City Electric Co.

844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD City Electric Company and International Brotherhood of Electrical Workers, Local Union 278 , AFL-CIO. Case 23-CA-2400. May 22, 1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On January 25, 1967, Trial Examiner Eugene E. Dixon issued his Decision in the above- entitled case, 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 Respondent filed exceptions and a supporting brief. 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 exceptions and brief, 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 adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent , City Electric Company, Victoria , Texas, its officers , agents, successors , and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act, was heard at Victoria, Texas, on September 21 and 22, 1966. The complaint dated July 8, 1966, based upon charges filed and served on May 27, 1966, was issued by the Regional Director for Region 23 (Houston, Texas) on behalf of the General Counsel of the National Labor Relations Board (herein called the General Counsel and the Board). The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices by various specified conduct, including its failure to bargain in good faith with International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO (herein called the Union), as the bargaining agent of a majority of its employees in an appropriate unit and by discriminatorily discharging two employees, thus violating Section 8(a)(1), (3), and (5) of the Act. In its duly filed answer Respondent denied the commission of any unfair labor practices. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. RESPONDENT'S BUSINESS At all times material herein Respondent has been a corporation duly organized under and existing by virtue of the laws of the State of Texas, having its principal office and place of business in Victoria, Texas, where it is engaged in the business of electrical contracting. During the 12 months preceding the issuance of the complaint Respondent, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50,000 from various enterprises located in the State of Texas, which enterprises had received the same goods and materials directly from States other than the State of Texas. Respondent at all times material herein has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES Because the various allegations of violations of the Act are all so interrelated, I shall not treat the evidence under separate subject headings but will set forth the facts in essentially chronological order and will then by subject matter dispose of the contentions and concluding findings. In early December 1965 John M. Woods, age 20, talked to Respondent President Herbert Meyer about working for Respondent. In this conversation Woods disclosed that he was currently working for a contractor by the name of Marshall and that he was running a job for Marshall at the Patti Wilder Junior High School. Meyer asked how soon Woods could come to work. Woods replied that he could report as soon as he finished the school job. Meyer also asked Woods if he had a license.' Woods replied that he did not but that his application was in and that he would have a license before he came to work. On January 16, 1966, Woods began working for Respondent as a journeyman electrician, having received his license in the meantime. From the time he was hired to May 23 (the day he was discharged) Respondent hired four people in the unit-three of them electricians helpers (among whom was James Garland, an alleged discriminatee) and one journeyman. After his discharge Respondent also hired two employees. Woods' starting rate was $2.25 an hour. Sometime around March 1, he received an increase of 25 cents an hour. This increase was granted on Meyer's own volition when he learned that Woods had been offered more money ' The license in question is a municipal license conferring the status of journeyman on an applicant after he has completed a 3- year apprenticeship and passed an examination 164 NLRB No. 116 CITY ELECTRIC CO. 845 by a competitor. Prior to receiving the increase, Woods had not "actually run jobs" for Respondent. After he got the raise, according to Woods' cross-examination, he worked on jobs more by himself than he had worked before. About the time or somewhat prior to the time that Woods received his wage increase, there had been general discussions among the employees about the Union's attempt to organize various contractors in the Victoria area. Woods discussed with other employees the possibility of organizing Respondent's shop. In the first week of March, Woods had an initial and apparently lengthy telephone conversation with John Delane, the Union's assistant business agent. They talked about union benefits, working conditions, and wages and about organizing Respondent's employees. Two or three weeks later, Woods met with DeLane about the same subject at the latter's home and apparently took some union application cards with him when he left. Thereafter Woods, along with his helper James L. Garland, talked about the Union to various employees in groups of two or three, and Woods in effect became an "inside the Company organizer" for the Union. According to Woods' undenied and credited testimony, in mid-April before work one morning he came upon Meyer and employee Bankhead as they were engaged in a conversation about unions. Bankhead indicated that he might sign a union card. When Meyer gave an example of how union membership had presumably been a disadvantage to some employees engaged in a strike, Bankhead said that if he found that he did not like the Union, he "could just quit." Meyer retorted that "by that time . . . he would . have himself messed up with everyone in town" and would not be able to get a job. According to Woods' further credited testimony, on another occasion during the first part of May, Jack Meyer, an employee and the brother of President Herbert Meyer, asked his brother if he had gone union yet. Herbert replied that he had not. Woods looked up from some blueprints he was studying and Herbert Meyer asked Woods if he "had signed a union card yet." Woods said that he had not and Meyer replied, "Well, if I was you, I wouldn't sign a card because it would cause a lot of trouble for you." According to the undenied and credited testimony of employee Elton L. Bues, about a week after he signed a union card (which was on April 27,1966), he had come into the shop to see Meyer about something. At this time, Meyer asked him if the union men had come by to talk to him. Meyer told Bues that if he "had thought of signing a S About the middle of May DeLane and Business Agent Tucker called on Meyer When Meyer learned from the office girl that the two men who wanted to see him were from the Union, he refused to see them S About this incident DeLane testified as follows I walked in the front office There was no one in the office at the time And Mr Meyer's office was open I stood in the door I saw he was on the telephone I raised my hand to say "Hi" He said, i will be with you in a minute I went back in the front office, sat on the couch, and a while later , when he finished his telephone conversation, he came in and said , "What can I do for you?" And I said, "I came to set a date where we could negotiate ," that we represented 80 per cent of his employees and he said , "You do know [sic] such of a thing. Now, get out of here. I am going to throw you out " He ran to the door He opened the door Came over to the couch, grabbed me by both shoulders I stood up And we scuffled, and I pushed clear Jack Meyer came from the back union card, he would rather [ Bues] quit before [he] caused any trouble." He further told Bues to watch his step and not to "get into any deep water." Jack Meyer was present at this time. On April 27 the Union had written a letter requesting recognition by Respondent as the duly designated collective-bargaining agent of Respondent's employees- of which more later. From that time to May 20, DeLane had been unsuccessful in his attempts to see Meyer. On May 19, DeLane had told Woods about his difficulty in seeing Meyer, claiming that Meyer kept "putting him off."2 Woods suggested that DeLane go to the shop at noon to see Meyer when the employees usually came in from their jobs, explaining that he "didn't think Mr. Meyer would make a scene" under those circumstances. The following day, Woods and his helper, Garland, went to the shop during the noon'hour. As they approached from the rear, they saw DeLane leaving the shop from the front. He stopped and started taking notes on the fender of his car. Woods waved and DeLane waved back. Then Woods went into the shop where "the atmosphere was a little unstable" and employees were talking about DeLane having just been bodily thrown out by Meyer.3 At this point, Meyer and his brother Jack came into the shop from the front part and asked various employees if they had signed union authorization cards. Some said they had and some said they had not.4 About a week after this incident Business Agent Tucker called on Meyer alone. Meyer's uncontradicted and credited testimony about this visit was as follows: Well, Mr. Tucker came in and he was very nice, and I shook hands with him, asked him what I could do for him. He said, "I would like to talk to you." I said, "Fine, come on in." He came in, sat down in a chair. We sat there and chitchatted back and forth for a few little-maybe we might have started talking about the weather or something. And I asked how many electricians were signed up in Corpus. He told me, "Well, the biggest majority of them are." He said, "There's a few that's not." And so he said, "Herb, you ought to sign up." He said, "I can take two of your men right now if I want to." The testimony of Herbert Meyer reveals that he was aware, in 1965, that there was a union representing electricians in the Victoria area and making an effort to organize them at that time. He conceded that he may have been contacted during that year by representatives of the rooms and said "You boys break it up." And Mr Meyer pointed again to the door. He said, "Now, you get out of here " And Jack Meyer said, "You heard the man say get out. Now, get out " So I turned, started to leave Mr Meyers [sic] says, "Don 't ever come back " And at this point I stopped , I turned around, I said , "Yes, I will be back , and when I do I will have a Federal man or agent with me." And I turned around and left. There was no basic conflict in Meyer's version of the incident except that it was only after DeLane had refused Meyer's invitation to leave the premises that the latter threatened to and did take direction to eject DeLane 4 The foregoing is from Woods' testimony corroborated by Garland's There is a conflict between the General Counsel's and Respondent's evidence as to whether or not Woods and his helper had gotten into the shop in time to witness Meyer' s interrogation of the employees Since the interrogation was admitted by Meyer, and corroborated by another of Respondent' s witnesses , I credit Woods 846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union. He admitted that, from time to time, he had "had discussions with other electrical companies or contractors in the area about whether their shops [were] organized or not." He also admitted that on April 12, 1966, DeLane had called on him and had asked him if he was bidding a certain job. He told DeLane at this time that he was, but asked him to call back later to talk to him about it. A few days later, DeLane called to tell him that since he was bidding the job, he thought he ought to call Meyer to tell him what the union scale was. Meyer's comment was, "Well, I plan on bidding it open shop, and if I get the job, I plan on doing it open shop." Thereafter Meyer got a call from another contractor in the area, one Hanselka, who informed Meyer that he had received a letter from Local 2785 and asked if Meyer had received one. Meyer replied that he had not. On April 28, the Union posted a letter in Corpus Christi by certified mail to Respondent requesting recognition as the collective-bargaining representative of a majority of Respondent's employees exclusive of material expediters and supervisory and clerical employees. At this time, there were 13 of Respondent's employees in such a unit (which I find to be an appropriate unit for collective- bargaining purposes under the Act) and the Union had authorization cards from 7 of those in the unit.6 When Meyer's bookkeeper informed him that he had a certified letter at the post office, Meyer asked her where it was from. She told him that it was from Corpus Christi.' Meyer told her to "leave it there," and admitted on the stand that he "had an idea" that the letter was from the Union. Knowing of this letter and the one that Hanselka had received, Meyer then proceeded to ask "some of [the employees] if they had signed a [union ] card." On Monday, May 23, when Woods and Garland reported for work they were discharged. As for the details of his discharge Woods testified credibly as follows: When he got to work that morning, after filling out his timecard he turned around and Meyer asked him to step into the office. There, Meyer closed the door and asked him to sit down. Meyer then said, "Woody, I'm going to have to lay you off." Woods was not sure he had heard correctly and asked what he had said. Meyer then repeated the statement. As the reasons for the layoff Meyer told Woods that he had lost a lot of money in a loan company and that his doctor had said that the Company was getting too big and that he had heart trouble. Woods said that he understood and Meyer said that he could either wait for his check or pick it up some other time. Woods said that he would pick it up at noon and Meyer said that he would be paid for a full day. They shook hands. Woods said that it had been nice working for him and Meyer said, "Well, Woody, I know you can find a job because you are [either] a good man [or] a good electrician " Woods thanked him and Meyer asked him how his eye injury was getting along (he had received an injury the week before) and Woods said it was doing all right. Meyer also said that if he had any trouble (presumably in getting a job) he would take 5 Meyer claimed that Hanselka did not say "what was in the letter " This is patently incredible unless there were other circumstances not revealed in the record which made it unnecessary for Hanselka to describe the contents of the letter I find that whatever the fact was, Meyer was at least aware that the letter in question had to do with the Union's organizing campaign " Respondent would void two of these cards signed on April 27 (those of Felix Rosas, Jr , and E L Bues) on the grounds that they had been signed after DeLane had talked to Business Agent Tucker on April 27, presumably about the Union's letter to care of it for Woods. Then Meyer opened the door and told Jack Meyer to let Woods out and get his tools. So Woods shook hands with Jack and told him that it had been nice working for him and that was that. During the interview, Meyer also had told Woods that he was going to have to lay off some other employees at this time. As for the details of Garland's discharge, he testified credibly and without denial as follows: Well, I went to work and there were two or three employees standing around outside by the trucks and the sliding door was shut and locked, and ... I didn't know if just nobody had showed up yet to open the shop or what, so I knocked on the door and somebody unbolted it and slid it open, and Mr. Herbert Meyer asked me to come into his office and sit down, and so I did, and he said that he was either going to have to turn me loose or let me go, I don't recall which, and that he had lost a lot of money in Coastal Loans, and that he was having some heart trouble, and that there were a lot of people on his back, and that he was just going to have to cut down on his work because there was too much strain, and then I asked him if the union trying to organize the shop was adding to the strain. ... He replied that he didn't mind telling me it was a good part of it. Meyer also told Garland at this time that whenever he saw Garland on the job he always seemed like he "was really trying."' He also told Garland while he was waiting for his check that if he did not find anything in a couple of weeks to come back "and he would see what he could do." On May 25, the Union sent the following telegram to Respondent: Request immediate reinstatement of John H. Woods and James L. Garland and meeting to discuss reinstatement and arrange date for contract negotiations. Please confirm meeting today by calling me room 86 Totah's Hotel while I and IBEW attorney still in town so that further legal recourse be unnecessary. The Union's letter of April 27 requesting recognition, which Meyer had refused to accept, was not returned by the post office to the Union until about May 20. When it was returned Business Agent Tucker's secretary simply took it out of its envelope, placed it in another one, and posted it again, certified mail, returned receipt requested. The return receipt shows that it was delivered to Respondent on May 31, 1966. Contentions and Concluding Findings A. Interference, Restraint, and Coercion The General Counsel has alleged various incidents of illegal interrogation by Respondent and threats of discharge or other reprisals in violation of Section 8(a)(1) of the Act and contends that the foregoing evidence sustains such allegations . I agree. Specifically, I find that Respondent claiming to represent a majority of the employees Whatever the fact, it is clear that the letter was not posted until the 28th, the day following the signing of the two cards in question, and that the Union did represent a majority at that time The Union's headquarters were located at Corpus Christi Garland had started working for Respondent as an electrician's helper on March 1, 1966 His prior experience included 4 years of electrical work in the Navy and 3 years with another electrical contractor During most of his tenure with Respondent Garland was assigned to work with Woods CITY ELECTRIC CO. by the following incidents Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act: 1. Meyer's interrogation of Woods in early May as to whether he had signed a union card and his threat to Woods not to sign "because it would cause a lot of trouble" for him. Respondent's contention that here there are "no circumstances from which a reasonable tendency to restrain or interfere can be inferred" is rejected. 2. Meyer's interrogation of Bues in early May as to whether the union men had been by to see him, and his threats to Bues at that time that his signing of a union card would cause trouble and not to "get into any deep water." Respondent's contention here that the only logical interpretation of Meyer's interrogation was that Meyer was interested in learning if the union men had interfered with the job is refuted, I believe, by his coupling his question with his threats about signing a union card. 3. Meyer's admitted interrogation of the employees on May 20. B. Dtscrimtnatton In my opinion, by the foregoing facts, the General Counsel has also established a prima facie case supporting a finding that the discharges of Woods and Garland were discriminatory within the meaning of Section 8(a)(3) of the Act. As a defense to the allegations of discrimination, Respondent relies on the undenied and credited testimony of Clarence Milberger, a journeyman electrician of some 13-1/2 years' tenure with Respondent, to whom other employees upon occasion went for help. Milberger testified that on four occasions he was called on by Meyer to correct work that Woods had done. On three iccasions the trouble involved improper connections of breaker switches and was immediately obvious to Milberger who was able to correct it then and there by simply making the proper connections. One of the jobs had to do with a failure to get power to some house trailers. Milberger discovered that the cause of this failure was due to some bad connections on the power pole and again in a few deft moves he was able to correct the trouble. Besides this testimony by Milberger, it appears that on May 20 Woods and his helper, Garland, were working on a job at the Christopher Inn. About this job Meyer testified as follows: ... Woody had been running that job out there for a good while. And Woody is a good boy, but he missed a bunch of the partitions. Mr. Tommy Tighe was on the job out there quite a bit, who is one of the four owners in Christopher Inn, which is owned, the way I understand, Don Krueger, Chris DiStefano, Tommy Tighe and Gene Weatherly, and Mr. Tighe asked me to remove Woods off the job? ... Well, Tommy called me and I went out there and looked at the situation, and then we went and had a cup of coffee, and he asked me, he said, `Herb, ain't there some way that you can take that guy off that job?"' 'The record does not show why Tighe made the request and Tighe was not called as a witness "' The seriousness of Woods ' shortcomings , in any event, here seems somewhat tenuous considering his age and inexperience Moreover , the voluntary increase given him by Meyer (before the advent of the Union) tends to further undermine the force of Respondent's position it After all , another journeyman had been hired after Woods was hired 11 Notwithstanding journeyman Milberger's testimony that on 847 From the cross-examination of Meyer, it appeared that Tighe had no working connection with the job but that having "quite a bit of time on his hands" he spent it there; that the general contractor on the job was a Don Krueger; that Krueger's brother, Virgil, was superintendent on the job; and that Meyer had talked to both the Kruegers before May 20 about the job but so far as the record shows no mention was made of Woods. As for the two people who came to work for Respondent after Woods and Garland were terminated, Meyer explained that one was his nephew who had worked for him from time to time including the previous summer while going to school and that he had recently joined the Air Force and was working temporarily before leaving for the service. The other was his teenage son who has been working or tinkering around in the shop during summer vacations since he was 10 years old. While Respondent's evidence of improper work may tend to show some justification for the termination of Woods,"' it is not convincing enough in my opinion to override the strong indicia of discrimination here-the timing of the discharges so soon after the dramatic confrontation between the union business agent and Meyer, the failure to give Woods any prior warning of the claimed dissatisfaction with his work, and the failure to apprise him of the true reasons for his selection for termination." These things considered, along with the leading part Woods played in the union campaign, the demonstrated opposition of Meyer to the Union, and the warnings Meyer gave to Woods about how his joining the Union could cause him trouble, convince me that Woods' discharge was motivated in substantial part by the Union's attempt to organize Respondent's employees, and as such was discriminatory within the meaning of Section 8(a)(3) of the Act. Indeed, by Meyer's own admission this was the fact. As for Respondent's contention that it had no knowledge of Woods' or Garland's union activities when they were discharged, it seems to me that, true or not, Meyer's admission that the Union's organizing efforts played "a good part" in the discharges disposes of this defense. 12 In any event, considering the small size of the unit, and the interrogation to which Meyer submitted his employees regarding their signing of union cards, I believe that the inference is fully warranted that Respondent did, in fact, have knowledge of the union activity of these employees when they were discharged. C. The Refusal to Bargain As previously shown, on April 28, 1966 (the day that the Union's letter requesting recognition was mailed to Respondent), the Union represented a majority of Respondent's employees in an appropriate bargaining unit. Respondent's position in substance apparently is that since it refused to receive the Union's letter until May 31, occasion he had two helpers working with him and might even have as high as four helpers assigned to work with him, Respondent's position regarding the termination of Garland is that since "Garland was a helper to Woods and since Woods was terminated the Respondent could not utilize Garland on any other crew " Whether true or not (the mdicia of discrimination applicable to Woods' case are equally applicable to Garland's) having found that Woods' discharge was discriminatory it follows that perforce so is Garland's 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it had no valid request for recognition until that time,13 and that in any event, if it could be said that a valid demand for recognition had been made, Respondent's refusal to recognize and bargain with the Union was based on its good-faith doubt that the Union did, in fact, represent a majority of the employees. I disagree with the Respondent on both counts. Clearly, Respondent can hardly claim that no bargaining demand was made where it "refused to receive communications" from the Union. N.L.R.B. v. Columbian Enameling & Stamping Co., Inc., 306 U.S. 292, 297. Its letter of demand having been rejected, the Union was under no further obligation to communicate a demand.14 In any event, I would find that in the circumstances here DeLane's claim of majority representation and request for negotiations on May 20 were an adequate demand for recognition. Moreover, since I have found that the discharges of Woods and Garland were discriminatory those two must be included in any computation of majority representation as of May 31. As of that date there were 14 employees in the unit and with the cards of Woods and Garland the Union represented 9 of those employees-a clear majority. As for the question of good faith here on the part of Meyer, at the outset it is impugned by his refusal to accept the Union's certified letter and to see the Union's representatives. See Filler Products, Inc., 159 NLRB 1536. Thereafter, any claim of good faith is further refuted by his illegal conduct which clearly demonstrated his rejection of the policies of the Act and the collective bargaining that it encourages. I find therefore that from April 29 (the day that the Union's letter of April 27 should normally have reached Respondent) Respondent refused to bargain with the Union and that such refusal violated Section 8(a)(5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with its operations 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 that it take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent, upon request, be ordered to bargain with the Union concerning rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. I shall also recommend that Respondent offer John H. Woods and James L. Garland immediate and full reinstatement to their former or substantially equivalent positions and that they be made whole for any loss of pay from the dates of their discharge to the date of the offer of reinstatement less their net earnings during that period. Loss of pay shall be computed and paid in accordance with the formula adopted by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon at the rate of 6 percent per annum as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. The unfair labor practices committed by Respondent involve conduct in derogation of the principles of good- faith collective bargaining. The inference is thus warranted that Respondent maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights in general. Accordingly, I shall recommend that Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. City Electric Company is and at all times material herein has been an employer within the meaning of Section 2(2) of the Act. 2. International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, is and at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating against its employees, as found above, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By failing and refusing to bargain in good faith with the Union as the representative of all of Respondent's employees, excluding clerical employees, material expediter employees, guards, watchmen, and supervisors, as defined in the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, I recommend that Respondent, City Electric Company, Victoria, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership of its employees in International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, or any other labor organization by discriminatorily discharging or in any other manner discriminating against them in regard to their hire, tenure of employment, or any term or condition of employment. (b) Refusing to bargain collectively with the International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, as the exclusive representative of all Respondent's employees excluding clerical employees, " It denies that DeLane's claim of majority representation and 925 (C A 2), Local No 152, International Brotherhood of request for negotiations to Meyer on May 20 was a legally binding Teamsters v N L R B (American Compressed Steel), 343 F 2d 307, demand for recognition 309 (C A D C ), N L R B v Burton-Dixie Corporation, 210 F 2d 14 Scobell Chemical Company, Inc v. N L R B, 267 F 2d 922, 199, 200 (C.A 10) CITY ELECTRIC CO. material expediter employees, guards, watchmen, and supervisors, as defined in the Act. (c) Illegally interrogating its employees about their union activities, membership, or sympathies. (d) Threatening its employees with discharge or other reprisals because of their union activities. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to bargain collectively through representa tives of their own choosing, or to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Offer to John H. Woods and James L. Garland immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole in the manner set forth in the section of this Decision entitled "The Remedy." (b) 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 records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Upon request, bargain collectively with International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, as the exclusive representative of Respondent's employees in the appropriate unit and embody in a signed contract any understanding reached. (d) Post at its shop in Victoria, Texas, the attached notice marked "Appendix."15 Copies of said notice, to be furnished by the Regional Director for Region 23, shall, after being duly signed by an authorized representative of Respondent, be posted by Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.'s IT IS FURTHER RECOMMENDED that unless on or before 20 days from the receipt of this Decision the Respondent notifies the aforesaid Regional Director, in writing, that it will comply with the foregoing Recommended Order, the National Labor Relations Board issue an order requiring it to take such action. 15 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 " i6 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 23, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES 849 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 WE WILL NOT discourage membership in the International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, or in any other labor organization, by discriminatorily discharging them or in any other manner discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with the aforesaid Union as the exclusive bargaining representative of all our employees, excluding clerical employees, material expediter employees, guards, watchmen, and supervisors, as defined in the National Labor Relations Act. WE WILL NOT illegally interrogate our employees concerning their union activities. WE WILL NOT threaten our employees with discharge or other reprisals for engaging in union activities or joining a union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form, join, or assist the aforesaid Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer John H. Woods and James L. Garland immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges and make them whole for any loss of pay suffered as a result of our discrimination against them. WE WILL, upon request, meet and bargain collectively with International Brotherhood of Electrical Workers, Local Union 278, AFL-CIO, as the exclusive bargaining representative of all our employees in the above-described appropriate bargaining unit; concerning 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. All of our employees are free to become or remain, or refrain from becoming or remaining, members of the aforesaid Union or any other labor organization. CITY-ELECTRIC- -COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-0611, Extension 4721.