Davis Wholesale Co., Inc.

DAVIS WHOLESALE CO. Davis Wholesale Co., Inc. and Food Store Employees Union Local #34 7, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Cases 9-CA-3599 and 9-CA-3742. June 12, 1967 DECISION AND ORDER By MEMBERS FANNING, JENKINS, AND ZAGORIA On January 3, 1967, Trial Examiner Robert E. Mullin issued his Decision in this proceeding, finding that 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. He also found that Respondent had not engaged in certain other unfair labor practices, and recommended that allegations of the complaint pertaining thereto be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision, which included supporting arguments. 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 these cases 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 the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 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, Davis Wholesale Co., Inc., Culloden, West Virginia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as hereinafter modified: 1. In the fifth sentence of paragraph 2(f) delete the word "by" and substitute the word "be." 2. In the fifth paragraph of the Appendix attached to the Trial Examiner's Decision, beginning with the second sentence, delete the words "to his former or substantially equivalent position without prejudice," as these words are thereafter repeated. 3. In the seventh paragraph of the Appendix, delete from the unit description the words "office 271 clerical guards" and substitute the words "office clerical employees, guards." I In fn 19 of his Decision, the Trial Examiner found that employee Gibbs was suspended on May 28, 1965, in fn 44 he fixes the date at May 27 The record shows, and we rind, that the correct date is May 28, 1965 In the third and fourth from last paragraphs of sec D, 1, of his Decision, the Trial Examiner refers to "Lintel Crum" and "Louis Crum " The record shows this is the same person, and the correct name is Louel In the third sentence of fn 10 of his Decision, the Trial Examiner refers to "President Johnson", this should read "President Davis " 2 The Trial Examiner recommends that certain of the allegations of the complaint pertaining to Sec 8(a)(1) be dismissed, and further that the allegation that the suspension and ultimate dismissal of Dueird Pennington violated Sec 8(a)(3) and (1) be dismissed In the absence of exceptions thereto, we adopt these recommendations pro forma TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Trial Examiner: The last hearing in the above-captioned consolidated cases was closed on June 13, 1966, after the taking of evidence in Case 9-CA-3599, on October 19-22, 1965, and in Case 9-CA-3742 on March 3, 1966, all of which hearings were held in Huntington, West Virginia. The complaint in Case 9-CA-3599, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served,' alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. Subsequent to the hearing on that complaint in October 1965, the General Counsel issued a complaint in Case 9-CA-3742,2 alleging further violations of Section 8(a)(3) and (1) by the Respondent. A motion to reopen the record in the first hearing and consolidate the two proceedings was granted. Thereafter, a hearing on the issues in the latter case was held on March 3, 1966. Subsequent to that hearing, the Trial Examiner issued an order requiring that the General Counsel produce for inspection by the Respondent certain documents which had been in issue during the original hearing. To provide the Respondent an opportunity to cross-examine any of the witnesses to which these documents referred, the hearing was reopened on June 13, 1966. At that time the Respondent stated that it did not desire any further cross-examination of the witnesses in question. At that same time, the General Counsel and the Respondent moved that the above-numbered cases be consolidated with Case 9-CA-3839, the complaint in which had issued on March 31, 1966, and with Case 9-CB-1281, the complaint in which had issued on February 28, 1966. This motion was vigorously opposed by counsel for the Charging Party. After consideration of the oral argument of counsel, the Trial Examiner denied the motion and closed the hearing in Cases 9-CA-3599 and 3742. ' The original charge in Case 9-CA-3599 was filed on May 27, 1965 2 The original charge in Case 9-CA-3742 was filed on November 2, 1965 On November 8, 1965, an amended charge was filed 165 NLRB No. 39 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its respective answers, duly filed, the Respondent conceded certain facts with respect to its business operations, but denied the commission of any unfair labor practices. At the hearings, all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, and to argue orally. Various motions to dismiss, made by the Respondent at the close of the hearings, are disposed of as appears hereinafter in this Decision. The parties waived oral argument. Subsequent to the close of the first two hearings the General Counsel submitted a brief. No briefs were received from any of the other parties.3 Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a West Virginia corporation, is engaged in Huntington and Culloden, West Virginia, in the sale of wholesale grocery items. During the 12 months preceding the original hearing, a representative period, the Respondent had a direct outflow of products, in interstate commerce, valued in excess of $50,000 which were sold and shipped directly from its location in Huntington, West Virginia, to points outside that State. Upon the foregoing facts, the Respondent concedes and I find that Davis Wholesale Co., Inc., is engaged in commerce within the meaning of the Act. IT. THE LABOR ORGANIZATION INVOLVED Food Store Employees Union Local#347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Introduction In the spring of 1965, the Respondent had approximately 80 people employed at its warehouse and facilities in Huntington . In April and May of that year the Union began an intensive organizational drive among those employees. The complaint in Case 9-CA-3599 alleges that during the ensuing weeks the Respondent engaged in various acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the Act and of discrimination in violation of Section 8(a)(3). It further alleges that the Respondent, in violation of Section 8(a)(5), unlawfully refused to bargain with the Union on and after May 19, 1965. The complaint in Case 9-CA-3742 alleges that the Respondent discriminatorily terminated or laid off three named employees during the period from July through November 1965. All of these allegations are denied in their entirety by the Respondent. 3 As noted earlier, on June 13, 1966, the Trial Examiner denied the motion to consolidate Cases 9-CA-3839 and 9-CB-1281 with 9-CA-3599 and 9-CA-3742 Briefs in Case 9-CA-3599 were due on November 29, 1965, and in Case 9-CA-3742 on March 22, 1966. In neither instance did the Respondent file any brief or memorandum prior to the due date. On October 26,1966, however, the Respondent submitted a brief to the Trial Examiner on the issues in all of the four above -numbered cases Immediately thereafter the Charging Party moved that this brief be rejected on the grounds that it was submitted long past the date when due and Case 9-CA-3599 A. The Union Campaign; Alleged Interference, Restraint, and Coercion; Findings and Conclusions With Respect Thereto In the latter part of April 19654 several employees of the Respondent contacted a representative of the Charging Party to secure assistance in organizing their coworkers. Among this group were two of the truckdrivers, Dale Gibbs and George Bias. Gibbs and Bias, along with several of their fellow employees, signed cards authorizing the Union to represent them, in the period from April 26 to the first of May. Thereafter, some of the employees, including particularly Gibbs, actively solicited their fellow workers to sign authorization cards. Sherwood Spencer, secretary-treasurer of the Union, and the organizer most instrumental in the early stages of the campaign to unionize the Respondent's employees, described Gibbs as the union "contact man." At a union meeting held for the Davis employees in Huntington, on Saturday, May 15, Spencer concluded that the Union had secured cards from a majority of employees and that he would request recognition and bargaining on their behalf. On May 17, he wrote a letter to the Respondent, wherein he requested that the latter recognize and bargain with the Union. In a letter dated May 19, the Employer rejected this demand. The facts in connection with this issue will be discussed more fully later in this Decision. The witnesses for the General Counsel attributed many acts of interference, restraint, and coercion to the Respondent's supervisory hierarchy during the month of May. One of those who figured most prominently in this testimony was Edward Frazier, foreman of the night shift. To the testimony of these employees and that of Frazier we will now turn. John Valentine testified that about May 4, Frazier questioned him as to what he knew about the Union and when he admitted having signed a card, Frazier told him that he had made a bad mistake, that "old man Davis will not accept the Union."5 Frazier conceded having had a conversation with the employee along these lines, and that he had asked Valentine what he knew about the extent to which the employees had signed up for the Union. According to Valentine, about 2 days later, Frazier questioned him again , this time to ascertain whether the employee had changed his mind about aligning himself with the Union. Valentine testified that when he declared that he had not, Frazier pointed out that it would be very easy to discharge an employee such as Valentine by accusing him of having destroyed some of the merchandise in the warehouse, even though Frazier himself might have done the damage. At the hearing, Frazier asserted that he had no recollection of the second conversation and denied having had it. Donald Watts testified that about May 10, Frazier came to where he was working in the warehouse to ask him what that its purported discussion of all four of the above cases constituted a flouting of the Trial Examiner's order denying the motion to consolidate The motion of the Charging Party is well founded Since the Respondent's brief was untimely filed, insofar as it relates to Cases 9-CA-3599 and 3742, it must be, and is, rejected for any consideration with respect to the instant Decision ' All dates referred to hereinafter are for the year 1965, unless specifically noted otherwise 5 Lewis A: Davis was president of the Respondent DAVIS WHOLESALE CO. he knew about the arrival of the Union. According to Watts, after he acknowledged having heard about the organizational campaign , Frazier volunteered the comment that if Watts signed up for the Union he would be sorry because Mr. Davis, the company president, would close the warehouse before he would recognize the Union. Watts testified that in two subsequent conversations on this subject during the next 24 hours, Frazier criticized him for having failed to discuss the matter with him earlier and declared that, as far as the other employees on the shift were concerned, "every man he had working for him had crossed him but one...." Frazier acknowledged having had some conversation with Watts on the subject of the union campaign and that he had told the employee that all except one of the men on his shift had signed up for the Union. According to Frazier, during the conversation he told Watts the name of this one employee who had refused to sign an authorization card. He further testified that if he had ever stated that Mr. Davis would close the warehouse in the event the employees organized, "I don't remember." Charles E. Hightower testified that about May 17, Frazier questioned a group of employees in the warehouse about the Union. Included in the group, in addition to Hightower, was John Valentine and Ancil Adkins. According to Hightower, Frazier told them that because they had signed union cards, he felt that they had backed out on him, they had done the wrong thing and they "would never get away with it.... that the old man would never let the Union come in, that he would close the doors first." The foregoing account of the conversation attributed to Frazier was corroborated by both Valentine and Adkins. Frazier denied that he had any conversation about the Union on May 17, but did not specifically deny any other aspects of this particular testimony. Emil J. Loftis testified that on May 18, while he was riding home from work with Frazier, the foreman questioned him as to his knowledge of the organizational campaign. According to Loftis, after he acknowledged that he himself had signed a card, Frazier told him that "Mr. Davis would not allow a union to go in the warehouse, that he would close the doors first." Frazier testified that he could not recall having had such a conversation. Ralph O. Chaney and Ancil Adkins testified that about May 19, Frazier questioned them and several of the other employees about the organizational drive and suggested that the Employer knew who had signed up for the Union. According to Chaney, at one point, when Adkins asked Frazier, "Don't you think we need a union ?" the foreman 6 Donald Watts testified that about May 26, Frazier told him that 83 percent of the Respondent's employees had signed up for the Union Watts' testimony as to this conversation was credible and it was neither denied nor contradicted by Frazier r The quotation is from Frazier' s testimony. 8 There was some confusion as to the approximate date of this incident However, the credible testimony of Lindsey Finley, Charles Hightower, and John Valentine was that it occurred about the second week in May 0 It was also alleged by the General Counsel that for a short period in May, Frazier discriminatorily reduced the hours of many of the employees on the night shift. The testimony in support of this allegation , however, was not convincing Whereas Donald Watts, Estel Loftis, Emil Loftis, and William Pack testified that that month they were sent home on several occasions before the end of the shift, Lindsey Finley, another employee, testified that he believed that his hours had been cut "very little" that month Thurman Johnson, superintendent of the 273 answered in the negative and then went on to ask them why everyone on the night shift had "crossed him," as he expressed it, by signing up for the Union.6 Frazier then asked Chaney why he had signed a union card. When the employee told him that it was to get more pay and less hours, Frazier told him that if he was dissatisfied with the hours he could find another job, that insofar as the Union was concerned "The old man won't stand still for it ... he would close the doors first...." At the hearing, Frazier could not recall the conversation on the particular date to which Chaney and Adkins testified. On the other hand, he conceded, "I have said that Mr. Davis would close the doors before he would accept the Union."7 There was testimony that during the spring of 1965 it was customary for the employees on the night shift to be given a coffeebreak if they had completed the loading of nine trailers by 3 a.m. Several employees testified that about the second week in May," Frazier discontinued the practice for several nights on the ground that most of the men had failed to support him and had signed up for the Union. According to Charles Hightower, during the middle of the shift on the night in question , Ancil Adkins asked Frazier whether they would have the usual coffeebreak that night. Hightower testified that Frazier replied, "Well, I decided to give you a coffeebreak if you loaded nine trucks.... Now, I have decided to take it away from you for what you have done to me." Ancil Adkins, one of the employees present, testified that he asked the foreman what he meant by the comment. According to Adkins, Frazier then replied, "You think I don't know that every damn man in this building signed for a union except three of them?" The employees testified that although Frazier eliminated the coffeebreak for several nights in a row, he thereafter resumed the practice. At the hearing, Frazier denied ever having canceled the coffeebreak for discriminatory reasons and testified that the only time he failed to accord the privilege to the employees was on those occasions when they had failed to load the requisite number of trailers. On the other hand, he never specifically denied the conversation on the subject which the foregoing named employees attributed to him. It is my conclusion that Frazier's conversation with the employees occurred substantially as they testified and that their foreman did tell them that he was eliminating the coffeebreak because of the manner in which the night-shift personnel had endorsed the Union." Thomas E. Templeton testified that on May 21, Superintendent Thurman Johnson10 stopped him as he was about to leave the warehouse and asked him whether warehouse, and President Lewis Davis testified that May and June were generally the slowest months of the year as far as their business was concerned Frazier testified that the only cut in hours which the employees experienced in May was due to lack of business Some of the timecards were introduced by the Respondent for this period, most of them with reference to Estel Loftis These offered no support to the assumption of that witness that his hours during May were less for discriminatory reasons Accordingly, it is my conclusion that the General Counsel failed to establish by a preponderance of the evidence the blanket allegation contained in paragraph 6 of the complaint that the Respondent reduced the working hours of employees in order to discourage their union activities 10 Johnson was also a vice president of the Respondent. At the hearing in this matter he was referred to at times as the "supervisor" of the warehouse and at other times as the "superintendent." When on the stand, President Johnson testified that Johnson was the superintendent of the warehouse. The latter title is used hereinafter in this Decision 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he was going to the union meeting that night. According to Templeton, after he responded to this question with the statement that he did not know whether he would or not, his superior declared, "Son, you better think it over before it's too late." At the hearing, Johnson conceded that he had had a conversation with the employees on the date in question and that it had occurred substantially as Templeton had testified." During the latter part of May and during the ensuing months of June, July, and August, a number of the employees signed withdrawal statements which had been prepared by the Company and which declared that the signatory did not desire to have the Union represent him. The Respondent contends that each of these declarations was the result of a voluntary act on the part of the employee. The General Counsel, on the other hand, alleges that some of them were secured by coercive tactics on the part of Foreman Frazier. Donald Watts testified that about May 26, Frazier asked him whether he would sign a statement that he was withdrawing from the Union. According to Watts, Frazier told him at the time that Superintendent Johnson had left orders that the employees were to sign such statements and that failure to do so could result in dismissal. Watts testified that he suggested that under those circumstances Frazier would probably have to discharge him because he had no desire to withdraw from the Union. According to the employee, at that point, Frazier told him that if Watts would sign a withdrawal statement he (Frazier) would assure him that he would keep his job. Watts testified that although he resisted signing such a statement that evening, he did, as Frazier also requested, relay to several of his coworkers that the supervisors wanted them to sign the company-prepared withdrawal slips. Watts likewise testified that on a subsequent occasion , some weeks later, when Frazier again raised the subject and suggested that he sign a withdrawal card, he accompanied the foreman to Mr. Davis' office and signed such a card.12 John Valentine testified that after a conversation with Watts he asked Frazier_ about the withdrawal statements and that the foremen thereupon presented a prepared statement to him for his signature.''' According to Valentine, as the foreman did so, he told Valentine, "This is to secure your job...." The employee testified that after he had executed the statement, Frazier said to him, "Things will probably get better now since you signed this Slip."14 Frazier denied that he had coerced anyone into signing these withdrawal statements. According to the foreman, he merely made available for the employees on his shift the opportunity to execute these statements after they had expressed a desire to get out of the Union. In this connection Frazier testified that a supply of the withdrawal statements was kept in Mr. Davis' office and that on a number of occasions he escorted employees to that office to provide them with a chance to sign their names. Frazier further testified that several of the employees came to him and asked for the slips. Frazier was an outspoken opponent of the Union from the outset of the attempt to organize the Respondent's employees. Whereas he denied some of the comments and remarks attributed to him in the testimony set forth above, he conceded that much of it was substantially correct. The employees who testified as to their various conversations with him on the subject impressed me as credible. Consequently, and in view of the numerous admissions which Frazier made as to what he had said to employees on the subject of unions, I conclude that their version of these conversations, as related earlier herein, is the more plausible. Moreover, and in view of the numerous threats of economic reprisal which Frazier predicted would befall the employees on his shift if they succeeded in bringing a union into the warehouse, it is not surprising that thereafter many of these same men told Frazier that they wanted to sign one of the statements which the Company made available whereby they could express their desire to withdraw from the Union. Although Frazier denied that he had any authorization from management to speak as he did,') his action in connection with the withdrawal statements and his outspoken remarks against the Union constitute conduct for which the Respondent must be held responsible. N.L.R.B. v. American Casting Service, Inc., 365 F.2d 168, 173 (C.A. 7). Accordingly, and in view of the above findings, it is my conclusion that the Respondent violated Section 8(a)(1) of the Act by the following action and conduct of Foreman Edward Frazier: (1) His interrogation of Valentine on several occasions as to that employee's union activities and his statement to the employee in this context that it would be easy to fire him on a fabricated charge that the 11 James E Belcher testified that about May 25 he asked Charles Christian, foreman of the day shift, whether he thought the employees would get a bonus that year and how large it would be According to Belcher, Christian thereupon stated that the bonus would be smaller than he had originally assumed it would be and added, "You boys asked for it to be smaller, and it was " Christian testified that he could remember no such conversation with Belcher Belcher conceded that there was no mention of the Union at any time during this conversation From other testimony it appears that customarily the decision as to whether the employees would participate in an employee profit- sharing plan, or bonus, was never made until the latter part of August when the Company closed its fiscal year In view of Belcher's concession that Christian did not mention the Union during his conversation with the employee, the statement of the foreman was , at worst, ambiguous In any event , I conclude that the evidence does not sustain the allegation in paragraph 5(d)(1) of the complaint to the effect that Christian informed an employee that if the Union were successful the Respondent would decrease the bonuses paid the employees 12 The withdrawal statement which Watts eventually executed was received in evidence. It is dated July 6, 1965 11 It was conceded that these statements were prepared by the Respondent and read as follows This is to advise I do not want Food Store Employees Union to represent me with Davis Wholesale Company, Inc I sign this on my own free will Employee "Valentine testified that this incident occurred 2 to 3 months after the Union began its organizational drive The signed withdrawal slip of this employee was offered in evidence by the Respondent It was dated July 29, 1965 15 President Lewis Davis testified that after he learned that a union was soliciting the support of his employees, he instructed Superintendent Johnson and the foremen that they were not to say anything to the employees about the Union However, Mr Davis could not recall whether the employees were ever informed that the supervisory staff had received orders of this character Under these circumstances, any instructions of the type to which Mr Davis testified in no way immunized the Respondent from the responsibility which the Board and the courts have attributed to an employer for the antiunion conduct of foremen and supervisors DAVIS WHOLESALE CO. employee had damaged company property; (2) his interrogation of Watts as to whether the latter had signed a union card and his declaration to Watts that those who signed such cards would be sorry because Mr. Davis would "close the warehouse before he would recognize the Union", (3) his subsequent conversation with this same employee in which he stated that all the men on the shift except one, whom he named, had signed union authorization cards, thereby creating the impression of having engaged in surveillance of the employees' organizational activities; (4) his discontinuance of the coffeebreak for several nights for the stated reason that most of the employees on that shift had failed to support him by signing up for the Union; (5) his interrogation of Hightower, Valentine, and Ancil Adkins about May 17 when he told the employees that he felt that those who had signed union cards had deserted him and that they "would never get away with it . that the old man would never let the Union come in, that he would close the doors first"; (6) his interrogation of Emil Loftis about May 18 as to that employee's knowledge of the organizational campaign and his statement at the time that "Mr. Davis would not allow a union to go in the warehouse, that he would close the doors first"; (7) his declaration to Ralph Chaney and Ancil Adkins about May 19, after questioning them about the union campaign, that the men on his shift had "crossed him," by signing up for the Union, that those who did not like the Respondent's hours and working conditions should look for another job, and that the president of the Company "won't stand still for [a union] ... he would close the doors first"; (8) his solicitation of a union withdrawal statement from Donald Watts and his declaration to the employees that failure to execute such a statement could result in discharge;'[' and (9) his solicitation of a similar union withdrawal statement from John Valentine on the ground that such action would help Valentine secure continued employment and his forcast, after the employee executed the statement, that "Things will probably get better now since you signed this slip."" It was likewise a violation of Section 8(a)(1) on the part of the Respondent, in the context of threats such as those uttered by Frazier, for Superintendent Johnson to question Templeton as to whether the employee planned to attend a union meeting that night and then to admonish Templeton that he "better think it over before it's too late." "I N L R B v. Austin Powder Company, 350 F 2d 973, 975 (C A 6),,H W. Elson Bottling Company, 155 NLRB 714 "The General Counsel also alleged in paragraph 5(c)(x) of the complaint that Frazier had falsely accused several employees of drinking alcoholic beverages prior to reporting for work in an attempt to dissuade them from engaging in union activity In support of this allegation the General Counsel offered in evidence letters dated May 28, which Superintendent Johnson sent to Ancil Adkins, Charles Hightower, and Jerry White In these letters, Johnson reprimanded them on the ground that the preceding night they had reported for work showing the effect of having drunk intoxicating liquor and threatened them with discharge in the event there was a repetition of the alleged misconduct Adkins and Hightower testified with respect to this incident, as well as Frazier Both Adkins and Hightower conceded that they had drunk beer prior to reporting for duty on the night in question Adkins stated that each of them had drunk two bottles In this connection, however, neither Adkins nor Hightower was entirely plausible More particularly was this true of Adkins, who, at one point, testified that he had never been intoxicated on beer 275 B. The Suspensions of Dale Gibbs, Dueird Pennington, and George Bias; Contentions of the Parties; Findings and Conclusions With Respect Thereto On May 28 the Respondent suspended Dale Gibbs, for 2 weeks without pay, allegedly for having threatened a fellow employee. On May 31, the Respondent suspended Dueird Pennington for 1 week without pay, allegedly for threatening another employee. On June 16, George Bias was suspended for 3 days without pay, allegedly for having failed to complete an accident report. The General Counsel contends that all of these suspensions were discriminatory. These allegations are denied in their entirety by the Respondent. All three of the foregoing were truckdrivers. All of them had been active in the union campaign from its outset. Gibbs had secured almost 30 signed authorization cards from his coworkers in the warehouse. Spencer, the union representative in charge of the campaign, described Gibbs as the Union's "contact man." Similarly Pennington and Bias had engaged in extensive organizational efforts among their fellow employees on behalf of the Union. Superintendent Johnson testified that he suspended Gibbs after he received a report that the latter had threatened Raymond Varney when Varney had refused to sign a union card. Shortly before Gibbs' suspension, President Davis and Johnson called Gibbs to the office for questioning. According to the employee, he gave the following account to his superiors: A short time before he had asked Varney, a leadman in what was known as the IBM room, to sign a union card. The latter replied to this request with an obscene epithet18 and Gibbs reacted to Varney's remark with the statement that he "didn't appreciate [Varney's] answer at all" and that he "could knock the-out of [Varney].", Johnson testified that he investigated the charge that Gibbs had threatened Varney. The latter, however, was not present at the time Davis and Johnson called Gibbs before them, and no action was taken against him for the role he had played in the exchange with Gibbs. At the hearing, Mr. Davis was called to the stand by the General Counsel as an adverse witness. In connection with this matter, Mr. Davis testified that Varney would be called as a witness by the Respondent before the hearing was concluded. In fact, however, even after having drunk as many as 15 to 20 bottles of it. Frazier testified that he detected the odor of alcohol, or beer, on their breath when these men came to work on the night in question, that he reprimanded them at the time, and that after discussing the matter with Johnson, the latter sent each of the employees a written reprimand. The Respondent, of course, was free to enforce any rules it felt essential to the proper maintenance of order and efficiency in the operation of its business A rule that forbade an employee from reporting for duty while in any way under the influence of intoxicants was certainly reasonable. In view of the concession on the part of the two employees who testified about this incident that they had, in fact, indulged in a certain amount of drinking prior to reporting at the warehouse that night, I conclude that as to this allegation the General Counsel has failed to establish by a preponderance of the evidence that the enforcement of this rule by the Respondent was discriminatory '" The phrase, as quoted by Gibbs, appears at p 107 of the transcript 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Varney was never thereafter called by the Respondent and no explanation was offered for the failure to do so.19 The suspension of Pennington presented a situation similar to that involving Gibbs. Pennington testified that about May 27, Johnson called him to the office to question him as to whether he had told Tom Ball , another employee, that if Ball did not sign a union card he would "string him up."20 Pennington denied that he had made any such threat and told Johnson that all he had done was to ask Ball whether he would sign up for the Union as had many of the other employees , and that when Ball refused, he told him that that was his privilege . Ball was not present during this conference in Johnson 's office. Nevertheless , immediately thereafter Johnson handed Pennington a letter which stated that he was being suspended for 1 week on the ground that he had threatened another employee with bodily harm.21 Johnson gave very little testimony on this incident, other than to state that he had suspended Pennington for having made threats of bodily harm to Tom Ball. The latter employee was never called as a witness by the Respondent and no explanation was offered for the nonappearance of this individual at the hearing. Pennington testified that about a week after his return to work , he questioned Ball as to whether the latter had ever reported to the Company any threat by Pennington . According to Pennington, Ball denied to him that he had ever made such a complaint. About June 13, George Bias had a minor accident in which the damage to the truck he was driving was limited to a broken headlight. According to the employee, upon returning to the terminal he reported the accident to Foreman Christian who told him to fill out a report form. The following morning he handed the completed form to Christian , stating as he did so that he had filled it out the best he could and asking that Christian help him if it was incomplete . Bias testified that the next evening when he returned to the warehouse , Superintendent Johnson accosted him and angrily declared that he had not filled out the reports properly. According to Bias, that evening I come in , Thurman Johnson, he throwed it down in front of me and acted like something wild, . . . talked to me like a dog, worse than I would talk to my own dog.... He said, ain't you got enough sense to fill an accident report out? I told him, I said, Thurman , I done the best I could . He said, that's not good enough . He said , you get it or else. That same evening, Bias secured the rest of the information needed to complete the report on the accident and turned it over to the Respondent 's office. On June 15, Johnson handed him a letter stating that he was being suspended without pay from June 16 to 18 and that he was not to report for work until June 21. The letter stated that this action was being taken on the ground that Bias had failed to complete the accident report ,22 and he had said that he was not interested in doing so because it would be the Company and not him that would be sued . Bias, on the other hand , credibly denied that he had ever made such a statement to Johnson or anyone else. At the hearing, Respondent's counsel asked no questions of Johnson as to this incident and the superintendent gave no testimony as to the circumstances which prompted him to suspend Bias. ''The letter suspending Gibbs was dated May 28, 1965, and signed by Johnson The superintendent stated in this letter that Gibbs was being suspended without pay for 2 weeks beginning on May 28 and that he was not to report back for duty until June 14 20 The quotation is from Pennington 's testimony. 21 The suspension was for the period from May 31 to June 7 It is my conclusion that the General Counsel has proved that these suspensions were discriminatorily motivated. Whereas the Respondent denied that it had any knowledge of the union activity of any of these employees, the record is replete with evidence that during the weeks preceding these suspensions the Respondent's supervisory hierarchy of Johnson and Frazier had engaged in interrogation , threats, and other conduct hereinabove found to be unlawful interference , restraint , and coercion. It is inferable on this record alone, and I so find , that the Respondent was well aware that Gibbs, Pennington, and Bias were among the most active union supporters in its labor force. Apart from this finding however, the letters of suspension to both Gibbs and Pennington state that the conduct for- which they were being suspended "occurred in a discussion about labor union ." From the language of the letters alone, it is manifest that Gibbs and Pennington were engaged in protected concerted activity at the time in question . As found earlier , the Respondent never called to the witness stand either Varney or Ball, the two whom Gibbs and Pennington allegedly threatened. The latter two employees credibly testified that in their conversations with Varney and Ball they made no threats , and the Respondent never produced any witness to prove the contrary. Consequently , the Respondent cannot now assert that in suspending these employees after an investigation, it did not violate the Act. The situation here is governed by the decision of the Supreme Court in N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21, 22-23, where the Court stated: We find it unnecessary to reach the questions raised under § 8(a)(3) for we are of the view that in the context of this record § 8(a)(1) was plainly violated, whatever the employer's motive.... In sum, § 8(a)(1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact , guilty of that misconduct. On the basis of the foregoing findings and in the light of the interference and coercion found earlier herein, I conclude that the suspension of Gibbs and Pennington violated not only Section 8(a)(1) but Section 8 (a)(3) as well. Further, because of this background and the severity of the penalty meted out to Bias, I further conclude that the Respondent's real motive for suspending him, under the circumstances set forth above, was to penalize him for his identification with the Union. Accordingly, by his suspension the Respondent also violated Section 8(a)(3) and (1). I so find. C. The No-Solicitation, No-Discussion Rule; Findings and Conclusions With Respect Thereto On May 28, the Respondent posted the following notice on the employee bulletin board: NOTICE TO ALL EMPLOYEES It has come to the attention of this company that labor union activities are interfering with working schedule " There was no contention that the suspension was because the accident was Bias' fault , or that he failed to report the accident Initially, Bias did fail to obtain the name of the driver of the other vehicle involved , but he did secure the name of the trucking company that owned the vehicle On the evening of June 14, he obtained the rest of the information needed , but the following day , the Respondent suspended him. DAVIS WHOLESALE CO. and other matters. Therefore, all employees are notified that there is to be no labor union activities or discussion during working hours on the company property at any time. Failure to observe these rules will be grounds for immediate discharge. Sincerely, Davis Wholesale Company, Inc. /s/ Thurman L. Johnson Thurman L. Johnson, Supervisor The employees testified that prior to the posting of this notice they had never before, in the course of their employment with the Respondent, had such a rule at the warehouse.23 Both Superintendent Johnson and Mr. Davis testified that the warning was necessary in order to prevent the employees, while on duty, from gathering in groups throughout the warehouse to discuss the issues in the union campaign. According to these officials the decision to post the notice in question was made solely to eliminate this problem which, they stated, had become acute during the latter part of May. The Respondent, of course, was free to promulgate rules regulating the activities of its employees during working hours. Moreover, since, as has been stated many times, "working time is for work" (Peyton Packing Company, Inc., 49 NLRB 828, 843, enfd. 142 F.2d 1009 (C.A. 5), cert. denied 323 U.S. 730), such rules are presumptively valid, "in the absence of evidence that the rule was adopted for a discriminatory purpose." Walton Manufacturing Company, 126 NLRB 697, 698, enfd. 289 F.2d 177 (C.A. 5) (citing Republic Aviation Corp. v. N.L.R.B., 324 U.S. 793). On the other hand, the term "working hours," customarily includes rest periods, coffeebreaks, and other types of mid-shift recesses. Insofar as the Respondent's rule forbade discussion of the union issue by its employees even during such times, the rule was invalid and a violation of Section 8(a)(1). Stoddard-Quirk Manufacturing Co., 138 NLRB 615-623; Miller Charles and Company, 148 NLRB 1576, 1580-81, enfd. 341 F.2d 870 (C.A. 2); Minneapolis-Honeywell Regulator Company, 139 NLRB 849,851-852. More particularly, however, the motive which prompted the establishment of the rule must be examined. The testimony of Davis and Johnson, the warehouse officials adverted to above, was that the rule was required in order to prevent the employees from wasting company time in their discussion of the organizational campaign. On the other hand, apart from their testimony, no other evidence was offered to establish that the advent of the Union had brought a disruption of production and plant discipline. The rule prohibited only prounion activity. Yet, at the same time that its strictures applied to such conduct, Foreman Frazier freely engaged in the solicitation of antiunion withdrawals, all on company time and with full knowledge of President Davis and Superintendent Johnson. The Respondent offered no explanation for this disparate treatment.24 Consequently, the testimony of Davis and Johnson as to the need for the rule is wholly unpersuasive when considered against the background of interference, restraint, and coercion which characterized the Respondent's reaction to the arrival of the Union in the 23 Bias and Pennington were two of the employees who testified to this effect This testimony was uncontradicted The Respondent made no attempt to prove the contrary 24 Here it might be said, as the Board found with respect to a similar issue,". . the rule was posted, not in furtherance of any of 277 weeks that preceded the promulgation of the no-talking, no-discussion rule. Moreover, during this same period, the Respondent, as found earlier herein, discriminatorily suspended several of its employees. In the light of such facts, I conclude that the "Respondent's sudden adoption of its rule evidenced a concern about union activity among employees and that the rule was posted solely to stifle the Union's organizing campaign." Ward Manufacturing, Inc., 152 NLRB 1270, 1271. Since its establishment and promulgation were for a discriminatory purpose, the Respondent's action in this regard was a violation of Section 8(a)(1). D. The Evidence as to the Alleged 8(a)(5) Violations; Findings and Conclusions with Respect Thereto 1. The appropriate unit On May 17, 1965, Sherwood Spencer wrote the Respondent Company that the Union represented "a majority of the eligible employees, excluding salesmen, office employees, guards and supervisory employees in your plant." On behalf of the Union, Spencer requested recognition and bargaining. In the same letter Spencer stated, "We are prepared to deliver to you [or] to your representative signed authorization cards showing our majority so there can be no good-faith doubt as to our majority status." On that same day, Spencer telephoned the Respondent and sought to talk with Lewis A. Davis, the president. The latter was ill at the time, but the following day, Donald L. Davis, secretary-treasurer of the Respondent, returned the call. Spencer repeated the request contained in his letter and offered the company official an opportunity to check the Union's card majority. Mr. Davis declined the Union's request for recognition and did not request to see the authorization cards or any other proof of its majority. On May 19, President Lewis Davis wrote the following letter to Spencer: We have your letter of May 17th and this will acknowledge your phone conversation with Mr. Donald L. Davis of the eighteenth advising you had sent us the letter. It is the Company's position that your union does not represent a majority of our employees and there has been no agreed description of an appropriate bargaining unit . We believe that any question of representation and appropriate unit can only be fairly determined in an election conducted by the National Labor Relations Board. On May 21, Spencer replied to Davis with a letter in which he stated that the Union felt that the appropriate bargaining unit should include all production workers, truckdrivers, loaders and helpers but exclude clerical employees, supervisors, salesmen , guards and professional employees. In this same letter Spencer renewed his offer to prove the union majority by presenting the authorization cards it had secured to Davis for his examination or to any person the Company might designate. On June 1, President Davis wrote Spencer that the Company had asked for a Labor Board election because a Respondent 's legitimate interests of serving production, order, and discipline, but to impede and thwart the Union's organization of its employees " Electra Plastic Fabrics, Inc , 157 NLRB 1023, 1024 299-352 0-70-19 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number of employees had reported having been threatened by_ union advocates in connection with the signing of the authorization cards and because he did not believe the cards reflected the true sentiments of the employees. Davis concluded the letter with the statement that Spencer's description of the proposed unit was "not sufficient or proper."'S On June 7, Spencer replied to President Davis in a letter wherein the union representative denied that any threats had been made by its supporters or advocates. Spencer protested the Company's suspension of several employees, alleged that the Company was trying to get its employees to withdraw from the Union, and stated that as a result the Union would be compelled to file additional charges against the Company."' In closing, Spencer renewed his offer to establish the union majority by a card check. Subsequent to the date of Spencer's last letter the record reflects no further exchange of correspondence between the parties. The General Counsel alleged that "all employees employed by Respondent at its place of business in Huntington, West Virginia, excluding salesmen, office clerical employees, guards, professional employees and supervisors as defined in the Act," constitute an appropriate unit for bargaining. This, of course, is essentially the same unit as that described by the Union in its letters of May 17 and May 21, wherein it set forth its demand for recognition and bargaining. In its answer, the Respondent denied the appropriateness of the unit defined in the complaint However, it offered no oral argument on the question, and filed no brief subsequent to the hearing. Thus, other than to voice its total opposition to the Union's unit request and the appropriateness of the unit described in the complaint, the Respondent has never revealed the specifics or particulars on which it bases this objection. Nor has it, at any time, stated what the Employer would consider an appropriate bargaining unit for its employees. The unit sought by the Union, and alleged by the General Counsel as appropriate, is a plant unit with the conventional exclusions. As such, the Board has stated that since it is "one of the unit types listed in the statute as appropriate for bargaining purposes, [it] is presumptively appropriate, and should, other things being equal, prevail...." Beaumont Forging Company, 110 NLRB 2200, 2201; Hygrade Food Products Corporation, 85 NLRB 841, 848. In its letter of May 21, the Union further defined the unit which it sought to represent as "all production workers, truckdrivers, loaders and helpers," exclusive of the same employees listed above. The Board has frequently found that a unit so described is appropriate. Santangelo & Co., 154 NLRB 1649, 1651; Yankee Distributors , 152 NLRB 1018, 1025. In the light of the Board decisions, there appears no valid objection to the all-employee unit sought by the Union in its demand for recognition and alleged as appropriate by the General Counsel. Accordingly, I conclude that an appropriate unit at the plant here involved consists of all the employees at the Respondent's warehouse, exclusive of salesmen, office clericals, guards, professional employees and supervisors as defined in the Act.27 The parties stipulated as to the offer of a document produced by the Respondent which listed its complete payroll for the period from May 17 to 19, 1965. The foregoing list, marked as General Counsel's Exhibit 2, contains the names of 81 individuals. To the eligibility of those listed for inclusion in the unit found appropriate we will now turn. The following groups of individuals on the list are among those who should be excluded from the aforesaid unit: The executives and supervisors: President Lewis A. Davis, Vice President and Superintendent Thurman Johnson, Secretary-Treasurer Donald L. Davis, Day Foreman Charles Christian, Night Foreman Edward Frazier, and two other supervisors , namely, James D. Morrison and Francis O. Keeton;28theofficeclericals: Maxine McGinnis, Phyllis Rice, Site Osborn, and Pauline Blair (Giordano Lumber Co., Inc., 133 NLRB 205, 206); the salesmen: A. O. Knipp, R. A. Blankenship, Herman McCallister, J. O. Williams, Herbert Scites, Byron Conrad, and Everett Christian (Taunton Supply Corp., 137 NLRB 221, 222; Giordano Lumber Co., Inc., ibid.; The Russel Company, 107 NLRB 668, 669).29 The IBM room: The payroll lists eight individuals in what is known as the IBM room. These are Ronald Montcastle, John Mayfield, Thomas Ball, Dallas Brammer, Leonard Cremeans, Kyle Lewis, Kelsey Elkins, and Raymond Varney. These men are engaged in the operation of electronic computer and business machines of the type now used in large warehouses for processing orders, maintaining inventories, and related matters. The IBM room is located in the rear of the warehouse building and away from the main office of the Company where the office clericals are employed Superintendent Johnson described the IBM employees as plant clericals They work in two shifts, are hourly paid, punch the same timeclock, work the same hours, and have the same fringe benefits as do the warehouse employees.30 John Valentine, a warehouse employee, testified credibly and without contradiction that occasionally an IBM employee will replace a warehouse employee who is off work for illness or some other reason. Also a number of the IBM employees were either truckdrivers or 2s About May 18, 1965, the Respondent filed a petition for an RM election On July 30, 1965, the Regional Director for Region 9 dismissed this petition on the ground that no question of representation existed because a complaint alleging violations of Section 8(aX5) had been issued concerning the Employer 26 On May 27, the Union filed the original charge in Case 9-C A-3599 27 Whereas at the time of the original hearing the Respondent's warehouse was located at Huntington, in April 1966, the Respondent moved its operations to a new facility located at Culloden, West Virginia, about 25 miles distant from its original site 28 Counsel for the Respondent conceded that all of the foregoing named individuals were supervisors 29Two other employees , Robert Ball and Elmer Christian. perform some selling duties Superintendent Johnson testified that they work as truckdrivers about 2 days a week and are route salesmen about 3 days a week The regular full- time salesmen receive a salary plus commission and do not punch a timeclock In contrast with the regular salesmen , Johnson testified that Ball and Christian punch a timeclock even on those days when they are out on their routes. Further, while acting as salesmen, although they receive commissions, they are still paid by the hour Finally, and of even greater significance as to their appropriate classification, on the Respondent's payroll listing ((, C Exh 2) they are carried as truckdrivers For these reasons, I conclude and find that Ball and Christian should be included within the unit. 30 In contrast with the office clericals who come to work at 8 a in and have only one shift, the IBM employees are on two shifts, the first of which begins at 7 a in , the same starting time as that for the warehousemen and truckdrivers DAVIS WHOLESALE CO. warehousemen before their transfer to the IBM room."' Superintendent Johnson is responsible for the IBM room as well as all the rest of the warehouse employees and the truckdrivers. The Union endeavored to organize these employees, along with the rest of the men in the warehouse and the truckdrivers. Four of the eight men in the IBM room signed authorization card S.32 There is no evidence that any other labor organization seeks to represent them separately. In view of the foregoing considerations and the obvious community of interest which the IBM employees have with the rest of its employees in the warehouse and the truckdrivers, I conclude and find that they should be included within the unit . The Sheffield Corporation, 134 NLRB 1101, 1103-05. The General Counsel contends that Dallas Brammer and Raymond Varney, both of whom are employed in the IBM room, should be excluded as supervisors. Superintendent Johnson described both of them as leadmen, Brammer on the day shift, and Varney on the night shift. Ronald Montcastle, an IBM employee on the day shift, described Brammer as his "boss," stated that Brammer gave him all his orders as to what to do, assigned him overtime work, and told him when to go home. Kelsey Elkins, an IBM employee on the night shift, testified similarly with respect to Varney's duties. According to Elkins, it was Varney who assigned him his work, scheduled his hours, and told him when to work overtime. Leonard Cremeans, another shift employee in the IBM room, testified to the same effect as to Varney's duties. Neither Varney nor Brammer was called to testify by the Respondent. The testimony of the foregoing named employees was credible and in no way was it contradicted or denied. Accordingly, on the basis of the foregoing findings, it is my conclusion that both Varney and Brammer are supervisors within the meaning of the Act and, therefore, should be excluded from the unit. Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 435 (C.A. 8); N.L.R.B. v. Syracuse Stamping Company, 208 F.2d 77, 79 (C.A. 2). 33 After the exclusions necessitated by the foregoing findings have been made, and based on the Respondent's payroll for the period May 17-19, 1965, the roster of employees within the appropriate unit as of that period is as follows: Johnny Merritt C. R. Peterson Ronald Montcastle John Mayfield Michael Stephens Charley B. Smith Paul Bias Gordon Simpson John Bias B. E. Hayes Frank Atkinson Mack Perry 31 E g , Cremeans and Montcastle 32 Viz, Ronald Montcastle, Leonard Cremeans, Kyle Lewis, and Kelsey Elkins 33 The General Counsel also contends that William David Davis, a son of Lewis Davis, president of the Respondent, should be excluded from the unit on the ground that he enjoyed special privileges as an employee The evidence disclosed that William Davis was a student during part of his employment period but during the month of May 1965, he appears to have been a regular employee The General Counsel relies in support of his contention that young Davis was a favored member of the staff upon citation of certain testimony given by Superintendent William Clark Louis Crum Thomas Templeton Isaiah Bledsoe William Jones Ernest Ferguson Roy Lewis James Adkins Jarrell Bowyer James Belcher Charles Brammer Clinton Bledsoe Thomas Ball Elmer Christian Dave Johnson William Baker Robert Ball Norris Adkins Burnie Crabtree John Lucas Ottie Adkins Dueird Pennington O'Neal Adkins Dwight Conrad Leonard Cremeans 279 Dale Gibbs George Bias Harold Duffer Kyle Lewis Donald Watts Ray Merritt William Pack Kelsey Elkins Estel Loftis Ward Smith Ralph Chaney Richard McCormick Lindsey Finley Homer Ward John Valentine Charles Hightower Marvin Vititoe Charles McCaw, Jr. Emil J. Loftis Ancil Adkins Eura Delano Keenan John Woodrum Jerry W. White William David Davis From the above listing it appears that during the period from May 17 to 19, 1965, there were 61 employees in the appropriate unit. The General Counsel produced 31 witnesses who testified as to their having signed union authorization cards prior to May 17, 1965. The authenticated cards of the following employees were received in evidence after the named employee had been called to the stand and subjected to both direct and cross-examination with respect to all relevant facts as to the circumstances in which the card was signed: Ancil Adkins Norris Adkins Ottie Adkins James Belcher George Bias Paul Bias Jarrell Bowyer Burnie Crabtree Louel Crum Ralph Chaney Leonard Cremeans Harold Duffer Thomas Duncan Kelsey Elkins Lindsey Finley Dale Gibbs Charles Hightower Dave Johnson Roy Lewis Kyle Lewis Emil Loftis Estel Loftis John Lucas Ronald Montcastle William Pack Duetrd Pennington Johnson as to the hours worked by William Davis In this connection Johnson testified that the son occasionally came to work late and would leave early in the afternoon when the print shop was caught up with its work In none of this testimony, however, was there any evidence that Davis was paid for any hours except those when he actually worked Under these circumstances, I conclude that the General Counsel has failed to prove that William David Davis enjoyed a special status to such an extent that he should be excluded from the unit International Metal Products Company, 107 NLRB 65,66-67: Giordano Lumber Co , supra, 207, fn. 7. Accordingly, he will be included as one of the employees in the bargaining unit. 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michael Stephens34 Homer Ward Thomas Templeton Donald Watts John Valentine In addition to the foregoing named employees who appeared and testified that they had executed authorization cards, the signed authorization cards of 11 other employees were identified by their coworkers. These witnesses testified as to the circumstances in which these cards were signed, and thereafter they were cross- examined, in some instances at considerable length, as to their testimony in this connection. This convincingly established that these cards had been secured without coercion or misrepresentation and reflected the free will of the signatories. The Respondent offered no evidence that would dispel this conclusion.35 The 11 cards so described were signed by the following named employees on various dates, all prior to May 17, 1965: James Adkins Eura Delano Keenan O'Neal Akdins Charles McCaw Charles Brammer Richard McCormick Dwight Conrad Ward Smith Ernest Ferguson, Jr. Marvin Vititoe Jerry White From the above listing it appears that prior to May 17, 1965, there were 42 employees who had signed cards authorizing the Union to represent them. Thus, at a time when there were 61 employees in the appropriate unit, the Union had secured cards from 42 of that number. With authorizations from almost 70 percent of the employees, the Union had a clear majority in the appropriate bargaining unit on May 17, 1965, when it made its request for recognition and on May 19, when the Respondent in its letter of that date, rejected this demand. 2. The alleged refusal to bargain The General Counsel contends that the Respondent unlawfully refused to bargain with the majority representative of its employees on and after the date when the Union made its first written demand for recognition and bargaining. In its answer, the Respondent entered a general denial to this allegation. However, it offered no oral argument at the close of the hearing and thereafter filed no brief. 34 Michael Stephens signed an authorization card on May 5 At some time thereafter he concluded that he did not want the Union to represent him, and wrote the Union a letter requesting that his union authorization card be canceled. This letter was dated May 19 Stephens testified that he prepared it at his home that evening He sent this letter of revocation by registered mail on May 20 It was received by the Union on May 21 Upon its receipt by the Union, this constituted a presumptively valid revocation of Stephens' union authorization However, until the time when his revocation reached the union headquarters, Stephens' original authorization remained effective It must, therefore, be counted in determining the total number of valid authorizations which the Union had from May 17-19, 1965 Jas. H. Matthews & Co v N L R B , 354 F 2d 432,438 (C A 8), Tinley Park Dairy Co , d/b/a Country Lane Food Store, 142 NLRB 683,685-686. 35 The Respondent called three witnesses, Clinton Bledsoe, William Baker, and William Jones, who testified as to various statements made to them by fellow employees that had endeavored to secure their support for the Union. Thus, Bledsoe testified that on one occasion Dueird Pennington, a coworker, told him that if he did not sign up for the Union he would lose his job, Baker testified that coemployees Dale Gibbs and Davis Johnson had made similar remarks to him, Jones testified that In his testimony at the hearing President Davis stated that at the time the Union made its demand for recognition and offered to prove that it had authorization cards from a majority of the employees, he did not believe that the Company could rely on such cards as adequate proof. Superintendent Johnson testified that the Respondent wanted the Union to prove its majority in a Labor Board election. Both Davis and Johnson testified that they were totally unaware that any organizational campaign was in progress until the very eve of the Union's demand for recognition. According to Johnson he learned about the Union's arrival when employee Tom Ball telephoned such a report to him late on the night of May 15. Johnson testified that on the following day he relayed this information to President Davis. Both he and Davis testified that until that weekend they knew nothing about any union activity among the men. This testimony, however, was largely implausible and is not credited. Earlier herein, it was found that during the first week in May and only shortly after the first employees had signed up for the Union, Night Shift Foremen Frazier began a campaign of interference and coercion as to the organizational efforts of the men on his shift. The Company was plainly responsible for Frazier's action and conduct. Moreover, it is most unlikely that his activity was unknown to Johnson or Mr. Davis. Whereas, Johnson may have had a report from employee Ball on the night of May 15 to the effect that a union was endeavoring to organize the warehouse, on this record, I find incredible Johnson's further testimony that this information constituted the first knowledge he had that a union campaign had begun among the Company's employees. In the event an employer has an honest doubt as to the Union's purported majority, or the unit which the Board would find appropriate, it is well settled that he may insist on a formal representation proceeding and a Board- conducted election to resolve such doubt before being obligated to bargain. Joy Silk Mills, Inc., 185 F.2d 732, 741-742 (C.A.D.C.), cert. denied 341 U.S. 914; Hammond & Irving, Inc., 154 NLRB 1071, 1073. On the other hand, "there is no absolute right vested in an employer to demand an election." N.L.R.B. v. Trimfit of California, Inc., 211 F.2d 206, 209 (C.A. 9). Moreover, this is a completely untenable position for an employer to assume should the evidence develop that he did not entertain any real doubt of the Union's majority and that his insistence George Bias, a fellow employee, told him that if he signed up for the Union in May he would get in free, but that if he did not join then he would be out of work Whereas, as found earlier, Pennington , Gibbs, and Bias were prominent among those soliciting their coworkers to support the Union, David Johnson played no active role On the other hand, there is no evidence that any of them were agents of the Union or authorized to bind it in any way In any event , the testimony of Bledsoe , Baker, and Jones has no relevance as to the validity of the authorization cards received in evidence and discussed earlier herein, for none of the three ever signed any such cards Moreover, their testimony can not be used to destroy the validity of, or the weight to be accorded, any of the cards which were received in evidence Each of these cards is "clear and unambiguous on its face and recites expressly that the signer authorized the Union to represent him for the purposes of collective bargaining " Jas H Matthews & Co v N L R B , 354 F 2d 432, 437 (C A 8) Under these circumstances, and in the absence of any evidence of fraud, deceit, or coercion, it must be concluded, and I so find, that the cards received in evidence were signed by employees who knew what they were doing and executed the authorizations because they wanted the Union to represent them DAVIS WHOLESALE CO. on certification was motivated largely by a desire to gain time to destroy the Union's support. Salley Plywood Company, Inc., 94 NLRB 932, 968, enfd. 199 F.2d 319 (C.A. 4), cert. denied 344 U.S. 933; N.L.R.B. v. Southeastern Rubber Mfg. Co., Inc., 213 F.2d 11, 14-15 (C.A. 5). It is clear that the Union here involved was, at all times relevant, ready to demonstrate its majority status to the Respondent's officials. In his initial letter of May 17, Spencer, the union representative, stated that he was "prepared to deliver to you [President Davis] or your representative signed authorization cards showing our majority...." On May 21, in another letter, Spencer renewed this offer and stated that the Union would present its cards to Davis for his inspection or to any third person whom the Company might designate. Plainly, the Union was ready and willing to establish its majority status but when it offered the Respondent every opportunity to examine the evidence, the latter rejected the offer.'36 President Davis, the Respondent's principal official at the hearing, asserted that the Company's reluctance to accept the cards as proof that the Union had a majority was vindicated when a substantial number of the men subsequently signed statements that they no longer desired the Union to represent them. Nineteen such withdrawal statements were offered in evidence. All of them were signed after May 19 when the Respondent wrote the Union that it was rejecting the demand for recognition." The Respondent retained possession of all of them and not one was ever forwarded to the Union.38 Earlier herein it was found that several of these were signed by employees after Foreman Frazier solicited their signatures and after he told employee Donald Watts that if Watts did not sign the slip he would be fired. It was also found that Frazier offered a withdrawal slip to employee John Valentine with the explanation that Valentine's signature on the slip was necessary to insure his continued employment. In view of such facts, which make it manifest that several of these withdrawal statements were secured in large measure through the Respondent's unlawful interference and coercion, the Company may not now rely on this type of evidence as justification for its reluctance to believe that the Union actually had enlisted the support of a majority of its employees. Whereas at the hearing Superintendent Johnson voiced the same doubts as had Mr. Davis about the reliability of the cards which the 36 "Where, as in this case, the Union had proof of its majority status readily available and the Employer chose not to learn the facts, it `took the chance of what they might be "' NLRB v Elliott-Williams Co, Inc, 345 F 2d 460, 464 (C A 7), citing NLRB v Remington Rand, inc , 94 F 2d 862, 869 (C A 2), cert denied 304 U S 576, 585; N.L R B v Dahlstrom Metallic Door Company, 112 F.2d 756 (C A 2). 31 Four employees signed these statements in May, two in June, twelve in July, and one in August Michael Stephens , an employee who signed one of these statements about May 21 , also wrote the Union a letter of revocation during this period That letter has already been discussed, fn 33, supra Insofar as the record discloses , Stephens was the only employee who, in addition to signing one of the company slips , wrote directly to the Union 38 Since these withdrawal statements were never forwarded to the Union , they bear no relevance to the question of the Union's majority status at the time it requested recognition on May 17, 1965 "A principal's revocation of his agent 's authority is ineffective until communicated to the agent " Jas H Matthews & Co v. N L R B , 354 F 2d 432, 438 (C.A 8), Restatement (second), Agency, § 119 (c), 1958 se "In cases such as this, where the employer 's unfair labor 281 Union claimed it had , he conceded that the Company made no effort to accept the union offer that it examine the cards or have an impartial observer check them. The Respondent's claim that it had a bona fide doubt as to the Union 's majority must be considered in the light of the foregoing facts, and , most particularly , in view of the numerous findings of unlawful interference , restraint, and coercion on the part of Foreman Frazier in the month of May prior to the union demand . Equally revealing as to the Respondent' s good faith is the fact that in the period subsequent to the Union 's request for recognition on May 17, additional 8(a)(1) violations were committed, not only by Frazier, but by Johnson as well . Further, as found earlier, the Respondent violated Section 8(a)(3) by its discriminatory suspensions of Gibbs„ Bias, and Pennington and Section 8(a)(1) by the posting of the no- solicitation rule of May 28 . Thus, while the Respondent asserts that in good faith it doubted the Union 's majority, contemporaneously , its supervisory staff was conducting a campaign that was designed to destroy the Union's support among the employees.39 In the light of the foregoing facts, I conclude and find that when the Respondent received the Union's request for recognition and bargaining, set forth in Spencer 's letter of May 17, 1965, the employer did not have a good-faith doubt as to the Union 's majority standing with the employees As a result , there was no valid justification for the Respondent's position set forth in its letter of May 19, 1965, wherein President Davis stated that the Company would refuse to recognize or bargain with the Union until the latter won a Board-conducted election .411 I conclude that the Company 's response to the Union, in the context of the illegal antiunion activity found above, was based, not on a bona fide doubt as to the Union's majority , but rather on a rejection of the principles of collective bargaining and a desire to gain time within which to dissipate the union majority. By its rejection on May 19 , 1965, of the Union 's request , and its continuing refusal to recognize the Union thereafter , the Respondent violated Section 8(a)(5) and (1) of the Act. Joy Silk Mills, Inc. v. N.L .R.B., 185 F.2d 732, 741 -742 (C.A.D.C.), cert. denied 341 U.S. 914 ; Bilton Insulation , Inc. v. N.L.R.B., 297 F.2d 141 (C.A. 4); Irving Air Chute Company, Inc. v. N.L.R.B ., 350 F.2d 176, 181-182 (C.A. 2); Allegheny Pepsi- Cola Bottling Company v . N.L.R.B ., 312 F .2d 529, 532 (C.A. 3). practices are clearly established, both before and after the demand for bargaining, the good faith of his doubts of the union majority may properly be regarded with some suspicion " N L R B v Cumberland Shoe Corp , 351 F 2d 917, 921 (C A 6), N L R B v Philamon Laboratories Inc , 298 F 2d 176, 180 (C A 2) 40 In the letter of May 19 , the Respondent also based its refusal to recognize the Union on the stated ground that "there has been no agreed description of an appropriate bargaining unit " On May 21, in another letter to Davis, the Union endeavored to clarify further its description of the unit In a letter dated June 1, Davis wrote that the Union 's "description of a proposed unit is not sufficient or proper " As found earlier , neither then , nor later, did the Respondent ever state what it considered an appropriate unit In view of these facts, the Respondent cannot now urge, with any merit , the contention that the Union's original letter inadequately described the unit The Board has held that in these circumstances, an employer "by [his] refusal to consider the Union's request for recognition and its offer to prove its majority . foreclosed any clarification by the Union as to the scope of its requested unit " Hamilton Plastic Molding Company , 135 NLRB 371, 373, set aside on other grounds 312 F 2d 723 (C A 6) 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Case 9-CA-3742 In the complaint issued in the above-numbered case, the General Counsel alleged that the Respondent discriminatorily discharged Dueird Pennington on June 24, 1965, and Dale Barnett on October 2, 1965, and discriminatorily laid off Larry Blankenship on November 4, 1965. These allegations are denied in their entirety by the Respondent. A. Dueird Pennington Earlier herein, it was found that Pennington was discriminatorily suspended for a period of 1 week from May 31 to June 7. On June 24, Pennington was again suspended for 2 weeks and at the conclusion of that period he was terminated. The General Counsel contends that this last suspension and discharge were also discriminatory. The Respondent denies this allegation and avers that the employee was terminated for lying On June 14, at a point some distance from the warehouse and as the result of sheer happenstance, Superintendent Thurman Johnson observed a passenger in the company truck which Pennington was driving. Pennington testified that the following day, when Johnson questioned him as to the identity of his passenger, he told the superintendent that it was his cousin. According to Pennington, Johnson also asked whether he realized what the rule was in connection with hitchhikers and that he replied in the affirmative. Shortly thereafter, the following notice, dated June 16, was attached to the timecards of all the truckdrivers. It read as follows: TO ALL TRUCK DRIVERS: THIS IS TO REMIND YOU OF OUR COMPANY POLICY IN REGARDS TO HAULING PASSEN- GERS IN COMPANY TRUCKS. TRUCK DRIVERS ARE NOT PERMITTED TO HAUL ANYONE AT ANYTIME OTHER THAN COMPANY PERSONNEL. On June 16, Pennington was summoned to a meeting with Johnson, President Davis, and Attorney John A. Jenkins, Jr., counsel for the Respondent.41 At this meeting Pennington was interrogated by company counsel as to why he had permitted a nonemployee passenger to ride in his truck. According to Davis, Jenkins told the employee that the Company wanted to know the full story before making a decision on the matter, that, whereas there was a rule prohibiting the carrying of passengers, it was conceivable that the employee's action could be justified if an emergency of some character was involved. Davis testified that up to that point Pennington had refused to discuss the matter, but that thereafter he proceeded to tell them that the incident had arisen as an emergency; the passenger was his cousin, one Carson Jeffers; Jeffer's brother had had an accident; and Jeffers was on the way to a hospital to donate blood so that his brother could have a transfusion. According to Davis, notwithstanding Pennington's account of his cousin's brother having been in an accident, the employee was unable to give the name of the relative who had been injured, the extent of the injuries incurred, the name of the hospital involved, and numerous other details that Pennington, presumably, should have known. 41 Pennington testified that he thought this meeting occurred on June 15. However, the other witnesses testified that it was held By letter dated June 24, the Company notified Pennington that it had investigated the hitchhiking incident; it had been unable to confirm his account of the circumstances under which he had picked up Jeffers whom he described as his cousin; it was the Company's conclusion that Pennington falsely represented that he did not know about the company prohibition on carrying hitchhikers; and as a result he was being suspended without pay until July 5 The letter further requested that Pennington supply the Company with any additional information he had which would confirm the account he had given previously with respect to Jeffers. Finally, the letter stated that in the event Pennington failed to comply with this request it would be assumed that the information he gave the Company as to the reasons for providing Jeffers with transportation were false and that, in such event, he would be discharged. Pennington remained off work throughout that period of his suspension. He did not, however, supply the Company with any further information about Jeffers. About July 5, he endeavored to return to work, but was told by Thurman Johnson that he could not do so until he ascertained the whereabouts of Jeffers and supplied the Company with the information requested earlier. On July 12, the Respondent wrote the following letter to Pennington: On July 5, 1965, you were present at the company offices and failed to furnish any of the information requested in our letter of June 24, 1965, to you. You stated that you had been in contact with your first cousin, Carson Jeffers, and that he had promised to come to the company office and explain the circumstances of his being in a company truck operated by you without authority. Jeffers did not appear. - The company will give you a further opportunity to clear up the matter if you care to do so. If you will furnish us the address of Carson Jeffers, his sister's name, or the name and address of his brother who was supposed to have been in the hospital, we will continue our investigation in the matter. Johnson testified that the letter was mailed to the last home address which Pennington had given the Company and that it was never returned by the post office. Pennington denied that he ever received the letter. On cross-examination, however, he conceded that the address on the letter was that of the small town in which he was then living. In this connection, as in other testimony with respect to the circumstances surrounding the incident to which the Respondent attributed his termination, Pennington's account was not convincing. Pennington testified that about the third week of July he returned to the plant to ask Johnson for a layoff slip. According to the employee, Johnson told him that he had been fired and that the Company did not give layoff statements to those who had been discharged. Pennington testified that he then asked for information as to when he had been discharged and that Johnson answered, "You were fired to start with." Johnson denied that he had made the last remark attributed to him by Pennington. According to Johnson, he told the employee on this occasion that he had never been laid off, but that he was then being discharged because he had failed to furnish the information which the Company had requested that he supply. on the following day and their recollection in this regard appears to be the more accurate DAVIS WHOLESALE CO. The General Counsel offered several witnesses in support of the contention that the Respondent's rule on carrying passengers in the company trucks was more honored in the breach than in the observance. Thus, Ottie Adkins testified that he had never seen a notice like that which the Respondent published in June and that in several years of experience as a truckdriver for the Company he had frequently let his two sons ride with him Adkins, however, was most implausible on this last phase of his testimony. Whereas he denied that Johnson had ever warned him about the rule on passengers or threatened him with discharge for violating it, Johnson credibly testified that on one occasion he had admonished Adkins severely for having permitted his son to ride with him and that at the same time he warned Adkins that if he ever again let anyone but company personnel ride in his truck he would be discharged. Dave R Johnson, also a truckdriver for several years, conceded that he knew that the Company had a rule banning the carrying of hitchhikers, but he further testified that it was never enforced. Superintendent Johnson, on the other hand, testified that the Respondent's ban on the carrying of anyone in the trucks other than company personnel had been in effect for a long while, that it was dictated by the insurance carrier's requirements and related liability problems, and that it was brought to the attention of the drivers both at meetings and in periodic notices. I conclude that the Respondent did, in fact, have a rule prohibiting the carrying of noncompany passengers in its trucks, such a rule, of course, being necessitated by insurance carrier requirements and the tort liability issues involved. Pennington was not convincing insofar as he testified that other drivers frequently carried passengers and that he did not know that there was any prohibition of this practice. Nor was it impressive to hear him testify, as he did, that he felt that it was his business, and not the Company's, if he picked up a rider. Pennington's account of the story which he imputed to his cousin Jeffers was not persuasively related at the hearing. In any event, it is not necessary to decide whether Jeffers actually told Pennington the story of need and hardship which Pennington gave to the company officials as the reason for having offered Jeffers a ride in the Respondent's truck. From his own testimony, it is apparent that Pennington's account of his attempt at being a good samaritan really had nothing to do with his decision to offer Jeffers a ride. Thus, he testified at the hearing that on the occasion in question he stopped along the highway, invited Jeffers into the truck, and that after he resumed driving along the highway, and not until then, Jeffers related the story of his brother's hospitalization which Pennington gave to the company officials as the reason for having offered his cousin a ride. Pennington was a known union adherent and had been active in the organizational campaign .4' Also, as found above, he had already been the object of a discriminatory suspension arising out of his union activities. On the other hand, Pennington did, in fact, violate a company rule which prohibited carrying nonemployees in the Respondent's trucks and later, when questioned about the matter, he gave the Respondent's officials an alibi in justification for his indiscretion that they had every reason to believe was largely fabricated. In view of the union 42 He was not, however, as the General Counsel contends in his brief, the principal organizer for the Union, for, as found earlier, Gibbs had a substantially more active role in that connection. 283 animus which the Respondent's officials had displayed during the preceding weeks and the earlier discrimination practiced against Pennington, it may be assumed that these same officials resented the employee's connection with the Union. Nevertheless, Pennington's union activities did not accord him any immunity from the company rules which applied to all other employees. As the Board stated in another case: "Cornett was a union leader, and the Respondent may well have welcomed the opportunity of getting rid of him, but neither his activities nor the Respondent's attitude gave him privileges greater than those of other employees." Lloyd A. Fry Roofing Company, 85 NLRB 1222, 1224. In view of the above findings, I conclude on this record that the General Counsel has not established by a preponderance of the evidence that Pennington was discriminatorily terminated. Accordingly, it will be recommended that the complaint be dismissed insofar as it alleges that the Respondent's dismissal of Pennington violated Section 8(a)(3) and (1) of the Act. B. Dale Barnett Barnett was hired as a warehouse employee late in July 1965. He was discharged on October 2, according to the General Counsel because he had signed a union card, according to the Respondent because of his poor work record Barnett worked in the warehouse on the night shift under Foreman Frazier. He was classified as an order filler and started at $1.25 an hour. About 6 weeks after his employment he was given a 10-cent-an-hour raise. On September 21, in the presence of several coworkers, including Donald Watts, Barnett signed a union card. At quitting time on the morning of October 2, Frazier told Barnett that he was being laid off. When the employee asked the reason, Frazier told him that he did not know, that Barnett would have to secure that from Superintendent Johnson. Several days later, Barnett sought out Johnson to inquire as to the reason for his layoff and to learn whether there was any likelihood of reemployment. Johnson told Barnett that he had been laid off because he had not done a good job, he had misdirected an order for $40 to $50 worth of shotgun shells, and he had placed certain loads on the wrong truck. Johnson concluded the discussion with the statement that it was too late for Barnett to do anything about securing reinstatement.4I Donald Watts, a witness for the General Counsel, testified that on the morning of October 2, Frazier told him that he had dismissed Barnett, whom he described as one of Watts' "buddies." According to Watts, when he questioned the foreman as to the reason for the discharge, Frazier told him it was because Barnett had signed up for the Union. Watts further testified that the following night, in another conversation with Frazier during which there was some mention of the shortage of help on the shift, the foreman told him "Well, the reason I had to let your help go, as we talked the other night, was because he had signed that union card." Frazier denied that he had any such conversations with Watts. This denial, however, was most unpersuasive. Frazier was the most vocal of the Respondent's entire supervisory staff in expressing his 49 The foregoing findings are based on the credible testimony of Barnett which, in this respect, was neither contradicted nor denied by Frazier or Johnson 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dislike for the Union and in giving vent to numerous forcasts as to what the Company and President Davis would do if the Union ever succeeded in organizing a majority. His numerous threatening remarks in this vein and his intense interest in the employees' organizational activities have been set out earlier in this Decision. Watts' testimony in this connection was credible and Frazier's denial was not. Accordingly, I conclude that the conversations between Frazier and Watts, to which the employee testified, occurred substantially as Watts related them. Johnson and Frazier testified at considerable length as to Barnett's alleged inadequacies. Frazier testified that Barnett made many mistakes in filling orders, he frequently corrected him, and the last 4 or 5 weeks of his employment he had had to speak to Barnett in this regard almost every day. Johnson testified that Frazier frequently told him he was having difficulties with Barnett, and that even during August and September, shortly after his employment, Frazier had reported that Barnett was an inefficient employee. According to Frazier, Barnett's mistakes started as soon as he came to work and continued throughout his employment. On the other hand, Barnett testified that Frazier had criticized his work on only three occasions. The first time was 2 or 3 weeks after he had gone to work when, according to the employees, Frazier told him to speed up his order filling as much as possible. Barnett testified that about a month later Frazier told him that he should be doing a better job. According to the employee, about 2 weeks later, Frazier admonished him in a similar vein, but thereafter, and until his discharge, no one ever criticized his work. The testimony of Frazier to the effect that he had reprimanded Barnett for his ineptitude on many occasions and almost daily during the last month before his discharge was not as credible as the testimony of Barnett that Frazier had admonished him about his performance only three times during the course of his employment with the Company. Barnett was a young man and a new employee with only a few months' experience at the time of his discharge. Very likely his work did leave much to be desired. On the other hand, Johnson and Frazier testified that their dissatisfaction with his performance had extended over the entire period of his employment. Nevertheless at the time of the employee's discharge, Frazier did not give Barnett any explanation for the action, and only told the employee that he would have to speak to the superintendent. It was only after several days had passed and Barnett sought out Johnson to inquire about reemployment that the latter ascribed the immediate reason for the termination to a mistake on the delivery of hotgun shells. In view of the abruptness of Barnett's discharge, the failure of his foreman to offer any explanation for the action at the time, and the subsequent testimony of Johnson and Frazier that Barnett's performance had been poor from the time of his initial employment, it is my conclusion that the real reason for his dismissal was, as Frazier told Watts, that Barnett "had signed up for the Union." Although the Respondent may have had some cause for dissatisfaction with Barnett's work, as the Court of Appeals for the Third Circuit once observed in a similar case, "it apparently became intolerable only after he had joined the union." N.L.R.B. v. Electric City Dyeing Co., 178 F.2d 980, 983 (C.A. 3). By its termination of Barnett the Respondent violated Section 8(a)(3) and (1). C. Larry Blankenship Blakenship was hired in mid-July 1965, as a warehouse employee on the day shift under Foreman Charles Christian. His starting rate was $1.25 an hour. After he had been at work for about 10 weeks he received a raise of 5 cents an hour. Shortly thereafter, and about October 14, he signed an authorization card for the Union. On the morning of November 4, he sought out Foreman Christian to tell him about having signed a union card. At the same time he explained to his foreman that he had taken this step because of his dissatisfaction with having received only a 5-cent raise when others who had come to work subsequent to his hiring received a larger raise. Christian apparently said little, if anything, to the employee. That evening, however, and before Blankenship left for the day, Johnson called him to his desk. According to Blankenship's credible, uncontradicted, and undenied testimony, Johnson then told him that he had heard that Blankenship was unhappy, that the Company did not like unhappy employees, and for that reason Blankenship was being laid off, the layoff to be effective immediately and until further notice. Shortly after November 4, the Company hired a new employee for the day shift in the warehouse named Avery Ferguson and transferred Garry Gallimore, a night- shift employee, to the day shift. On November 8, the Union filed an amended charge in Case 9-CA-3742, alleging, inter alia, that Blankenship had been discriminatorily terminated. On November 10, the Respondent received a copy of this charge by registered mail. On November 11, he was recalled to work as a part-time employee. Johnson testified that originally Blankenship had been hired as a part-time employee and that he had been laid off on November 4 because business was slack. On the other hand, he did not contradict or deny the conversation attributed to him by Blankenship wherein the latter testified that the superintendent told him that he had heard that Blankenship was a disgruntled employee and that he was being laid off until further notice. Johnson denied any knowledge of the employee's union activities or whether the latter had signed a union card. The Respondent, however, never called Christian to testify as to the conversation which Blankenship testified he had had with him. From the credible and uncontradicted testimony of Blankenship it is apparent that the employee himself apprised Christian, his foreman, of the fact that he had signed a union authorization. In that same conversation he asserted that he had done so because of dissatisfaction over a raise which he had received. At the end of his shift that very day Superintendent Johnson summoned him to his desk to tell the employee that he had heard that Blankenship was unhappy, that he did not like unhappy employees, and that he was going to lay him off until further notice. At the hearing Johnson attributed the layoff to a slack in business. Apart from this self-serving declaration, however, the Respondent offered no evidence as to business conditions during this period. In numerous other instances during the preceding 6-month period, Johnson and the Respondent had pursued a course of conduct aimed at keeping the Union out of the warehouse and destroying its majority. Under the circumstances present here, I conclude that at the close of Blankenship's shift on November 4, Johnson was well aware of the conversation which the employee had had with Foreman Christian earlier in the day, and that Johnson had learned DAVIS WHOLESALE CO. from Christian that Blankenship had signed a union card because of dissatisfaction about a wage increase. Furthermore, I conclude that Johnson's statement that he had heard that Blankenship was "unhappy" and that he did not like "unhappy employees" was a thinly veiled reference to Blankenship's conversation earlier in the day when he had told his foreman that because of his dissatisfaction with the wage raise given him he had gone and signed an authorization card. Finally, I conclude and find that, in the light of the foregoing, the real motivation for Blankenship's layoff was not a decline in business but Johnson's displeasure about the employee's having gone to the Union. In laying off this employee, therefore, the Respondent violated Section 8(a)(3) and (1).44 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. All employees employed by the Respondent at its place of business in Culloden, West Virginia, excluding salesmen, office clericals, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since May 17, 1965, the Union has been, and now is, the exclusive representative of all the employees in the aforesaid unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 4. By failing and refusing at all times since May 19, 1965, to bargain collectively with the Union as the exclusive representative of the employees in the aforesaid unit , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By discriminating in regard to the hire and tenure of employment of Dale Gibbs, Dueird I. Pennington, George W. Bias, Dale Barnett, and Larry Blakenship, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. By interfering with , restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. "Johnson testified that Blankenship originally had been hired as a part-time employee. On the other hand, the employee credibly testified that prior to his layoff he averaged 40 hours of work a week Blankenship testified that subsequent to his recall he did not work as much as he had prior to the time he was laid off On the other hand, the General Counsel did not offer any satisfactory corroboration for Blankenship's statement in this connection. Consequently, it cannot now be held, and I do not 285 7. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 8. The General Counsel has not proved by a preponderance of its evidence that the Respondent interfered with , restrained , or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and conduct found herein to have been violative. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily discharged Dale Barnett on October 2, 1965, I shall recommend that the Respondent be ordered to offer him immediate and full reinstatement , without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings that he may have suffered from the time of his discharge to the date of the Respondent's offer of reinstatement . I shall also recommend that the Respondent be ordered to make whole Dale Gibbs, Dueird Pennington, George W. Bias, and Larry Blankenship for any loss of earnings suffered as a result of their discriminatory suspensions or layoffs.45 The backpay for the foregoing employees will be computed in accordance with the formula approved in F. W. Woolworth Company, 90 NLRB 289, with interest computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721. It will also be recommended that the Respondent be required to preserve, upon request, and make available to the Board or its agents payroll and other records necessary to facilitate the computation of backpay due. As the unfair labor practices committed by the Respondent are of a character striking at the root of the employees' rights guaranteed by the Act, it will be recommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Davis Wholesale Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union. (b) Discouraging membership in Food Store Employees Union Local#347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to their hire, tenure, or any terms or conditions of their employment. find, that subsequent to his return to work on November 11, 1965, and thereafter, Blankenship was discriminatorily denied any workhme 4' As found earlier, Gibbs was suspended from May 27 to June 14,1965; Pennington from May 31 to June 7, 1965, Bias from June 16 to June 21, 1965, and Blankenship was laid off from November 4 to November 11, 1965 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Interrogating employees regarding, or in connection with, their union membership, sympathies, or activities in a manner constituting interference, restraint, or coercion within the meaning of Section 8(a)(1) of the Act. (d) Threatening employees with discharge or any other form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of, any labor organization. (e) Soliciting withdrawals from union membership and disclaimers of interest in union representation by its employees. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right is affected by the proviso to Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Dale Barnett immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered in the manner set forth in the section of this Decision entitled "The Remedy." (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his 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. (c) Make whole Dale Gibbs, Dueird Pennington, George W. Bias, and Larry Blankenship for any loss of pay suffered by reason of their discriminatory suspension or layoff, by the Respondent, in the manner set forth in the section of the Decision entitled "The Remedy." (d) 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. (e) Upon request, bargain with Food Store Employees Union Local #347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all employees in the appropriate unit and , if an understanding is reached, embody such understanding in a signed agreement. The appropriate unit is: All employees employed by the Respondent at its place of business in Culloden, West Virginia, excluding salesmen, office clericals, guards, professional employees and supervisors as defined in the Act. (f) Post at its place of business in Culloden, West Virginia, copies of the attached notice marked "Appendix. "46 Copies of said notice, to be furnished by the Regional Director for Region 9, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 4' IT IS FURTHER ORDERED that the complaints in Cases 9-CA-3599 and 9-CA-3742 be dismissed insofar as they allege any unfair labor practices other than as herein specifically found. a'' 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 said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership of our employees in Food Store Employees Union Local#347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, or any other labor organization, by discharging, suspending, laying off, or otherwise discriminating against any of our employees. WE WILL NOT unlawfully interrogate our employees concerning their union activities or sympathies. WE WILL NOT solicit withdrawals from union membership or disclaimers of interest in union representation by our employees. WE WILL NOT threaten our employees with discharge or any other form of reprisal because of their membership in, sympathy for, support of, or activities on behalf of the aforesaid Union, or any other labor organization. WE WILL offer Dale Barnett immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay suffered as a result of the discrimination against him. WE WILL make whole Dale Gibbs, Dueird Penning- ton, George W. Bias, and Larry Blankenship for any loss of pay suffered as a result of the discrimination against them. WE WILL bargain collectively, upon request, with Food Store Employees Union Local#347, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an agreement is reached, embody such understanding in a signed contract. The bargaining unit is: DAVIS WHOLESALE CO. All employees employed at our place of business in Culloden, West Virginia, excluding salesmen , office clericals, guards, professional employees and supervisors as defined in the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the rights to self-organization, to form, loin, or assist the above-named, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by the Act. DAVIS WHOLESALE CO., INC. (Employer) 287 Note: We will notify the above mentioned Dale Barnett if presently serving in the Armed Forces of the United States of his 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, Federal Office Building, 550 Main Street, Room 2407, Cincinnati, Ohio 45202, Telephone 684-3686. Dated By (Representative ) (Title)