M. Benevento Sand & Gravel Co.

358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Respondent having laid off and discharged Raymond Harold Burrow because of his actual or suspected union sympathies or activities, I recommend that Respondent offer to him immediate and full reinstatement to his former or a substantially equiva- lent position without prejudice to his seniority and other rights and privileges and make him whole for any loss of pay he may have suffered by reason of Respondent's discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of his layoff, February 12, 1960, the date of the discrimination against him, to the date when, pursuant to the recommendations herein contained, Respondent shall offer him reinstatement, less his net earnings during said period. Said backpay shall be computed on a quar- terly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289. The violations of the Act committed by the Respondent are persuasively related to other unfair labor practices proscribed by the Act, and the danger of their com- mission in the future is to be anticipated from the course of the Respondent's con- duct in the past. The preventive purposes of the Act will be thwarted unless the order is coextensive with the threat. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs com- merce, and thus effectuate the policies of the Act, I shall recommend that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Pulaski Rubber Company is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of the Act. 3. In January 1960, by interrogating employees concerning their sympathies to- ward the above-named Union, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. In January 1960, by threatening employees' chances of advancement and job security and by threatening to close the plant and quit business in order to defeat the Union, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Raymond Harold Burrow, thereby discouraging membership in United Rubber, Cork, Lin- oleum & Plastic Workers of America, AFL-CIO, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co. and Hoisting & Portable Engineers Union, Local 4, International Union of Operating Engineers , AFL- CIO. Cases Nos. 1-CA-3258 and 1-CA-3304. April 28, 1961 DECISION AND ORDER On January 23, 1961, Trial Examiner Louis Libbin issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- 131 NLRB No. 45. M. BENEVENTO SAND & GRAVEL CO. 359 spondent 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 Inter- mediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and sup- porting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommen- dations of the Trial Examiner. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co., Wilmington, Massachusetts, their officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, with Hoisting & Portable Engineers Union, Local 4, Inter- national Union of Operating Engineers, AFL-CIO, as the exclusive representative of all of its employees in the following appropriate unit : All production and maintenance employees at Respondent's Wilmington, Massachusetts, plant, including truckdrivers and me- chanics, but excluding office clerical personnel and supervisors as de- fined in the Act. (b) Offering employees wage increases and other economic benefits if they would forget about the Union; telling employees that the plant would probably close down before it would go union; telling striking employees that they could have settled their differences among them- selves without the Union; offering striking employees wage increases, 'The Respondent contends that it was prejudiced because it was not allowed a full 10 days to answer the consolidated complaint , dated October 12, 1960 However, the record discloses that the consolidated complaint was in fact served on the Respondent on or before October 14 . As the hearing was opened on October 25, the Respondent had a full 10 days in which to file an answer. Moreover, the Trial Examiner gave the Respond- ent until the close of business on October 25 to file an answer and it did so on that date. We therefore find that Respondent's claim of prejudice is without merit 2In the Intermediate Report, the Trial Examiner inadvertently stated that the refusal to bargain occurred after August 12, 1960 . It is clear that the date intended was September 12, 1960 , and it is corrected accordingly The General Counsel excepts to the Trial Examiner's finding that the refusal to bargain dated from September 12, 1960, contending that July 20 was the date of the first refusal to bargain . We find it unnecessary to pass on this contention inasmuch as the remedial order would be the same in either event. 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other economic benefits, and a contract if they would return to work without the Union; and stating that Respondent would not sign a con- tract with the Union even if the employees walked on the picket line for years. (c) Bypassing the above-named Union as the employees' duly chosen exclusive collective-bargaining representative and dealing di- rectly with the employees. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Hoisting & Portable Engineers Union, Local 4, International Union of Operating En- gineers, AFL-CIO, as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. (b) Post at its plant in Wilmington, Massachusetts, copies of the notice attached to the Intermediate Report marked "Appendix A." I Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's rep- resentative, be posted by it 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. MEMBER BROWN took no part in the consideration of the above Deci- sion and Order. a This notice shall be amended by substituting the words "Pursuant to a Decision and Order" for the words "Pursuant to the Recommendations of a Trial Examiner." In the event that . this Order is enforced by a decree of a United 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." M. BENEVENTO SAND & GRAVEL CO. INTERMEDIATE REPORT AND RECOMMENDED ORDER 361 STATEMENT OF THE CASE Upon charges filed by Hoisting & Portable Engineers Union, Local 4, Interna- tional Union of Operating Engineers, AFL-CIO, herein called the Union, the Gen- eral Counsel of the National Labor Relations Board, by the Regional Director for the First Region (Boston, Massachusetts), issued his complaint, dated October 12, 1960, against Michael Benevento and John Benevento d/b/a M. Benevento Sand & Gravel Co., herein called the Respondent. With respect to the unfair labor prac- tices, the complaint, as amended at the hearing, alleges, in substance, that: (1) the Union has been the exclusive bargaining representative of all the employees in a specified appropriate unit at all times since July 13, 1960; (2) at all times since about July 20, 1960, Respondent has refused to bargain collectively with the Union as such representative, although requested to do so; (3) Respondent, by its supervisors, representatives, and agents, engaged in specified acts of interference, restraint, and coercion; and (4) by the foregoing conduct Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. In its duly filed answer, Re- spondent denies, generally, the unfair labor practice allegations. Pursuant to due notice, a hearing was held before the duly designated Trial Examiner at Boston, Massachusetts, on October 25 and 26, 1960. All parties ap- peared, were represented at the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to present oral argument, and to file briefs. On December 27, the General Counsel and the Respondent filed briefs, which I have fully considered. Upon the entire record i in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Michael Benevento and John Benevento, herein jointly referred to as Respondent, are copartners doing business under the trade name and style of M. Benevento Sand & Gravel Co. Respondent maintains its principal office and place of business in Wilmington, Massachusetts, where it is engaged in the manufacture, sale, and dis- tribution of sand and gravel. During the calendar year preceding the issuance of the complaint, Respondent sold products, valued in excess of $50,000, to Red-E-Mix Co., of Reading, Massachusetts, which company during the same calendar year pur- chased and received, from sources outside the Commonwealth of Massachusetts, products valued in excess of $50,000. Upon the above admitted facts, I find that Respondent is engaged in commerce within the meaning of the Act.2 II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the record shows, and I find that Hoisting & Portable En- gineers Union, Local 4, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The principal issues in this proceeding are (1) whether Respondent's conduct constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act, and (2) whether Respondent's agents and representatives engaged in acts of inter- ference, restraint, and coercion within the meaning of Section 8 (a) (1) of the Act. A. Sequence of events3 1. Commencement of employee self-organization On July 13, 1960, Respondent's employees attended a union meeting at which union representatives pointed out that the Union would attempt to negotiate a con- 'During his cross-examination of John Benevento, the General Counsel was permitted to withdraw a question after it had been answered by the witness This appears on page 340 of the typewritten transcript of the testimony. I hereby reverse my ruling in this respect so that both the question and the answer are now part of the record. ' Siem.ons Mailing Service, 122 NLRB 81, 85 8 Unless otherwise indicated, the factual findings-in this section . are based on credible evidence which Is either admitted or undenied. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tract with Respondent containing certain benefits with respect to wages, hours, and working conditions, but that before the Union could approach Mr. Benevento, the employees would have to sign cards authorizing the Union to represent them for collective-bargaining purposes. Eight of Respondent's employees in the appropriate bargaining unit signed union authorization cards at that meeting. The next day, the Union filed a representation petition with the Board's Regional Office. 2. John Benevento's conversation with Strickland Thomas Strickland had been employed by Respondent for about 3 years as a shovel operator. He attended the union meeting on July 13 and signed a union authorization card at that time. John Benevento, a partner in Respondent Company and herein sometime referred to as John, was at that time in complete charge of Respondent's operations because of the absence of his father, Michael Benevento, in Europe since June 10. A few days after the June 13 union meeting, John spoke to Strickland about the Union while the latter was operating the shovel. John stated that he had heard that the employees were talking about unions and that if Strickland would forget about the Union he would give him a raise of 25 cents an hour. Strickland replied that he did not know anything about the Union .4 3. The Union requests recognition land contract negotiations On July 20, 1960, Paul McQuade , an International representative, and James Grandy, the Union's assistant business manager, went to Respondent's office and asked for Mr. Benevento. They were told that Mr. Benevento was in Italy and that they would have to see John Benevento who was in charge of the plant. Following directions, they located John in the Pit. McQuade introduced himself and Grandy, stated that the Union represented a majority of Respondent's employees, and that they wanted to sit down with him and negotiate a contract covering the employees as soon as possible. John Benevento replied that his father, Michael, was in Italy and that he (John) did not have authority to negotiate. John also stated during the conversation that his father would never do business with Local 4, that he him- self (John) used to be a member of Local 4 and wanted no part of it, that the Union would never come into the plant even if they had to close it down, that he was able to sell his materials cheaper than anyone else, that Shelsey of Burlington Sand and Gravel had kicked the Union out, and that as long as Shelsey was going to operate nonunion Benevento was going to operate nonunion.5 4. John Benevento's conversations with Strickland and with other employees On the morning of July 25, upon Strickland's return to work after a week's vaca- tion, John Benevento told employee Strickland that if he would forget about the Union, he would receive more than a 25-cent-an-hour raise, that he would be paid for the vacation he had just taken, that there would be some paid holidays, and that there would be insurance, half the cost of which would be borne by the Respondent .6 On the morning of July 29, John Benevento spoke to a group of about five or six employees at their request. John asked what the trouble was and was informed that the employees would like to have certain benefits. John told the group that if the * The findings in this paragraph are based on the credited testimony of Thomas Strick- land. John Benevento did not impress me as a credible witness . His testimony in some respects was evasive and contradictory and disclosed a lack of candor. Under all the circumstances, including my observation of the demeanor of the witnesses, I do not credit John's denials. 5 The findings in this paragraph are based on the credited testimony of Paul McQuade and James Grandy. John Benevento admitted that McQuade and Grandy stated they represented Local 4 and wanted to sit down and negotiate a contract, and that he replied he had no authority to negotiate and that his father was in Europe He denied stating that his father would close the place down before he would negotiate with the Union, or making any reference to Burlington Sand and Gravel. He admitted that he was familiar with Burlington Sand and Gravel and that there "may have been" some argument about it between himself and the union representatives but that he did not remember As previously Indicated, I do not regard John Benevento as a credible witness and do not credit his testimony to the extent that It constitutes a denial of that of McQuade and Grandy, as set forth in the text 6 The findings in this paragraph are based on the credited testimony of employee Strickland. I do not credit John Benevento's denials in this respect. M. BENEVENTO SAND & GRAVEL CO. 363 men could wait until his father 's return from Europe, he (John) would see what he could do for them. He also stated that his father would probably close down before he would go union. 5. The strike commencing August 2 On August 2, 1960, Respondent's employees went out on strike for union recog- nition, and commenced picketing Respondent's premises. All the employees in the appropriate unit participated in the strike which was effective in closing down Re- spondent's operations until the employees returned to work on the morning of September 23. 6. John Benevento's conversation with some strikers in Kitty's Diner On August 9, John Benevento spoke to a few of the strikers whom he happened to meet in Kitty's Diner. During the course of the conversation, John stated that the men should not have gone out on strike, that they could have settled the thing among themselves, that they did not need the Union, and that if the men had waited for his father to return before they went on strike they could have got some benefits and settled it with him and his father.? 7. Michael Benevento returns from Italy On September 9, 1960, Michael Benevento, the other partner in Respondent Com- pany, came back from Italy. He returned to his business at the plant the very next day and saw the men on the picket line carrying signs. John Benevento ad- mitted that about 2 or 3 days after his father's return from Europe, he informed his father about the visit by McQuade and Grandy and that they wanted to talk about a contract. Michael Benevento admittedly made no effort at any time to get in touch with any union representative. 8. The activities of Frank Moore On September 19, Respondent placed an advertisement in the papers for ex- perienced 10 wheeler truckdrivers, shovel operators, and front load operators, men- tioning the existence of a labor dispute. In response to this advertisement, Frank Moore applied for a job at Respondent's office on the morning of September 21. He was told by Shaugnessy, Respondent's bookkeeper, that the Beneventos were not there but would be back in the afternoon. Moore left a note with his name, tele- phone number, qualifications, and references. That afternoon Moore returned and engaged in a conversation with both Bene- ventos, father and son, in Respondent's office. Shaugnessy was also in the office at that time. Moore was told that there was a job open for him if enough men would come back to work. Moore asked why there was a picket line, and was told that there was a labor dispute. Moore asked, "Well, are you union?" One of the Beneventos replied in the negative and added that the Umon was trying to get in but that they did not want the Union to get in. Moore then inquired if there was some way they could settle the matter if they were nonunion. The Beneventos sug- gested that Moore could try to settle it if he wanted to. Moore then asked what they had to offer the strikers. Their reply was 50 cents to a dollar an hour raise, a week's paid vacation after a year of service, and sick benefits. Moore was told or led to believe that he would be given a job as foreman if he were successful in get- ting enough employees to come back to work to enable operations to be resumed. Moore then went back to the picket line and spoke to a group of the strikers who were there. Moore asked what the trouble was, and was told that the men felt they were underpaid and wanted union wages . Moore then stated that he was told by the Beneventos to offer them an increase of from 50 cents to a dollar an hour, a week's vacation after a year's service, and sick benefits. The strikers replied that they did not want to do anything until they had first talked to the union representa- tives. Moore thereupon returned to Respondent's office and told Michael Benevento that the men wanted to talk to the Union about it. John Benevento was not in the office at that time. Moore returned to the picket line the next morning and asked some of the pickets who were there if they had come to any decision. He was again told that the men still wanted to talk to the Union. Moore went back to Respondent's office where both Beneventos were present. In response to their question as to how he 4 The findings in this paragraph are based on the mutually consistent testimony of employees Calo, Brown, Heffernan , and John Benevento. 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was making out, he stated that he had told the men what they had offered and that they still wanted to talk to the Union about it. Moore also stated that the men were afraid of being fired if they came back to work. At that point, Michael Bene- vento said that he would be willing to sign a 5-year contract with the men but not with the Union. Moore then went back to the picket line and told the strikers they did not have to worry about being fired because the Beneventos had offered to sign a 5-year con- tract with them, but that they did not want any part of the Union. Either on that occasion or on one of the earlier occasions when Moore was talking to the pickets, John Benevento drove up with a load of gravel. Moore asked John if he would verify that the offers Moore made to the men were true. John replied that they were true. The findings in this section are based on the credible testimony of Frank Moore and Thomas Strickland. The Beneventos denied that they authorized Moore to make any offers to the strikers for returning to work or that they promised Moore a job if he were successful in getting the men back to work. John Benevento also denied the testimony of Moore that he was asked to and did verify the truth of Moore's offers, although he admitted passing through the picket line with a load of gravel. Moore testified under subpena and admitted that he was not a unionman and was not afraid to pass through a picket line. Despite a long and searching cross- examination, the testimony of Moore and Strickland in this regard was not im- peached in any material respect. They testified with the detail and particularity which normally do not accompany a fabrication. Moore and Strickland specifically mentioned the names of some of the strikers who were in the group when Moore talked to them. Moore mentioned Brown who, although called as a witness by Re- spondent, did not refute Moore's testimony. Strickland also mentioned Brown, Laliberti, Calo, and Rideout. Respondent unsuccessfully sought to refute their testimony through Calo and Heffernan who were called as Respondent' s witnesses. However, Calo testified that on one occasion he heard Moore say on the picket line that nobody would be fired if they came back to work without the Union and that Moore was going to be made foreman. He further admitted that he did not remain in the group throughout the entire conversation. Heffernan testified that he did not hear Moore say anything about benefits but he admitted that he had a "big head" on and was not in the area where he could hear what was said between Moore and the other employees. Contrary to Michael Benevento's testimony, John Benevento admitted that both he and his father were present when Moore first spoke to them about a job. John also admitted that he told Moore that they could not resume operations without having more men available to work. Respondent's unexplained failure to call as a witness its bookkeeper, Shaugnessy, who, according to Moore, was present during the initial conversation between Moore and the Beneventos, is a significant factor to be considered in evaluating the veracity of the Beneventos.8 In addition, John Benevento also admitted seeing Moore go in and out of the office and in the yard in front of the office during that period, without questioning him about it. Such conduct is more consistent with Moore's version than with that of a mere interloper, as Respondent would have one believe. John Benevento also admitted that, after the men had returned to work on Friday, September 23, and Moore was told that Respondent had no job for him, John made efforts to get Moore a job by arranging an interview for him with Jack Friedman of the Red-E-Mix Co., which occupied some of the same premises and in which the Beneventos own stock. This would seem to indicate that Benevento felt under some obligation to Moore and is more consistent with Moore's version that he had been promised a job. It also seems unlikely that Moore would have requested payment for the 2 days he spent going back and forth, as the Beneventos admitted, if in fact the Beneventos had not authorized him to make an attempt to settle the matter with the strikers. Finally, the testimony of the Beneventos was at times evasive, contradictory, and confusing. Upon consideration of the foregoing and the entire record as a whole, including the demeanor of the witnesses, I do not credit the testimony of the Beneventos to the extent that it conflicts with that of Moore. 9. Attorney Duffy's telephone conversation with John Benevento A few days before the men returned to work on September 23, William Duffy, an attorney representing the Union, telephoned Respondent's place of business and s Cf. Interstate Circuit, Inc. v. U.S., 306 U S. 208, 226. M. BENEVENTO SAND & GRAVEL CO. 365 asked for Michael Benevento. He was told by John that his father was not there and was asked if the wished to leave a message. Duffy thereupon identified himself as an attorney representing the Union, explained that he was calling because of rumors that the Union was unwilling to sit down and talk with Benevento, stated that that was not true, and that the union representatives were ready and willing to negotiate at any time. John Benevento replied, "You come to us after 2 weeks and you expect us to negotiate." After some discussion about the operations of the Union, John Benevento asked why they picked on Respondent and why they had not organized Burlington Sand and Gravel, and added that "we're never going to operate with the Union." Duffy then asked if it was his position that "it's futile for me to be calling you, and we can't sit down?" John Benevento replied, "if that's the way you want to have it, that's the way it's going to be." 9 10. Michael Benevento refuses to talk to the union representative Sometime in the afternoon on September 22, at Moore's suggestion, Union Repre- sentative Grandy went with Moore to see Michael Benevento for the purpose of talking to him. When Moore introduced Grandy to Michael Benevento as the representative of the Union, Benevento angrily ordered Grandy off the premises in vulgar language. Michael Benevento also stated that he would not sign with the Union if the fellows walked the picket line for 25 years. A group of seven or eight employees had followed Moore and Grandy and were also present on this occasion. The foregoing findings are based on the credited and undenied testimony of Moore and Grandy. Michael Benevento admitted that he "kicked them out of the yard," that he was angry, and that he was not going to talk to any union representatives because they had waited for about 2 weeks after his return from Italy before approaching him. 11. The strikers return to work On Friday morning, September 23, all strikers except Strickland returned to work under their previous terms and conditions of employment, and plant operations were resumed. 12. Attorney McCarthy answers employees' questions The following week, one of the employees mentioned to John Benevento that some of the men had expressed concern about their return to work and would like to get some information about it. He replied that he would have Gerald McCarthy, Respondent's attorney, talk to them. The men were thereupon assembled in front of the garage and were told by Mc- ,Carthy to ask questions. In response to questions from the men, McCarthy stated that employees who joined the Union or who initiated the union movement would not be fired and that if they voted for the Union in an election, Mr. Benevento would sit down and negotiate in good faith. B. Interference, restraint, and coercion Although the record does not warrant a finding that John Benevento had the au- -thority to negotiate with the Union, the record is clear, and I find, that he was a supervisor and representative of Respondent and that Respondent was responsible -for his conduct. Respondent does not seriously contend to the contrary. On two occasions before the strike, John Benevento offered employee Strickland a wage increase and other benefits if he would forget the Union. On another oc- casion before the strike, he told a group of employees that his father would probably ,close down before he would go union. During the strike, he told some of the -strikers that if they had waited until his father's return from Europe, they could 'have settled their differences without the Union. Such conduct is clearly pro- scribed by Section 8(a) (1) of the Act. As hereinafter found, at all times on and after July 13, 1960, the Union was the exclusive collective-bargaining representative of Respondent's employees. A few days after Michael Benevento's return from Italy, he was informed by his son about -the July 20 visit of Union Representatives McQuade and Grandy and their desire -to negotiate a contract for the employees. Despite this knowledge, the Beneventos 9 The findings in this section are based on the credited testimony of Attorney Duffy. John Benevento admitted having such a telephone conversation with Duffy but denied having made some of the statements set forth in the text. For reasons previously indi- cated, I do not regard John Benevento as a credible witness and do not credit his testi- mony to the extent that it conflicts with that of Duffy 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorized Frank Moore to act as Respondent's intermediary in an attempt to get the strikers to return to work without the Union by offering them wage increases and other employee benefits and promising to sign a 5-year contract with them but not with the Union. I find that Moore acted as an agent of Respondent in making these offers and promises to the strikers and that Respondent is liable for his conduct. Such offers and promises of benefits to induce the employees to abandon the strike and the Union are obviously violative of the Act.ia Moreover, by bypassing the Union and dealing directly with the employees, Respondent attempted to under- mine and destroy the employees' duly chosen bargaining representative and thereby additionally interfered with, restrained, and coerced the employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(a)(1) of the Act.ii Finally, Michael Benevento's statement in the presence of a group of em- ployees, on the occasion when he angrily ordered Union Representative Grandy off the property on September 22, that he would not sign with the Union even if the men walked the picket line for 25 years, constituted a further violation of Section 8(a)(1) of the Act. I find that by the above-stated conduct of John Benevento, Michael Benevento, and Frank Moore, Respondent interfered with, restrained, and coerced the em- ployees in the exercise of their statutory rights and thereby violated Section 8(a)(1) of the Act.ia C. The refusal to bargain 1. The appropriate unit and the Union's status as exclusive bargaining representative therein The complaint alleges the appropriateness of a production and maintenance unit with the usual exclusions. In the representation proceeding, the record of which has been incorporated herein, the Respondent and the Union stipulated to the appro- priate unit as being all production and maintenance employees at Respondent's Wilmington, Massachusetts, plant, including truckdrivers and mechanics, but ex- cluding office clerical personnel and supervisors as defined in the Act. Although Respondent's answer denies the allegation of the complaint with respect to the appropriateness of the unit, Respondent adduced no evidence on this issue. A production and maintenance unit is presumptively appropriate for collective- bargaining purposes. I find that the aforestated stipulated' unit is an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The parties stipulated that for the payroll periods ending July 14 and 21, 1960, there were I1 men employed in production and maintenance classifications within the aforesaid appropriate unit. The undisputed credible evidence shows, and I find, that eight of these employees signed union authorization cards on July 13, 1960, and that a ninth employee signed such a card about a week later. These cards designated the Union to represent the signer for purposes of collective bargaining. The undisputed evidence also shows that a majority of Respondent's employees participated in picketing from the commencement of the strike on August 2 until the strikers returned to work on September 23. I find that at all times on and after July 13, 1960, the Union was designated as the collective-bargaining representative by a majority of Respondent's employees in the 11 There is no merit to Respondent's contention that such conduct was not unlawful because it allegedly did not in fact induce the strikers to return to work and because the strikers did not receive any of the promised benefits after returning to work "It is well settled that the test of interference, restraint, and coercion under Section 8(a) (1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed. The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act " American Freightways Co., Inc, 124 NLRB 146, 147. The conduct In question clearly meets this test. 11 Medo Photo Supply Corp. v. N L R.B., 321 U.S. 678, 683-684; Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294. 12 Attorney McCarthy's statements, in response to questions by the employees after their return to work, that employees who initiated the union movement or who joined the Union would not be fired and that Benevento would negotiate in good faith if the employees voted for the Union in an election, were clearly insufficient, under all the circumstances, to constitute an effective disavowal and repudiation of the antecedent unlawful conduct of Michael and John Benevento and Frank Moore so as to absolve Respondent for their conduct. See, e g, Playwood Plastics Co., Inc., 110 NLRB 306, 313, and cases cited in footnote 13 of IR) ; Fulton Bag and Cotton Mills, 75 NLRB 883, 884. M. BENEVENTO SAND & GRAVEL CO. 367 appropriate unit. I further find that at all times on and after July 13 , 1960, the Union has been and is the exclusive representative of the employees in the aforesaid appro- priate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 2. Conduct constituting a refusal to bargain in violation of the Act Counsel for Respondent contends in his brief that there was no unlawful refusal to bargain because (1) the Union had filed a representation petition before requesting recognition of the Respondent, (2) a hearing had been held on the petition on August 2 and the petition had not been withdrawn up to the time of the hearing in the instant case, (3) there was no one in authority at the plant to recognize the Union and the union representatives were so informed, (4) no request for recognition or negotiation was made of Michael Benevento, the only one who had such authority, (5) at no time did the Union offer to show Respondent any cards to support its majority claims, and (6) Attorney McCarthy told the employees after they had returned to work that Mr. Benevento would negotiate in good faith if the Union won the election.13 I find no merit in these contentions. When Union Representatives McQuade and Grandy informed John Benevento on July 20, 1960, that they represented a majority of Respondent's employees and wanted to sit down to negotiate a contract, John replied that he had no authority to negotiate, that his father was in Italy, that his father would never do business with the Union, that the Union would never come into the plant even if they had to close it down, and that as long as Burlington Sand and Gravel had kicked the Union out and was going to operate nonunion, Respondent would operate nonunion, all as previously found. Although, as I have previously found, the record does not war- rant a finding that John Benevento had authority to recognize and deal with the Union, John was in full charge of operating the plant and the only representative of management on the premises in the absence of his father. As such, he was the proper person to whom to address the Union's request for recognition and negotiation.14 Moreover, John Benevento relayed this request to his father a few days after Michael Benevento's return from Italy when John admittedly informed his father of the visit by the union representatives and their request to negotiate a contract. Yet, Michael Benevento admittedly at no time communicated with any union representative. Fail- ure to reply to a union's request for recognition and negotiation has long been held to constitute a refusal to bargain in violation of the Act. But the Beneventos did not content themselves with a mere passive refusal. They affirmatively bypassed the Union and dealt directly with the striking employees on September 21 and 22, offering them, through Moore as their intermediary, wage increases and other employee benefits plus a 5-year contract if they would abandon the Union and return to work, all as previously found. Respondent's conduct in attempting to undermine and destroy the employees' chosen bargaining representative in this manner, in itself constituted a failure to comply with its statutory obligation to bargain in good faith only with the employees' exclusive collective-bargaining representative.is About the same time, Union Attorney Duffy made a further attempt to negotiate when he telephoned the plant to speak to Michael Benevento. In his absence, John Benevento made it clear that it would be futile for the Union to continue its efforts to negotiate because Respondent was not going to operate its plant with the Union. That this also reflected the position of Michael Benevento is demonstrated by the incident of September 22 when Union Representative McQuade, accompanied by Moore, approached Michael Benevento for the purpose of talking to him. Thus, as soon as McQuade was introduced as the union representative, Michael Benevento refused to talk to McQuade and angrily ordered McQuade off the premises in vulgar language. At the same time he stated that he would not sign with the Union if the employees walked on the picket line for 25 years. Indeed, under all the circum- stances, I find that the Union's demand for recognition and negotiation was in effect renewed on this occasion. For, a demand for bargaining was inherent in Grandy's desire to talk to Michael Benevento and, except for Michael's conduct, an express demand would have been forthcoming.18 Michael Benevento's conduct in this 11 Respondent's further contention that Frnnk Moore cannot be considered an agent of Respondent for whose conduct Respondent is responsible has previously been rejected 1 See, e g , Somerset Classics, Inc, et al , 90 NLRB 1676 1080, footnote 23, enfd. 193 F. 2d 613 (C.A 2), cert. denied 344 U.S. 816; James Thompson & Co, Inc, 100 NLRB 456, 402 16 See ffedo Photo case, supra; Hilton Insulation, Inc., 129 NLRB 1296. 26 See, e.g , Burton-Dixie Corporation, 103 NLRB 880, 882. 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect convincingly and forcefully indicated his unwillingness to deal with the Union, as he in effect admitted at the instant hearing. It is thus clear, and I find, that Respondent's entire conduct constituted a refusal to recognize and deal with the Union. The issue as to whether an employer's refusal to recognize and negotiate with a union is violative of the Act because motivated by a rejection of the collective-bargaining principle or whether it is lawful because motivated by a bona fide doubt as to the Union's majority status, is essentially "one between sincerity or lack of sincerity in the employer's expression of doubt as to majority status, an issue which can only be tested by reference to the total picture of the employer's conduct revealed by the record as a whole." 17 In the instant case, the Beneventos at no time questioned the Union's majority status and at no time asserted any alleged doubt as to such status as a ground for refusing to recognize and deal with the Union. Moreover, any genuine doubt as to the Union's majority representation would have been dispelled when Michael Benevento and Attorney McCarthy admittedly continued to see a majority of the men still on the picket line.18 Finally, this alleged reason was not even mentioned in the instant hearing as the basis for Respondent's refusal to recognize and deal with the Union. On the other hand, Respondent's conduct, previously summarized, clearly discloses, as I find, that Michael Benevento's refusal to recognize and deal with the Union was motivated by a rejection of the collective-bargaining principle and therefore was violative of the Act. The fact 'that prior to its request for recognition, the Union had itself filed a repre- sentation petition with the Board, did not constitute the Union's action as an irrevo- cable commitment by the Union to establish its representative status only through a representation proceeding. The Union may abandon the representation proceeding and seek recognition from the employer at any time prior to the holding of an election.19 "The right of an employer to insist upon a Board-directed election is not absolute. If he entertains no reasonable doubt with respect to the appropriateness of the proposed unit or the Union's representative status, he cannot insist upon a Board-directed election merely because the Union had previously filed a petition for certification." United Butchers Abattoir, Inc., 123 NLRB 946 at 957. A Board "certification is not an indispensable condition precedent to an employer's obligation to bargain." Safeway Stores, Incorporated, 110 NLRB 1718, 1720, "Moreover, when, as in the instant case, the filing of the petition is followed by the employer's unfair labor practices, the employer's reliance on such filing as a defense to its refusal to grant recognition comes with ill grace." United Butchers Abattoir, Inc., supra. For, the Board's election machinery is not intended as a shield behind which an employer may engage in a campaign to destroy a union's majority.20 Upon consideration of the foregoing, and upon the entire record as a whole, I find that at least at all times after August 12, 1960, when Michael Benevento had returned from Italy and was informed by his son of the Union's majority claim and request for negotiation, Respondent has refused to bargain with the Union in viola- tion of Section 8(a) (5) and (1) 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 con- nection with the operations of the Respondent described in section 1, 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 Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. 17Pyne Moulding Corporation, 110 NLRB 1700, 1707, enfd 226 F. 2d 818 (C.A. 2). 19 Majority support of a strike is evidence that the Union represents a majority Seven-Up Bottling Company of Miami, Inc, 92 NLRB 1622, 1623; Irving Taitel, et at., d/b/a I Taitel and Son, a partnership , 119 NLRB 910, 924 19 See, e g , United Butchers Abattoir, Inc., 123 NLRB 946, 957 ; Dan River Mills, Incorporated, Alabama Division, 121 NLRB 645, 651-652 The Board's records show that in the instant case the Regional Director, acting on the Union's request, recommended on October 11, 1960, that the petition be dismissed ; that the amended complaint, alleging a violation of Section 8(a) (5), issued on October 12, and that an order dismissing the petition was issued by the Board on October 28, 1960. 20 KTRH Broadcasting Company, 113 NLRB 125, 127. M. BENEVENTO SAND & GRAVEL CO. 369 Having found that Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will recommend that Respondent be ordered to bargain with the Union, upon request, as the exclusive representative of all its employees in the appropriate unit concerning rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. In view of the nature and extent of the unfair labor practices herein found, I am convinced that the commission of similar and other unfair labor practices by Re- spondent reasonably may be anticipated. I will therefore recommend that Respond- ent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed to employees by Section 7 of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Hoisting & Portable Engineers Union, Local 4, International Union of Oper- ating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. All production and maintenance employees at Respondent's Wilmington, Mas- sachusetts, plant, including truckdrivers and mechanics, but excluding office clerical personnel and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since July 13, 1960, the above-named Union has been, and now is, the exclusive representative of all the employees in the aforestated unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. By engaging in conduct which constituted a refusal to bargain with the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 5. By the foregoing and by the conduct described in section III, B, supra, the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 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 Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT bypass Hoisting & Portable Engineers Union, Local 4, Inter- national Union of Operating Engineers, AFL-CIO, as our employees' duly chosen collective-bargaining representative by dealing directly with our em- ployees. WE WILL NOT offer employees wage increases and other economic benefits if they would forget about the above-named or any other union, nor tell em- ployees that the plant would probably close down before it would go union, nor offer striking employees wage increases and other economic benefits and a contract if they would return to work without the above-named or any other union, nor state that we would not sign a contract with the above-named or any other union even if the employees walked on the picket line for years. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in any other 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 mem- bership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor-Management Report- ing and Disclosure Act of 1959. WE WILL, upon request, bargain collectively with Hoisting & Portable En- gineers Union, Local 4, International Union of Operating Engineers, AFL-CIO, 599198-62-vol, 131-25 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the exclusive representative of all employees in the appropriate bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agree- ment any understanding reached . The bargaining unit is: All production and maintenance employees at our Wilmington, Massa- chusetts , plant, including truckdrivers and mechanics, but excluding office clerical personnel and supervisors as defined in the Act. MICHAEL BENEVENTO AND JOHN BENEVENTO, D/B/A M. BENEVENTO SAND & GRAVEL CO., Employer. Dated------------------- 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. Jesse Jones Sausage Company and Jones Abattoir Company and Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 11-CA-1515. May 2, 1961 DECISION AND ORDER On October 6, 1960, Trial Examiner Lee J. Best issued his Inter- mediate Report in this proceeding, finding that the Respondent had engaged 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- member panels [Chairman McCulloch and Members Leedom and Fanning]. 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 entire record in this case, including the Intermediate Report, and the ex- ceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions.2 In amplification of the Trial Examiner's concluding findings, we note that Plant Superintendent Lindner was not questioned concern- ing Annie G. Rogers' testimony that she was told by him-at the time of her layoff in late October 1958-that she would be recalled when work picked up, and that similar statements by Lindner and Business 1 The Respondent's request for oral argument is denied inasmuch as the positions of the parties are adequately set forth in the record and brief. 2 We adopt pro forma the Trial Examiner's finding that Leadman Melvin Davis is not a supervisor within the meaning of the Act, inasmuch as no exceptions have been filed to it. 131 NLRB No. 46.