Brunswick Meat Packers

BRUNSWICK MEAT PACKERS 887 Ben Ginsburg , Inc. d/b/a Brunswick Meat Packers, Brunswick Tallow Co. and Local 294 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 3-CA-2896. May 23, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN signing the card only because he was already a member This evidence clearly establishes that Gilbert, by his paid-up membership therein, had designated the Union to represent him and that he intended the unsigned authorization card as a reaffirmation of that designation. Accordingly, his authorization is added to those counted in determining the Union's majority status See Harris-Woodson Co , Inc., 77 NLRB 819, 834, In. 15. Also see Von Der Ahe Van Lines, Inc , 155 NLRB 126, 144, 1 Taitel and Son, 119 NLRB 910, In. 3 In view of the foregoing, we find it unnecessary to consider the merit of Respondent 's motion to reopen the record as the allegation therein that employee Woodward's authorization card is invalid would not affect the Union's majority status herein. The Respondent's motion is therefore denied On February 16, 1967, Trial Examiner James T. Barker 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 Decision. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. Respondent filed a motion to reopen record, with a supporting brief, and an answer to General Counsel's exceptions. 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. 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 motion to reopen record, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions , and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the Respondent, Ben Ginsburg, Inc. d/b/a Brunswick Meat Packers, Brunswick Tallow Co., its officers, agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. i In his exceptions the General Counsel asserts , inter alta, that in determining the Union 's majority status the Trial Examiner should have included as a valid designation the completed and delivered but unsigned union authorization and membership application card of employee Gilbert We find merit in this exception Record evidence establishes that when he was solicited by a fellow employee in February 1966, Gilbert advised that he was already a paid -up member of the Union. Although he was told that under these circumstances it would be unnecessary to submit a card, he nevertheless filled in and returned the card leaving blank only the signature on the line provided therefor It is the unchallenged testimony of Gilbert that he refrained from TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER , Trial Examiner : Upon a charge and an amended charge filed, respectively, on March 31 and April 29, 1966,' by Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union, the Regional Director of the National Labor Relations Board for Region 3, on May 6, issued a complaint and notice of hearing designating Ben Ginsburg, Inc. d /b/a Brunswick Meat Packers, Brunswick Tallow Co., as Respondent, and alleging violations of Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended, hereinafter called the Act. Pursuant to notice a hearing was held at Albany, New York, on June 21, 22, 23, and 24. All parties were represented at the hearing and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argument, and to file briefs with me. The parties waived oral argument and on August 8 filed briefs with me. Upon consideration of the entire record2 and the briefs of the parties, and upon my observations of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT At all times material herein , Respondent has been a New York corporation maintaining its principal office and place of business at Brunswick, New York, where it has been at all times material engaged in the sale and distribution of meats, waste fats, bone trimmings, and related products. During the 12-month period immediately preceding the issuance of the complaint herein, in the course and conduct of its business operations Respondent purchased, transferred, and delivered to its Brunswick, New York, place of business, meats and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to said place of business directly from States of the United States other than the State of New York. i Unless otherwise specified , all dates relate to 1966 2 Pursuant to the motion of the counsel for the General Counsel to correct the transcript of this proceeding , and upon consideration of the reply of the Respondent thereto, and my own notes taken at the hearing , the transcript is corrected as set forth in Appendix A hereto [not published] 164 NLRB No. 111 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the same period of time, in the course and conduct of its business operations , Respondent processed, sold, and distributed at said place of business , meats, waste fats , and bone trimmings valued in excess of $50,000, of which products so valued were shipped from said place of business directly to States of the United States other than the State of New York. Upon these admitted facts I find that at all times material herein Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Deveaux and Eugene Loya were discharged for cause; that the March 22 strike was an economic strike; and that the four employees who struck were economic strikers and thus subject to replacement at the discretion of the Employer. The Respondent further asserts, with respect to the alleged unlawful refusal to bargain collectively with the Union, that the unit in which the Union sought recognition was inappropriate for the purposes of collective bargaining ; at no time did the Union represent a majority of the employees in the appropriate collective- bargaining unit ; and at all times the Respondent entertained a good-faith doubt as to the majority status of the Union. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is admitted by Respondent to be a labor organization within the meaning of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint, as amended , alleges that at all times since March 2, the Union has been the majority representative of truckdrivers and mechanics in the employ of Respondent and that commencing on or about March 8, and at all material times thereafter, the Respondent has refused to recognize and bargain collectively with the Union as the exclusive collective- bargaining representative of the employees in an appropriate bargaining unit. The complaint further alleges that , in violation of Section 8(a)(3) of the Act, Respondent, on March 2, discharged Herman Deveaux and Eugene Loya.3 Additionally, the complaint alleges that a strike commenced on March 22 and was caused and prolonged by Respondent's unfair labor practices . The complaint, as amended at the hearing , also alleges that Respondent discriminated against four strikers who, on April 28, sought unconditionally to return to work by denying them reinstatement.4 With respect to the alleged violation of Section 8(a)(1) of the Act, the allegations of the complaint assert that commencing on or about February 14, the Respondent, through Ben Ginsburg, Mrs. Ben Ginsburg , and Alvin Ginsburg, engaged in various acts of interrogation, promises of benefits , and threats . Additionally alleged as violative of the Act is the asserted conduct of Ben Ginsburg which the General Counsel contends created among Respondent's employees the impression that Respondent was engaging in surveillance of its employees' union activities . The complaint further alleges that, through Ben Ginsburg, Respondent, by threats of reprisals, solicited employees engaged in a strike to return to work and to abandon the Union. The Respondent denies the commission of any unfair labor practices , and affirmatively contends that Herman a The allegation of the complaint alleging the unlawful discharge of Melvin Smith on March 11 was deleted on motion of the General Counsel made at the hearing B. Background Facts 1. The Respondent's operations At its Brunswick , New York , place of business, Respondent conducts its meatpacking and tallow operations , which are devoted to the wholesale sale and distribution of meats, fats, bones, and trimmings. On Respondent's premises are located a dwelling house, a retail and wholesale general store, and a garage which serves as a warehouse , a storage facility for frozen meats, a repair shop for vehicles used in transporting meats and allied products , and a storage area for the general store. In the general store is sold hardware , electrical supplies, plumbing supplies , groceries , and frozen foods. Ben Ginsburg is president of Respondent; Ann Ginsburg is vice president and a stockholder; and Alvin Ginsburg is secretary-treasurer. Each is actively engaged in a phase of Respondent 's operation . Ann Ginsburg works in the general store and draws a salary . Ben Ginsburg maintains an office in the house which he and his wife occupy, and an office is maintained over the store. By use of company owned vehicles -which are stored in the open yard area of Respondent 's Brunswick, New York , premises , and which are operated by truck- driver employees of Respondent who allegedly comprise the appropriate collective-bargaining unit herein- Respondent collects waste meat materials , fats, bones, and suet from the upstate New York area in the environs of Albany, and from areas of Massachusetts and Vermont; and transports the materials to collection stations in New Jersey. In addition , Respondent purchases to its specification fresh meats from Canadian suppliers , which meat is packaged by the supplier and then transported by Respondent directly from the point of purchase in Canada to the customers of Respondent in New York and New Jersey.5 2. The employee complement Exclusive of Ben , Alvin , and Ann Ginsburg, and of Herman Deveaux and Eugene Loya whose employment status is in issue , Respondent's employee complement for " One of them , Aubrey Griffin, was reinstated on May 28 5 The foregoing is based upon the credited testimony of Alvin Ginsburg and Ben Ginsburg BRUNSWICK MEAT PACKERS the payroll period ending March 10 and that ending March 17, respectively, was comprised of 19 persons.6 During each of these payroll periods 12 employees were employed exclusively as truckdrivers.7 Guy Hoag was employed as a mechanic, and Earl Simmons was employed as a combination truckdriver and mechanic. Earl Simmons worked at various times for Respondent. During pertinent times, he worked, as needed, at nights servicing trucks, and was also employed as a truckdriver. In addition, at times material he was also employed as a truckdriver by a cement and concrete firm. However, during the winter months he assumed a layoff status with this latter employer and accepted employment with Respondent. He commenced the relevant term of employment with Respondent in December 1965. During the payroll period ending March 12, he was employed for 12 hours, but did not work during the ensuing payroll period. However, he worked 24 hours during the payroll period ending March 24 and for a full week during the payroll period ending March 31. He worked during the payroll period ending April 7, and was last employed during the week ending May 12. During those weeks when Simmons worked full time he was paid a salary, as were other truckdrivers and mechanic personnel, but was paid an hourly wage for hours worked on a part-time basis. Simmons had been assured by Ben Ginsburg of continued employment on the foregoing basis. During this last period of employment by Respondent he also worked in the employ of a third firm transporting beef and meat products. His hours of employment at the concrete firm and at the meat transport company exceeded, annually, those at Respondent." During pertinent payroll periods John O'Brien, then a high school student of 17, worked as a clerk on a regular, part-time basis 4 hours in the evening at the store, performing such miscellaneous tasks as were required of him. In addition to his store duties, as needed, on the order of once or twice a week, O'Brien assisted truckdrivers in unloading their trucks. While on occasions, he drove a truck on company premises, he had no off-premises driving duties. Unlike the regular truckdrivers, he had no special permit allowing him to operate trucks. 6 I predicate this finding upon documentary evidence of record and the credited testimony of Alvin and Ben Ginsburg, considered together with that of Aubrey Griffin and Alfred Loya ' They were Herman LaClair, Lloyd Shuhart, Harold Woodward, Wilford Brior, Alfred Loya, Jack Paul, Aubrey Griffin, James Nathan, Joseph Gilbert, Charles Major, Anthony Taurone, and Larry Walsh Anthony Taurone was hired on March 14, and remained in Respondent's employ at the time of the hearing He was carried on the March 17 payroll Similarly, Larry Walsh was carried on the March 17 payroll Alvin Ginsburg testified that Walsh had been a permanent employee but had been absent due to illness He did not specify the period or length of Walsh's illness and testified that he thought Walsh returned to work on March 21, the day before the strike However, Aubrey Griffin and Alfred Loya, longtime employees of Respondent, testified that they had not observed Walsh working prior to the March 22 strike, and further testified that Walsh had been hired by Respondent as a strike replacement upon the commencement of the strike on March 22 I credit them to the extent of finding that Walsh had no status as an employee during relevant periods prior to the payroll period commencing March 11 and ending March 17. However, contrary to their testimony and the speculation of Alvin Ginsburg, I rely upon the payroll records reflecting that Walsh was employed on March 17, the critical date at issue herein 889 Peter Babulas, a young man employed full time by another employer, was employed by Respondent at pertinent times as a store clerk. He worked Saturdays and during evenings 3 nights each week. In addition to his store duties, at the direction of Alvin Ginsburg, and depending upon his availability, once or twice a week Babulas would assist truckdrivers in transferring meat products from one truck to another. On each such occasion he would spend from 1 to 3 hours in performing this task. On Saturdays he would perform principally store duties, but also did some work in the company yard. Although he was licensed to drive certain classes of trucks, he drove off premises only rarely in Respondent's employ. Wilma Bleau was employed during the payroll period ending March 10 and March 17, respectively as a store clerk. Like O'Brien and Babulas, she was hourly paid.' C. Union Organizational Efforts 1. The notebook signatures During the month of February , employees of Respondent, including Guy Hoag and Herman Deveaux, discussed the desirability of union representation. Pursuant to a preliminary discussion Herman Deveaux obtained a notebook, and Guy Hoag assumed the initiative in obtaining employees ' signatures therein. Pursuant to his inquiry as to their desire for Teamsters representation, 11 employees at different times during working hours on February 17 and 18 , at the Respondent's garage, entered their name on a page of the notebook . 1o The page on which these names were entered bears a date of February 17. 11 2. Authorization cards signed After Hoag had obtained these signatures in the notebook , Deveaux obtained the sheet from him. He contacted Union Respresentative Anthony Spazioso, informing him of the desire of the employees for union affiliation . Pursuant to arrangements , the following day Deveaux obtained union authorization cards from Spazioso . Deveaux later gave seven blank authorization The record further establishes that M A Borgia, who was carried on the payroll for the week ending March 10 but who was dropped from the payroll for the following week, was employed as an interim, temporary employee in the place of Charles Major who had been ill Major's status as of March 17 is not an issue. N The foregoing is based on the credited testimony of Earl Simmons " William Bouche and William Dallas were employed as part- time bookkeepers in Respondent's office in the store They worked for Respondent parttime 3 days per week. Respondent concedes their exclusion from any assertedly appropriate unit here in issue '" The informality of this approach is suggested by the fact that employee Harold Woodward entered his name merely as "Woody" i' It appears that the page was postdated, for Guy Hoag testified that the sheet of paper contained no date at the time that these signatures were obtained However, his testimony, and that of Herman Deveaux, convinces me that the signatures were obtained on February 17 and 18 Additionally, 8 of the 11 employees testified credibly that they affixed their signatures to the sheet of paper Three employees, Herman LaClair, Jack Paul, and Harold Woodward did not testify However, Guy Hoag testified convincingly that he observed LaClair, Paul, and Woodward each sign the paper 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards to Guy Hoag with instructions that he have them completed and that he obtain a $10 initiation fee from any employee who completed a card. There are in evidence 10 authorization cards duly dated, and bearing the signatures of truckdrivers and the principal mechanic, Guy Hoag, in Respondent's employ at times pertinent herein. Four cards bear a date of February 23, five a February 24 date, and one is dated March 2. In addition, one card beaiing the date of February 23 and purporting to be that of Joseph Gilbert, a driver, bears no signature. The 10 signed cards are assertedly those of Guy Hoag, Eugene Loya, Alfred Loya, James Nathan, Lloyd Shuhart, Aubrey Griffin, Herman Deveaux, Harold Woodward, Melvin Smith, and Herman LaClair. The first seven mentioned employees testified credibly they executed and dated union authorization cards. I find upon this credited testimony that the union authorization cards in evidence bearing their signatures are valid authorization cards. Joseph Gilbert credibly testified that he was presented with a union authorization card and filled it out, but did not sign it. He testified that because he was already a member of the Union he considered execution of the card unnecessary. 12 Herman Deveaux credibly testified that he gave Herman LaClair an authorization card and LaClair filled it out and signed it in his presence. Guy Hoag credibly testified that he presented Harold Woodward with an authorization card and that Woodward returned the completed card to him the following day at work. Hoag was unable to recall with any certitude whether or not he presented Melvin Smith with an authorization card and recalled no other details concerning a card. Herman Deveaux testified that the completed and executed cards purporting to be those of Woodward and Smith were returned to him by Hoag. On March 2, Herman Deveaux presented the 11 authorization cards, including the unsigned card of Gilbert, and the cards purporting to be those of Woodward and Smith to Anthony Spazioso. According to the credited testimony of Spazioso, in checking the cards he observed that those of Gilbert and Smith were unsigned. He further erroneously testified, however, that at a meeting he held with employees of Respondent on March 5, Smith, who was in attendance, in the presence of Spazioso, executed his card which had been filled out and dated earlier. Herman Deveaux testified with conviction that a meeting of the type described by Spazioso was held on Sunday, March 6. However, other evidence of record, including the testimony of Alfred Loya, convinces me that the only meeting which Spazioso held with employees was a meeting held on Sunday, March 20, 2 days before the strike which transpired herein. I accordingly find that it was at this meeting, and not on March 5 or 6, the signature of Melvin Smith was affixed to the authorization card received in evidence in this proceeding. D. Alleged Interference, Restraint, and Coercion 1. Management approval of unionization Guy Hoag credibly testified that over a period of some 2 years he had conversed intermittently in general terms with Ben Ginsburg concerning a union for the employees. Ginsburg had expressed himself as favorably disposed toward a union. Hoag further credibly testified that in February or March he conversed with Ginsburg and Ginsburg stated he was in favor of a union and that it was a matter for the employees to decide. Earl Simmons testified credibly that during the period of union interest which developed among the employees in February and March, Ben Ginsburg related to him this conversation that he had had with Hoag, and stated that he had told Hoag that he thought a union was a good thing. Ben Ginsburg similarly testified credibly that he had told employees frequently that if they desired a union he was favorably disposed.13 According to the credited testimony of Lloyd Shuhart, during February or March, prior to the strike, he was asked on several occasions by Ben Ginsburg and by Alvin Ginsburg if he thought the Union would be helpful to the employees. In conversing with Shuhart, Ben Ginsburg stated that he did not think a union would help the employees. 2. Interrogation and impression of surveillance During an evening in late February, Earl Simmons conversed with Ben Ginsburg in the garage while Simmons was working on a truck. Simmons asked Ben Ginsburg if the employees were going to have a union. Ginsburg did not answer but asked, "Where is the list of names?" Simmons responded that he did not know, but surmised that it was in the parts room. Ginsburg later stated to Simmons that he had not seen the book in the parts room.14 Eugene Loya testified that on or about February 18 he came into the store and Alvin Ginsburg approached him stating, "I heard you signed cards for a union.""' During the last week in February, Aubrey Griffin was asked by Ben Ginsburg if he had signed a union card Griffin answered that he had. Ginsburg then inquired if Griffin had given the Union any money, and Griffin answered in the negative. Thereupon, Ginsburg stated he had heard that Griffin had endeavored to borrow $10 with which to pay union dues. When Griffin confirmed this Ginsburg asked the identity of the lender. Griffin asserted that he had been unsuccessful in obtaining a loan. Ginsburg answered, "Okay, Aubrey, that's all I wanted to know. I know the card was signed, and who paid the dues." 12 Gilbert testified credibly that in January 1966 lie endeavored to pay dues to the Union but the union representative refused to accept them He further credibly testified that he has not paid dues since Without supporting documentary evidence, Anthony Spazioso , business agent of the Union, testified that as of February 23, Gilbert was a member in good standing of the Union, and that he was a "dues paying member" during the period March through May 1966 13 This testimony finds confirmation in that of Lloyd Shuhart, Aubrey Griffin, and James Nathan Additionally, Alfred Loya and James Nathan testified that they were told by Alvin Ginsburg that he, Alvin, was in favor of a union 14 Simmons could not place the time of this conversation with certainty However, he testified that it was before the March 2 discharge of Herman Deveaux As I have found the notebook signatures were obtained on February 17 and 18, I conclude the conversation occurred during the last 2 weeks of February 15 Loya placed this event as having occurred on the day after he affixed his name to the notebook page. BRUNSWICK MEAT PACKERS 891 During March, Griffin was asked by Ginsburg if he had paid his money yet. During the conversation that followed Ginsburg also observed that he had known what had been "going on" with respect to the organizational efforts of the employees; and who had signed cards and were behind the Union. He further stated that it did not make any difference to him who joined the Union. Alfred Loya testified that on an occasion immediately after he had given his $10 union initiation fee to either Herman Deveaux or Guy Hoag, he came into the store and Ben Ginsburg addressed him saying, "I heard you paid your $10 to the Union." Loya stated that he had, whereupon Ginsburg said, "Well, there is a man that can afford to pay $10 for a union, but can't afford to give me $10 that he owes me." In late February, James Nathan was asked by Alvin Ginsburg whether he had given Herman Deveaux $10 for the Union. Nathan said he had not, and Alvin asked him if he knew the name of anyone who had. Nathan answered that he did not know the names. Alvin said that he knew the names and that he wanted to "make sure they [got] their $10 back." Herman Deveaux testified that on February 18, upon returning from a run, Alvin Ginsburg asked him, "What is this I heard about you signing the fellows up for the Union." Deveaux responded that he had signed his own name but had not signed other employees. He asserted that other employees had signed voluntarily. Thereupon, Alvin asked Deveaux why he thought the Union would help him. Deveaux answered that he thought the Union would help him, management , and the business generally. Alvin answered, "We will talk about it "is Herman Deveaux further testified that during the last week of February during a conversation in the store Ben Ginsburg stated that he had heard Deveaux had signed the employees for the Union. Deveaux disavowed this asserted action, stating that the employees had signed of their own volition. In response, Ben Ginsburg inquired why Deveaux desired a union. Deveaux explained that he was desirous of receiving the benefits which unionization would accord him. Ginsburg responded that he would get Deveaux "any kind of benefit" if he wished to pay for it. Deveaux answered that he would first have to receive the compensation in order to pay for benefits. Ginsburg answered that if the Union came in he would work the employees 40 hours a week and then let them go. In mid-February, according to the testimony of James Nathan, Ben Ginsburg asked Nathan how he felt about the Union. Nathan answered that it made no difference to him as long as the employees obtained more money. During the week of February 23, on the same day and within a brief time span , Alvin Ginsburg spoke separately with Eugene Loya and Aubrey Griffin in the store. Ann Ginsburg, Alvin's mother, was also present. Initially, Eugene Loya entered the store and Alvin Ginsburg approached him and said, "I heard you signed cards for the Union." Loya confirmed that he had done so and stated that he "had gone along" with the rest of the men. Ann Ginsburg interjected, "If the men wanted a union job, why didn't they get a union job. We don't want a union in this place." She added, "We have been in business 25 years, and we will have nobody tell us what to do now." She observed further that the business could be sold and the family could "live on the store" very comfortably. Aubrey Griffin testified that in the presence of Eugene Loya and Alvin Ginsburg, Ann Ginsburg spoke to him in a similar vein. 17 According to the testimony of Aubrey Griffin, he entered the store and spoke with Alvin concerning the loss of an account. Alvin Ginsburg, in response, observed, "On top of that Herman is trying to get the Union in on me." Ann Ginsburg then stated, "Well, if Herman wants a union job, he should get out and get a union job." Mrs. Ginsburg further stated, "I think it is a shame, when all these many years you work hard, and then the Union comes in." Mrs. Ginsburg additionally said that the business was hers and that she wouldn't "appreciate the Union coming in.""' During the latter part of February, Alvin Ginsburg observed to Alfred Loya that he had heard "somebody was trying to form a union," and he asked Loya if he were "going along with the union." Loya answered that "he guessed" he would. Alvin thereupon inquired if Loya knew who was trying to "form" the union and Loya responded that he did not know. He stated that he had just been given a card and had signed it. I 4 Aubrey Griffin further testified credibly that on March 10, after the discharge of Herman Deveaux, Ben Ginsburg invited him to the house to converse about his work. During the conversation Ginsburg characterized Herman Deveaux as having been his "right hand man," and observed that he "liked" Herman . Ben Ginsburg stated that if Deveaux had wanted the raise, he should have come to him for it. During the conversation he asked Griffin if Deveaux was " going down to the union hall for the National Labor Relations Board." Griffin asserted that he did not know. Ginsburg observed that he had heard Herman was a good friend of Griffin and that he did not want to break up their friendship.L0 I credit the testimony of the employee witness concerning the foregoing incidents, which, except as above found, was either not specifically denied or was subject to the most transient general denial. 3. Ben Ginsburg's implied threat to Deveaux Additionally, during the last week of February, Deveaux testified that he returned to the store from a meat pickup and presented an invoice to Ben Ginsburg. Ginsburg instructed Deveaux to take the invoice upstairs to the bookkeeper and Deveaux did so Ginsburg followed Deveaux upstairs and stated to the bookkeeper, "I want you to write Gene Loya and Aubrey Griffin a lay off slip 16 Alvin Ginsburg did not deny the occurrences of this conversation '1 I conclude that this conversation followed immediately that between Eugene Loya, Alvin Ginsburg, and his mother, Ann (,insburg 18 Alvin Ginsburg testified that he had no recollection of this conversation having transpired Ann Ginsburg was not called as a witness However, Aubrey Griffin testified convincingly concerning this incident and his testimony finds some support in that of Eugene Loya 11 The foregoing is based upon the credited testimony of Alfred Loya Alvin Ginsburg testified he did not recall having had any such conversation with Loya However, this testimony of Loya impressed me as credible, and as Alvin Ginsburg had made similar inquiries of other employees , it is my conclusion that the credible and essentially plausible testimony of Alfred Loya should be credited over the denial of Alvin Ginsburg 20 Griffin testified that on other occasions Ginsburg had stated that lie had held Herman Deveaux in high esteem as an employee and had stated that Griffin should aspire to measure up to Deveaux in this respect 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right now. I don't want them around here. They are trouble makers." Ginsburg then stated, looking directly at Deveaux, "that goes for the big union man, too." Ginsburg then stated that he would get "good help if he had to pay them $200 per week. Deveaux interjected, in reply, that he was only being paid $135 per week. Ginsburg answered, "Yes, you are a good man, but you are too expensive for me." Thereupon, Deveaux went downstairs and was informed by fellow employees that a trailer loaded with merchandise was ready for Deveaux. When Deveaux stated that he had been terminated, Ginsburg stated he had only been "kidding" and instructed Deveaux to take the assignment.21 4. Alvin Ginsburg's alleged promise of benefit James Nathan testified that Alvin Ginsburg approached him one morning in the yard a week prior to the March 22 strike, and inquired if Nathan believed the employees would be receptive to an offer by the Company of pay equal to that which they could obtain through union representation. He suggested he was prepared to present such an offer to the employees at a special meeting. Nathan stated that he thought the idea was a good one. No such meeting was held. On the other hand, Alvin Ginsburg testified that he conversed with James Nathan during the early afternoon of a day in the last week of February. According to Ginsburg, he asked Nathan if he had signed for the Union yet. Nathan answered that he had not and Ginsburg then asked Nathan if he thought the Union would "do [him] any good." Ginsburg further stated that he was concerned over "where the money [would come] from." Ginsburg went on to assert that the money would still come from the Company whether or not the Union represented the employees, and he then asked Nathan if he felt that the Company would give the employees as much as the Union would be able to obtain for them. Nathan answered that he didn't care where the money came from just so long as the employees received it. According to Ginsburg, during the conversation Nathan made reference to benefits as a primary point of interest on the part of employees, and Ginsburg asked him if he thought the Union would give the employees more benefits than the Company was now giving the employees. I credit Alvin Ginsburg's version of this conversation and find that the testimony of James Nathan is inaccurate with respect to the alleged suggestion of Alvin Ginsburg of company willingness at a convened meeting of employees to proffer benefits equivalent or superior to those which the Union would obtain for them. I am convinced that in reconstructing the conversation after the passage of time Nathan appended a meaning to Ginsburg's remarks which is not supported by the actual words and terminology employed by Alvin Ginsburg during the conversation. 5. Herman Deveaux labeled an "agitator" Alfred Loya testified that after the discharge of Eugene Loya and Herman Deveaux, he was in the store and either Ben Ginsburg or Alvin Ginsburg observed, "It's a lot quieter around here since we got rid of the instigator."22 Aubrey Griffin testified that on the morning of March 2, Alvin Ginsburg addressed him stating, "Well, Aubrey, I had to let two men go this morning.... I let your buddy go, Herman Deveaux." Griffin inquired as to the reason for letting Deveaux go and Alvin said, "Aubrey, a lot of union trouble is here. I had to let Herman and Eugene go." Alvin Ginsburg testified that he did discuss the discharges of Deveaux and Loya with Griffin on March 2, but testified that, contrary to Griffin, he stated that they had been discharged for causing too much trouble "around the place" and "among the help ."23 I credit Alvin Ginsburg's version of this conversation. Not only did he testify convincingly and forthrightly concerning this incident, but I am convinced that it is entirely unlikely he would have so candidly and pointedly stated an antiunion motive for the discharges. I am convinced Griffin's testimony was affected by this subjective interpretation of the meaning of Alvin Ginsburg's remarks. Conclusions I find upon the foregoing evidence of record that, despite his pronouncements of approval upon the desires of the employees for unionization, Ben Ginsburg reacted with hostility when these theoretical yearnings for collective representation achieved the form of overt organizational efforts. I find that the Ginsburgs in their respective managerial and proprietary capacities, upon learning of the unionization efforts of their employees, became unified in their objections to collective representation for the employee complement, and sought to undermine and frustrate collective representation. This they endeavored to achieve through interrogation and through foreseeably inhibitory statements to employees suggesting managerial awareness of their union activities. Thus, as found above, in interrogating employees concerning the existence of a list of names signifying union adherence, in verbally asserting an awareness of the union activities or other protected activities and conduct of its employees ;24 in interrogating employees concerning their card signing activities and their payment of dues to the Union; in stating its objections to the Union and its power to close down operations to defeat it;25 in simulating the discharge of Herman Deveaux in context with the classification of him as a "union man"; and, in context of the foregoing, in inferring to a fellow employee, Alfred 21 I credit the testimony of Herman Deveaux with respect to this incident Not only is his testimony intrinsically believable, as demonstrated by abundant record evidence of the volatile nature of Ben Ginsburg, but there is independent record suggestion that Ginsburg frequently "discharged" employees only to recant Further, Ben Ginsburg did not deny this incident 22 While I credit Alfred Loya to the extent of finding that one of the Ginsburgs made this statement, I do not find that, as the record context of the General Counsel's interrogation endeavors to suggest, that the comment was one directed in meaning to both Herman Deveaux and Eugene Loya The literal reference was to a single "agitator" and had no plural connotation. Further, other evidence of record reveals that to management, Herman Deveaux and not Eugene Loya was the "instigator" of the union movement 23 In the record context, it is apparent that Alvin Ginsburg was referring to the driver personnel. 24 The interrogation of Aubrey Griffin regarding the resort of Herman Deveaux to the Board's processes is embraced within this finding 25 This sentiment expressed in a veiled threat spoken by Ann Ginsburg, a vice president, stockholder, and active participant in the business, is attributable to Respondent despite the pleadings denying her agency status vis-a-vis Respondent. BRUNSWICK MEAT PACKERS 893 Loya, that Herman Deveaux's discharge resulted from his actions as an "instigator"; and in similarly inferring to Aubrey Griffin on March 10, in context with other conduct violative of the Act, that Herman Deveaux's discharge resulted from his desire for a raise, the Respondent interferred with, restrained, and coerced its employees in the rights guaranteed them in Section 7 of the Act, and did thereby violate Section 8(a)(1) of the Act. I do not find violative of the Act Ben Ginsburg's order to his bookkeeper issued in Herman Deveaux's presence at the time of his simulated discharge, to issue layoff slips to "troublemakers" Loya and Griffin. The evidence of record suggests this statement had a different meaning or connotation known to Deveaux, and, indeed, Ginsburg specifically differentiated between Deveaux's union- caused "termination" and the basis for the "termination" of Loya and Griffin. In similar vein I find no violation flowing from Alvin Ginsburg's comments to Aubrey Griffin regarding the discharge of Deveaux and Eugene Loya. Nor, contrary to the General Counsel, do I find violative of the Act-separate and apart from the unlawful inquiry into his card signing activity which on this occasion he made-statements of Alvin Ginsburg made to James Nathan in the yard at the plant premises during the week prior to the strike. E. The Alleged Discriminatory Discharges 1. The discharge of Herman Deveaux a. The employment history of Deveaux Herman * Deveaux credibly testified that he was employed as a truckdriver by Respondent during the period April 23, 1961, to January 6, 1963, and from April 1964 until March 2, 1966. b. His discharge affected According to the credited testimony of Alvin Ginsburg, he discharged Herman Deveaux on the morning of March 2. He further credibly testified that on the morning of March 2 he summoned Deveaux to his office and informed Deveaux that the family had worked for years to build the business and that they "were getting good cooperation from all the drivers, but that [Deveaux] was doing nothing but causing trouble with all the workers." Ginsburg stated that he had received complaints from all of the drivers to the effect that they were not "going to take Deveaux' abuse anymore." Ginsburg stated further that it had become a question of keeping Deveaux and losing other men, or discharging Deveaux and keeping the majority of the men happy. Ginsburg testified credibly that at this point in the conversation Deveaux asserted he was going to the Union, and Ginsburg answered that his discharge had nothing to do with the Union. The conversation then turned to the pay due Deveaux and after a brief discussion, at Deveaux's insistence, he was paid for the full week of March 2.26 c. The alleged basis for discharge (1) The Troy meat pickup Alvin and Ben Ginsburg testified that they and Ann Ginsburg met together on Sunday, February 27, and decided to terminate Deveaux. Alvin Ginsburg testified that the event which led to the meeting was Deveaux's refusal on the previous Friday, February 25, to make a meat pickup as he had been requested to do. In this regard, Alvin Ginsburg testified that on the morning of February 25, he requested Deveaux to make a meat pickup in Troy. Deveaux objected to being asked to do so and became intemperate with Alvin Ginsburg. Deveaux stated that he would make the pickup, if Ginsburg would obtain someone else to take the route which he was scheduled that evening to take. Ginsburg objected, observing that Deveaux only made three runs per week. Alvin Ginsburg further credibly testified that, following his discussion with Deveaux, he assigned another employee to make the pickup. He further testified that the employee to whom he gave the assignment had returned from a run the previous evening and was resting at home. He further testified that it took this employee an hour to accomplish the Troy pickup. The evidence shows that Deveaux worked from 8 a.m. to 12 p.m. and from 12:30 p.m. to 6 p.m. on February 25 at the Respondent's yard. Ginsburg testified that under procedures in effect during pertinent times, Deveaux would have been free to set his own hours on the day in question, as he was scheduled to make a meat run that evening. With respect to his refusal to take a Troy meat run, Herman Deveaux testified that when he reported for work at 8 a.m. on the morning in question'27 he was asked by Alvin Ginsburg to make the meat pickups in Troy. He testified further that he had worked the previous day; that the day in question it had snowed 6 or 7 inches; that his previous experience had indicated to him that by taking the Troy meat pickups, he would not be able to return to the plant until approximately 4 p.m.; that he was scheduled to take his normally assigned run to New Jersey on the evening in question; and that the New Jersey run would require 15 hours or more to complete. Deveaux further testified that when Alvin Ginsburg requested him to make the Troy meat pickups, he asked Alvin who would make the New Jersey run that evening, asserting that he did not want to "fight" the snow all day and do the same all night. Deveaux testified further that Alvin Ginsburg became incensed and remonstrated that Deveaux only made three runs per week. Deveaux denied that he refused to make the Troy run. In amplification, Alvin Ginsburg testified further that the Troy meat pickup which he requested Deveaux to 26 Herman Deveaux testified that in discharging him, Ginsburg expressed regret at having to take the discharge action in view of the close personal regard he had for Deveaux Deveaux further testified that in recounting the effort which the family had expended in building the business, Ginsburg stated that for this reason his mother and father did not want a union, and that as Deveaux was a union "instigator" he was being discharged. This facet of Deveaux's testimony, depicting Ginsburg as blandly labeling Deveaux as the union "instigator" and revealing this as the basis of and reason for his discharge, impresses me as being overdrawn and implausible I am convinced that Ginsburg would not have so candidly expressed himself with respect to the motivation allegedly underlying Deveaux's termination Considering this testimony, I am convinced that Deveaux endeavored to enhance the General Counsel's case, and further his own interest therein, by attributing to Alvin Ginsburg an expression of sentiment which I am convinced Ginsburg did not articulate 27 Deveaux places this incident as having occurred some 2 weeks prior to his March 2 discharge 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD make was a single pickup to be accomplished as a favor to a customer. He further testified that the regular Troy pickups were made on Thursday. Further, Alvin Ginsburg testified that on February 25, there was no snow on the roads at Brunswick , New York. Alvin Ginsburg testified with apparent certitude with respect to the date of the above occurrence and its relationship to the actual discharge of Deveaux . Deveaux was less specific about the date, but, as above noted, his estimate was that it transpired some 2 weeks prior to the date fixed by Ginsburg. Upon an overall analysis of the pertinent aspects of the record, I credit Alvin Ginsburg. I am convinced , in part , from the credited testimony of Lloyd Shuhart, that Respondent had decided to terminate Deveaux some weeks prior to March 2. Having made the decision-which I find was unlawfully motivated-and having been accorded through Deveaux's intransigent challenge to Alvin Ginsburg's authority, a plausible basis for discharge , I am convinced that Respondent acted as promptly as practicable in terminating Deveaux. I am convinced further, contrary to Deveaux, and in agreement with Alvin Ginsburg, that 2 weeks' time did not elapse after the Troy pickup incident before Deveaux's discharge was effected. Moreover, I am convinced that Alvin Ginsburg correctly testified that his request of Deveaux was for a special meat pickup and was understood by Deveaux to be a pickup of this character. As Alvin Ginsburg testified without refutation that the normal, more time-consumming Troy meat pickups are made under established routine on Thursday, and as the request of Deveaux was made on a Friday, I am convinced that Deveaux was aware that Ginsburg's request related to a special circumstance. This conclusion that the pickup was not the normal Thursday pickup is supported by the similarly unrefuted testimony of Alvin Ginsburg that the run took an hour to accomplish and that a driver who had returned from a run and who was resting at home was selected for the task. It is most doubtful that a driver in this status would have been selected for an all-day pickup assignment. With respect to the foregoing , the log sheet which Deveaux completed for March 2 gives some room for conjecture , for it does not reveal that Deveaux performed any driving duties on the night of March 2. Deveaux testified , with a degree of insistence , that on the night on which he was requested to make the Troy pickup, he was scheduled for a New Jersey route, and Ginsburg, in his testimony, seemed to concede he was. This ambiguity, with respect to the log sheet , which was not resolved in the record, and the variant recollection of Ginsburg and Deveaux as to the weather conditions on the day in dispute, have been weighed in making the above credibility resolution , but are considered less persuasive indicia than those above stated as the basis for my conclusion. In sum, I conclude that on Friday, February 25, Alvin Ginsburg requested Herman Deveaux to make a special meat pickup in Troy and that he objected to doing so because he was scheduled to make his assigned New Jersey route trip on the evening of February 25. (2) Other contributory factors Ben Ginsburg testified that the decision to discharge Deveaux was triggered by the meat pickup incident, but that the disenchantment of management with Deveaux's work performance had grown out of a series of incidents revealing his inefficiency as a driver and his uncooperative , disruptive propensity as an employee. Thus, Ben Ginsburg testified that some 4 or 5 months prior to his discharge , Deveaux ran his truck over and destroyed a barrel which he had been told to remove from under his tractor ; 211 he failed to refuel his vehicle before commencing a trip and ran out of fuel, with a resultant expense to Respondent ; 2`' that through his failure to properly observe the loading of his truck for weight, and through his attitude toward a police officer who stopped him to check the weight of his vehicle , he was given a citation ; and that on an occasion during a run to New Jersey, Deveaux spent excessive time from his duties for personal convenience. With respect to Deveaux's propensities for disruption, Ben Ginsburg further testified that Deveaux sought a raise in pay for his duties in connection with his assigned New Jersey run and threatened to terminate his employment if his pay demands were not met ; and that Deveaux demanded his own discharge if Respondent should take discharge action against Aubrey Griffin on grounds of excessive vehicular breakdowns. In further support of Respondent's contention regarding Deveaux's record as an employee, Guy Hoag testified that in 1965 or 1966 he had to make repairs to the wheels of a new vehicle driven by Deveaux because, contrary to instructions , Deveaux failed to tighten wheel lugs;30 and that during the same period, it was necessary for him to replace a broken tailgate on Deveaux 's vehicle which had been damaged through Deveaux's negligence.31 Hoag further testified that over the period of Deveaux's employment, Deveaux, more often than other drivers, requested him to perform work which was part of a driver's normal duties, and that he observed Deveaux make similar requests to other employees . Hoag also testified that he complained to Ben Ginsburg about this practice. Conclusions Regarding Deveaux's Discharge While there is much in the record to establish that Respondent had grounds for displeasure over the undercautious attitude of Deveaux toward his duties as a driver, I find it unnecessary to make a detailed resolution of the conflicts resulting from testimony attributing derelictions to Deveaux , and Deveaux's own denials thereof. This is so because, even construed most favorably to the Respondent, the evidence reveals that , in sum, the L8 Guy Hoag confirmed the occurrence of this incident , but was unable to place the time Herman Deveaux confirmed the occurrence , but denied that he had been warned of the presence of the barrel under the truck t" Herman Deveaux testified that the truck was that of another employee and that his departure from the plant on this occasion occurred at night and the fuel indicator revealed that the fuel tank was full He conceded that it was his duty to fill the truck with fuel, but that it was his practice to do so not at the plant, but in New Jersey where the tax is less "" Herman Deveaux testified he recalled no such incident having occurred 31 Deveaux testified that the tailgate was damaged in unloading a trailer attached to the truck through the use of a motor in front of the truck He testified that in operating the motor, it was impossible to observe the tailgate and that he was not at fault for the resultant damage BRUNSWICK MEAT PACKERS derelictions constituted nothing more than irritants to management and were on each occasion and in cumulation tolerated over a subsequent period of several months without disciplinary or terminal action. The Troy meat run incident stands on separate grounds, and, if Deveaux's conduct on that occasion had indeed been the sole, moving cause for his termination, or, as Respondent contends, the proximate cause capping a series of incidents, Respondent's defense could be valid, as against the General Counsel's charge of unlawful motivation. However, I find that against a background of disharmony and resentment-taking unlawful form-over the employees' resort to the Union, and over Deveaux's role therein, Deveaux's conduct with respect to the Troy meat run was seized upon by Respondent as a cloak to cover discharge action designed to punish Deveaux for his part in seeking to unionize the drivers, and to serve as a deterent to further union effortsby the employees. As a predicate consideration bearing directly upon the motive for Deveaux's discharge, the record reveals the existence of intelligence sources which quickly informed management of the progression of the organizational efforts of the employees, and, as indeed the record independently suggests, the Ginsburgs, through these sources, became quickly aware of the leading role therein of Herman Deveaux. To be sure, Respondent's actions with respect to Herman Deveaux must be measured against the record portrait of the gregariously effusive nature of Ben Ginsburg which caused him, respecting the union desires of his employees, to equivocate between paternal permissiveness and pointed inquisition. Through words, he assured employees of their freedom to organize, but through his verbal acts, he demonstrated a hostility toward unionization, not in the abstract, but when applied as an economic reality to his own operations. Thus, as found above, in seeking to obtain the names of those who had affixed their names to the notebook page; in inquiring of employees whether they had signed union cards; in interrogating them concerning their payment of initiation fees to the union, in characterizing Herman Deveaux as the "big union man"; in inferring, as he did to Aubrey Griffin on March 10, following Deveaux's discharge, that Deveaux's interests would have been better served through a direct approach to management than through the Union; and, during the climatic period of the organizational effort, in hiring a replacement for Deveaux, whom he had not yet discharged and, notably, who had not then perpetrated the act which was ultimately ascribed as the proximate cause for his discharge, Ben Ginsburg revealed a hostility toward the concept of unionization and toward Deveaux's affinity to the Union which was not wholly disguised by the facade of congentiality which marked the relationship of Ben Ginsburg to his employees. 31 These deficiencies, according to Alvin Ginsburg, were Loya's tendency to trade or reorganize routes inter se with other drivers, and his excessive absenteeism between runs Alvin Ginsburg testified that employees frequently reported Loya's efforts to adjust routes and schedules, and he further testified that Loya lost an average of 1 day per week through absenteeism Alvin Ginsburg conceded that these practices had prevailed throughout each term of Loya's employment Additionally, Alvin Ginsburg testified that in the fall of 1965 for training purposes l.oya left the plant in a truck accompanied by a new employee and that later he observed the new employee alone in the truck Upon inquiry Ginsburg was told by the new employee that Loya had left to go home 895 In similar vein, as revealing the general attitude of management, toward unionization generally, and Deveaux in particular, the remark of Ann Ginsburg to the effect that Deveaux should have sought a union job if he desired to be represented by a union, in the context of the developed record, must be construed as clearly indicative of resentment toward Herman Deveaux for his union activities. But additionally to be weighed, beyond this strong, affirmative showing of unlawful motivation, is the transparency of Respondent's assertion that Deveaux's recalcitrance over the Troy meat run assignment was the finale in an accumulating series of derelictions. The transparency arises from two considerations. Initially, the record strongly suggests that deficiencies-tolerated, as found, without penalty-were passed over because Ben Ginsburg held Deveaux in high esteem; and Deveaux's disputation with Alvin Ginsburg-given the friendly, "family" atmosphere that the record reveals existed between management and employees at Respondent's operations-was not of a variety calculated to have normally given rise to strong retributive action. I am convinced that, rather, a supervening consideration served as the catalyst for Deveaux's discharge and that Deveaux's leadership in the organizational effort was that agent. The second indicia of transparency is found in the evidence revealing that Respondent gave to the Board in the investigatory stages of this proceeding inconsistent reasons in justification of Deveaux's discharge, and, after Deveaux's discharge solicited a letter from a former employee of Deveaux casting in an unfavorable light Deveaux's capabilities as a driver. These latter actions strongly suggest an effort to obscure and disguise. In view of the foregoing, I conclude and find that Herman Deveaux was discharged by Respondent because he engaged in union activities. I further find that the reason advanced by Respondent for Deveaux's discharge was a mere pretext. 2. The discharge of Eugene Loya Eugene Loya entered Respondent's employ in August 1964 and worked until February 13, 1965. He subsequently worked for Respondent from May 15, 1965, until September 1965; from September 17 to October 9, 1965, and from November 20, 1965, until March 2, 1966, when he was terminated. Alvin Ginsburg testified credibly that on the occasion of each of Loya's rehires, Loya requested employment on the basis of economic necessity, and the decision was made by management to give him a further chance to overcome his past deficiencies as an employee.32 The credited testimony of Alvin Ginsburg, Ben Ginsburg, and Eugene Loya establishes that Loya did not work on February 28 or March 1 or 2. Further, Ben Ginsburg testified that at the time of his discharge, Loya was indebted to the Company for money which the Company had paid to a bank on Loya's behalf, that he had loaned Loya a sum of money to meet his wife's maternity expenses and that Loya had used the funds for the purchase of an automobile, and that Loya had, subsequent to the loan, applied for welfare payments Loya admitted having borrowed $100 from Ben Ginsburg for maternity purposes but stated that it had become necessary to expend the money for food and for his wife's medicine He further conceded that he made application for welfare after the birth of his baby 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eugene Loya testified that on Sunday evening, February 27, he became wet from the rain and that upon his return home he discovered that his wife had suffered an attack from a recurring illness from which it is conceded she suffered. He testified that the following morning, Monday, February 28, he had contacted a cold and, as a consequence, he went next door to his brother's residence and informed his brother, Alfred Loya, that neither he nor his wife were feeling well, and requested Alfred to report this to the Ginsburgs and to inform them that, he Eugene, would not be reporting to work that day.33 Alfred Loya testified that upon reporting to work on Monday morning, February 28, he informed Alvin Ginsburg of the illness of his brother and of Mrs. Eugene Loya, and stated that Eugene would not report to work that morning. Thereafter, that evening Alfred conversed with Eugene Loya who informed him that he would not be able to work the following day and requested that Alfred inform Alvin of this fact. Alfred testified that he did inform Alvin Ginsburg of this and Alvin requested that he have Eugene contact him by telephone the following day. Alfred further testified that on Wednesday morning he again conversed with Alvin and informed him that Eugene Loya would not be able to work that day. Thereafter, according to the testimony of Eugene Loya on Wednesday morning, he contacted Alvin Ginsburg by telephone and Alvin asked him "what the matter" was. Eugene stated that he and his wife had been ill. Alvin answered that he had heard Eugene had been looking for work. Loya denied this and offered to prove this by obtaining " some kind of statement." Alvin Ginsburg stated that this would not be necessary. He added that he would not need Loya any more. Alvin Ginsburg testified that on the evening of March 1, after Loya had been absent from work for 2 days, Earl Simmons told Ben Ginsburg that he, Simmons, had been informed that Loya had been seeking employment at K.C. Trucking Company.34 Thereupon, Ben Ginsburg instructed Alvin Ginsburg to terminate Loya. Alvin Ginsburg testified that he had received no communication from Eugene Loya concerning his absence from work, and on the evening of February 28, after Eugene Loya had been absent for 1 day, he asked Alfred Loya for information concerning his brother's whereabouts. According to Alvin Ginsburg, Alfred merely answered, in substance, jokingly, that "he was not his brother's keeper."35 33 Alfred Loya testified that this information was communicated to him by Eugene Loya not on Monday morning but during a conversation which he had with Eugene at Eugene's home on Sunday evening Alfred testified that he did visit with Eugene briefly on Monday morning but that no instructions were given to him on the occasion of that brief visit 34 Earl Simmons confirms the substance of this conversation but testified that it was after Loya was discharged that the conversation transpired Later on cross-examination he was unable to place the date of the conversation and showed a clear lack of certitude with respect to whether the conversation preceded or followed Loya's discharge I do not credit Earl Simmons with respect to his placement of the date of his conversation I believe it quite likely that in testifying at open hearing attended by other employees Simmons rationalized this facet of his testimony out of a desire to avoid the onus of seeming to serve in the role of an informer Indeed, at one juncture of Simmons' testimony he stated that he had proffered the information concerning Loya's job hunting venture to Ben Ginsburg after Ginsburg observed that Loya "hadn't shown up The following day, Tuesday, March 1, according to the testimony of Alvin Ginsburg, he conversed by telephone with Mrs. Eugene Loya. Mrs. Loya informed Alvin Ginsburg that Eugene was out of the house and Alvin requested that she have her husband call him "in the morning. "36 Alvin Ginsburg further testified that Eugene Loya called him by telephone on Wednesday morning, March 2. He testified that the call was received at approximately 9:30 or 10 a.m. after the other drivers had left on their routes. Ginsburg testified that he informed Loya that he had been absent for 2 or 3 days and that he received no messages from him during that period of time. Loya answered that his wife was ill and that he had been attending her. Ginsburg testified that he interjected with the observation that Loya had not informed him of this and Ginsburg further observed that he had received information that Loya had been looking for work. He stated that he had received an inquiry seeking a reference for employment.37 He informed Loya that he didn't want him "around any more. Eugene Loya testified that approximately a week prior to his discharge he had heard a rumor that K.C. Trucking Company, at which he had previously filed an application for work, was seeking drivers. Accordingly, he stopped during his lunch hour and made inquiry. Upon consideration of the foregoing record evidence I conclude and find that, contrary to the testimony of Alvin Ginsburg, he was informed by Alfred Loya on Monday, February 28, and on Tuesday, March 1, that Eugene Loya would not be reporting to work because of illness. However, I conclude and find that Respondent did become possessed of information indicating to management that Eugene Loya was seeking employment at a trucking firm and concluded upon this information that Eugene Loya was not ill but was endeavoring to find employment elsewhere. It is not unlikely that Alvin made some effort during the period of Loya's absence to contact the Loya residence by telephone and that he was unable to obtain a response to his call. It is likely, in this circumstance , that he concluded from this that Eugene's debility was feigned. Moreover, in light of the temperament of Ben Ginsburg and his propensity for strong, implusive action, the likelihood is great that, upon being informed by Earl Simmons of Eugene Loya's rumored effort to find employment at K.C. Trucking, Ben Ginsburg ordered Loya's immediate discharge and that Alvin Ginsburg acted [for work] for two or three days " The thrust of this testimony is clearly that the information was imparted after Loya's absence but before discharge action was taken Ben Ginsburg's testimony that this information was imparted to him either a week or two before Loya 's discharge must be evaluated in light of the marked imprecision with which Ben Ginsburg throughout his entire testimony fixed dates. It must also be evaluated against his further testimony, which I deem credible, that upon learning of Loya's job hunting venture he gave orders for Loya's immediate termination. I find the testimony of Alvin Ginsburg regarding the date of this conversation the more reliable. as However, at one point in his testimony Alvin Ginsburg conceded that at sometime during Eugene Loya's absence, his brother Alfred informed him that Eugene was ill as The parties stipulated that if called as a witness , Mrs Loya would testify that she received no telephone call from Alvin Ginsburg on either February 28 or March 1 or 2 30 Alvin Ginsburg testified that in point of fact he had received no such call BRUNSWICK MEAT PACKERS 897 in response to his father's direction without making what, in different circumstances, would otherwise be requisite inquiry into the actual health status of an employee set apart for discharge. I am convinced upon the record before me that Eugene Loya was terminated because he commanded, at best, an exceedingly marginal status from the standpoint of efficiency and desirability as an employee, and because Respondent's management became possessed of information which indicated to it that he was seeking to terminate his employment relationship. I find little in the way of credible evidence of the record to support the General Counsel's contention that Eugene Loya was terminated for union activities. While there is evidence revealing he was labeled a "trouble maker" by Ben Ginsburg, and, in substance, by Alvin Ginsburg, he was not a leading union advocate, and did no more in fostering the organizational efforts of the employees than to demonstrate, as 10 other employees had done, his union desires by the execution of a union authorization card and the affixing of his name to the notebook sheet. That other employees who had been ill had not suffered the discharge fate of Loya is not, on this record, probative, for the circumstances were dissimilar, and none had been under suspicion of job hunting. In all the circumstances, I conclude the mere coincidence in timing between the union organizational effort of Loya's discharge is not sufficient, even in the context of other unlawful conduct, to sustain the allegations of the complaint in regard to the discharge of Eugene Loya. F. The Refusal to Bargain 1. The bargaining demand and refusal a. The initial request for recognition On Monday, March 14, Anthony Spazioso, Herman Deveaux, and Timothy Lane, an associate of Spazioso, went to Respondent's premises and spoke with Alvin Ginsburg.38 After introductions were made, Spazioso asserted that he represented Respondent's employees as bargaining agent for Teamsters Local 294 and wanted recognition. He stated that he had in his possession a piece of paper which he desired Alvin Ginsburg to sign which would authorize him to bargain for Respondent's employees. Alvin Ginsburg observed that his father was out of town and that only his father had authority to sign such a document. Alvin Ginsburg stated that his father would possibly return that evening, or, on the other hand, without returning might go directly to Canada on business. He suggested that Spazioso make a definite appointment for later in the week to speak with his father. However, Spazioso pressed Alvin Ginsburg for an immediate recognition of the Union's status. Ginsburg insisted, nonetheless, that Spazioso speak with his father. During the course of the meeting which lasted approximately 5 minutes, Spazioso read the document in his possession aloud, in its entirety, to Alvin Ginsburg. The initial paragraph of the document read as follows: GINSBERG & COMPANY hereby recognizes International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 294 as the exclusive collective bargaining representative for its truck drivers employed at its place of business at Troy, New York and hereby agrees to bargain with said Union for the purpose of entering a collective bargaining agreement covering the wages, hours, and working conditions of said employees. The meeting ended with an understanding that Spazioso would speak with Ben Ginsburg.39 Later that morning, Alvin Ginsburg spoke with his father by telephone and informed him of the visit of Spazioso and Deveaux, and the purpose thereof. Ben Ginsburg stated he would meet with Spazioso on his return. Thereafter, Alvin Ginsburg contacted Herman Deveaux in an effort to obtain the telephone number of Spazioso. He subsequently spoke with Spazioso by telephone and informed him that his father would meet with him upon his return, either the following day, or later in the week. A tentative arrangement was made for a meeting on Friday, March 18. b. The written demand Thereafter, by letter dated March 16, Spazioso informed the Respondent that the Union had been designated by a majority of Respondent's truckdrivers as their collective- bargaining representative; offered to prove its majority status by a third party card check; and requested an "early meeting for the purpose of commencing the negotiations of a collective bargaining agreement...." Record evidence and testimony establish that Respondent received the letter on March 17. c. The March 17 telephone conversation In the late afternoon of March 17, Ben Ginsburg returned to the plant. Thereafter he was called by Spazioso and they conversed by telephone. Spazioso identified himself as a representative of the Teamsters and stated that Ginsburg's employees desired to have the Union represent them. He further said that, in this connection, he had a paper he desired Ginsburg to sign. Ginsburg invited Spazioso to come to the house and to speak with him and further asserted that he would study the paper and if it was "fair" he would sign it. Ginsburg further observed that he was in favor of the Union if the Union "would give him good help" but that he had i I reject the testimony of Anthony Spazioso and Herman Deveaux to the effect that they first met with Alvin Ginsburg on March 8 and demanded recognition The diary of Spazioso contains no confirmation of his testimony that the initial meeting transpired on March 8, and the testimony of Timothy Lane concerning a visit to the plant-which he described as having occurred on March 16-strongly indicates that the later meeting to which Lane testified was the first meeting between Ginsburg and Spazioso. Indeed the testimony of Herman Deveaux confirms that Lane was present on the first visit Considering these factors, and the credible testimony of Alvin Ginsburg placing the date on March 14, 1 reject the testimony of Spazioso with respect to the date of the initial recognition demand 3' The foregoing is predicated principally upon the credited testimony of Alvin Ginsburg as supported by that of Anthony Spazioso and Timothy Lane Timothy Lane testified credibly that he accompanied Spazioso to Respondent's premises and his testimony confirms that a demand for recognition was made by Spazioso upon Alvin Ginsburg He testified, as did Spazioso, and contrary to Alvin Ginsburg, that Spazioso read the recognition document aloud to Alvin Ginsburg I credit Lane and Spazioso. I am convinced that Alvin Ginsburg 's recollection of this detail of the meeting was not accurate. 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees whose work performance and punctuality were unsatisfactory, and inquired if the Union would countenance this type of performance. Spazioso observed that because of another assignment he could not meet with Ginsburg immediately and Ginsburg terminated the conversation on that note.40 d. Spazioso and Ben Ginsburg again converse Subsequently, on Friday, March 18, Spazioso again spoke with Ben Ginsburg by telephone. According to a composite of the credited testimony of Ginsburg and Spazioso, Spazioso again requested Ginsburg to extend recognition to the Union by signing the paper to which he had previously referred. The Union's letter of March 16 was also discussed during the course of this conversation and Ginsburg replied that he desired to have his attorney examine the letter. Spazioso stated that this was unnecessary because the letter was self-explanatory, but Ginsburg remained adamant, stating, in effect, that he was entitled to seek legal advice. He identified his attorney as Robert Gray. e. The prestrike union meeting On Sunday, March 20, Spazioso met with employees of Respondent and informed them that if the Company did not grant recognition to the Union he would call a strike.4 i f. The March 22 recognition demand On Tuesday morning, on March 22, Spazioso again came to the plant premises . He arrived shortly before 8 a.m. and spoke with Alvin Ginsburg. According to a composite of the credited testimony of Alvin Ginsburg and Anthony Spazioso, Spazioso stated that he wanted "somebody" to sign the recognition document, and Alvin stated that his father would be the person to sign the instrument . Spazioso responded that as the Union had not received recognition , the employees were going to strike. The conversation ended abruptly, upon Spazioso's immediate departure from the store premise S.42 g. Robert Gray and Anthony Spazaoso converse Thereafter on March 24, according to the credited testimony of Robert Gray, Gray conversed with Anthony Spazioso by telephone. Gray stated that the purpose of his call was to inquire if the Union intended to file a representation petition. Spazioso asserted that the Union had no intention of doing so, stating that it was incumbent upon the Respondent to come to the Union and to sit down and bargain. He inquired if Gray had received the Union's letter requesting bargaining which Ben Ginsburg had stated he would transmit to Gray. Spazioso observed that he had conversed with Ben Ginsburg and Ginsburg had indicated that he had no objection to the Union. Gray stated that he had received a similar impression but that the strike of March 22 had given rise to difficulty by reason of the fact that only 4 employees in a unit of 18 had supported the strike. Gray asserted that, as a consequence, Ben Ginsburg had concluded that his employees who remained at work were not interested in union representation. Gray again asked if the Union intended to file a representation petition and Spazioso answered that he did not intend to do so. Gray stated he would contact Spazioso again.43 h. The Respondent files RM petition The parties stipulated at the hearing that on March 25 in Case 3-RM-348 the Respondent filed a petition seeking an election in a unit of truckdrivers, mechanics, yard men, and clerks which petition, on May 10, was dismissed by the Regional Director. G. The Strikers Seek Reinstatement On April 26, Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd Shuhart served on Respondent a written document in which they stated their unconditional "offer to return to work at [their] former jobs." The signature of each was affixed to the document, as was that of Eugene Loya. The Respondent received this request on April 28. 40 With regard to the substance of this conversation , I credit the testimony of Ben and Alvin Ginsburg However, I find that they were mistaken as to the date of this conversation , and I find that it did not occur on March 14, as Alvin Ginsburg testified It is quite unlikely that, having conversed with Alvin Ginsburg on the afternoon of March 14 , and having scheduled a tenative meeting for Friday, March 18, Spazioso would initiate a call later the same evening This is particularly so if, as Ben Ginsburg credibly testified, Spazioso asserted his inability to immediately meet with Ginsburg because of a conflicting engagement The more reasonable explanation is that Spazioso called Ben Ginsburg at a time when he could reasonably anticipate the return home of Ben Ginsburg in an effort to give impetus to the Union 's recognition and bargaining demands which had been served upon Respondent 41 Alfred Loya places the meeting as having occurred the Sunday before the strike , and adhered tenaciously to this testimony I credit him He testified that this was the only meeting between Spazioso and the employees of which he was aware 42 Alvin Ginsburg testified credibly that at the time of the conversation in question his father was on the premises in the house but that Spazioso did not request an opportunity to converse with Ben Ginsburg, nor, because of the aggressive, terse , and abbreviated nature of Spazioso' s demands, was an opportunity for such a conversation accorded 43 I rely upon the testimony of Robert Gray and reject that of Anthony Spazioso I do not credit Spazioso with respect to his placement of the date of the conversation or his account of the subject matter of the conversation Nor do I credit Spazioso to the effect that his call to Gray was at his own initiative and not in response to an earlier call from Gray When first interrogated by the General Counsel during the General Counsel's case in chief concerning this conversation , Spazioso demonstrated, and, indeed, conceded, a vagueness of recollection It was not until called as a rebuttal witness that he demonstrated certitude concerning the details of the conversation I credit Spazioso to the extent of finding that during the conversation he did raise some question concerning Gray's receipt of the Union's bargaining demand However, implicit in Gray's testimony is an underlying assumption that as Ben (,insburg's attorney he was fully apprised of the status of the union demand upon the Respondent and, as a consequence, I reject Spazioso's testimony that Gray informed him during this telephone conversation that he had not received from Ginsburg the Union's bargaining request letter of March 16 BRUNSWICK MEAT PACKERS 899 H. The Unfair Labor Practice Strike 1. The strike commences Upon leaving the presence of Alvin Ginsburg the morning of March 22, Spazioso conveyed to waiting employees the information that Alvin Ginsburg had refused to execute the recognition document. Thereafter, four employees, Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd Shuhart, engaged in a strike and picketed the plant premises. Herman Deveaux also participated in the picketing. The balance of Respondent's employees, including truckdrivers and mechanics, worked behind the picket line.44 At the commencement of the strike the picket sign carried by the pickets and displayed at places away from the company premises read as follows: "Truck Drivers of Ginsburg Do Not Receive Union Wages and Benefits. Teamsters Local 294." A week later, and for the period preceding the April 26 reinstatement request of the strikers, the following picket sign was utilized at the plant premises: "Ginsburg Guilty of Unfair Labor Practices. Company refuses to bargain and fires Union supporters. Teamsters Local 294." 2. Respondent's telegraphic demand Alvin Ginsburg credibly testified that on March'22 he sent to the strikers, Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd Shuhart, the following telegram: You are directed to report to work 8 a.m. Wednesday, March 23, or you will be permanently replaced. 1. Conclusions 1. The appropriate unit I find, upon the evidence of record, that on March 17 the Union made a valid demand upon Respondent for recognition and bargaining in a unit of all truckdrivers, which unit, in the absence of a controlling history of bargaining and any competing representation claim, is one appropriate for the purposes of collective bargaining within the meaning of the Act.45 While I find that the Union did not specifically seek inclusion of the mechanic, his inclusion in the appropriate unit is requisite in light of the functional integration of his duties to those of the drivers and significant community of interest factors.46 However, this inclusion does not alter the essential nature of the unit , nor affect the Union's majority status'47 which, I hereinafter find, it commanded on March 17. In concluding and finding that the Union commanded a majority status on March 17, I find, however, contrary to the General Counsel, that Earl Simmons was a regular part-time employee who must be included in the unit herein found appropriate . Simmons had worked a substantial number of hours during the first calendar quarter of 1966 as well as during the preceding and subsequent calendar quarters. Additionally, he had substantial previous history of employment by Respondent, and the record establishes the likelihood of his subsequent employment by the Respondent during the winter and spring months of the years to come. These considerations require a finding, which I make, that Earl Simmons is a regular part-time employee.48 Additionally, I find that, as Herman Deveaux was discriminatorily discharged from his employment, he was properly to be included in the unit . However, as Eugene Loya and Melvin Smith were lawfully terminated prior to March 17, they are excluded. I find, contrary to Respondent, however, that employees • John O'Brien, Peter Babulas, and Wilma Bleau, who at pertinent times were employed as clerks in the general store, and thus had duties dissimilar and not functionally related to those of the truckdrivers and mechanics, need not be included in the unit here found appropriate .49 As they are excluded on a community of interest and dissimilarity of duty grounds, the question of the alleged temporary or casual nature of the employment of John O'Brien and Peter Babulas need not here be considered. Thus, I find the unit here found appropriate was comprised on March 17 of 15 employees. 2. The Union's majority status I further find that the authorization cards of Guy Hoag, Alfred Loya, James Nathan, Lloyd Shuhart, Aubrey Griffin, Herman LaClair, and Herman Deveaux may be counted in computing the Respondent's asserted majority. No witness testified at the hearing as to the precise circumstances under which Harold Woodward signed an authorization card. However, Guy Hoag credibly testified that he delivered a blank authorization card to Woodward and that the following day Woodward delivered a signed and otherwise completed card to him. The testimony of Hoag establishes that this transpired on or about February 23. The custody of the authorization card purporting to be that of Woodward from the time of said delivery by Woodward to Hoag, and by Hoag to Deveaux and thence to Spazioso, is established by credible evidence. In the circumstances, absent evidence reflecting adversely upon the genuineness of the signatures affixed thereto, the authenticity of the card of Harold Woodward is sufficiently established to warrant its inclusion in a computation of the Union's majority.50 However, as neither Eugene Loya nor Melvin Smith retained status as employees on March 17, I do not include their cards in determining the Union's majority. In view of the foregoing, I find that the record establishes that as of March 17, Respondent had been designated as collective- bargaining representative by at least 8 employees in a unit of 15.51 44 The foregoing is predicated upon the credited testimony of Anthony Spazioso, as supported by that of Alfred Loya 45 E H Koester Baking Co , Inc , 136 NLRB 1006, Queen City Transports, 141 NLRB 964, 973 46 See Queen City Transports, supra 47 E.g United Butchers Abattoir, Inc , 123 NLRB 946, 956, American Rubber Products, Corp , 106 NLRB 73,76 48 See Motor Transport Labor Relations, Inc , 139 NLRB 70, 72, C T L Testing Laboratories, Inc , 150 NLRB 982, 984-985 44 A unit of truckdrivers and mechanics is not the only appropriate unit of Respondent's employees, but it is an appropriate unit, and the only unit which a labor organization was seeking to represent. 5" See I Tattel and Son, 119 NLRB 910, 912, Hunter Engineering Company, 104 NLRB 1016, 1020, cf Pizza Products Corporation 153 NLRB 1265, 1269, Winn-Dixie Stores, Inc , 153 NLRB 273,306 Si It is therefore unnecessary to determine whether the alleged membership of Joseph Gilbert in the Union as of March 17 need be considered in arriving at the Union's majority status The authorization card purporting to be his designation, containing no signature, manifestly may not be regarded as a valid designation 298-668 0-69-58 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The unlawful refusal to bargain I further find that the Respondent 's refusal to recognize and bargain collectively with the Union on and after March 18,52 was based not upon a good -faith doubt of the Union's majority status, but upon a rejection of the principle of collective bargaining; and upon a further consideration that to refuse negotiations would serve to bring a successful culmination to the month-long campaign of unlawful interrogation and coercion designed to undermine the Union , upon which campaign the Respondent embarked in learning of the desire of the employees to organize . In context of this campaign after receiving the Union's March 16 bargaining demand, Ben Ginsburg on March 18 sought to delay recognition and bargaining , and on March 24, through his attorney , sought indefinitely to postpone it pending an election. In the atmosphere created by its unlawful campaign and the related unlawful discharge of Herman Deveaux, the leading employee proponent of unionization , the erosion of at least overt union allegiance of employees was manifestly foreseeable. Respondent may not , then, defend its refusal to grant recognition upon evidence establishing the inability of the Union upon calling the March 22 strike, to command the support of a majority of the employees which it sought to represent. Nor, in the aforementioned circumstances , does Respondent's refusal to recognize and bargain collectively with the Union find sanction in Respondent's abstinence from any unlawful conduct on and after the date of the Union 's bargaining demand. In circumstances, here found to exist , revealing affirmatively an employer's bad faith and manifesting its rejection of the collective-bargaining principle , it is of no material consequence that conduct calculated successfully to undermine the union precedes rather than follows the bargaining demand.53 4. The strike and the refusal to reinstate I further find that the March 22 strike was caused by Respondent 's unlawful refusal to recognize and bargain collectively with the Union, and that, as a consequence, it was an unfair labor practice strike from its inception. In so finding, I have evaluated the evidence revealing that the picket sign utilized at the beginning of the strike was of the variety typically used in an organizational effort . Whatever the explanation for the use of this picket sign , the evidence is convincing that at this point in time, the Union had a recognition objective ; and the evidence is similarly convincing, and I find, that the employees struck in compliance with the decision reached at the union meeting on March 20 to do so if, upon demand , Respondent refused to recognize and bargain with the Union. I further find that the Respondent's refusal to recognize and bargain with the Union was the principal, if not sole, causative factor of the strike. Si I find no violation based on the statements or conduct of Ben Ginsburg during his March 17 conversation with Anthony Spazioso While I am of the opinion that at no time after the receipt of the Union 's March 16 bargaining demand did Respondent intend to bargain in good faith with the Union, this suspicion does not find requisite record substantiation until consideration is given to the reticence of Ben Ginburg on March 18 presaging Respondent 's refusal to recognize the Union and enter into negotiations with it. 51 See Becker County Sand & Gravel Company, 157 NLRB 557, I find also that, as the strike was an unfair labor practice strike, in sending the telegram of March 22 to the strikers demanding their return to work on March 23, Respondent violated Section 8(a)(1) of the Act .54 Further, in refusing pursuant to their joint unconditional request of April 26 to reinstate striking employees Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd Shuhart, displacing, if necessary, all drivers hired on or after March 22, Respondent violated Section 8 (a)(1) and (3) of the Act.55 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of' Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3 ), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has discriminated against Herman Deveaux by discharging him on March 2; and against Aubrey Griffin, James Nathan , Alfred Loya, and Lloyd Shuhart by failing and refusing to reinstate them to their former positions of employment immediately upon their unconditional request for reinstatement, dated April 26, 1966, I shall recommend that Respondent cease and desist therefrom and offer to each of said employees, save Aubrey Griffin who was reinstated on May 28, reinstatement to his former or substantially equivalent position of employment and make them whole for any loss of pay they may have suffered because of the discrimination against them , by payment to them of a sum of money equal to that which they normally would have earned in Respondent's employ from the date of discharge , or the date of their unconditional request for reinstatement , as the case may be , to the date of Respondent's offer of reinstatement (or, in the case of Aubrey Griffin, to the date of his actual reinstatement), less net earnings, if any , during said period . Loss of pay shall be computed upon a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289 , with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Joy Silk Mills, Inc , 85 NLRB 1263, enfd in relevant part 185 F 2d 752 (C A D C ), cert denied 341 U S 914, cf. Aaron Brothers, Company of California, 158 NLRB 1077, John P Serpa, Inc, 155 NLRB 99; Houston Sheet Metal Contractors Association, 147 NLRB 774, Corrosion Coating Company of West Texas, Inc., 157 NLRB 166 5i US Sorties Corporation, 135 NLRB 818, 825 55 See, e.g, Webb Fuel Company, 135 NLRB 309, enfd 308 F 2d 936 (C.A. 6) As found above, the record reveals that Aubrey Griffin was reinstated on May 28 CONCLUSIONS OF LAW BRUNSWICK MEAT PACKERS 901 1. The Respondent, Ben Ginsburg, Inc. d/b/a Brunswick Meat Packers, Brunswick Tallow Co., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the At. 2. Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Herman Deveaux on March 2, and by failing and refusing to reinstate to their former or substantially equivalent positions of employment employees Aubrey Griffin, James Nathan, Alfred Loya, and Lloyd Shuhart (the former until May 28) despite their April 26, 1966, unconditional offer to return to work, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. Since March 17, the Union has been at all material times the statutory bargaining representative of Respondent's employees in the following appropriate unit for purposes of collective bargaining: all truckdrivers and mechanics employed at Respondent's Brunswick, New York, place of business, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. 5. By refusing on and after March 17, 1966, to recognize the Union as the collective-bargaining representative of Respondent's employees in an appropriate unit, and to bargain collectively with the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By interrogating employees concerning their union activities, by giving its employees the impression that their union activities are under surveillance , and by threatening employees for engaging in union activities the Respondent has engaged in unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 7. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby recommended that Respondent, Ben Ginsburg, Inc. d/b/a Brunswick Meat Packers, Brunswick Tallow Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization, by discharging or otherwise discriminating against employees because they have engaged in union or concerted activity or seek to bargain collectively through a representative of their choosing. (b) Refusing to bargain collectively, upon request, with the Union as the statutory collective-bargaining representative of its employees in a unit appropriate for the purposes of collective bargaining. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist the Union or any other labor organization of their choosing, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activity. 2. Take the following affirmative action which is necessary to effectuate the purposes of the Act: (a) Offer Herman Deveaux, James Nathan, Alfred Loya, and Lloyd Shuhart immediate and full reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and make them, together with Aubrey Griffin, whole for any loss they may have suffered by reason of the discrimination against them in the manner set forth in the section entitled "The Remedy." (b) Upon request bargain collectively with the Union as the bargaining representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel cards and reports, and all other records necessary to analyze the amount of backpay due under this Recommended Order. (d) Post at its premises at Brunswick, New York, copies of the attached notice marked "Appendix B."5fi Copies of said notice, to be furnished by the Regional Director for Region 3, after being duly signed by Respondent's representative, shall be posted by Respondent 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. (e) Notify the Regional Director for Region 3, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.57 se In the event that 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 In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " ' In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX B 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by discharging or otherwise discriminating against employees in regard to their 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, 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. WE WILL offer Herman Deveaux, James Nathan, Alfred Loya, and Lloyd Shuhart immediate and full reinstatement to their former or substantially equivalent positions of employment, without prejudice to their seniority or other rights and privileges, and make them, together with Aubrey Griffin who was reinstated on May 28, 1966, whole for any loss of wages that they may have suffered as a result of our discrimination against them because of their union or concerted activities. WE WILL bargain collectively, on request, with Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of employees in the bargaining unit described below with respect to wages, rates of pay, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and mechanics of Ben Ginsburg, Inc. d/b/a Brunswick Meat Packers, Brunswick Tallow Co., employed at the Company's Brunswick, New York, place of business, excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. All of our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amended. BEN GINSBURG, INC. D/B/A BRUNSWICK MEAT PACKERS, BRUNSWICK TALLOW CO. (Employer) Dated By (Representative) (Title) Note: We will notify any of the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement 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. 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, 4th Floor, 120 Delaware Avenue, Buffalo, New York, Telephone 842-3100.