said that Hay wanted to know who the men were that were at the meeting at the union hall. Terrell said that he made no bones about it but told Hay who had attended the meeting. On or about December 12, Lockhart had a'conversation in regard to the Union with Bivens. On that day he was informed that Bivens was calling the em- ployees into the office in turn. When he was called to the office Bivens said that he wanted to straighten out some of the things that had been said to the men regarding the Union. Bivens told Lockhart that the men were not receiving any special consideration in being admitted to membership in the Union for a $5 initiation fee. He told them that men who joined the Union in later years would have to pay only the $5 initiation fee. Bivens also explained to Lockhart that the contract with Mountain States, which had been shown to them at the union hall, was not in effect at that time but was merely under consideration. Bivens also explained that if the men joined the Union the Union would have the right to levy heavy assessments on each of them in case another local of the union went out on strike, that their assessments would be used to pay the wages of men on strike. On December 18, 1951, the Company gave its annual Christmas party to the employees at the Hotel Boise. On that occasion Bivens made a speech in which he mentioned the election, and then stated that the 2% cents raise proposed for employees of Mountain States had been approved by the Wage Stabilization Board, and that the Company would grant the same raise to its employees. The election was originally scheduled for the morning of December 21. At the commencement of work that day Bivens called the men to the office and explained to them that the election would be held later in the day, as the Board agent who was assigned to conduct the election had been delayed by a snowstorm. Bivens then announced that the Company was granting an increase in pay to all employees of 21/2 cents an hour and an additional increase of 10 cents an hour to Mulder as receiving clerk and to Lockhart as shipping clerk, making the rates of wages of the employees the same as the rates in the new Mountain States con- tract. Bivens explained that the raises would have to be approved by the Wage Stabilization Board. In the course of this announcement Bivens stated that the Company would appreciate a vote of confidence from the men in the election which was to be held that afternoon. The election was held on the afternoon of that day, Friday, December 21. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lockhart gave the following version of how the changes in the work assign- ments of the men were effected on December 26. When the men came to work on that morning, they were told to wait at the time clock for Hay. When the foreman appeared he said that he was going to try something new, and then he ordered that Terrell would go on the receiving dock as receiving clerk in place of Mulder, and Robinson would replace Lockhart as checker-shipping clerk. Both Lockhart and Mulder were assigned to making up orders. Then, turning to A. J. O'Connell, Hay said, "Bud, you are going to quit anyhow. Why don't you just go now?" Hay then explained that someone had to be laid off, and that it might as well be O'Connell. O'Connell asked Hay if he was fired. Hay replied that he was not firing O'Connell but inasmuch as O'Connell intended to leave the employ of the Company around the first of the month, he might as well go immediately. O'Connell protested, and then Hay and O'Connell dis- cussed whether the Company would pay O'Connell for 4 days to give him pay to the end of the month. O'Connell and Hay then continued their conversation inside the office. Lockhart testified that on January 10, 1952, while lifting a heavy case, he received a hernia. He did not realize that he had suffered a severe injury until January 16, when he consulted a doctor. The doctor called Hay and told him that Lockhart would not be able to work until he had had an operation. On the following day, January 17, Lockhart went to the company office to prepare a claim for compensation. Bivens saw him and asked Lockhart to come into his office. Bivens told Lockhart that he was surprised that Lockhart would vote for the Union. Bivens said that at the time he had talked to each of the employees he had made a note of their reaction and that he had figured out just how they would vote. He told Lockhart that he could have told the fellows who voted for the Union that he could fire them. He explained that prior to the Taft-Hartley Act he could not take that action, but since the Taft-Hartley Act had taken effect he could do that. Then he said to Lockhart, "Gordon, what are you going to do when this operation is over with? You won't be able to come back to work here." Lockhart told him that he wanted to talk to him about that, and ex- plained that if he could have his checking job back when he got out of the hos- pital, he was sure that he could handle that job all right, inasmuch as it did not entail much manual labor. Bivens told Lockhart that he would not give him the checking job because he felt that the Company could not employ a man in a key position whom the Company could not trust. Bivens also said to him that there wasn't any other job that Lockhart would be able to do. So he suggested that Lockhart "just call it quits." Lockhart refused this suggestion, saying, "No, Mr. Bivens, let's just wait until I get out of the hospital and see how things work out." Lockhart was in the hospital for some time and was finally permitted by his doctor to return to work on March 10, 1952. On that date he went to the ware- house and as there was no timecard in the rack for him he went to Hay's office. When he presented himself to Hay, the latter said, "You are not able to go back on orders, are you?" Lockhart answered, "Well, the doctor said I could." Hay said, "You're just kidding yourself. You can't do that kind of work. What if you get hurt again ? Somebody will have to pay the hospital bill." Hay sent Lockhart to Bivens. When Lockhart reached Bivens, he told him that Hay had said that there was no work for Lockhart that morning. Bivens said, "Well, you can't put up orders, can you?" Lockhart said, "The doctor said I could." Bivens said, "Oh, you are just fooling yourself if you think you can do that kind of work." Lockhart and Bivens had some more conversation and then DEPENDABLE WHOLESALE COMPANY, INC. 667 Lockhart said, "Oh, I don't care anyhow." And Bivens said, "Well, if you don't care-." Lockhart said, "I do care, but that is the way you two fellows want it." So he turned around and walked out. Lockhart testified that during the time he was employed by the Company, an employee by the name of Kenneth Hannaman had also received a hernia in the course of his employment in 1950. When Hannaman returned to work he was assigned a job sacking peas and beans and things of that sort which entailed no manual labor. He was also employed as a stock counter. Alwin J. O'Connell Alwin J. O'Connell testified that he began his employment with the Company in 1947 and that his employment was terminated on December 26, 1951. At the time he was hired, Foreman Hay talked to him about the Union because he knew O'Connell was a union member having formerly been employed by Garrett Freight Lines, a union house. O'Connell testified that on every occasion when any rumor of union talk occurred in the warehouse, he was directed to go to Bivens' office. In the winter of 1950 the Company moved into a new warehouse and about that time the men began to talk about the Union. Bivens sent for O'Connell and asked him if he had heard the union talk and made it plain to O'Connell that he did not want any union in the warehouse. O'Connell told him that he had heard the talk but thought that it wouldn't amount to much, that it would blow over. On another occasion, about 5 months before the elec- tion, Bivens called him again and asked him about the rumors concerning the Union. O'Connell told him that the talk was occasioned by the same old gripes. On this occasion Bivens appeared angry with O'Connell. O'Connell explained to him that the union talk wasn't his fault, that he was not in good standing with the Union because he had been fined for failure to pay dues, and being in bad with the Union, he would be the last one to push the Union in the ware- house. O'Connell's explanation seemed to satisfy Bivens. O'Connell's next talk with Bivens concerning the Union occurred a few days after the meeting of the employees at the union hall on November 30, 1951. At that time Bivens again called O'Connell into his office at approximately the same time that he talked individually to the other employees. Bivens asked O'Connell who was pushing the Union and O'Connell said that he didn't know. Bivens said that he wouldn't stand for the Union coming into the warehouse, explaining that if all the employees in the warehouse wanted the Union, it would be all right, but if there were a few trying to bring it into the warehouse he would get rid of the men pushing the Union one way or another. Bivens talked at some length to O'Connell. He said that he thought O'Connell should appreciate how the situation of O'Connell's past membership in the Union and the present rumors looked to Bivens, so Bivens thought that O'Connell had better seek employment with some other company. O'Connell told Bivens that he couldn't seek other employment or quit, that he had just purchased a new home and contracted a number of debts. Bivens then asked O'Connell if he would go to other em- ployment if Bivens helped him get another job. Bivens mentioned the Garrett Freight Lines, the Company for whom O'Connell had formerly worked. O'Con- nell told him if he could get a job with Garrett Freight Lines, he would go to that employment due to the feeling of Bivens and the Company. Bivens offered to contact Mr. Mattishaw, who had charge of local trucking operations for the Garrett Freight Lines, on behalf of O'Connell. O'Connell told Bivens that he would rather see Mattishaw himself, so Bivens phoned Hay at the warehouse and told Hay that he wanted O'Connell to go downtown that afternoon and 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he was to have time off. Later that afternoon O'Connell saw Mattishaw, who accepted his application for employment. O'Connell was the observer for the Union at the election on December 21, 1951. On December 26, when the men came to work, Hay made new assignments. He came from his office and told the assembled men that Mulder and Lockhart were transferred from their jobs as receiving and shipping clerks and would put up orders ; that Terrell would be receiving clerk and Robinson shipping clerk; and that since O'Connell was looking for another job anyway, why didn't he quit at that time. O'Connell told Hay that he couldn't quit, that he was too far in debt and couldn't afford to lose any time. Hay asked O'Connell if he could afford to go if the Company paid him for his time. O'Connell said that if he was paid for his time he could go. At that, Hay went into the office and O'Connell followed him. Hay told O'Connell that Bivens had told Hay that he was running the warehouse and that as far as he was concerned O'Connell might as well get his card and leave. O'Connell went out and took his card from the time rack, and gave it to Bivens , who had come into the office, who in turn handed it to the bookkeeper. She made out O'Connell's check, paying him to that date only. Bivens then called O'Connell into his office. He asked if Hay and O'Connell had had trouble. O'Connell said, "No. Bill just fired me." Bivens said Hay was running the warehouse. That ended O'Connell's employ- ment with the Company. On being fired, O'Connell went home and then went to see Mr. Mattishaw at Garrett Freight Lines. Mattishaw told him that his application for employment had not been acted upon at that time . O'Connell was unemployed for some months thereafter and then found a job at Freightways, another trucking concern, where he was employed at the time of the hearing. He did not go to work for Garrett Freight Lines at any time. O'Connell testified that on the day of the election Bivens addressed the as- sembled employees. Bivens said that he couldn't see why the fellows wanted the Union, that they would gain nothing, and would be paying an initiation fee, dues, and political assessments . Bivens said that he had always tried to match the contract which the Union had with Mountain States and would continue to do so in the future. At the Christmas party at the Hotel Boise, Bivens spoke more to the wives than to the men. He reviewed the fact that there would be an election and announced that he had found out that Mountain States had put through a 2%-cent raise and that the same raise would be put into effect by the Company. Jack L. Fleshman This employee testified credibly that he began his employment with the Company in January 1950 and ended on January 3, 1952. He stated that he was successively a packager, order clerk, and then assigned a job on the bull gang loading and unloading cars. His rate of pay was $1 .30 an hour. He at- tended the meeting at the union hall on November 30, 1951 , and signed a card authorizing the Union to bargain for him . A few days after the meeting he was called to Bivens ' office. When he went into the office Bivens said to him, "I hear you wanted to see me." Fleshman said that he had expressed no desire to see Bivens. Then Bivens started a conversation with Fleshman about the Union. He said that the cost of becoming a member of the Union would be closer to $50 than $5 and that there would be fines and political assessments and other expenses like that . He told Fleshman that as long as he was in the employ of the Company he would get his present rate of pay, union or not. Bivens asked Fleshman if he thought he knew anything about the warehouse, and Fleshman replied that he thought he knew as much about the warehouse DEPENDABLE WHOLESALE COMPANY, INC. 669 as the rest of the employees. Bivens disagreed with Fleshman and said that he hated to hurt his feelings, that Fleshman did not know as much about the warehouse as the other employees. Bivens told Fleshman that if he went union he wouldn't work for the Company very long, but if he stayed out of the Union he would have a good chance of staying on. Fleshman first learned that his employment might be terminated on December 24, 1951, the first working day after the election. On that date he had a con- versation with Foreman Hay on the receiving dock. On that occasion, when Fleshman came out of a freight car, Hay who was on the platform asked if the men were tired. Fleshman answered that they were not. Hay then told Flesh- man that he was going to give him a nice Christmas present-that Fleshman might as well leave. Fleshman asked Hay if he couldn't have a little time because he had some bills that had accumulated. Nothing more was said by Hay at that time. Three or four days later, Hay asked Fleshman if he had been out looking for a job, and Fleshman replied in the negative. Hay then said, "You probably think I was fooling, but I am not.9' He then told Fleshman that he would give him until the 15th of January to get other employment. At noon on January 3 Fleshman told Hay that he had obtained another job. Hay told him to get his check, terminating Fleshman's employment. This witness corroborated substantially the testimony of Lockhart and O'Con- nell as to what was said by Bivens at the Christmas party, and at the meeting which was held on the morning of the election. He also corroborated the testimony of the other two witnesses as to the manner in which the reassignment of the men was effected on December 26, 1951. The narration of his testimony on those points would be largely repetitious so is not set forth herein. Herman Mulder This employee testified credibly that he had been employed by the Company for 10 years at the time of the hearing . At the time of the union meeting he was performing the duties of receiving clerk at the rate of $1.50 an hour. He attended the union meeting on November 30, 1951, and signed a card authorizing the Union to bargain for him. A day or two after this meeting Hay came to Mulder in the warehouse and said that he had heard that some of the employees had signed up with the Union. Mulder replied that he hadn't signed up with the Union, that all the men had done was to request an election. On the same day, Terrell told Mulder that Hay had talked to him that morning about the Union, and that Terrell had told Hay the names of the employees who had signed cards for the Union. About a week after the union meeting Bivens sent for Mulder. Bivens told Mulder that there was a possibility that the men as members of the Union would be subjected to fines and assessments. He asked what grievances the men had. Mulder told him that his main grievance was that he couldn't handle the job alone when too many trucks came to the loading platform at the same time. He explained to Bivens that at times there were as many as 4 trucks unloading at the platform, and that 2 of the trucks had 2-men crews unloading. Consequently there were approximately 6 men unloading freight at the same time and it was impossible for Mulder alone to get a proper check on the merchandise and move it from the unloading dock, too. Mulder said that in his opinion if the receiving clerk was to receive only the same wage as the other warehousemen that the job should be rotated among them. Mulder explained in the course of his testimony that the checker also had to move the merchandise on the unloading platform in addition to checking the same. The first notice received of a change in his assignment was on the morning of December 26 when Hay told him that he was transferred to making up orders. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mulder's testimony as to the manner in which the changes were effected on December 26, 1951, is substantially the same as that given by the other employee witnesses, so it will be omitted in the interests of brevity. Mulder testified that at the meeting held in Bivens' office on the morning of the election, the question came up regarding the 21/2- and 121/2-cent raises. Bivens said that as soon as the Wage Stabilization Board approved the raise, the 21/2 cents an hour would go into effect, and also that the receiving clerk (Mulder) and the shipping clerk (Lockhart) would have an additional 10-cent raise. After December 26, when Terrell took over the receiving clerk job, he was given considerably more as- sistance. Lyle Boyington, a new employee, was hired, and he spent practically all his time assisting Terrell. Norton also helped a good deal. Lyle Boyington Lyle Boyington, a former employee of the Company, also testified credibly that he was employed by the Company from January 5 to February 27, 1952. Boyington applied for employment on January 4 to Bill Hay and was immediately hired, starting work the next day. Boyington worked on the receiving dock, put up orders, and worked in the repack room. At the time of his employment Terrell was the receiving clerk and part of the time Boyington was employed, he assisted Terrell in unloading trucks and boxcars and checking the freight in. All of the testimony of the employees which has been reviewed above, I have credited. All these employees, without exception, testified in a candid and frank manner, and their testimony is mutually corroborative. A great deal of their testimony, it will be noted hereafter, was not denied by the witnesses for the Company. The Defense as to Interference, Restraint, and Coercion ; Demotions and Discharges In its defense the Company presented two witnesses, Manager Albert M. Givens and Foreman William Hay. Bivens testified that he first talked about the Union with O'Connell sometime in November 1951. On that occasion O'Connell voluntarily came into his office and told him there was a movement afoot to unionize the employees, and that he was going to go against the Company but thought it would be a good thing for harmony in the warehouse. O'Connell explained that some years before he had engaged in an argument with Baldwin, the union agent, about a union election, and that a fine had been levied upon him, so be had left the Union at that time. Bivens testified that he understood from this conversation that O'Connell was going to go back to the Union. Later in December, after the union meeting, O'Connell told Bivens that he was going to get another job. O'Connell said that he had settled his differ- ences with the Union and would be representing the Union at the warehouse. In another conversation with Bivens a few days before the election, O'Connell told Bivens that the way things had worked out at the warehouse, he was going to be out of luck, either way the election went, and that he didn't want to be with the Company any more and mentioned that he might get a job with Garrett Freight Lines, for whom he had formerly worked. O'Connell asked Bivens for assistance in obtaining a job with Garrett, and Bivens told O'Connell that he might be able to help because the Company shipped considerable merchandise via the Garrett Lines. At O'Connell's request, Bivens called Mattishaw at Garrett Freight Lines and asked that O'Connell be given a job. Later Bivens heard from O'Connell that Mattishaw expected to be able to employ O'Connell around the first of the year. DEPENDABLE WHOLESALE COMPANY, INC . 671 Bivens testified that on the day O'Connell was terminated, he walked into Hay's office just as the conversation between Hay and O'Connell was finished. One of the men asked if O'Connell could have his check. Up until that time Bivens understood that O'Connell was going to stay until the first of the year. He said that O'Connell could have his check and when it was given to O'Connell, he told him that he was very sorry that things had turned out that way. He asked O'Connell if he and Bill Hay had had any trouble. O'Connell said, "Well, the way things have worked out I might just as well get out of here now." Bivens told O'Connell that he was glad he had another job lined up for the first of the year. Bivens denied that he had ever told O'Connell that he was in any way against the Union. Referring to the reassignment of men which occurred on December 26, 1951, Bivens testified that he discussed the reassignment with Hay who told him that he thought the reassignment would be a good idea. Hay and Bivens decided on the changes a day or two before they were made. Lockhart was changed from his assignment as shipping clerk because the Company had received a number of complaints from customers that their orders as delivered did not match with the invoice.4 That was the responsibility of Lockhart as checker. At the conference in which Hay and Bivens decided to change Lockhart, they also de- cided to change Mulder. Bivens thought the change would be beneficial to Mulder as Mulder had complained about the work on the receiving dock, saying that when several trucks were at the receiving dock the warehouse foreman didn't give him sufficient help to check the freight and move it. When Mulder had complained to Bivens about that situation, Bivens had told Mulder he would see what could be done about giving him easier work. It appeared to the men that it would be beneficial to change both Lockhart and Mulder at the same time. The change was effected by Hay on December 26, 1951, pursuant to their joint decision. Bivens testified that the Company did not consider the change of either Mulder or Lockhart as a demotion because the jobs were all in the same classification-warehousemen-and the jobs all paid the same. Later, however, the witness testified that on January 1, 1952, the Company applied for permis- sion to grant an increase of 2% cents an hour to all employees and for per- mission to raise the receiving clerk (Mulder-Terrell) an additional 10 cents an hour' Testifying as to Lockhart, Bivens stated that the employee returned to work after his operation on March 10, 1951. At that time Lockhart wanted work that would not entail any lifting, but the Company had no such opening. Bivens testified that Fleshman was a relative of the assistant manager. Originally he was put on the payroll as a stock checker for a few months' em- ployment as Fleshman intended to go back to school. During his employment he was married and decided to stay at work rather than go back to school. The job that Fleshman was originally assigned was eliminated by a machine which was installed, and he was transferred to the packaging room. Fleshman's work was not satisfactory at that position and the Company then assigned him to work in the warehouse, but he was not satisfactory in that position either. For that reason, Hay and Bivens decided that Fleshman was not going to make a warehouseman, and that the best thing that he could do was to look for some ' On cross-examination Bivens could not name the customers who had received incorrect shipments or complained, or be more specific about these alleged derelictions of Lockhart. 5 Under the contract of Mountain states with the Union, the shipping clerk also received the rate of $1.62% cents per hour. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other type of employment for which he would be better fitted . Later he was informed that Fleshman had requested his check and quit on January 3, 1951. As to the Christmas party, Bivens testified that at this meeting he told the employees that it was entirely up to them , that they could join any church, lodge, club, or union they wished, and that he wanted each to vote in accordance with his wishes. He told them that the Mountain States had an application filed with the Wage Stabilization Board for 2% cents an hour increase, and that it had been approved. In view of the fact that the Company had always worked on a comparable wage basis , the Company would likewise put in an immediate application for a similar raise. In explanation of this testimony, Bivens testified that the Company had kept its wages on a par with those paid by Mountain States since October 1 , 1933, and that when Mountain States had raised its wages in September 1950 by a 10 -cent raise, Dependable had raised its wages by the same amount. The only classification of employees at De- pendable is that of warehouseman, but the employees in the warehouse evidently considered that the jobs were different . At the time of the Christmas party the rate of pay at Dependable was $1.50. That rate was the same as the rate at Mountain States, except for the 21-cent raise that the latter had obtained from the Wage Stabilization Board. Under the wage scale proposed by De- pendable at that time, there would be one job, that of receiving clerk, which would be raised to $1.62% cents an hour . An application for raises to this extent was actually made by the Company on or about January 1, 1951. As to the meeting on the morning of the election , Bivens testified that the posters concerning the election were not received until after 9 o'clock on the morning of the election. The posters called for the election at 9 o'clock. Previously, a few minutes before 8 that morning, Bivens received a phone call from the Regional Office of the Board and was told that the election would have to be postponed until later in the day because the Board agent to conduct the election was delayed by a snowstorm . At 8: 30 when the warehouse crew came to work , Bivens assembled the employees and told them that the election would be held later in the day. At that time he made a speech to them em- phasizing the fact that the election was entirely up to them. He corrected a previous statement that he had made to the employees about the initiation fee in the Union being $50, telling the men that he had learned that the ordinary rate was $25 but that the employees were being offered a special rate of $5. He also told the employees he was mistaken about the amount of money they could be fined for infraction of the union rules. He had told some of the em- ployees that the fine would be $50. He told the assembled employees that O'Connell had corrected him on this point and the amount of such a fine would be $25. Bivens denied that he ever told O'Connell that he did not want a union in the warehouse. Bivens stated that he knew who the leaders of the Union were approximately 2 weeks before the election. O'Connell had volunteered this in- formation to him in one of the conversations he had with O'Connell. William Hay, the foreman previously referred to, testified that he was at the warehouse on the day Lockhart returned after his injury. When Lockhart returned he did not ask for lighter work, but said he thought that he might be able to do lighter work. Hay did not have any lighter work for him to do. As to the events of December 26 Flay stated that he asked the men to wait before going to work on that morning as he wanted to make some changes. When they were gathered he told Mulder and Lockhart to put up orders, and Terrell to go on the receiving dock, and Robinson to check shipments. Then he said to O'Connell, "Well, Bud, we haven't got any business here any more , it just DEPENDABLE WHOLESALE COMPANY, INC. 673 fell off until somebody's going to have to be laid off. Being as you are leaving anyway, it looks like to me it would be the logical thing for you to lay off."' O'Connell said that he couldn't do that, that he had to work. Hay told him that the other employees also had to work. At that O'Connell requested Hay to talk to him in the office. When the men were in the office they talked the situation over and Hay again said that he thought it would be the right thing for O'Connell to quit. At that point Bivens came into Hay's office and O'Connell said to him, "I am fired." Hay told O'Connell that he was not fired, but that somebody had to be laid off and inasmuch as he was contemplating leaving, the foreman thought he was the one to be laid off. In the course of the conversation Hay asked O'Con- nell if he would leave if he was paid until the first of the year. O'Connell said that he would. Hay then explained that he didn't have authority to pay hint until the first of the year, but would pay him for that particular day. Thereupon O'Connell was given his check. Hay testified that the reason for O'Connell's lay- off was that business was slack. Hay testified that on December 24 be went out on the receiving dock to see how the men were working. It was a cold day, and Mulder with Fleshman's help was unloading milk from a freight car. Hay stood on the platform to observe their activity but saw none for about 20 minutes. After that length of time Fleshman came out of the freight car with a load and Hay said to him, "What's the matter, you fellows tired in there?" Fleshman said that he was not tired. Then Hay told Fleshman that he was tired of "following him around" and that Fleshman should start looking for another job. About 10 days later Hay met Fleshman at the time clock and asked him if he had another job. Fleshman replied he had not, and Hay again told him to look for another job. A few days later on January 3 Fleshman came to him and said that he had another job with more pay. He was terminated that day. Hay denied that he ever asked any of the men anything about the Union. On cross-examination Hay was asked why it was necessary to lay O'Connell off on December 26, when he had already told Fleshman on December 24 that his employment was to be terminated. He answered that on December 26 he was not sure that Fleshman was to be terminated. Hay also admitted that Lyle Boyington, a new employee, was hired on January 4, 1952, and that the Company hired Donald Edwards, Harold Wolf, and Herbert Reamand shortly thereafter. It is worthy of note that the testimony of Bivens and Hay reviewed above in many particulars corroborates the testimony of the employees. On the other points in which their testimony is directly contrary to that of the employees I am constrained to credit the testimony of the employees and discredit both Bivens and Hay. In the light of the undisputed facts, the testimony of the employees is far more credible than that of the company officials. Concluding Findings as to Interference, Restraint, and Coercion ; Demotions and Discharges The credible testimony of the employees viewed in the perspective of the undisputed facts establishes that the Respondent violated Section 8 (a) (1) of the Act in numerous instances by the following conduct : (a) Interrogation of its employees concerning their union activities, the iden- tity of the leaders of the Union, and of the employees who had authorized the Union to represent them. Both Lockhart and Mulder testified that after the union meeting which was held on December 5, 1951, Foreman Hay sought each out separately and engaged each in a conversation in which he asked who had "Transcript page 192. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed up for the Union. From the testimony of these two employees and other relative testimony it is patent that Hay queried several of the employees as to their activity in behalf of the Union. A day or two after that, according to all four of the employees, Bivens called each employee in turn into his office, where he initiated a conversation concerning their union activities, telling them that they were not receiving special consideration from the Union in the matter of initiation fees and that they would be subject to assessments and fines. In the conversation that O'Connell had with Bivens, Bivens asked O'Connell directly who the employees were who were pushing the Union. (b) Making promises to its employees of promotions and higher wages if they would refrain from assisting or voting for the Union ; the making of threats against the employment status of employees favoring the Union ; and urging the resignation from employment of employees whom it suspected of being leaders of the Union. According to all the employee-witnesses, at the Christmas party of December 21, 1951, Bivens made a speech to the employees and their wives. He talked about the fact that the election would soon be held, and stated that Mountain States had granted an increase to its employees and the Respond- ent would raise the pay of their employees a like amount. Under the circum- stances, this coupling of talk of the election with this proposed raise in pay was a thinly veiled effort by the Respondent to influence the employees not to embrace the Union. This promise of a raise was especially restraining inasmuch as the original motivation for the men to join the Union appears to have been their desire to have the union scale of wages which was in effect at Mountain States. Because he knew this was the main feature desired by the men in unionization, the promise of the raise by Bivens a few days before the election appears to me to be especially reprehensible.' On the morning of December 21, 1951, the day of the election, Bivens again told the men that they were all to have a raise, and that Lockhart and Mulder were to have additional raises, and that the Com- pany would appreciate a vote of confidence from the men in the election to be held that afternoon. While the Company contends that the announcement of this raise was the mere pursuance of its practice to equalize wages with those paid at Mountain States, the timing of this raise and the coupling of the an- nouncement of the raise with the request for a vote of confidence from the men, cannot be considered anything but a not too subtle attempt to convince the employees that they did not need the Union and should reject it in the impend- ing election. In addition to these promises of better pay to employees for refraining from joining the Union the Company took action to the opposite effect. Bivens told O'Connell that he would get rid of the men pushing the Union, and told Fleshman that if he refrained from joining the Union he had a good chance of continued employment with the Company but if be voted for the Union his days with the Company were numbered. Furthermore Bivens sug- gested to O'Connell that he quit, and Hay on December 24 told Fleshman that he should look for another job. The conduct of Hay is more than a suggestion to seek employment elsewhere ; it was a discharge of Fleshman to become effec- tive in the immediate future. On January 17, Bivens stated to Lockhart that he was surprised at him voting for the Union ; that he could have told the men at the time of the election that they would be fired for supporting the Union, and he suggested that Lockhart resign his employment. When Lockhart did not agree with the suggestion Bivens later terminated his employment. All of this conduct was violative of Section 8 (a) (1) of the Act. The Respondent contends that the transfer of Mulder and Lockhart from their jobs as receiving and shipping clerk respectively were not demotions because the 1 Antone Louis d/b/a Metropolitan Markets, 83 NLRB 1106. DEPENDABLE WHOLESALE COMPANY, INC. 675 pay of the jobs was the same and the jobs were comparable. The fallacy of this argument is patent. Under the wage scale which the employees were trying to obtain, Mulder and Lockhart would have received a rate of $1.621/2 an hour. On the third day after the election , both of these men were transferred from those prospectively higher paid positions to the positions of ordinary warehouse- men. On December 21, 1951, Bivens had promised both these men that they would be raised to the rate paid by the Mountain States. This transfer effec- tively barred both employees from the opportunity of obtaining the higher rate. Actually on January 1, 1952, Bivens made an application for an increase to the Wage Stabilization Board . His application asked for a raise to a $1 .621/2 an hour for the receiving clerk , but the receiving clerk at that time was Terrell. Thus in the event that any such raise is in the future permitted by the Wage Stabilization Board, Terrell will be the beneficiary of the raise and not Mulder. The antiunion animus motivating the demotions of Lockhart and Mulder be- comes more patent upon the examination of the discharges of the other employees. Six men originally signed cards for the Union . At the election five voted in favor of the Union. Of the six men who signed cards for the Union , Terrell was promoted to the receiving clerk job which was to receive a rate of pay of $1.621/2 per hour. Of the other five men who signed for the Union , Mulder and Lock- hart were demoted. Subsequently Lockhart received an injury and upon his return was discharged . There can be no other construction placed upon the termination of Lockhart 's employment in view of the Company's treatment of employee Hannaman under similar circumstances. It is patent that the Com- pany seized upon Lockhart's injury as a pretext for not continuing his employ- ment. O'Connell was assisted by Bivens to place an application for employment with Garrett Freight Lines and urged to obtain employment with that Company. However, on December 26 his employment was terminated without notice by Foreman Hay. Hay stated the reason for O 'Connell's termination was a slack- ening of business. Yet a few days later on January 4, Hay hired Lyle Boyington, and thereafter hired other employees . The falsity of this contention of the Respondent as to O'Connell's termination is clear . Fleshman, likewise, was given notice of termination on the first working day after the election , December 24. He was reminded of it a few days later , and when he finally obtained other employment on January 3 his employment was terminated 8 Thus, of the five men, who voted for the Union , Lockhart, O'Connell, and Fleshman were dis- charged, and Mulder demoted . Standing alone, in isolation , each defense of the Respondent as to each of these discharges or demotions might present a difficult question for a trier of the fact, but when the totality of the Respondent 's conduct is considered, the antiunion pattern of the discharges and demotions becomes evident. Bivens admitted that he knew who the leaders of the Union were approximately 2 weeks before the election . Within a matter of weeks after the election, Lockhart, O'Connell, and Fleshman had been discharged ; Mulder de- moted ; Terrell promoted ; and DeYoung given a raise in pay . It is obvious to even an undiscerning person that the termination of the employment of these union members could not have been coincidence , arising from the multiple causes claimed by the Respondent . Especially is this seen when the undisputed fact is considered, that shortly after the discharge of these employees the Company hired new employees to replace them. 8 Fleshman's alleged incompetence seems not to have been sufficient reason for his dis- charge until he voted for the Union at the election. After the election his alleged incom- petence was immediately and sternly dealt with. The normal inference arising from the Company's conduct is that Fleshman's voting was the decisive factor,in his continuing employment with the Company. His termination also was fulfillment of Bivens' threat to Fleshman previously expressed. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Therefore I find that the Respondent violated Section 8 (a) (3) of the Act on December 26, 1951, by demoting employees Gordon Lockhart and Herman Mulder and discharging employee A. J. O'Connell because the aforementioned employees were active on behalf of the Union, and by the discharge on January 15, 1952, of Jack Fleshman and by the discharge on March 10, 1952, of Gordon Lockhart for the same reason. D. The refusal to bargain The complaint herein alleges that the employees of the Company constitute an appropriate unit for collective bargaining within the meaning of Section 9 (b) of the Act, and describes the unit in the following words : All warehousemen, order clerks, checkers, packers, shipping and receiving clerks, and truck drivers, excluding office and clerical employees, outside salesmen, Myrtle Hay, and supervisors as defined in the Act. Respondent's answer admits that the unit thus described is appropriate for the purposes of collective bargaining except it alleges that Myrtle Hay is a proper employee for inclusion in the unit. At the hearing the General Counsel contended that Louis Norton, previously referred to, was a supervisor within the meaning of the Act and should be ex- cluded from the unit. It was the contention of the Respondent that he was not a supervisor but an employee and should be included in the unit. The issue as to Myrtle Hay is quite readily resolved. She is the wife of Foreman William Hay. The Board has long had a policy of excluding from a bargaining unit close relative of management.' In view of that policy I find that Myrtle Hay must be excluded from the bargaining unit. The question as to Norton's supervisory capacity presents a much closer question. Bivens testified that Norton was a combination truckdriver and warehouseman. He explained that approximately 2 years before the hearing, Hay had met with a severe accident which necessitated the amputation of one of his legs. He was incapacitated for several months. At that time Norton was put in his place as temporary warehouse foreman. Shortly after Hay came back to work the Company moved into a new warehouse which was 140 by 280 feet in size. It was hard for Hay to get around such a large warehouse. When Hay returned, Bivens called the warehousemen together and told them that Hay was back and that he was the warehouse foreman but because of the circum- stances it would be impossible for him to get around and a number of their instructions would have to come from Lou Norton who would get them from Hay. Norton would be carrying out the instructions of the foreman. According to Bivens, Norton did not have authority to hire or fire except during the time Hay was in the hospital. He further testified that the ware- housemen were paid on an hourly rate ; truckdrivers Boyer and Burchett on a monthly basis at $280 a month, and Norton on a monthly basis at $310 per month. Hay testified that Norton is "a kind of an assistant to me." He explained that it was hard for him to get around the warehouse so he and Norton handled the job together, Hay telling Norton what he wanted done and the latter taking these orders to the employees. Lockhart testified that the employees considered Norton to be the assistant foreman. Norton gave Lockhart practically all his instructions and Lockhart 9 Lyntem Corporation, 97 NLRB No. 55, 29 LRRM 1109. DEPENDABLE WHOLESALE COMPANY, INC . 677 observed Norton give orders to all the rest of the warehouse crew including the truckdrivers. During the month of November 1951, Hay told Lockhart that he was to do anything that Norton told him to do except when he had specific instructions to the contrary from Hay. On one occasion sometime previous, Bivens had called all the warehousemen and drivers together and told them that Hay was the foreman of the warehouse and that next to him was Lou Norton and the employees should take orders from Norton. On those occasions when Hay was absent from the warehouse Norton took over his position, issuing all necessary orders. O'Connell testified that Norton gave him all the orders that he received, such as changes in shipments, the order in which shipments were to be made up, or were to leave the warehouse, et cetera. Norton also gave orders to the truckdrivers. He told them how to handle their trucks, when they were to have their trucks serviced, what work was to be done on them, and what runs they were to take. Norton determined which driver would drive which truck and the routes that they would take in making deliveries. In 1951, after the first meet- ing at the union hall, O'Connell in a conversation with Bivens told him there was some doubt in the men's minds about what their various classifications were. Shortly thereafter, Bivens called a meeting and told the employees that Hay was in charge of the warehouse and that Norton was second in command. Fleshman testified that Norton spent about 10 percent of his time at ware- housemen's work and occasionally drove a truck ; the rest of the time he was supervising the work of the warehousemen or truckdrivers. At a meeting, con- ducted by Bivens, in 1951 Bivens told the assembled employees that Hay was the foreman and Norton was second in line. It is clear from the above testimony that Bivens had given the men to under- stand that Norton was their assistant foreman. From a review of the orders which Norton customarily gave, it appears that he had authority to "responsibly direct" 10 the warehousemen and truckdrivers. On occasions when Hay was absent from the warehouse he assumed the full authority of foreman of the warehouse. During the period of Hay's incapacity due to his accident Norton acted as foreman. Furthermore Norton is paid on a monthly basis, and is paid substantially more than the other employees. I therefore find that Louis Norton is a supervisor , being assistant foreman of the Respondent, and should be excluded from the bargaining unit. With Myrtle Hay and Norton excluded, the bargaining unit is then composed of 11 employees-Boyer, Burchett, DeYoung, Duvall, Fleshman, Lockhart, Mul- der, O'Connell, Robinson, Smith, and Terrell. Likewise it is undisputed that on December 5 the Union had in its possession signed authorization cards from Fleshman, Lockhart, Mulder, O'Connell, DeYoung, and Terrell, and thus repre- sented a majority of the employees in the appropriate unit. However when Baldwin on behalf of the Union demanded recognition from Weston, represent- ing the Company, Weston stated that the Company would not recognize the Union until it had proven its majority in a Board-conducted election. Immedi- ately thereafter , while the petition of the Union was pending in the Regional Office and the employees were awaiting the requested election , the Respondent embarked upon a program of unfair labor practices designed to destroy the majority status of the Union. This program was successful as can be seen from the results of the election in which one man who signed a card for the Union must have voted against the Union. The change of heart of this one individual was sufficient to destroy the Union's majority. The facts of this case 10 Ohio Power Company v. N. L. R. B., 176 F. 2d 885 (C. A. 6). 250983-vol. 102-53-44 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are very similar to those in Joy Silk Mills v. N. L. R. B., 187 F. 2d 732. The court of appeals (D. C.) in that case aptly stated the settled law on this point, in the following words : The question presented is then whether Gilbert's refusal to bargain was permissible under the Act. It has been held that an employer may refuse recognition to a Union when motivated by a good faith doubt as to that Union's majority status. (Citing cases.) When, however, such refusal is due to a desire to gain time and to take action to dissipate the Union's majority, the refusal is no longer justifiable , and constitutes a violation of the duty to bargain set forth in Section 8 (a) (5) of the Act. (Citing N. L. R. B. v. Federbush Co., 121 F. 2d 954, 956; N. L. R. B. v. Remington Rand Inc., 94 F. 2d 862, 868-69.11 Therefore I find that the Respondent on or about December 5, 1951, refused to bargain with the Union which was the duly designated collective-bargaining representative of a majority of the employees in the aforementioned appro- priate unit, in violation of Section 8 (a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring In connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent has engaged in unfair labor practices. It will therefore be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit, I will recom- mend that the Respondent, upon request, bargain collectively with the Union as such representative, and if an understanding is reached, embody such understanding in a signed agreement. It has also been found that the Respondent discriminated with respect to the hire and tenure of the following named employees because of their adherence to or activity on behalf of the Union : Gordon Lockhart, A. J. O'Connell, Jack Fleshman, and Herman Mulder. It will therefore be recommended that the Respondent offer them immediate and full reinstatement to their former or sub- stantially equivalent positions,12 without prejudice to their seniority or other rights and privileges. It will be further recommended that each of the employees named above be made whole by the Respondent for any loss of pay he may have suffered by reason of the Respondent's discrimination against him. It will be recommended that the loss of pay for each such employee be computed on the basis of each separate calendar quarter or portion thereof during the period from the Respondent's discriminatory action to the date of a proper offer of reinstatement ; 11 See also William A. Mosow, 92 NLRB 1727; Radio Station SPEC, 93 NLRB 618, Dismuke Tire and Rubber Company, Inc., 93 NLRB 479. 12 The Chase National Bank of the City of New York, an Juan, Puerto Rico, Branch, 65 NLRB 825. It should also be noted that the positions referred to in the case of Lockhart and Mulder are the positions they occupied prior to their demotions on December 26, 1951. DEPENDABLE WHOLESALE COMPANY, INC. 679 the quarterly periods, hereinafter called quarters, shall begin with the first day of January, April, July, and October ; loss of pay shall be determined by de- ducting from the sum equal to that which each employee would normally have earned for each quarter or portion thereof his net earnings," if any, in other employment during that period ; earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. It is also recom- mended that the Respondent be ordered to make available to the Board upon request payroll and other records to facilitate the checking of the amount of back pay due." In addition to the Respondent's aforesaid refusal to bargain with the Union and its numerous acts of discrimination against employees on account of their union affiliations or activities, it has also been found that the Respondent con- ducted an antiunion campaign by means of interrogation, threats, promises, and other illegal conduct in order to influence the employees from exercising their rights under the Act. By the number, variety, and seriousness of the unfair labor practice thus engaged in, the Respondent has demonstrated its disposition to defeat concerted activity among its employees by any available means ; all of which indicates a danger that the Respondent may in the future resort to simi- larly varied forms of unfair labor practices. I will therefore recommend that the Respondent cease and desist, not only from the unfair labor practices herein found, but also from in any other manner interfering with, restraining, and co- ercing its employees in the exercise of the rights guaranteed in Section 7 of the Act." Upon the foregoing findings of fact and the entire record in the case I make the following : CONCLUSIONS OF LAW 1. General Teamsters, Warehousemen & Helpers Union, Local No. 483, A. F. L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All warehousemen, order clerks, checkers, packers, shipping and receiving clerks, and truckdrivers. excluding office and clerical employees, outside sales- men, Myrtle Hay, and supervisors 16 as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Sec- tion 9 (b) of the Act. 3. General Teamsters, Warehousemen & Helpers Union, Local No. 483, A. F. L., was on December 5, 1951, and at all times thereafter has been, the exclusive rep- resentative of all the employees in the above-mentioned appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing to bargain collectively with the aforesaid Union, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the terms and conditions of employment of some of its employees, thereby discouraging membership in the aforesaid Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 6. By the above unfair labor practices, and by otherwise interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed "Crossett Lumber Company, 8 NLRB 440. 'A F. W. Woolworth Company, 90 NLRB 289. 15 May Department Stores v. N L. It. B., 326 U. S. 376. 18 It has previously been determined that Lou Norton is a supervisor within the meaning of the Act. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication in this volume.] EICHLEAY CORPORATION and LODGE No. 34, INTERNATIONAL Assooi &- TION OF MACHINISTS. Case No. 13-CA-910. January 27, 1953 Decision and Order On August 19, 1952, Trial Examiner Frederic B. Parkes, II, issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent, Eichleay Corporation, had engaged in and was en- gaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. There, after, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, the brief, and the entire record in the case,2 and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Eichleay Corporation, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) The practice of conditioning the hire and tenure of employ- ment of employees and applicants for employment in millwright positions at its project in Kenosha, Wisconsin, upon membership in United Brotherhood of Carpenters and Joiners of America, A. F. L., or any other labor organization, except under a nondiscriminatory arrangement permitted by Section 8 (a) (3) of the Act. ' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member pane) [Chairman Herzog and Members Houston and Murdock]. 9 The Respondent's request for oral argument is denied because the record and brief adequately present the issues and the positions of the Respondent. 102 NLRB No. 63.