Dunclick, Inc.

10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to assure that said notices are not altered, defaced, or covered by any other material. (b) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith .4 4 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 our employees that: WE WILL NOT offer inducements to employees to refrain from becoming or remaining members of Los Angeles Dress and Sportswear Joint Board, Interna- tional Ladies' Garment Workers' Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten to discharge any employee or employees for engaging in any union or concerted activities. WE WILL NOT question any employee about his union activities. WE WILL NOT engage in surveillance of employees attending or wishing to attend union meetings. WE WILL in no other like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Los Angeles Dress and Sportswear Joint Board, International Ladies' Gar- ment Workers' Union, AFL-CIO, or any other labor organizatoin, to bargain collectively through representatives of their own choosing, or to engage in 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 the right so to refrain may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended. All our employees are free to become or remain , or to refrain from becoming or remaining, members of Los Angeles Dress and Sportswear Joint Board, Interna- tional Ladies' Garment Workers' Union, AFL-CIO. J ER MARAI LINGERIE CO., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Eastern Columbia Building, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229. Dunclick, Inc. and Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent. Case No. 19- CA-3146. June 107 1966 DECISION AND ORDER On March 28, 1966, Trial Examiner Henry S. Salim issued his Decision in the above-entitled proceeding, finding that the Respondent 159 NLRB No. 13. DUNCLICK, INC. 11 has engaged in and is engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 Trial Examiner's Decision, the exceptions, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 1 We agree with the Trial Examiner's finding that Respondent's contention that em- ployees Forkner and Andrews were discharged for cause is without merit, and that the dis- charges were in fact discriminatorily motivated in violation of Section 8(a) (3) and (1) of the Act. That it was these employees' union interests and activities which precipitated their discharges is fully established by the record . Thus, as the Trial Examiner found, Forkner and Andrews were competent employees, their discharges were precipitates and without any prior warning that their alleged improper conduct would result in disciplinary action being taken against them , and Respondent's testimony with respect to the rock- throwing and water-squirting incidents as the proffered ground for their discharge was not to be credited. Moreover, it is clear that Respondent believed that Forkner and Andrews were proponents of the Union and associated them with the agitation among the employees created by the forthcoming election Respondent 's counsel at the hearing con- ceded as much when he questioned Andrews as to whether there had been a dispute or argument just prior to the election, and testimony thereafter made it clear that the ques- tion had reference to disputes and arguments associated with union organization and the election. Moreover, Respondent's contention that one of its reasons for discharging Forkner and Andrews was the "trouble they had created among the men " can readily be understood as an allusion to the aforesaid disputes and arguments, as was its admission in its brief to the Board that it knew the disputes and activities in its shop were speaiheaded by Forkner and Andrews. TRIAL EXAMINER'S DECISION Upon a charge filed on May 21, 1965, a complaint issued June 23, 1965, against Dunclick, Inc., alleging that the Respondent Company had violated Section 8 (a)(1), (3), and (5) of the Act. It is alleged, inter alia, that the Respondent interrogated and threatened its employees and granted them a general pay increase with the advent of the Union; discharged two employees for union activities; and refused to bargain with the Union, the Charging Party. The Respondent denies the commission of any unfair labor practices. A hearing was held in Lewiston, Idaho, on October 20 and 21, 1965, before Trial Examiner Henry S. Sahm. Following the hearing, briefs were filed by the parties on December 20, 1965. Upon the entire record in this case , including the briefs, and from my observation of the demeanor of the witnesses while testifying , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, an Idaho corporation , employing 20 to 25 people, is engaged in the manufacture of cement block and pipe at Lewiston, Idaho. The year ending Decem- ber 31 , 1964, Respondent manufactured products valued in excess of $50,000 which 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were shipped from said plant directly to points outside Idaho. It is found accord- ingly that Respondent is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED Teamsters Union Local No. 551, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On February 24, 1965, Lester Nedrow, who is employed by the Respondent Com- pany, went to the offices of the Union herein and spoke to Everett Byers, secretary- treasurer of the Union, with respect to the possibility of organizing a union at Re- spondent's plant. A meeting was arranged for the following day at the Union's office which was attended by Respondent's production and maintenance employees.' Of the 14 employees in the unit, 13 signed union membership application cards which authorized the Union to act as their bargaining agent for the eventual purpose of having the Union represent the said employees in collective-bargaining negotiations with the Respondent.2 On February 27, 1965, the Union sent a letter by certified mail to the Company alleging it represented a majority of the employees and requesting a meeting on March 3 for the purpose of recognition and bargaining 3 The letter also stated that the Union was prepared to prove its majority representation by submitting "bur evidence to a disinterested third party." 4 On March 1, 1965, the Company announced a wage increase for the employees comprising the unit involved in this proceeding 5 Upon receipt of the Union's letter, the Company's president, Dundas, replied by letter dated March 2, 1965, stating he was unable to meet with the Union on March 3, "but will let you know when I can." 8 Shortly after receiving the Company's reply, Byers, the union official, spoke by telephone to President Dundas and asked Dundas when he could meet with him and whether he would recognize the Union. Accord- ing to Byers' uncontradicted testimony, Dundas answered: ".. . not unless he had to" and referred him to his lawyer. On March 1, 1965, the Union filed a representation petition with the Board (Case 19-RC-3593) and pursuant to a direction of election, dated March 31, an elec- tion was conducted on April 23, 1965. Of the 15 eligible voters, of which 14 voted, 5 voted for the Union, 6 against, and 3 ballots were challenged. On April 29, the Union filed objections to the conduct of the election? On May 27, a supplemental decision was issued by the Regional Director directing that the three challenged ballots be opened and counted. The revised tally of ballots showed a tie vote of seven to seven. On June 17, 1965, the election was set aside and the petition in Case 19-RC-3593 dismissed, and the complaint in this case issued on June 23, 1965.8 A. Resolutions of fact and credibility Considerable credence has been placed on the testimony of those witnesses who were in the employ of Respondent at the time they testified. As such, they depended on their jobs for their livelihood and they understood that after testifying they would continue in the employment of Respondent. Moreover, the tner of these facts is not unmindful of the predicament of an employee who testifies adversely to his employer's interests, being apprehensive and fearful, with some measure of justification, as to the future possibility of retaliatory action . These practical considerations coupled with the normal workings of human nature have led me to credit Olander, Nedrow, 1 See paragraph 5 of the complaint General Counsel 's Exhibit 1(c). 2 See General Counsel's Exhibits 5A-5'M and GA-6L 3It was stipulated that as of the time alleged in the complaint, namely, February 27, 1965, the Union represented a majority of the employees * General Counsel's Exhibit 3 The testimony of 'Myers, vice president and treasurer of Respondent. is not credited that the Company had not yet received the Union's letter dated 'March 27 requesting recognition when the announcement was made to the employees of a pay increase ° General Counsel's Exhibit 4. v See General Counsel's Exhibit 2(a). ° See General Counsel's Exhibits 1(c) and 2(b). DUNCLICK, INC. 13 Arledge, and Reiland, who are presently employed by Respondent, as it is believed they were impelled to tell the truth regardless of what consequences might eventuate Forkner and Andrews, the alleged discriminatees , were forthright witnesses whose testimony is credited. Dundas' testimony with respect to the details and circumstances of the salient facts in this case is contradictory, confused, incoherent, and, in some instances, outright improbabilities. His first version of these events was given when he was called to testify by the General Counsel as a witness under Section 43 (b) of the Rules of Civil Procedure for the Federal District Courts.9 Another version was testified to by Dundas when counsel for Respondent called him in presenting its defense. A recon- ciliation of his various contradictory and inconsistent versions is quite impossible. His first version, when questioned by the General Counsel, was given with considera- ble discrepancies, contradictions, hesitation, and equivocation. His second version was given in reply to leading questions which were propounded to him when he was under examination by his own counsel Moreover, in evaluating Dundas' testimony given when he was being examined originally by the General Counsel under Section 43(b) supra, as against his testimony given when he was under examination by his own counsel, considerable aid has been derived in resolving his credibility by com- paring his testimony on direct examination with what he testified to on his cross-examination. B. The testinony Shortly after receiving the Union's letter requesting recognition and bargaining, a meeting of all the employees in the unit was held on March 1, 1965, at the Employer's request.10 At least a portion of the meeting was held during working hours and attendance was mandatory. Arthur Sauver credibly testified that at this meeting Dundas stated that if the employees voted for the Union, they would not retain the privileges they presently enjoyed. He also testified that sometime in March while speaking with Dundas in his office, the latter said "that he would . .. fight the union if it cost him his business." Frank Olander, who is presently employed by the Respondent, testified that at the March 1 meeting of all the employees, Dundas announced he was increasing their hourly rate of pay. At this first meeting, Olander testified, Dundas said "he was not there to threaten us or get on our backs or anything but he said that we all knew what he thought of the union and if anybody was not satisfied they should work elsewhere " About March 1, Olander had a conversation at the plant with Robert R. Meyers, Respondent's vice president and treasurer. At that time and place, Olander testi- fied that Meyers "asked me why the men, what was the big gripe about the men, how come they wanted to join the union, and I told him the biggest gripe was they feel they should have a raise, and he asked me if I knew who started the union and I told him there was no certain man, that each one of us talked to the union, myself and all the rest of us talked to the union and no particular man started it. He said if he knew who started it he would can him. I told him he should not do that, no, he said if he was a little more sure of himself he would can Bill Thompson, and I told him not to do that because Bill Thompson didn't have anything more to do with it than the rest of us, and he said, `I will take your word on that and drop it' " Robert Arledge, who is presently employed by the Company, testified with respect to the first meeting as follows - [Dundas said], "I hear some of you are not very happy here," and then he also suggested that if anyone was not happy here and didn't like the operation or the way it was run, the best thing we could do, I believe, he said, "I would appreciate it if you would just move on and find work elsewhere and leave the rest of us alone." . He did mention the union in a way. He said he didn't want a union to tell him how to pay his bills. 'The pertinent provisions of this section state , in substance , that a party may inter- rogate any unwilling or hostile witness by leading questions where such adveise witness is an officer, director, or managing agent of a public or private corporation 10 The General Counsel offered a stipulation which Respondent's counsel agreed to that this first meeting was held on either March 3, 4, 5, or 8, 1965 However, at page 132 of the transcript, Respondent's counsel offered to stipulate that the correct date is March 1 and to rescind the prior stipulation The record fails to reveal whether the General Counsel's representative agreed. Based upon the entire record and an analysis of the probative chronology of events , it is found that the first meeting of management with the employees was held on March 1, 1965. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harry McDonald, who was employed by Respondent, from 1956 until the day of the election when he quit, testified that at the first-meeting of the employees that Dundas "was kind ' of hot there and he said if anybody didn't like working in the place or didn't like his conditions or anything like that, he wished they would move on." ' Just before the election, McDonald testified that Vice President Meyers, '.wanted to know why a bunch of us guys didn't have our own outfit and come up and, have our own grievances with him instead of going to someone else for help." Lester Nedrow, an employee of the Company, testified he had a conversation with Meyers on either March 1 or 2 at the plant. According to Nedrow, Meyers "asked [him] if I was in with the guys on the union and I said yes, and he says he didn't think I would because I was too plain spoken, and he said, well, he would can the guy if he knew who started the union, and I said, `Well, you can't crack a whip over their heads all the times.' And he says, 'No, but sometimes you would like to.' Now he was angry, I don't know if he meant it or was just talking." Henry Reiland, who has been employed by the Company since 1956, testified that Dundas telephoned him before the election and "asked [him] if I knew if the union went in I would lose my pension." On the day before the election, testified Rieland, Dundas said to him "that he heard I was for the union . . . and he said then, if the union went in I would suffer the consequences." It was stipulated that Frank Forkner, one of the two alleged discriminatees, "up until the time of his discharge was a good employee and [Respondent] found no fault with him." He was employed by the Company at two different times for a total of approximately 3 years. With no advance warning, he was fired by Dundas on Friday, April 23, 1965, at 3:30 p.m., the end of his shift. Dundas, at that time said: "I won't be needing you come Monday." He was handed his paycheck at the time of his discharge although the regular payday was not until the following Monday." James Andrews, the other employee who was fired on April 23, the same day as. Forkner, worked about 18 months for the Respondent. During that time he received no complaints about his work or any indication he was to be discharged until Dundas handed him his paycheck at the end of the working day and told him he was fired. Dundas testified he discharged Forkner and Andrews because of "trouble that they had created amongst the men and the destruction of property, company property, equipment, and then through the advice of the attorney of the company [he fired them because] I was afraid that they were going to cause bodily harm to some of the employees or damage the property." This fear was based, he testified, on the two alleged discriminatees throwing rocks and squirting water from a hose on other employees. However, he admitted he never reprimanded them for throwing rocks or squirting water. Dundas also testified that he discussed the situation with a Board Field Examiner by the name of Cabanucks on the day of the election who "told me I should fire those two." With respect to the "destruction of property," Dundas testified as follows: We have an overhead traveling crane that is 20 feet in the air and 40 feet wide- and it consists of winches that raise these castings and it is operated by push button control that is worked from the ground and we had about six calls [2 or 3 weeks prior to Forkner's and Andrews' discharge] to an electrician to repair this and^the electrician said there was just wilful destruction of the equipment and property, and since we fired them we have not had 'a call for an electrician. Dundas went on to testify that Forkner and Andrews were the only two employees who operated this crane.12 Dundas then testified that the electrician reported this to him about October 13, 1965, 6 months after Forkner and Andrews were fired, but the crane, he stated, broke down "probably two weeks before we fired them." Forkner when asked about Dundas' testimony with respect to the. destruction of property answered as follows- "Well, the general condition of the crane is,-I would not say it is in excellent condition but probably average." He denied that the crane was maliciously or intentionally sabotaged or damaged-stating that the reason the crane was breaking down within 3 or 4 weeks of the time that-he was fired was be- cause it was being used to lift pipe which was too heavy for the crane and this was "In Burk Brothers V. NL.R.B; 117 F.2d 686, 687 (C.A 3), it was held that an em- ployee was discharged rather than laid off because he was paid off immediately andinot.on, the regular payday. 12 FIe later qualified this by testifying: "It is very seldom any one ever uses it besides the two men [who were fired]." DUNCLICK, INC. 15 causing the cables of the crane to break. He testified that he mentioned this to Dundas and Meyers and suggested that they should use the lift truck but they con- tinued to use the crane so that "due to all this stress and strain on it it broke . several times even breaking the cable that does the actual lifting on the crane." Forkner also testified that "the electrical cable was in very poor shape; it had been taped and spliced and there had been a dozen and one splices in the old cable." When the electrical company came to repair the crane, after it broke down, testified Forkner, they put on two or three new cables whereas the plant electrician would just tape these cables together when they broke and taped them together. Forkner also testi- fied that during this period of time when the crane was breaking down he was not criticized but that Meyers and Dundas merely asked him why the cables kept break- ing and he told them the reasons stated above. On cross-examination, he testified that a year before his discharge, while the crane was being operated by employees other than he and Andrews, it "burned lip." With respect to squirting water on employees, Forkner testified that in 1963 he and a few other employees engaged in some "horse-play." The second water incident occurred, he testified, a week before the election when he was washing a wheelbarrow and some water unintentionally splashed on another employee. He testified he was not reprimanded for either of these two incidents. He also denied Dundas' testi- mony that he threw rocks at his fellow employees. Andrews corroborated Forkner's testimony with respect to the state of disrepair of the crane, and also the water-squirting and rock-throwing incidents as well as an alleged threat to another employee.13 On cross-examination, Andrews testified that "everybody knew how I was going to vote because when we went down to the [union] meeting [February 25, 1965] we talked about it." Henry J. Reiland, an employee, testified he operated the crane "a few times." He stated that as recently as October 20, 1965, it was necessary to twist the cables "before [the crane] will work right.. . it is all twisted together and you have got a tape." On cross-examination, he testified that around October 1, 1965, the "crane would not work left or right" and that immediately after Forkner and Andrews were discharged on April 23, 1965, "the crane did not work and I had to take the wire and twist it around and then tape it" because the cables were old and in poor condition. C. Contentions It is the General Counsel's position that the facts in this proceeding require a find- ing that Respondent violated Section 8(a)(1), (3), and (5) of the Act by granting a unilateral and general wage increase, making coercive statements, discharging two employees, and refusing to recognize and bargain with the Union in order to gain time to undermine the Union. He requests an order requiring the Company to bargain with the Union and not merely a runoff election The Respondent denies it made any threats or promises but was exercising its con- stitutional right of free speech. With respect to the wage increase, Respondent argues it was consistent with its general plan The two alleged discriminatees' dis- charge was justified because they were "troublemakers" who caused confusion and disruption in their work areas as well as constantly causing the crane to break down through their negligence. Regarding the alleged 8(a) (5) violation, it is Respondent's view of the law that if at the time the employer is approached by a union which offers to show authorization cards to a disinterested third party, that the employer may refuse to grant recognition on the basis of a card check and demand an election without being guilty of an unfair labor practice. Ancillary to this is Respondent's contention that there is insufficient evidence in this case to justify an order depriving the Respondent and its employees of the safeguards of a secret-ballot election D. Conclusions 1. The alleged violations of Section 8 (a) (1) In determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated or tends to interfere with the free exercise of the rights guaranteed by the Act.14 Then too, on the issue 18 Sauver, an employee, Respondent claimed, was threatened by Forkner and Andrews. When Sauver testified, be made no mention of this nor did Respondent question him about it at the hearing 14 Time-O-Dfatic, Inc v N L R.B., 264 F 2d 96, 99 (C A. 7) ; Neco Electrical Products Corporation, 124 NLRi3 481, 482. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of whether the Respondent violated Section 8(a)(1), consideration has been given also to Respondent's union animus and discriminatory discharges and layoffs as it is not required that each item of Respondent's conduct be considered separately and apart from all others, but consideration must be given to all such conduct as a whole with a view to drawing inferences reasonably justified by their cumulative probative effect.15 In applying these principles to this case, it is concluded and found that by the fol- lowing conduct the Respondent violated Section 8(a)(1) of the Act as it interfered with, restrained, and coerced the employees in their freedom to choose to be repre- sented by the Union or no union. As the Board declared in Dal-Tex Optical Corn- patty, Inc., 137 NLRB 1782, 1786: "Conduct violative of Section 8(a) (1) is, a fortioi i, conduct which interferes with the exercise of a free and untrammeled choice in an election. This is so because the test of conduct which may interfere with the `labora- tory conditions' for an election is considerably more restrictive than the test of con- duct which amounts to interference, restraint, or coercion which violates Section 8(d)(1) " Thus, the employees' election choice was interfered with within the meaning of 8(a)(1): (1) When Respondent granted a general wage inciease on March 1, 1965, to its employees immediately following its knowledge that the Union claimed to represent a majority of the employees; (2) by Dundas telling Sauver he would fight the Union even if it cost him his business; (3) by Dundas telling the em- ployees at the meeting that if they were not satisfied with their working conditions to find a job elsewhere; (4) by Meyers interrogating employees individually as to who started the Union and if he found out who it was he would fire him; (5) by Dundas telling Reiland that if the Union came in he would lose his pension and "suffer the consequences"; and (6) by Dundas stating to Sauver he would oppose the Union even if it cost him his business.is 2 Section 8(a)(3) Respondent's stipulation, supra, that Forkner was a good employee and found no fault with his work is tantamount to admitting the 8(a)(3) allegations of the com- plaint with respect to him; namely, that he was discharged for his union activities. Merely to state the facts is sufficient to negate Respondent's denial of any wrong- doing with respect to Andrews. He was a capable and qualified employee with a satisfactory work record. The water-squirting and rock-throwing incidents, as testi- fied to by Dundas, are not credited. The versions as related by the two discriminatees are believed to be true. Their sudden and precipitate discharge with no warning that disciplinary action was imminent indicates that a proscribed motive was the cause for their discharges. The fact that the record in this case discloses that there was no basis for the Respondent's alleged dissatisfaction with Forkner and Andrews compels the conclusion that the decision to discharge them was not made until they evidenced an interest in the Union. Corroborative of this conclusion is the failure of Dundas, at the time of their discharge, to offer them any reason whatsoever which reflected on these two employees' quality of work. These factors along with Respondent's knowledge of their union interest and the unconvincing nature of the reasons which the Company subsequently offered for their discharge compels the conclusion that Andrews and Forkner were discriminatorily discharged within the meaning of Section 8(a)(3) of the Act.17 3. Section 8(a)(5) In Johnnie's Poultry Co., 146 NLRB 770, the employer violated the Act by refus- ing the majority union's request for recognition and demanding a Board election assertedly because the employer did not regard the union's authorization cards as a 11 N L.R.B. v Popeil Brothers, Inc, 216 F.2d 66, 68 (C A 7) , N L R.B v C W. Radcliffe, et al. d/b/a Iloinedale Tractor & Eq uipment Company, 211 F2d 309, 313 (C.A. 9), cert. denied 348 U.S. 833 19 It is recommended that the allegation be dismissed (10(b) of complaint) that Respond- ent sought to convince the employees they would lose their money invested in the Com- pany's insurance plan if they selected the Union as their representative because of insuf- ficient proof. 17 Respondent's failure to call the electrician as a witness , who Dundas testified stated that the crane's breakdown "was just wilful destruction" casts doubt on the veracity of this alleged cause for discharge See N L R R v Melrose Processing Co, 351 F 2d 693 (C A. 8) , N L P B v. Wallick and Schwalm Company, 198 F 2d 447, 483 (C A 3). -DUNCLICK, INC. 17 reliable indication of employees' desires, since the employer did not have a good-faith doubt of the union's majority. It is a reasonable inference, in view of Respondent's other conduct designed to defeat the Union at the polls, that Respondent's refusal to accede to the Union's request for recognition, based on the authorization cards, was in furtherance of a plan to gain time in which to undermine the Union's strength.18 It utilized this time to engage in the unfair labor practices hereinbefore described, which were designed to destroy the Union's majority status and prevent a free election. Section 8(a)(5) of the Act makes it an unfair labor practice for an employer to refuse to bargain with the representative designated by a majority of his employees within an appropriate bargaining unit. It does not state that the employer's obligation to bargain is conditioned upon the Board's certification of the union's representative status nor, indeed, upon submission by the union of any proof of its representative status.19 The Board, acting not upon any express statutory require- ment, but rather upon the equitable principle that an employer who entertains a genuine doubt as to a Union's representative status should be entitled to have that doubt resolved before being required to bargain, has applied the statute so as to excuse an employer from his obligation to bargain if his refusal is motivated by a ,good-faith doubt as to that status. Since this exception is grounded upon equitable principles, however, the Board does not permit the employer to avoid his obligation to bargain with the representative which in fact represented a majority at the time of the bargaining request, where the employer thereafter engages in unfair labor practices which tend to dissipate that majority status or to prevent a free choice in a subsequent election. Such an employer, having "made no effort to learn the facts" concerning the free and uncoerced choice by his employees at the time the union claims to have been designated by a majority of them, and having, instead, embarked on an unlawful course of conduct designed to undermine the union's strength and prevent a free election, must take "the chance of what [the facts] might be." 20 Accordingly, as stated in N.L.R.B. v. Armco Drainage & Metal Products, Inc., Fabricating Division,21 "It may also be said that even though an employer be in doubt as to a union's authority, such doubt does not excuse it where it is plain that its position was not based upon any doubt-but upon its unwillingness to treat with the representative of its employees." Accordingly, it is found that Respondent's refusal to bargain on and after Febru- ary 28, 1965 (see General Counsel's Exhibit 3), was not motivated by any good-faith doubt as to the Union's majority status in an appropriate unit but was instead moti- vated by a desire to gain time in which to dissipate that majority status. Here there is present a continuing and extensive campaign on the part of Respondent in opposi- tion to the Union, in which there appear repeated violations of Section 8(a)(1), and also of Section 8(a)(3), following the refusal to bargain on a card check and up to the time of the election. The refusal to bargain was therefore in violation of Sec- tion 8(a)(5) and (1) of the Act, and the Union's loss of the election following Respondent's refusal to bargain and other unfair labor practices does not relieve Respondent of its obligation now to bargain with the Union 22 Under such circum- stances, the Union is entitled to a bargaining order.23 >e Commercial Chemical Company, 103 NLRB 465, 467-468, 469; Clearfield Cheese Com- pany, Inc., 106 NLRB 417, 440. 1O United Mine Workers v. Arkansas Oak Flooring Company, 351 U S. 62, 71-72. 20 N.L R.B. v. Remington Rand; Inc, 94 F.2d 862, 869 (C.A. 2), cert. denied 304 U.S. 567 and 585 ; N.L R B. v Dahlstrom Metallic Door Company, 112 F.2d 756, 757 (C.A. 2). - 220 F.2d 573, 577 (C.A. 6). 12Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C.), cert. denied 341 U.S. 914; International Union of Electrical, Radio and Machine Workers, AFL-CIO (S.N C. Manufacturing Co., Inc.), 352 F.2d 361 (C.A.D.C.), cert denied 382 U.S. 902; N.L.R B. v. Stow Manufacturing Co., 217 F.2d 900, 904-905 (C.A. 2), cert. denied 348 U.S. 964; Amalgamated Clothing Workers of America, AFL-CIO (Edro Corporation and Ansace Cloves, Inc.) v N.L.R B, 345 F.2d 264 (C.A. 2) ; N.L.R.B. v. Southeastern Rubber Mfg. Co., Inc, 213 F2d 11, 15 (C.A. 5) ; N.L.R.B. v. Armeo Drainage & Metal Products, Inc., 220 1F.2d 573, 577 (C.A. 6), cert. denied 350 U.S. 838; N L R.B. v. Model Mill Company, Inc., 210 F.2d 829, 830 (C.A. 6) ; N.L.R.B. v. Howell Chevrolet Company, 204 F.2d 79, 86 (C.A. 9), affd. 346 U.S. 482; cf. N.LR.B. v. Joe and Mike Caldarera, d/b/a Falstaff Distributing Company, 209 F.2d 265, 268-269 (C.A. 8) ; Flomatic Corporation, 147 NLRB 1304. ai Irving Air Chute Co , 149 NLRB 627. 243-084-67-vol. 159-3 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, when the Respondent, on March 1, a few days after the Union requested recognition and bargaining and less than 2 months before the election, unilaterally increased its employees' hourly wage rate without first consulting or discussing it with the Union before it went into effect, Respondent thereby violated Section 8(a)(5).24 It also violated Section 8(a)(1) because where such action is announced before an election its effect is to impinge .on the employees' freedom of choice 25. Finally, the Company's unfair labor practices, which began immediately upon the Union requesting recognition, were intended to, and did, dissipate the Union's majority status and destroyed the conditions for a fair representation election. But the law is well-settled that where an employer commits unfair labor practices which tend to affect a union's claim to majority status, the question whether the union represents a majority must be determined as of the time the illegal acts were com- mitted. The Respondent, having prevented by its own illegal conduct the holding of a free election, must abide by other means of determining whether the Union had a majority. As the Union enjoyed majority status at the time of the illegal acts (a status which was established in the instant case on February 25, 1965, by valid authorization cards), the Board may properly order the Employer to recognize the Union and bargain with it, for any other result would permit the Employer to profit by his own wrong. 26 Indeed, even where a union has a card majority but has made) no request to bargain, and the employer has committed unfair labor practices which prevent a fair election and tend to destroy that majority, an affirmative bargaining order may appropriately issue to restore the status quo ante the unfair labor prac- tices.27 And the filing of the petition for certification does not relieve the employer of his bargaining obligation particularly where he frustrates by unfair labor practices the very proceeding which the petition instituted. It follows from the foregoing settled principles that the Company should be ordered to bargain with the Union as it enjoyed majority status on February 25, 1965, a status which it established by valid authorization cards. The Respondent neverthe- less, insisted on a Board election and entered on a course of proscribed conduct in- dicating that such insistence was not motivated by a good-faith doubt of the Union's majority but rather by a rejection of the collective-bargaining principle in order to gain time within which to undermine and dissipate the Union's majority support before election day.28 Under the well-established Joy Silk principle, supra, this absence of good faith as shown by the Employer's independent violations of Section 8 (a) (1) and (3 ) during the preelection period, which formed the basis for the Union's objec- tions to the conduct of the election, was a violation of Section 8(a)(5).29 I have carefully read and studied counsel for the Respondent's excellent brief which makes a thorough analysis of the testimony in support of his contention that the General Counsel has failed to prove the unfair labor practices alleged in the com- plaint and cites various cases in support. However, I find no occasion for lengthening this Decision by citing, distinguishing, or discussing them because it is believed that the controlling reasons for this Decision have been sufficiently discussed. Moreover, Respondent Counsel's arguments are premised on an interpretation of the facts which I do not share. W. THE REMEDY Having found that Respondent engaged in unfair labor practices as above set forth, it will be recommended that it cease and desist therefrom and take affirmative action, set forth below, found necessary and designed to effectuate the policies of the Act. Having found that Respondent interfered with, coerced, and restrained its em- ployees in the exercise of rights guaranteed by Section 7 of the Act which the basic u N.L R B. , v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U S. 736; N.L.R.B:'v. American Aggregate Company, Inc ., 305 F.2d 559 (C.A. 5) ; Mantzowitz Mfg. Corp', 153 NLRB 1517. 25N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409. Cf. Seneca Plastics, In- corporated, 149 NLRB 320. 20 See, e .g.; Franks Bros. Company v. N.L.R.B , 321 U S. 702, 703-705; N.L.R.B. v. Stow Manufacturing Xo., 217 F.2d 900, 904-905 (C.A. 2), cert. denied 348 U.S. 964; Joy Silk Mills, Inc. v. N.L.R.B., 185 F 2d 732, 741-742, 784-795 (C.A.D.C.), cert. denied 341 U.S. 914. zr See Greystone Knitwear Corp , 136 NLRB 573, 575-576, enfd. 311 F 2d 794 (C.A. 2), and see also the decisions of the First, Third, Fifth, and Eighth Circuits cited in Grey stone, 136 NLRB 576, footnote 4. 28 Ben Duthler, Inc., 157 NLRB 69. 29 Boot-Ster Manufacturing Company, Inc, 149 NLRB 933., DUNCLICK, INC. 19 purpose of the Act was designed to achieve, it shall be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act 30 Having found that Respondent discriminatorily terminated Frank Forkner and James Andrews, it shall be recommended that it offer to each of them immediate, full, and unconditional reinstatement to his former or substantially equivalent posi- tion, without prejudice to his seniority or other rights, privileges, or working condi- tions, and make each of them whole for any loss of earnings suffered by reason of the discrimination against him, by paying to each a sum of money equal to the amount he would have earned from the date of the discrimination against him until such discrimination has been fully eradicated, less his net earnings during the period of such discrimination. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716. The remedial purposes of the Act are quite clear. It is aimed, as the Act says (§ 1) at encouraging the practice and procedure of collective bargaining and at protecting the exercise by workers of full freedom of association, of self organization and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representative.31 It was the duty of the Respondent to refrain from disturbing the status quo by coercive conduct pending the resolution of the representation question, and to permit the Union to have a free opportunity to increase and retain its mem- bership by legitimate organizational activity and to participate in a free and uncoerced election, which would determine whether or not it was the statutory representative . . . 32 Inasmuch as the discharge of employees for reasons of union affiliation or con- certed activity has been regarded by the Board as one of the most effective methods of defeating the exercise by employees of their rights to self-organization, I am of the belief that there is danger that the commission of unfair labor practices generally is to be anticipated from Respondent's unlawful conduct in the past. It shall be recommended, therefore, that Respondent be required to cease and desist from in any manner interfering with, restraining or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act.33 CONCLUSIONS OF LAW 1. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 2. All production and maintenance employees employed by the Respondent at its cement block plant in Lewiston, Idaho, including truckdrivers, but excluding all other employees, office clerical employees, salesmen, janitors, watchmen and/or guards, 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 February 25, 1965, the Union has been the exclusive repre- sentative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4. By refusing on and after February 28, 1965, to bargain collectively with the Union, Respondent has engaged and is engaging in an unfair labor practice within the meaning of Section 8(a) (5) and (1) of the Act. 5. By discharging, and/or terminating the employment of Frank Forkner and James Andrews as set forth above, Respondent discriminated against them in regard to their tenure of employment, and the terms and conditions thereof, to discourage member- ship in the Union and thereby 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 unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 30 N.L.R B. v. Entwistle Mfg. Co, 120 F.2d 532 (C A. 4) , California Lingerie Inc, 129 NLRB 912. 31 Republic Steel Corporation v. N.L.R.B., 311 U.S. 7, 10 32 International Broadcasting Corporation (KWIZH), 99 NLRB 130, 133. 31 N L.R.B. v. Entwistle ill fg , 120 F 2d 532, 536 (C A. 4). 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is recommended that the Respondent, Dunclick, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees as to their membership in, views about, or activities on behalf of, Teamsters Union Local No. 551, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization; or directly or by implication promising wage increases or other benefits to any employee for ceasing to assist or support the aforesaid Union or any other labor organization. (b) Threatening employees with discharge if they support or assist any labor organization. (c) Threatening to close down the plant if any union were selected by employees as their collective-bargaining representative. (d) Discouraging membership in the aforesaid Union, or any other labor orga- nization of its employees, by discriminatorily discharging, or in any other manner discriminating against, any employee in regard to hire, tenure, or any term or con- dition of employment. (e) Refusing to bargain collectively concerning rates of pay, wages; hours, and other terms and conditions of employment, with Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of all their employees in the following appropriate unit: All production and maintenance em- ployees employed by the Respondent at its cement block plant in Lewiston, Idaho, including truckdrivers, but excluding all other employees, office clerical employees, salesmen, janitors, watchmen and/or guards, and supervisors as defined in the Act. (f) Discouraging membership in Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with the above-named labor organization as the exclusive representative of all employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Frank Forkner and James Andrews immediate, full, and uncondi- tional reinstatement to their former or substantially equivalent position, without prejudice to their seniority or other rights, privileges, or working conditions, and make them whole for any loss of earnings they may have suffered by reason of the dis- crimination in the manner set forth in the section hereof entitled "The Remedy." (c) Notify Frank Forkner and James Andrews if they or either of them is presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary or useful to determine or compute the amount of backpay due, as herein provided. (e) Post at its plant premises in Lewiston, Idaho, copies of the attached notice "Appendix." 34 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by Respondent's representative, 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 Respondent to insure that said notices are not altered , defaced, or covered by any other material. 941n the event this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." DUNCLICK, INC. 21 (f) Notify the aforesaid Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.35 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order 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 our employees that: WE WILL NOT discourage membership in Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Independent, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT coercively interrogate you about your membership, views on, or conduct on behalf of any union, or inciease your wages or promise benefits for your not supporting any union. WE WILL NOT threaten you with discharge. WE WILL NOT discharge or in any other manner discriminate against you be- cause of your assistance to or support of any union WE WILL offer to Fred Forkner and James Andrews immediate and full rein- statement to their former jobs with us, and pay them the wages they lost by reason of their discharge. WE WILL NOT close down the plant if you select a union to represent you. WE WILL NOT in any manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form labor organizations, to join or assist Teamsters Union Local No. 551, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, In- dependent, or any other labor organization of our employees, to bargain collectively through representatives of your own choosing, or to engage in other concerted activities for the purposes of mutual aid, or to refrain from any and all such activities. WE WILL NOT refuse to bargain with Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of our em- ployees in the bargaining unit described below. WE WILL, upon request, bargain with Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, as the exclusive representative of all the em- ployees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an under- standing is reached, embody such an understanding in a signed agreement. WE WILL NOT in any manner interfere with the efforts of Teamsters Union Local No. 551, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Independent, on behalf of such employees; The bargaining unit is: All production and maintenance employees employed by the Respondent at its cement block plant in Lewiston, Idaho, including truckdrivers, but ex- cluding all other employees, office clerical employees, salesmen, janitors, watchmen and/or guards, and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of any union. DUNCLICK, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NOTE.-We will notify Fred Forkner and James Andrews if presently serving in the Armed Forces of the United States of their right to full reinstatement upon ap- plication in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington, 98101, Telephone 583-4583. Stiney's Corp., t/a Wolfie's and Local Joint Executive Board of New York City, Hotel and Restaurant Employees and Bartend- ers International Union, AFL-CIO and Culinary Workers of New York, Local 923, Retail, Wholesale and Department Store Union, AFL-CIO; Associated Food Shops, Inc., Parties to the Contract. Case No. 2-CA-105,02. June 10, 1966 DECISION AND ORDER On March 18, 1966, Trial Examiner E. Don Wilson issued his Decision in the above-entitled proceeding, finding that the Respondent 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 attached Trial Examiner's De- cision. Thereafter, the General Counsel filed limited exceptions to the Trial Examiner's Decision; none of the other parties filed excep- tions or briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Brown and Zagoria]. 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 Trial Ex- aminer's Decision, the General Counsel's exceptions, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] i Conclusion of Law 4 of the Trial Examiner's Decision is amended to reflect our ap- proval of the Trial Examiner's finding that the Respondent violated Section 8 ( a) (3) of the Act by unlawfully entering into a union-security agreement with Local 923. While the Trial Examiner found that Respondent's agents Steinberg and Kay, as well as Sklar, solicited employees and prospective employees to become members of Local 923 in violation of Section 8(a) (1) of the Act, he did not, in his concluding findings, include the conduct of Steinberg and Kay. The General Counsel excepts to the Trial Examiner's failure to do so. We find merit in this exception and, therefore , find that, by this conduct, the Respondent further violated Section 8(a) (1) of the Act. 159 NLRB No. 7.