Williams & Lane, Inc.

609 William Local Internationel Engineers, AFLCIO. 20-CA- PENELLO Christensen a f 5 i discus.& infm, the purposes Re- N.LR.B Gisel Company, In aRirming Administrative represent pur- paes note. Grindstaff hcrein expressed Berkeley ings,a lqc) (b) note facility Grindstaff were Sacramento expresdy transfer purposes Party pan employm 2ppropriate WILLIAMS AND LANE, INC. and Lane, Inc. and Operating Engineers Union No. 3, erating Union of Op- Case 14836 January 14, 1981 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS AND ZIMMERMAN On September 26, 1980, Administrative Law Judge George issued the attached De- cision in this proceeding. Thereafter, both the Gen- eral Counsel and the Charging Party filed excep- tions' and supporting briefs, and Respondent filed limited cross-exceptions and a supporting brief, and an answering brief to the General Counsel's and the Charging Party's exceptions. Pursuant to the provisions of Section 3@) 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 the rulings, find- ' There were no exceptions to the Administrative Law Judge's unfair labor practice findings and conclusions. As in fn. 2, General Counsel and the Charging Party do except to the Administrative Law Judge's failure to find that the Union represented a majority of Re- spondents unit employees for of collective bargaining at its Sac- ramento facility, and to the Administrative Law Judge's resultant failure to recommend the issuance of a remedial bargaining order directing spondent to bargain with the Union at Respondent's Sacramento facility. under the authority of v. Packing 395 U.S. 575 (1969). the Law Judge's finding that the Union did not a majority of employees for collective-bargaining at Respondent's Sacramento facility at any time material herein, we as pointed out by the Administrative Law Judge, thal while em- ployee and Ladd had not actually lost their union member- ship due to their failure to pay dues from July 1979 onward they at no time material any desire to be represented by the Union for collective-bargaining purposes at Sacramento. Indeed, both Grindstaff and Ladd specifically requested to be transferred from Respondent's facility-where they were covered under the collective-bargain- ing agreement then in effect between the parties-to Respondent's new facility at Sacramento, with full awareness in advance that Respondent intended to keep the Union out of its Sacramento facility. In this regard, and conclusions of the Administrative Law Judge3 only to the extent consistent herewith. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Williams and Lane, Inc., Sacramento, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Questioning applicants for employment or employees concerning their union membership, sympathies, activities, or desires. Threatening applicants for employment or employees with discharge or other retribution if they seek or secure union representation. (c) As a condition of employment, requiring ap- plicants for employment or employees to resign their membership in any labor organization. (d) As a condition of employment, requiring ap- plicants for employment or employees to execute statements renouncing any interest in or desire for union representation. (e) Assisting applicants for employment or em- ployees to prepare and execute resignations from their membership in any labor organization and we that they expressed their willingness to transfer to such a non- union in Sacramento before Respondent unlawfully required them to resign their membership in the Union. Finally. and Ladd in no way compelled to go from Berkeley to and, in fact, were told by Respondent that their decision to to the nonunion facility at Sacramento was entirely up to them, and that they could simply remain in, or return to, their jobs at Berkeley if they changed their minds about going to, or remaining at, Sacramento. Under the circumstances we agree with the Administrative Law Judge that the fact that Grindstaff and Ladd were still being carried as members of the Union does not, without more, constitute a showing that they de- sired to be represented by the Union for collective-bargaining at Sacramento. Thus, their membership in the Union lends no support to the assertions by the General Counsel and the Charging that the Union at any material time enjoyed representational support of a majority of Respondent's Sacramento unit employees. The General Counsel has also excepted to the Administrative Law Judge's use of the phrase "within the unit" throughout the "cease and desist" of his recommended Order. Such phraseology would have the effect of limiting this aspect of the remedy to only those within the bargaining unit. However, the proscriptions against unlawful activity recommended by the Administrative Law Judge apply with equal force to all employees or applicants for employment and not just those within the unit. Accordingly we shall issue an Order and notice to replace those recommended by the Administrative Law Judge. 254 NLRB No. 74 re~resentation. (f) Thbarting hesire Local (b) "Appendix."* ' a Stata Appeals, Order h d " Stata ORDER a 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD statements renouncing any interest in or desire for union its employees from seeking or se- curing union representation by instructing or caus- ing its employees to eject any union representatives who appear at its Sacramento facility. (g) In any other manner interfering with, re- straining, or coercing its employees in the exercise of their rights under Section 7 of the Act to form, join, support, or assist the labor organization of their choice. 2. Take the following affirmative actions de- signed to effectuate the purposes of the Act: (a) Return to Grindstaff and Ladd the statements they were required to furnish to the Company re- nouncing any or interest in representation by 3 or any other labor organization, accompa- nied by a cover letter advising Grindstaff and Ladd they are free to join, support, or assist Local 3 or any other labor organization in such organization's efforts to represent them and other employees for collective-bargaining purposes, without fear of dis- charge or other retribution. Post at its facilities at Sacramento and Berke- ley, California, copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Compa- ny's authorized representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Company has taken to comply herewith. In the event that this Order is enforced by Judgment of a United Court of the words in the notice reading "Posted by of the National Labor Relations shall read "Posted Pursu- ant to a Judgment of the United Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO EMPLOYEES POSTED BY OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question applicants for em- ployment or employees concerning their union membership, sympathies, desires, or activities. WE WILL NOT threaten applicants for em- ployment or employees with discharge or other retribution if they seek or secure union representation. WE WILL NOT require applicants for em- ployment or employees to resign their union membership to secure or retain employment with us. WE WILL NOT require applicants for em- ployment or employees to execute statements renouncing any interest in or desire for union representation to secure or retain employment with us. WE WILL NOT assist applicants for employ- ment or employees to prepare and execute res- ignations from their membership in any labor organization and statements renouncing any in- terest in or desire for union representation. We will not thwart our employees' desire to or interest in securing union representation by requiring or causing our employees to eject any union representatives who appear at our premises. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the free exercise of the rights guaranteed them under Section 7 of the National Labor Rela- tions Act, as amended, to form, join, assist, or support the labor organization of their choice. WE WILL return to Johnny Grindstaff and Thomas Ladd the statements we required they execute and submit to us before we would permit them to transfer their employment from our Berkeley facilities to our Sacramento fa- cilities, wherein they were required to re- nounce any interest or desire for representa- tion by Operating Engineers Local Union No. 3, International Union of Operating Engineers, AFL-CIO, or any other labor organization, accompanied by a letter wherein we shall advise Grindstaff and Ladd they are free to join, support, or assist Local 3 or any other labor organization in such labor organization's efforts to represent them and other unit em- ployees for collective-bargaining purposes, without fear of discharge or other retribution. DECISION GEORGE CHRISTENSEN, Administrative Law Judge: On February 26, 1980, I conducted a hearing at Sacra- mento, California, to try issues raised by a complaint 1 Inc.,' AFL-CIO,a 1979.3 Leandro, San Berke- em~lovees - . . 8(a)(l) 11. Grindstars Grind- there ioined com- ' Local 3. shop 61 WILLIAMS AND LANE, INC. issued against Williams and Lane, on October 30, 1979, based on charges filed by Operating Engineers Local Union No. 3, International Union of Operating Engineers, on September 6 and 26, Prior to 1979, the Company operated a facility at San California (where it manufactured diesel and gas generators and related components), and a second fa- cility at Berkeley, California (where it sold and serviced diesel engines, automatic transmissions, and related com- ponents). Its parts and production department employees at Leandro and its parts and service department em- ployees at Berkeley were represented by Local 3 and covered by a contract expiring August 31, 1980. The complaint alleged that prior to opening a third fa- cility at Sacramento, California (for the sale and service of diesel engines, etc.), the Company decided to operate its Sacramento facilities nonunion; that in order to ac- complish that purpose, its service and parts department manager, Roger Deaver (who was slated to assume the same position at Sacramento), conditioned offers of em- ployment at the new facility, addressed to several lev within the contract-covered unit, on such employees' resignation of membership in Local 3 and ex- ecution of a document renouncing any desire for repre- sentation by Local 3 or any other labor organization; that Deaver, following his assumption of duties at Sacra- mento, interrogated a job applicant concerning his union membership and threatened employees with discharge if they engaged in union activities; and that, by such con- duct, the Company violated Section of the Na- tional Labor Relations Act, as amended, (hereafter called the Act). The complaint also alleged the Union achieved major- ity representative status among an appropriate unit of the Company's Sacramento employees; that the Company's aforesaid alleged unfair labor practices were so serious, substantial, and coercive in nature that a bargaining order should issue. The Company admitted, at times pertinent, that Deaver was a supervisor within the meaning of the Act, but denied he was acting as its agent at the times he committed the acts alleged in the complaint; denied, in any event, he committed those acts; denied it violated the Act; denied Local 3 ever achieved majority represen- tative status among an appropriate unit of the Company's Sacramento employees; and denied a bargaining order should issue. The issues before me for resolution are: 1. Whether at times pertinent Deaver was the Compa- ny's agent; 2. If so, whether he committed the acts attributed to him in the complaint; 3. If so, whether by such commission the Company violated the Act; 4. Whether Local 3 achieved majority representative status among an appropriate unit of the Company's Sac- ramento employees; 5. If so, whether a bargaining order should issue. Hereafter called the Company or Respondent. Hereafter called Read 1979 after all further date references omitting the year. The parties appeared by counsel at the hearing and were afforded full opportunity to adduce evidence, ex- amine and cross-examine witnesses, argue, and file briefs. The General Counsel argued orally immediately prior to the close of the hearing and Local 3 and the Company filed briefs. Based upon my review of the entire record, observa- tion of the witnesses, perusal of the oral argument, the briefs and research, I enter the following: I. JURISDICTION AND LABOR ORGANIZATION The complaint alleged, the answer admitted, and I find at all pertinent times the Company was an employer en- gaged in commerce in a business affecting commerce and Local 3 was a labor organization within the meaning of Section 2 of the Act. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts As noted heretofore, prior to January 1979, the Com- pany manufactured, sold, and maintained engines and components utilized in the trucking industry, at two fa- cilities located in San Leandro and Berkeley, with em- ployees represented by Local 3 and covered by a con- tract with that organization. Its plans to open a third fa- cility at Sacramento, for sales and service operations similar to those it conducted at Berkeley, were a subject of common discussion among its Berkeley employees for some time prior to commencement of its operations there. When Johnny Grindstaff appeared at the Berkeley fa- cilities in February to seek employment there, he was in- terviewed and hired by Deaver (as an advanced appren- tice). Deaver identified himself as either the service de- partment manager or the truck shop manager. During his subsequent employment at Berkeley (February-June) in the service department, work was directed and supervised by Deaver. During the course of the Feb- ruary employment interview, Deaver informed staff the Company was thinking of opening an additional service facility at Sacramento; Grindstaff expressed inter- est in securing employment and Deaver promised to note his interest in his file. When Deaver informed Grindstaff, during the interview, he would have to join Local 3 on the 31st day of his employment in order to continue working for the Company, Grindstaff advised Deaver he had been a member of Local 3 continuously since September 1978. Thomas Ladd was hired in June 1978 as a diesel truck mechanic by Will Malchow, Deaver's predecessor as ser- vice shop manager at Berkeley. Ladd identified Deaver as Will Malchow's successor as foreman of the truck repair shop. Malchow told Ladd he would have to join Local 3, and that he had 31 days before he had to join. Ladd Local 3, however, on the day he menced work for the Company. In early 1979, Ladd told Deaver he heard a rumor the Company was going to open a new truck repair at midJune, card.' 51,000 ti partsman.0 3,8 Grindstaff, Deaver's numbers partsman ' beginnin~ (1. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sacramento and asked Deaver if the rumor was accurate. Deaver replied the Company's plans were not definite. In early June, Deaver informed Ladd the Company was definitely going ahead with plans to open a new truck repair facility in Sacramento and the only thing that was indefinite was the date the new operations would start, that he was going; and asked Ladd if Ladd was interested in coming along and continuing to work for him. Ladd replied in the affirmative. Deaver then stated the shop was going to be nonunion and Ladd would have to secure a withdrawal card from Local 3. Ladd assented. At about the same time, Deaver contact- ed Grindstaff to inform him the Company had acquired land and a building at Sacramento and was definitely going to open new truck repair facilities there, and was only waiting for the current occupant of the building to vacate. Deaver asked Grindstaff if he still wanted to go to Sacramento. Grindstaff replied he was. Deaver then stated the Company intended to operate nonunion in Sacramento and Grindstaff would have to secure a with- drawal card from Local 3 if he wanted to go. Grindstaff assented. Deaver went on to explain he had to acquire a withdrawal card when he went on salary for the Compa- ny, and that securing the card meant the cardholder no longer would have to pay dues to Local 3 and the card would entitle him to reacquire active membership in Local 3 at any time without paying a new initiation fee. The day after his conversation with Deaver, Grind- staff visited Local 3's offices and asked how to acquire a withdrawal card. He was informed he could acquire the card by paying $2 or $3 for it, provided he was current in his dues. The Company scheduled July 11 as its first day of op- erations at Sacramento; both Deaver and Ladd, howev- er, were scheduled to report to Sacramento about Monday, July 2 to get the premises ready and Grindstaff was scheduled to report to Sacramento the following Monday, July 9 (working at Berkeley through Wednes- day, July 3). In however, Grindstaff asked Deaver if he could also cease work at Berkeley on Friday, June 29, so he would have sufficient time to locate and purchase a new house in the Sacramento area and move into it, and to avoid having to pay $90 in dues to Local 3 to qualify for a withdrawal Deaver granted the request. On Thursday, June 28, the day before Deaver, Ladd, and Grindstaff were to cease work at Berkeley, Deaver spoke with Ladd and Grindstaff in his office; he told them the Company's attorneys had advised him the only way the Company could legally accomplish its objective of keeping the Sacramento operations nonunion and still employ Ladd and Grindstaff there was to require that Ladd and Grindstaff quit Local 3 rather than just secur- ing a withdrawal card from it, and to require their ex- ecution of a document addressed to the Company dis- avowing any desire to be represented by Local 3 at Sac- ramento. Ladd responded this meant losing the initiation fee they paid to Local 3 and said Grindstaff had even more to lose than he did. Grindstaff stated it had been difficult for him to acquire Local 3 member- ' He paid dues quarterly and was paid up through June 30. ship, he had taken three aptitude tests and tried for 3 years before he got in (he had been a construction labor- er). Deaver replied if Ladd or Grindstaff wanted to go back into Local 3, they could come back to Berkeley whenever they wished and Local 3 would have to take them back in after 30 days on the job, under the Compa- ny-Local 3 contract. Ladd and Grindstaff conferred, de- cided they had gone so far along in their plans already that they did not want to back off, and advised Deaver they would comply with the requirements. Ladd asked Deaver how to quit Local 3. Deaver responded he would have to write a letter to Local 3. Ladd asked Deaver what to put in the letter. Deaver stated he would give Ladd and Grindstaff a draft containing the language to use. Later in the day, Deaver furnished Ladd and Grindstaff with a document setting out language of the letter they were to send to Local 3 resigning membership therein. As noted above, by July 9 Deaver, Ladd, and Grind- staff were working at the Sacramento facility; Deaver as manager, Ladd as a mechanic, and Grindstaff as an ad- vanced apprentice. A fourth man, Keith Griggs, was also employed at Sacramento on July 9 as a On August 13 Fred Drollinger was hired by Deaver as a first-step apprentice. Harold Parker, an experienced diesel engine mechanic and a member of Local began looking for work in the Sacramento area in early August. A local business representative, Ken Allen, advised him work was slow in his field (primarily truck diesel engine maintenance) and advised him to register on the out-of-work list, which he did, for possible work in construction. In the absence of any calls for employment, Parker began calling diesel truck repair shops in the area with respect to possible openings. He contacted Deaver by telephone and was in- vited to an interview on August 14. He appeared, Deaver had him fill out a job application, reviewed the application, and asked him questions about his prior ex- perience. Satisfied concerning his qualifications, Deaver recited the mechanic wage scale the Company was paying, the benefit schedules and hours, and offered Neither Ladd nor however, wrote and mailed a letter to Local 3 resigning their membership therein. They did not inform Deaver of their noncompliance with instructions. however, and the Company was unaware of their noncompliance until company counsel and management personnel interviewed them in preparation for the hear- ing in this case. and inquired. On July 18, however, they copied language furnished by Deaver disavowing any interest in representation by Local 3 or any other union at Sacramento and signed and gave same to Deavers at his request. While Griggs was listed in a company exhibit as parts manager, Ladd stated he was the one and only partsman employed at Sacramento, he looked up catalog and prices of parts desired by the mechanics when they needed parts, wrote up invoices listing the desired parts, pro- cured the parts, and delivered them to the requesting mechanic. Ladd also stated these were the identical duties performed by the in- cluded within the unit represented by Local 3 at Berkeley and covered by the Company-Local 3 contract. Ladd's testimony is undisputed and is credited. A first-step apprentice was a trainee; as he progressed, he was assigned advancing steps 2, 3, etc.). At that time Grindstaff was an eighth-step apprentice. Ladd testified Drollinger worked as his assis- tant in truck maintenance and repair, receiving on-the-job instructions. Ladd's testimony is undisputed and is credited. Parker testified he paid dues to Local 3 in August. Company.@ Weigrnann weigmann; IS. Anahsir 1 30), Service 31). 2(13) specific I h i c first Sacramento. scope authority.lO 8(a)(l) em- l o Inc., el a l , & F.2d Spetiolties. F.2d F.2d see F.2d 613 WILLIAMS AND LANE, INC. Parker work as a mechanic. Parker accepted the offer. Deaver then asked him if he was a union member. He responded he was. Deaver stated the shop was nonunion, and if Parker or any of the other employees tried to bring in a union, they would lose their jobs. Parker did not respond and commenced work. Not long thereafter, Deaver instructed Parker to run off any union represen- tatives who came around. A few days later Parker called Allen, told him he had secured employment with the Company, and asked Allen what he knew about the Allen replied it was his understanding the Company had a truck repair shop in Berkeley whose employees were represented by Local 3. Parker stated the Sacramento shop was nonunion and asked if the Union would come in so he could continue to participate in its benefit plans. Allen suggested Parker check among the other employees at Sacramento and see if they wanted representation; if so, the Union certainly would be interested in representing them. On October 8 Fred was hired as a first- stage apprentice to perform the same work performed by Drollinger. On November 21 Parker quit. On February 11 Michael Williams was hired as a first- stage apprentice to perform the same work as Drollinger and he replaced Drollinger, whose employ- ment terminated on February 1980. The record does not show Local 3 demanded recogni- tion as the collective-bargaining representative of any of the Company's Sacramento employees based on attain- ment of majority representative status among them; there was reference only to a claim by Local 3 (rejected by the Region) that on some unspecified date Local 3 de- manded it be so recognized, on the ground the Sacra- mento shop was an accretion to the Berkeley unit. B. and Conclusions 1. The agency issue It is clear (and the Company admitted in its answer to the complaint) at certain material times (between January and June Deaver was manager of the Company's Parts and Department at Berkeley and a compa- ny supervisor within the meaning of Section 2 of the Act and at other material times (between July 1 and August Deaver was manager of the Company's Parts and Service Department at Sacramento and a supervisor within the meaning of Section 2 of the Act. The Compa- ny denies, however. Deaver was acting as its agent when he made the statements deemed violative of the Act set forth in the complaint and found to have been uttered by Deaver in the factual findings set out above (Deaver was not called to testify, so the findings are based upon the undisputed testimony of Grindstaff, Ladd and Parker, which I credited). Section of the Act states the issue of whether or not acts committed by an alleged agent were au- thorized or ratified by his principal shall not be control- ling and the courts consistently have sustained Board de- n w~ the time Allen became aware the Company had com- menced operations in terminations holding an employer responsible for acts of his supervisor vis-a-vis employees under his supervision in the absence of clear proof the supervisor in question was acting outside the of his Here Grindstaff, Ladd, and Parker had no reason to doubt Deaver was acting within his powers as the super- visor designated by the Company to direct and control their work and employment when he told the former two they would have to resign from the Union and re- nounce any desire for representation by the Union or any other labor organization to secure employment under him in Sacramento, as well as when he questioned Parker concerning his union affiliations, told Parker that Parker and any other employee under his supervision at Sacramento would be discharged if they sought union representation, and instructed Parker to eject any union representative who attempted to make contact with any of the Sacramento employees; the Company conceded Deaver was its designated supervisor; and the Company failed to produce any evidence Deaver was not acting within the scope of his powers when he made the afore- said statements. I, therefore, find and conclude Deaver was both a su- pervisor and agent of the Company acting on its behalf when he made the statements set out heretofore to Grindstaff, Ladd, and Parker. 2. Commission of the alleged acts As noted above, Deaver did not testify and findings based on the credited testimony of Grindstaff, Ladd, and Parker credibly have been entered that Deaver offered the former two employment under his continued supervi- sion at Sacramento only if they resigned their Local 3 membership and formally renounced any interest or desire for representation by Local 3 of any other labor organization and that Deaver interrogated Parker con- cerning his union affiliations, threatened Parker and the other employees with discharge if they sought union rep- resentation, and instructed Parker to eject any union rep- resentative who sought to contact the employees at Sac- ramento. 3. Act violations An employer violates Section of the Act when it interferes with, coerces, or restrains its employees' ex- ercise of their Section 7 rights under the Act, including their right to join or assist labor organizations and to seek or secure labor union representation for the purpose of bargaining with their employer concerning their wages, rates of pay, etc. The Board, with court approval, has held in a number of cases that an employer who solicits and aids its em- ployees to withdraw from the union representing them thereby interferes with, restrains, and coerces those Miami Springs Properties, 245 NLRB 278 (1979); N.L.R.B. v. Big Three Industrial Equipment Gas Co., 579 304 (5th Cir. 1978); N.L.R.B. v. Internarional Metal 433 870 (2d Cir. 1970); N.L.R.B. v. Sagamore Shirt Company, d/b/a Spruce Pine Man- ufacturing Company, 401 925 (D.C. Cir. 1968) (also 898); etc. 365 NATlONAL RELATlONS 8(a)(l) Grindstaff 8(a) (1) 8(a)(1) Act,'* 8(a)( 1 ). complaint 9(b) " Sequoyah Inc., N.LR.B., F.2d 850, Cir. Inc.. Cafe. Inc, N. LR.B. Okla-Inn Henryptfa, F.2d Omark-CCL Inc., Liberty Inc.. (1975); N.LR.B. Curing F.2d Providence Nevir Industries Inc.. Fresno Townehow, I D N.LR.B. F.2d 1980). Slotkowrki Senomation. Inc.. McCain Foods Inc., Norfh Mfg. F.2d Moshannon Inc., N.LR.B.. F.2d 1081 Howard ISN.LR.B. W Inc., 518F.2d 1170(2dCir. 1975),enfg.213 Inc., 1 Efingham Fmd Store, Inc., M K Restaumnt C o p . o l . Inc., 194 Griggs.14 3;16 Drol- 15, practices case N.LR.B. Gissel Inc., 969), Griggs' " Grindstaff period 614 DECISIONS OF LABOR BOARD ployees in the exercise of their Section 7 rights and vio- lates Section of the Act. l l In this case. the Company, by Deaver, required Grind- staff and Ladd to formally resign from Local 3 and to renounce any support for representation by that or any other labor organization before he would grant their re- quests for transfer of their employment from Berkeley to Sacramento; on the basis of the foregoing, I find by that conduct the Company interfered with, restrained, and coerced and Ladd in the exercise of their rights under Section 7 of the Act to freely decide wheth- er they desired continued membership in and representa- tion by Local 3 or another labor organization and violat- ed Section of the Act. The Board, with court approval, has also held an em- ployer's interrogation of applicants for employment con- cerning whether they are union members inhibits their free exercise of their Section 7 rights and is violative of Section of the particularly when accompa- nied by threats of discharge if the applicant and other employees seek union representation. In this case the Company, by Deaver, asked Parker if he was a union member in his hiring interview and in- formed him he and the other employees risked discharge if they sought union representation when Parker in- formed Deaver he was a union member; Deaver also in- structed Parker to eject any union representative who came to the Sacramento facilities and sought to make contact with him or any other employee. On the basis of the foregoing, I find by that conduct the Company committed additional violations of Section 4. The unit and Local 3's representative status therein The alleged, the answer admitted, and I find the following constitutes a unit appropriate for collec- tive-bargaining purposes within the meaning of Section of the Act: All persons employed in the parts and semce de- partments of Williams and Lane, Inc. at its West Spinning Mills 194 NLRB 1175 (1972); General Motors Acceptance Corp. v. 476 enfg. 196 NLRB 137 (1st 1973); Texas Electrical Co-op, 197 NLRB 10 (1972); Jai Lai 198 NLRB 781 (1972); v. d/b/a Holiday Inn of 488 498 (10th Cir. 1973); 208 NLRB 469 (1974); Homes 216 NLRB 1102 (1975); Star Manufacturing Company, 220 NLRB 582 v. Triumph Center, 571 462 (9th Cir. 1978); Medical Center, 243 NLRB 714 (1979); d/b/a 246 NLRB 1053 (1979). v. Bighorn Beverage, 614 1238, (9th Cir. enfg. 236 NLRB 736 (1978); Sausage Company, 242 NLRB 931 (1979): 237 NLRB 48 (1978); 236 NLRB 447 (1978); N.L.R.B. v. American Co., 563 894 (8th Cir. 1977); Valley TV Cable Co.. 216 NLRB 89 (1975); Hyster Company v. 480 (5th Cir. 1973): Roch- ester Cadet Cleaners, 205 NLRB 773 (1973): Johnson Company, 198 NLRB 763 (1972). v. J. Mays NLRB 619; American Map Company. 219 NLRB 174 (1975); Burns International Security Services. 216 NLRB 1 1 (1975); 201 NLRB 263 (1973); et 198 NLRB 14 (1972); Sequoyah Spinning Mills NLRB 1175 (1972). Sacramento, California facility, excluding office and clerical employees, guards, professional employees and supervisors as defined in the Act. The abovedescribed unit is identical to the unit repre- sented by Local 3 at the Company's Berkeley facilities. As noted heretofore, the initial (July 11) employee complement within the unit consisted of Ladd, Grind- staff, and Technically, the two former employ- ees still were members of Local the latter was not. By August 13, the unit included a fourth employee, Drollinger; the record does not show whether or not he was a union member or, if so, of what organization. Parker, an active member of Local 3, became the fifth employee within the unit on August 14. On October 8, Weigman, whose union membership status was not dem- onstrated, became the sixth employee within the unit. Parker's employment terminated on November 21; linger's employment terminated on February 1980, a few days before Williams, whose union membership was not developed, was hired for employment within the unit. Neither Local 3 nor the General Counsel produced evidence to establish any of the unit employees ever ex- ecuted cards authorizing Local 3 to represent them for the purpose of bargaining collectively with the Company concerning their rates of pay, wages, etc. The fact Grindstaff and Ladd technically were still members of Local 3 after June 30 and the fact Parker was an active member of Local 3 on August 14 does not establish any of the three, at some point in time after July 11 (when the Company commenced its operations at Sacramento), wished to, or did, authorize Local 3 to represent them; and the record is totally devoid of any evidence Griggs, Drollinger, Weigman, or Williams ever did so. On the basis of the foregoing, I find and conclude nei- ther the General Counsel nor the Union demonstrated at some point that Local 3 achieved majority representative , status within the unit nor a date Local 3 asserted such status. 5. The bargaining order issue Local 3 and the General Counsel contend the Compa- ny's unfair labor in the instant were suffi- ciently serious and substantial to warrant the issuance of a remedial order directing the Company to bargain with Local 3 at its request concerning the rates of pay, wages, etc. of its Sacramento employees within the unit, relying on v. Pocking Ca, 395 U.S. 575 (1 as authority therefor. The typical case in which such an order has issued is one in which a union has secured cards from a majority of the employees within an appropriate bargaining unit authorizing the union to represent those employees for collective-bargaining purposes; the union on the basis of those cards either has sought recognition from the em- " See fn. 6 for the basis of my determination was within the unit. While and Ladd ceased paying dues to Local 3 after June 30, they did not resign their membership therein and there is a grace before membership lapses. ployer conclu- Sec- 1qc) estabkh employee order.Ie Deaver 8(a)(l) 3 8(aK1) " Sambo'r Restoumnf. Inc.. Ascaiation. Sovth Station Store. Inc.. d/b/a Bereson 15 1. (b) (e) " as Sec. Sec. l 8 Court 615 WILLIAMS AND LANE, INC. as the unit employees' bargaining representative take affirmative action designed to effectuate the pur- or certification by the Board as the duly designated rep- resentative of the unit employees for collective bargain- ing purposes; and the employer has dissipated the union's card majority representative status within the unit through the commission of serious and substantial unfair labor practices. That situation does not apply here; no authorization cards were produced to Local 3 ever represent- ed a majority of the Company's within the Sacramento unit; Local 3 unsuccessfully sought recogni- tion on some undesignated date on the basis the Sacra- mento unit was an accretion to the Berkeley unit (which would have permitted a count of Local 3's supporters at Berkeley in establishing majority representative status); Local 3 never petitioned for an election nor sought rec- ognition on the basis of proof a majority of the Sacra- mento employees within the unit had designated it as their collective-bargaining representative; and findings have been entered above Local 3 and the General Coun- sel failed to establish that at some point Local 3 secured majority representative status within the unit and either sought recognition or certification based thereon. In such circumstances, the Board has refused to issue a bargaining I, therefore, shall not recommend is- suance of a bargaining order. 1. At all pertinent times the Company was an employ- er engaged in commerce in a business affecting com- merce and Local 3 was a labor organization within the meaning of Section 2 of the Act. 2. At times pertinent was a supervisor and agent of the Company acting on its behalf within the meaning of Section 2 of the Act. 3. The Company, by Deaver, violated Section of the Act by: (a) Requiring Grindstaff and Ladd to resign their Local membership and to renounce any desire or inter- est in representation by Local 3 or any other labor orga- nization at Sacramento, as a condition for granting their applications for transfer to employment at Sacramento, and preparing and giving them drafts of resignation and renunciation documents for preparation and submission; (b) Questioning Parker concerning his union member- ship, threatening Parker and other employees within the Sacramento unit with discharge if they sought union rep- resentation, and instructing Parker to thwart any union effort to organize the employees by ejecting any union representative who appeared at the Company's Sacra- mento facility. 4. The aforesaid unfair labor practices affected com- merce as defined in the Act. Having found the Company engaged in unfair labor practices violative of Section of the Act, I shall recommend the Company cease and desist therefrom and 247 NLRB No. 122 (1980); United Dairy Farmers Cooperative 242 NLRB 1026 (1979); Liquor Liquor Mart. 223 NLRB 1 1 (1976). poses of the Act. On the basis of the foregoing findings of fact, sions of law, and the entire record, and pursuant to tion of the Act, I recommend the issuance of the following: ORDER The Respondent, Williams and Lane, Inc., its officers, agents, successors, and assigns, shall: Cease and desist from: (a) Questioning applicants for employment or employ- ees within the unit described below concerning their union membership, sympathies, activities, or desires. Threatening applicants for employment or employ- ees within the unit with discharge or other retribution if they seek or secure union representation. (c) As a condition of employment, requiring applicants for employment or employees within the unit to resign their membership in any labor organization. (d) As a condition of employment, requiring applicants for employment or employees to execute statements re- nouncing any interest in or desire for union representa- tion. Assisting applicants for employment or employees within the unit to prepare and execute resignations from their membership in any labor organization and state- ments renouncing any interest in or desire for union rep- resentation. (f) Thwarting its employees from seeking or securing union representation by instructing or causing its em- ployees to eject any union representatives who appeared at its Sacramento facilities. (g) In any other manner interfering with, restraining, or coercing its employees within the unit in the exercise of their rights under Section 7 of the Act to form, join, support or assist the labor organization of their choice. 2. Take the following affirmative actions designed to effectuate the purposes of the Act: (a) Return to Grindstaff and Ladd the statements they were required to furnish to the Company renouncing any desire or interest in representation by Local 3 or any other labor organization, accompanied by a cover letter advising Grindstaff and Ladd they are free to join, sup- port, or assist Local 3 or any other labor organization in such organization's efforts to represent them and other employees within the unit for collective-bargaining pur- poses, without fear of discharge or other retribution. (b) Post at its facilities at Sacramento copies of the at- tached notice marked "Appendix."' e Copies of that notice, on forms provided by the Regional Director for In the event no exceptions are filed provided by 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in 102.48 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board shall read "Posted Pursu- ant to a Judgment of the United States of Appeals Enforcing an Order of the National Labor Relations Board." cluding office guard? In 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Region 20,after being signed by the Company's autho- (c) Notify the Regional Director for Region 20, in rized representative, shall be posted by the Company im- writing, within 20 days from the date of this Order, what mediately upon receipt, and shall be maintained for 60 steps the Company has taken to comply with the Order. consecutive days thereafter, in conspicuous places, in- 3. The unit in question consists of: all where notices to employees are cus- All persons employed in the parts and service de- tomarily posted. Reasonable steps shall be taken by the partment of Williams and Lane, Inc. at its West Company to ensure that said notices are not altered, de- Sacramento, California facility, excluding and faced, or covered by other material. clerical employees, professional employees and supervisors as defined the Act.