The Pembek Oil Corp.

PEMBEK OIL CORP. The Pembek Oil Corporation and International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, Local Union No. 677. Case 1-CA-5652 June 14,1967 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On March 21, 1967, Trial Examiner Alvin Lieberman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision together with a supporting brief, and the General Counsel filed a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, as modified herein. 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, the Pembek Oil Corporation, Meriden, Connecticut, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. ' In the absence of exceptions, we adopt pro forma the Trial Examiner's finding that employee Emery's authorization card is invalid because he signed it on the misrepresentation that he was the only employee in the unit who had not signed a card Phil-Modes, /nc , 159 NLRB 944, Dan Howard Mfg. Co , 158 NLRB 805, cf. Merrill Axle and Wheel Service, 158 NLRB 1113 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 367 ALVIN LIEBERMAN, Trial Examiner: This proceeding, with all parties represented, was heard in Meriden, Connecticut, on November 28, 29, and 30, 1966,' upon a complaint of the General Counsel' and Respondent's answer. The issues litigated were whether Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein called the Act). More particularly, the questions foe decision are as follows: 1. Did Respondent violate Section 8(a)(3) and (1) by discharging Carl Collins 91 2. Was the unit for which the Union requested recognition from, and bargaining with, Respondent appropriate for those purposes? 3 Did the Union represent a majority of Respondent's employees in a unit appropriate for collective bargaining when the foregoing request was made? 4. Did Respondent violate Section 8(a)(1) arid (5) of the Act by refusing to bargain with the Union, by bargaining directly with its employees, by inducing them to abandon a lawful strike, or by inducing them to repudiate the Union 9 Upon the entire record,4 upon my observation of the witnesses and their demeanor while testifying, and upon careful consideration of the arguments made and briefs submitted by the General Counsel and Respondent, I make the following. FINDINGS OF FACT' I. RESPONDENT'S BUSINESS Respondent, a Connecticut corporation, whose principal office and place of business is located at Meriden, Connecticut, is engaged there in the installation and servicing of oil burners and related equipment and in the retail sale of fuel oil. Respondent annually purchases and ' All dates referred to in this Decision fall within 1966 2 The complaint was issued on a charge filed by International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No 677 (herein called the Union ) During the trial the complaint was amended to set forth the name of the Union as it appears in the caption and by substituting for paragraph 10, as originally set forth, the following paragraph 10 All employees employed by Respondent at West Main Street, Meriden, Connecticut, including fuel truck drivers, installation men , servicemen , soot men, but excluding salesmen , office clerical 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 On motion of Respondent made at the conclusion of the General Counsel's case-in-chief ¶8 of the complaint which alleges that Respondent failed and refused to reinstate Collins and so much of ¶ 9 and other paragraphs of the complaint which relate to ¶ 8 were dismissed for the reason that the General Counsel offered no evidence to establish those allegations. I have been urged by the General Counsel to reconsider this ruling and I have done so Having reconsidered and having taken into account the General Counsel's arguments, I find no convincing reason for changing niy ruling. 4 Errors in the transcript have been noted and corrected 5 The motion to dismiss the complaint made by Respondent at the close of the trial is disposed of in accordance with the findings and conclusions set forth in this Decision 165 NLRB No. 51 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receives products valued in excess of $50,000 from suppliers located outside the State of Connecticut and Respondent's gross volume of business annually exceeds $500,000. Accordingly, I find that Respondent is engaged in commerce within the meaning of the Act and that the assertion of jurisdiction over this matter by the National Labor Relations Board (herein called the Board) is warranted. Siemons Mailing Service, 122 NLRB 81, 85; Carolina Supplies and Cement Co., 122 NLRB 88, 89. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction Briefly, this case concerns itself with the events following the Union's authorization by Respondent's employees to act as their collective-bargaining representative. Among these were the Union's demand for, and Respondent's refusal of, recognition and bargaining; the discharge of one employee; a strike; Respondent's direct bargaining with the striking employees; and, coming full circle, the employees' repudiation of the Union. The General Counsel contends that Respondent's refusal to recognize and bargain with the Union pursuant to its demand was based upon its determination to gain time within which to destroy the Union's status as the collective-bargaining representative of the employees concerned, hence in violation of 8(a)(5) of the Act. In support of this argument the General Counsel points to Respondent's discharge of an employee, claimed by the General Counsel to have been discriminatory and, accordingly, violative of Section 8(a)(3) of the Act; to its direct bargaining with employees who had earlier signed cards authorizing the Union to act as their collective- bargaining agent which, the General Counsel postulates, induced the employees involved to abandon a lawful strike and repudiate the Union, all in violation of Section 8(a)(1) and (5) of the Act. Taking issue with the General Counsel on all points Respondent argues that it has not violated Section 8(a)(5) of the Act by its refusal to accede to the Union's demand for recognition and bargaining because of its good-faith doubt as to the Union's claim that it represented a majority of its employees; because the unit for which the Union requested recognition is not appropriate for collective- bargaining purposes; and because the authorization cards, upon which the Union's majority is bottomed, are invalid by reason of misrepresentations in their procurement. Further Respondent argues that it did not engage in direct bargaining with the employees concerned and that any dealing by Respondent directly with its employees was discontinued immediately upon its being advised that such conduct might be, in the circumstances of this case, improper. Running out the skein, insofar as this phase of the case is concerned, Respondent contends that its direct 8 The findings with respect to the duties of Respondent's employees are based on the testimony of Grant, Fred J Knell, Respondent's president , Robert J. Thuotte , its office manager and dispatcher, Thomas F Yale, a driver employed by Respondent, and Carl Collins, who was employed as a driver by Respondent and whose discharge is claimed by the General Counsel as having been violative of Sec. 8(a)(3) of the Act dealing with its employees did not induce them to abandon their strike or to repudiate the Union. Finally, while admitting the discharge, Respondent asserts that it was occasioned solely by the many errors made by the employee in question and that it had no prior knowledge of his activities on behalf of the Union. B. Facts 1. The nature of Respondent's operations Respondent installs and services oil burners in existing commercial establishments and homes, the former being referred to as industrial work and the latter as domestic work. In addition, Respondent on occasion installs oil burners in buildings under construction and regularly sells fuel oil. Insofar as material, in the operation of its business Respondent employs installer-servicemen, power cleaners, oil truck drivers (herein respectively called servicemen, sootmen, and drivers), and a maintenance man. The usual duties of the servicemen, who exercise skills not possessed by Respondent's other employees, consist of installing, servicing, and repairing industrial and domestic oil burners and related equipment, in existing buildings. During the period critical to this proceeding Respondent employed eight servicemen, of whom six did both industrial and domestic work. Of these, two also installed oil burners in buildings under construction. This work, however, occupied their time for only about 6 weeks a year. The remaining two servicemen did only domestic work. Respondent's drivers deliver fuel oil to its customers, compute the amount of money due from customers for the oil delivered by them, and enter this sum on an invoice which is left with the customer at the time of the delivery. Although their principal duties relate to the delivery of fuel oil, the drivers also assist servicemen. This type of work is done by the drivers for about 2 or 3 months a year, generally in the summertime, when there are little, or no, deliveries to be made. As John W. Grant, Respondent's secretary, testified, "in a given week [during this period a driver could spend] all his time or 90 per cent of his time" assisting servicemen. The sootmen clean oil burners and related equipment. On rare occasions sootmen also assist servicemen. The maintenance man, as Grant further testified, "keeps [the shop] clean" and "takes care of the stock. 116 Respondent is party to a collective-bargaining contract with Local Union No. 21, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry (herein called Plumbers Union).' This contract covers two of Respondent's employees, the servicemen who install oil burners in buildings under construction. It is applicable, however, only when they perform this type of work, which, as I have found, they do for about 6 weeks during each year. The contract has no relevance when the employees concerned perform the usual functions of servicemen; i.e., the installing, servicing, and repairing of oil burners in existing buildings.8 ' Insofar as it may be material , I fi,id that Plumbers Union is a labor organization within the meaning of the Act 9 These findings are based on the contract between Respondent and Plumbers Union, which is in evidence as Reap. Exh. 10 and the testimony of Knell, Respondent's president. PEMBEK OIL CORP. The maintenance man spends all his working time in Respondent's warehouse. The servicemen, sootmen, and drivers work there when they are not performing duties away from Respondent's premises. The servicemen, sootmen, drivers, and maintenance man are hourly rated and each has a timecard. Except for the maintenance man, they wear the same work uniform. All including the maintenance man, benefit from an insurance program maintained by Respondent," have the same vacation and sick leave privileges, and, as Grant, Respondent's secretary, related, share the same restroom "and other facilities in the shop."' ° At the trial it was stipulated that Knell, Grant, Thuotte, and Arthur Moskaluk, respectively Respondent's president, secretary, office manager and dispatcher, and sales engineer, are its only supervisors. As Respondent's president, Knell is "overseer of the whole operation." Respondent's sales engineer assigns work to all servicemen, "directs the activities" of those performing industrial work, and, on occasion, also directs the work of the sootmen, drivers, and maintenance man. Whenever a serviceman encounters "difficulty on [a] job," apparently without regard to whether the problem arises on industrial or domestic work, assistance is sought from, and given by, the sales engineer. The work of the drivers, domestic servicemen, and maintenance man is supervised by the Respondent's dispatcher Respondent's secretary "directs the activity" of the sootmen and assists the sales engineer in assigning work to the servicemen. The dispatcher regularly "reports" to Respondent's president, and from time to time to its secretary.'' 2. Respondent's collective-bargaining history It has already been found that Respondent and the Plumbers Union are parties to a contract of Respondent's servicemen, presently two in number, who install oil burners in buildings under construction. Respondent has had similar contracts with the Plumbers Union since about 1950. However, no labor organization has ever represented all of Respondent's employees.'' 3. The Union's organizing campaign Shortly after Collins started to work for Respondent' he began to hear complaints from other employees concerning their working conditions , and, because he was 0 The two servicemen covered by the Plumbers Union contract participate additionally in a health, welfare, and pension program provided for by that agreement. 10 The findings in this paragraph are based on Grant's testimony t i The findings with respect to the functions of Respondent's supervisors are based on Grant's testimony 12 These findings are based on the testimony of Knell and Grant , respectively Respondent's president and secretary. "As will appear below Collins , whose discharge, as already noted, is alleged by the General Counsel as having been violative of Sec 8(a)(3) of the Act, was hired by Respondent on August 19 "These findings are based on testimony given by Collins and Galullo 15 This finding is based on the authorization cards received in evidence as G C Exhs. 11, 12, and 14 through 20, and the testimony of the employees who signed the cards in question except Robert Chiaro, whose whereabouts were unknown at the time of the trial. 369 a union member, was requested by several to "contact someone for them to talk to about a union." Accordingly, Collins communicated with James Galullo the Union's business representative, who sent authorization cards and literature to Respondent's employees. Galullo also sent a supply of authorization cards to Collins, some of which Collins distributed among Respondent's employees. In addition to distributing the cards, Collins met with Respondent's employees individually and in groups and informed them of the benefits to be derived from representation by the Union. There was also a meeting on September 13, at the Union's headquarters attended by some of Respondent's employees and Galullo, the Union's business representative. At this meeting Galullo asked those present who had not signed cards to do so and received from the employees a series of proposals as to terms and conditions of employment which, as Galullo stated, "they wanted the union to negotiate on."'a 4. The Union's requests for recognition and Respondent's replies By September 8, nine employees in the unit alleged in the amended complaint as being appropriate "for the purposes of collective bargaining" had signed cards authorizing the Union to act as their collective-bargaining representative. 15 On September 9, the Union, in writing, informed Respondent that "a majority of [Respondent's] truck drivers, oil burner servicemen and installers, mechanics, and helpers have authorized [the] Union to act as their collective bargaining representative," and, in essence, requested that Respondent recognize, and bargain with, it as such representative. 16 On September 12, the Union filed a representation petition (Case 1-RC-9178) which was later withdrawn without prejudice. Upon receipt of the Union's letter," Respondent retained counsel and turned the letter over to him. He, in reply, informed the Union, on September 13, that Respondent disputed both the Union's majority claim and "the appropriateness of the unit." With respect to the authorization cards, Respondent's lawyer stated that they were signed "solely for the purpose of obtaining a representation election ... and, if not for that purpose, were signed based upon misrepresentations by representatives of your Union as to [their] import." It was further stated in this letter in acknowledgment of the Union's filing of its representation petition that 16 There is an apparent variance between the unit set forth in the Union's letter (G C. Exh 2, in evidence) and that contained in 9 10 of the amended complaint (G C Exh 13, in evidence) which describes the unit as "[a]ll employees employed by Respondent including fuel truck drivers, installation men, servicemen, soot men, but excluding salesmen, office clerical employees and supervisors ." Respondent raises no issue concerning these seemingly different unit descriptions and concedes in its brief that the unit set forth in the amended complaint "is the same unit originally sought by the Charging Union." In view of this concession, I find that the two documents, i e , the Union's letter and the General Counsel's amended complaint, in fact , describe the same unit As the unit description set forth in the amended complaint appears to be more artful than that contained in the Union's letter, all subsequent mention of the unit involved will have reference to the former, and, for the reasons set forth in fn. 53, tnfra, will be construed as including the maintenance man. "The letter was received by Respondent on September 12 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent would recognize the Union "only" upon its certification by the Board." As previously mentioned, several employees of Respondent attended a meeting at the Union's headquarters on September 13. At this meeting another employee in the unit, the 10th to do so, signed an authorization card.'" The following day, September 14, representatives of the Union and Respondent met with agents of the Federal and State mediation services. As is usual in such situations, the parties met jointly and separately with the mediators. At one of the joint sessions the Union again requested recognition and bargaining and again Respondent refused, stating on this occasion that the unit was inappropriate and that it would recognize the Union if it won a representation election.20 In view of Respondent's contentions concerning the Union's "majority" and the invalidity of the authorization cards signed by its employees, findings must be made concerning the number of employees in the unit, and the circumstances surrounding the signing of the cards. Concerning the former, it was stipulated that at the time in question here Respondent employed 8 servicemen, 4 sootmen, 2 drivers, and 1 maintenance man, a total of 15.2' As I have already found, 10 employees signed authorization cards. In pertinent part, these cards contain the following recital: I hereby authorize the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America to represent me for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment ... Respondent maintains that signatures to all the cards were obtained through misrepresentations sufficient to nullify them. In its brief Respondent points particularly to four cards, those signed by William F. Carlson, Felix George Rouleau, James Emery, and Donald MacLellan, as being illustrative of the misrepresentations made by Collins, who solicited signatures on behalf of Union, or by Galullo, the Union's business representative, to all the employees who signed cards." Accordingly, Respondent urges at least that the cards signed by these employees not be counted in determining the Union's majority. In detail, the events surrounding the signing of the cards in question are as follows: William F. Carlson: Carlson, a serviceman in Respondent's employ, received his card in the mail and signed it on September 1, after first reading it. Before 1" These findings are based on the testimony of Knell and Grant, respectively Respondent's president and secretary, and on the letter written by Respondent's lawyer (G C Exh 6, in evidence) 19 Like the other findings with respect to the signing of authorization cards, this finding is based upon the card, itself (G C Exh 21, in evidence), and the testimony of the employee who signed the card 20 These findings are based on the testimony given by Galullo, the Union's business representative , and Grant, Respondent's secretary. 21 In addition to these, Respondent employed two office clerks 221 do not agree that this is so Thus, Thomas Yale, a driver, testified that Collins merely told him he would receive a card in the mail and that he had no other conversation with Collins before reading and signing his card Thomas Padden, a sootman, testified that before signing his card Collins told him that "it was a receiving the card Carlson asked Collins whether he would become a member of the Union if he signed the card. Collins' answer was "No." Collins further told Carlson that the cards would enable Galullo to "talk to the company on the employees' behalf." Although not so informed by any representative of the Union, Carlson concluded that the card "was only to show ... the union that there were enough men interested in maybe forming a union"; the Union would inform Respondent of this fact; and "then it would be up to us to decide whether or not we wanted to vote the union in."'-1 Felix George Rouleau• After receiving his card, but before signing it, Rouleau, a serviceman, asked Collins whether the card "would be binding us to the union in any way." Collins' response was that it would not; the card was "introductory" '24 and Rouleau should "attend a meeting to see what the union had to offer." On the following day, September 4, Rouleau read the card, signed it, and mailed it to the Union.'' James Emery: Emery, a sootman in Respondent's employ, signed his card on September 7, after being told by Collins that "he was the last one" and that "everybody else had signed. '126 Donald MacLellan With other employees of Respondent, MacLellan, a serviceman, attended the meeting held at the Union's headquarters on September 13. Galullo, the Union 's business representative, told the assembled employees that among those present two had not signed authorization cards. Galullo, without saying more, then gave a card to MacLellan, who was one of those who had not yet signed. MacLellan signed the card at that time without reading it because, as he put it, there was "general conversation" among the employees "that we wanted to talk to the union, see what they had to offer and cards were more or less permission to talk to the Union." No representative of the Union was present at the time or times of this "general conversation" and although Collins was there he was not the person who told MacLellan that cards had to be signed by employees as a prerequisite to their talking to "the Union."27 5. Collins' discharge Carl Collins was hired as a driver by Respondent on August 19. He started to work the following day. He was discharged on September 12, several hours after Respondent received the Union's recognition and bargaining request. At the time of the termination of his employment Collins was told by Grant, Respondent's card that the union usually sends out lust to give them the authorization to negotiate " John Yale, a serviceman, could remember no conversation at all with Collins about the card which he signed, and Robert Parisi also a serviceman, gave similar testimony, although he received the card which he signed from Collins 23 These findings are based on Carlson's testimony 20 In context this word appears to be meaningless 25 These findings are based on Rouleau's testimony 26 These findings are based on Emery's testimony Emery also testified that he had decided to sign his card on the day before his conversation with Collins, during the course of which the card was signed This testimony was elicited from Emery by a leading question from the General Counsel at a time when Emery was his witness Accordingly , I will give it no weight Liberty Coach Company, inc , 128 NLRB 160, 162 2' These findings are based on testimony given by MacLellan, Rouleau, and Galullo PEMBEK OIL CORP. secretary, that he was being discharged because he made "too many mistakes in computing the price of fuel oil " Later that day Grant gave Collins a Connecticut Employment Security Division form, prepared by Respondent and signed by Grant in which the "Reason for Unemployment" was stated to be "Inability To Figure Or Compute Prices."'" About October 22, Respondent offered to reinstate Collins to the job he held at the time of his discharge. Because Collins was then employed elsewhere, he refused Respondent's offer.2" Prior to his employment by Respondent, Collins was interviewed by Grant and Thuotte, Respondent's dispatcher. At the time Collins was wearing a union button and he told his interviewers that he had been a union member.-'o During this conference the duties of a driver's job were explained to him and Collins was told about "the job training." In the latter connection, Thuotte, as Collins testified, told him that he would "go out with another man for a while to learn the job and that [Respondent] invested approximately a year in a man before he would become efficient like they like their employees to be.";' Findings concerning Collins' activity in support of the Union have already been made and appear under the heading "The Union's organizing campaign." The meetings mentioned there, at which Collins related to Respondent 's employees the advantages of union representation, were held in Respondent's shop, the regular work station of the employees who attended, on a Saturday, and on other days of the week. Although Saturday is a regular workday for Respondent's employees, none of Respondent's supervisors were present in the plant at the time the Saturday meeting was held. In addition to attending these shop meetings and there explaining the benefits obtainable by the employees through a relationship with the Union, Collins signed an authorization card, distributed others to employees, and engaged in discussions with them concerning the signing of the cards. Like the meetings, these, too, took place on Respondent's premises.''' As found above, Collins worked for Respondent as a driver from August 20, until his discharge on September 12, several hours after Respondent's receipt of 2' The finding concerning the conversation between Grant and Collins with respect to the reason for Collins' discharge is based on Collins' testimony Grant's version of this conversation is that he told Collins that he was being discharged for "making too may mistakes in the delivery of oil " Grant' s account , as can be seen, differs from Collins' in that it omits any reference to the nature of the "mistakes " This is not a mere semantic distinction It is material in view of Respondent 's position , as set forth in its brief, that Collins' discharge was occasioned not only by his errors in computation , but also by his mistakes in other areas . Because I was favorably impressed with Collins' demeanor as a witness and because his testimony as to the conversation in question is corroborated by the Connecticut Employment Security Division form (Resp Exh 11, in evidence), which, as noted , was prepared by Respondent and given to Collins on the day of his discharge, I accept Collins' version of the event rather than Grant's 2s These findings are based on Collins' testimony 30 In its brief Respondent concedes that it had knowledge at the time Collins was hired that in the past he had been a member of a union 31 Collins' testimony in this regard was substantially corroborated by Thuotte who related that during the interview "It 371 the Union 's bargaining request. At that time , as has also been found, Grant, Respondent's secretary, told Collins that he was being discharged because of his computation errors. Collins did make errors in computing the total price of the oil which he delivered to Respondent's customers. Collins made his first error of this nature on the very first day of his employment and continued to make similar errors. Collins mathematical deficiencies came to the attention of both Grant and Thuotte, respectively Respondent's secretary and dispatcher, during his first week as a driver for Respondent. Neither, however, spoke to Collins about this until Grant did so in connection with Collins' discharge on September 12, by which date Collins had been in Respondent's employ for more than 3 weeks. '13 Not only did they not speak to Collins about any of his mistakes,'' as set forth above, but also neither Grant nor Thuotte before September 12 had determined to take any disciplinary action against Collins because of them. During the morning of that day, however, after the Union's bargaining request had been discussed by Grant and Knell, Respondent's president, and had been shown to Thuotte, he suggested to Grant that they "sit down and talk about [Collins]." They did so and jointly decided to discharge Collins.-'-, One final fact remains for consideration in connection with Collins' dismissal . Although, as Thuotte and Grant both stated, the decision to terminate Collins' employment was theirs jointly and was arrived at after a conference, each gave conflicting testimony with respect to this joint decision. Thus, Thuotte testified that he and Grant arrived at their joint determination to discharge Collins "based on this incident of Gumkowski'"" [and] the mistakes he made in figuring oil tickets." Grant, on the other hand, recited as the grounds for the joint decision the whole gamut of Collins' faults as a driver, including his computation errors, his spillage of oil on a customer's cellar floor, his delivery of oil to a customer who did not order any, his giving a customer an invoice which should have been given to another, and his failure to make a timely delivery of oil to a customer who lived in a new area of the city because he could not find the house. was said that the starting pay was high because it takes quite a while for a man to be a good oil driver " 32 See, e g., the testimony of Carlson , Parisi , and Rouleau. 13 During Collins' second week of employment Grant informed Padden, a rank-and-file employee, of Collins' computation errors and asked him to tell Collins about them Padden , however, did not inquire nor did Grant say, what would happen if Collins' arithmetic did not improve Although Padden relayed the substance of his conversation with Grant to Collins, he could not remember whether he did that before or after Collins ' discharge 31 In addition to his computation errors , Collins spilled oil on the cellar floor of one of Respondent 's customers , and on the lawn of another, delivered oil to a customer other than the one it was intended for , gave a customer an invoice which should have been given to another, and on September 10, was unable to make a delivery at the time promised because he could not find the home of the customer who lived in a new section of the city. 35 These findings are based on testimony given by Grant and Thuotte and the following exhibits received in evidence G C. Exhs. 3(a) through (h), inclusive , and Resp Exhs 4 and 5 36 Gumkowski is the name of the person who owned the house in the new part of the city which Collins could not find in time to make his delivery at the hour promised 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. The events following Collins ' discharge After his discharge Collins and several employees gathered at a local tavern where they talked about Collins' dismissal . In addition , the employees expressed an interest in meeting with Galullo, the Union's representative . Through Collins' efforts such a meeting was arranged for the following evening at the Union's headquarters." About 10 employees attended this meeting, which was chaired by Galullo. Galullo designated Collins as the Union's steward , discussed with the employees Collins' discharge , Respondent's refusal to recognize the Union,:"" and outlined measures which might be taken , including a strike, to procure Collins' reinstatement and a collective- bargaining contract . In connection with the contract, the employees submitted to Galullo a paper on which was written the benefits they expected the Union to obtain for them through negotiation with Respondent. After considering the various courses which could be pursued, the employees decided to strike for the purposes of obtaining a contract and Collins ' reinstatement.:"' On September 14, almost all the employees who had attended the meeting the previous evening struck and picketed Respondent 's permises with signs stating "PEMBEK WORKERS ON STRIKE-TEAMSTERS LOCAL NO. 67" and "WE PROTEST DISCHARGE OF OUR STEWARD-LOCAL NO. 677 TEAMSTERS WATERBURY." The strike was short lived , however, and, as appears below , was discontinued the next day. Early during the morning of September 15, the striking employees decided among themselves to return to work. The strikers appear to have made this decision because the two servicemen in Respondent 's employ who were members of the Plumbers Union had not honored their picket line the previous day. Having decided to terminate their strike Carlson, on behalf of all the employees involved , telephoned Grant, Respondent's secretary, to ask whether they "could come in and sit down and talk." Upon Grant 's acquiescence, the employees went to Respondent 's premises where they conferred with Knell , Thuotte, respectively Respondent's president and dispatcher , and Grant.40 Before the meeting started Knell, Respondent's president , called its lawyer for advice as to the proper course which Respondent should pursue in the circumstances . Respondent's lawyer, however , was not in his office at the time." Neither the employees nor Respondent's officials who were present at the conference appear to have appointed a particular member to act as spokesman for their respective groups. Representatives of each spoke out at will. The first to speak was Carlson who stated tl- -it the employees were there to discuss their "gripes." To this, Knell, Respondent 's president , replied , as Emery, one of the employees in attendance testified, "that he had no idea 37 These findings are based on testimony given by Collins and Galullo. 38 Although Galullo had not yet received Respondent 's letter informing the Union of its rejection of the Union's request for bargaining, Respondent had, apparently earlier that day, posted a notice informing its employees that it would not recognize the Union, a copy of which was given to Galullo at the meeting 30 These findings are based on testimony given by Galullo, Carlson, and Rouleau and G.C. Exh. 10, in evidence. things had gotten as bad as they were ... that maybe ... this was a good thing that it did come out ... and that ... we could straighten something out by having this get together." Grant, Respondent's secretary, took a less conciliatory line, stating at the outset of the conference that he, too, had "gripes" and "wanted ... an 8-hour day." The employees then briefly mentioned some of the things with which they were concerned including the lack of a pension plan, and their desire to have a posted pay scale. There was also a cursory reference to sick and holiday pay. Respondent's representatives made no comment with respect to their employees' complaints, except as to pension and sick pay. Concerning the former, Respondent's representatives indicated that Respondent had already made inquiries in that area of several insurance companies. As to sick pay Grant stated that such benefits would not be provided where absence from employment was occasioned by the sickness of a number of the employees' family. No specific proposals were presented by either side and no agreements were reached by Respondent and its employees other than one to meet again during the following week. Carlson, one of the employees present, then suggested that they "go in the back shop" and prepare proposals for submission to Respondent before the next meeting between the employees and Respondent. While the employees were so engaged, Respondent's lawyer returned the call, which Knell had previously made to him. Upon being informed of what had happened Respondent's lawyer absolutely forbade further meetings with the employees because, as Knell put it, "having signed the cards, they are considered members of the union, and until this thing is settled one way or the other, you cannot bargain with them no how." Grant and Knell immediately notified the employees that on advice of its lawyer Respondent would not meet further with them. Upon being pressed for the reason Grant told the employees that Respondent's attorney "has informed us that you have signed cards, and you are automatically represented by the Union. `42 Later that day, September 15, the employees decided that they no longer desired the Union to represent them. Emery, an employee who participated in the decision, informed Galullo, the Union's business representative, of this, telling him that the employees "didn't want anything to do with the Teamsters Union ... that they did not want him to represent [the employees; and that they] wanted out because [they] believed [they] were misled into it." Subsequently, the employees concerned, except Collins, engaged a lawyer43 and instructed him to notify the Union formally that they rescinded the authority previously given the Union to represent them for the purpose of collective bargaining. Such notices, on behalf of each employee involved, except Collins, were sent to the Union on October 5.44 40 These findings are based on testimony given by Carlson, Emery, Rouleau, and Grant 4i These findings are based on Knell's testimony 42 These findings are based on testimony given by Carlson, Emery, Knell, and Grant 43 It does not appear that the lawyer chosen by the employees had any relationship with Respondent or its attorney. 14 These findings are based on testimony given by Emery and Carlson and on Resp Exhs 7(a) through (j) in evidence. PEMBEK OIL CORP. 373 C. Contentions and Concluding Findings as to Respondent's Alleged Violation of Section 8(a)(3) of the Act Respondent contends that Collins was discharged because of the mistakes which he had made and that the termination of his employment was not related to his union activity. Moreover, Respondent argues that the General Counsel has not established that Respondent had knowledge of Collins' participation in the Union's organizing campaign . The General Counsel, in opposition, urges that Collins' discharge was attributable to his efforts on` behalf of the Union and that it can be inferred that Respondent had knowledge that Collins was so engaged while in its employ. To be sure, knowledge such as Respondent claims it did not have is a necessary ingredient of a violation of Section 8(a)(3) of the Act and must be shown to have existed before an unfair labor practice within the meaning of that section can be said to have occurred. Although there is no direct evidence to establish that Respondent had knowledge of Collins' activities on behalf of the Union, it is settled law "that direct knowledge of an employee's concerted or union activities is [not] a sine qua non for finding that he has been discharged because of such activities. On the contrary, there is well established ... precedent that such knowledge may be inferred from the record as a whole." Wiese Plow Welding Co., Inc., 123 NLRB 616, 618. Considering the "record as a whole," I conclude, as did the Board in Wiese, "that such an inference should and must be drawn" in the instant case, particularly in the light of the following factors, most of which were also present in Wiese: (1) Respondent's knowledge at the time it hired Collins that he had been a member of a union in the past and "was thus a potential source of union organization";45 (2) the small number of employees in Respondent's plant;46 (3) Collins' proselytizing on behalf of the Union among his coworkers almost from the very start of his employment by Respondent, much of which was done on plant premises during working hours; and (4) the timing of Collins' discharge, which occurred abruptly and without prior warning47 several hours after Respondent received the Union's bargaining request. Having concluded that Respondent had knowledge of Collins' activities on behalf of the Union, it must next be determined whether Respondent was motivated by antiunion considerations in discharging Collins, as the General Counsel urges, or solely because of his mistakes, as Respondent contends. If the former is the case, then, clearly, Collins' discharge violated Section 8(a)(3) of the Act. N.L.R.B. v. Great Eastern Color Lithographic Corporation, 309 F.2d 352, 355 (C.A. 2), cert. denied 373 U.S. 950. If the latter, then, equally clearly, Respondent's termination of Collins' employment did not constitute an unfair labor practice. Mitchell Transport, Inc., 152 NLRB 122, 123, affd. sub nom. Hawkins v. N.L.R.B., 358 F.2d 281 (C.A. 7). On the record of this case, Respondent's claim that it dismissed Collins because of his mistakes does not appear to be well taken. It seems to me, in this connection, that Respondent expected new employees, such as Collins, to make mistakes, else why would Thuotte, Respondent's dispatcher, have told Collins when he was hired that Respondent "invested approximately a year in a man before he would become efficient." Furthermore, Collins' faults came to Respondent's attention during the first week of his employment. He was, nevertheless, permitted to continue working for an additional period of more than 2 weeks. However, several hours after Respondent's receipt of the Union's request for bargaining, which was the culmination of Collins' organizing effort on behalf of the Union among Respondent's employees, he was summarily and without prior warning discharged, ostensibly because of the mistakes which he had made. The timing of Collins' abrupt discharge coming as it did, without warning, hard on the heels of the Union's recognition request and the relatively long period during which Respondent suffered Collins' deficiencies as an employee, lead me to believe that the real reason for Collins' dismissal was his activity on behalf of the Union which had its fruition in the Union's request that Respondent bargain with it. In this regard, it has been held that the "abruptness of a discharge and its timing are persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert. denied 355 U.S. 829. It has been further held that "an employer's tolerance of an employee's shortcomings until he engages in union activity is an indication of discriminatory motivation." Virginia Metalcrafters, Incorporated, 158 NLRB 958, footnote 3.48 Finally, my belief that the assigned reason for Collins' dismissal was pretextual is strengthened by the conflicting testimony given by Grant and Thuotte, respectively Respondent's secretary and dispatcher, as to the basis for the joint decision to discharge Collins. In N.L.R.B. v. Radcliffe and Mancke, 211 F. 2d 309, 314 (C.A. 9), cert. denied 348 U.S. 833, the court aptly stated that "the giving of ... inconsistent ... reasons by management for the discharges of employees, properly, may be considered by the Board ... in determining the real motive which actuated the discharges." To the same effect see International Furniture Company, 98 NLRB 674, enfd. 199 F.2d 648 (C.A. 5). Accordingly, I conclude that by discharging Collins, Respondent violated Section 8(a)(3) and (1) of the Act. 15 Texas Industries, Inc, 156 NLRB 423, 426 16 It will be remembered , in this regard , that exclusive of two office clerks, Respondent's entire complement consisted of 15 employees In Wiese Plow Welding Co , Inc, 123 NLRB 616, 618, on which I place considerable reliance for my finding of "company knowledge " the number of employees involved was "approximately 13." In other cases in which the Board made a similar finding based in part on the fact that the plant in question was small, the total number of employees ranged from 9 to 130 See, e g., New French Benzol Cleaners and Laundry, Inc , 139 NLRB 1176, 1179, 1190 (9 employees), Allied Distributing Corporation, 130 NLRB 1348, 1349, 1350, enfd 297 F.2d 679 (C A 10) (13 employees); Tru-Line Metal Products Company, 138 NLRB 964, 966, 972, enfd 324 F 2d 614 (C A 6) (36 employees), Stokely Foods, Inc , 91 NLRB 1267, 1270, 1277 (75 employees). Malone Knitting Company, 152 NLRB 643, 644, 647, enfd 358 F 2d 880 (C A 1) (80-90 employees), Quest-Shon Mark Brassiere Co , Inc , 80 NLRB 1149, 1150, enfd 185 F 2d 285 (C A 2) (130 employees) 911 do not construe the conversation between Grant, Respondent's secretary, and Padden concerning Collins' computation errors as constituting an "informal warning" to Collins, as Respondent contends in its brief First, (.rant did not tell Padden that disciplinary action would be taken against Collins if lie persisted in making such errors Second, Padden, like Collins, was a rank-and-file employee Finally, there is no evidence to establish that Padden informed Collins of his conversation with Grant prior to Collins' discharge 4s See also Nitro Super Market, Inc ,161 NLRB 505 299-352 0-70-25 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Contentions and Concluding Findings as to Respondent's Alleged Violations of Section 8(a)(1) and (5) of the Act The complaint asserts that Respondent violated Section 8(a)(1) and (5) of the Act by refusing to bargain with the Union , by causing its employees to abandon a lawful strike, by bargaining directly with its employees, and by causing its employees to repudiate the Union. Inasmuch as the latter allegations have a substantial bearing upon the refusal-to-bargain averment , they will be discussed first. 1. The strike and its abandonment On September 14, following Respondent's rejection of the Union's first request for recognition and its discharge of Collins in violation of Section 8(a)(3) of the Act, employees who signed cards authorizing their representation by the Union struck Their purposes in striking, as I have found, were to compel Respondent to enter into a collective-bargaining agreement and to obtain Collins' reinstatement. On the next day, September 15, the employees terminated their strike and returned to work. The complaint alleges that Respondent caused its employees to abandon their strike and that by doing so it violated Section 8(a)(1) and (5) of the Act. I do not agree. I cannot find on the record of this case that the termination of the strike was induced by any conduct on the Respondent's part. On the contrary, the evidence establishes conclusively that the employees, of their own volition, decided to abandon the strike and that this decision was not made because of anything done by Respondent, but because two servicemen in Respondent's employ refused to honor the picket line established by the striking employees at Respondent's premises on September 14. Accordingly, I conclude that the General Counsel has not sustained his burden of proving by a preponderance of the evidence that Respondent violated Section 8(a)(1) and (5) of the Act by causing its employees to abandon their strike as alleged in paragraph 15 in the complaint I will, therefore, recommend that this paragraph and all relating paragraphs of the complaint be dismissed insofar as they have reference to Respondent's causing the abandonment of the strike. 2. Respondent's direct dealing with its employees and their repudiation of the Union The General Counsel contends that Respondent violated Seection 8(a)(1) and (5) of the Act in bypassing Union and bargaining directly with its employees following their return to work after their strike and by causing them to repudiate the Union. Although Respondent denies this, it argues by way of avoidance that even if it did commit an unfair labor practice by bargaining directly with its employees that violation was remedied by Respondent's refusal to meet further with its employees and the immediate notice to this effect which it gave to its employees. Insofar as the repudiation of the Union is concerned Respondent asserts that this was not ,9 As the Supreme Court stated in this regard , "the relief which the statute empowers the Board to grant is to be adapted to the situation which calls for redress." N L R B v Mackay Radio & occasioned by its inducement, but, rather, by the employees' disenchantment with the Union. Briefly, the facts in connection with this phase of the case, as I have found them, are that upon the termination of their short-lived strike Respondent and the employees who had struck engaged in a mutual "gripe" session. Among the complaints aired by the employees was their concern over the absence of a pension plan and a posted pay scale. They also expressed dissatisfaction with some aspects of their sick and holiday pay Although the meeting continued for a substantial period of time, neither Respondent nor the employees appointed a spokesman for their respective groups, and the conference was, in general, informed. No proposals were presented by either side and no agreements were made as to matters which would normally be found in a collective- bargaining contract. In connection with the employees' complaints over the lack of a pension plan, however, Respondent indicated that it had already started negotiations in that regard with several insurance companies. At the conclusion of the conference Respondent agreed to meet again with the employees during the following week. The employees then went into Respondent's shop to prepare proposals for submission to Respondent before their next meeting. Immediately after the meeting Respondent's president was advised by its lawyer not to meet further with the employees during the pendency of the Union's representation claim. Respondent's president promptly informed its employees that it would follow its lawyer's advice. I agree with the General Counsel that Respondent's discussion with its employees which embraced such matters as sick and holiday pay, pensions, and posted wage scales constituted individual bargaining in derogation of their right to be represented by the Union and, hence, a violation of the Act. I am convinced, however, that a remedial order is not required insofar as this aspect of the case is concerned. I am persuaded in this regard by Respondent's argument that unfair labor practices committed by Respondent in dealing directly with its employees were cured by its immediate discontinuance upon being advised to do so by its lawyer and by its prompt notice to the employees that it would not meet further with them. A Board order could not accomplish more.49 A different result is required, however, by the sequel to Respondent's direct bargaining with its employees; i.e., their repudiation of the Union. Respondent contends that it did not contribute in any way to their employees' withdrawal from the Union. This argument, however, is not well taken, for in the field of labor management relations law no less than in other areas of jurisprudence "a man is held to intend the foreseeable consequences of his conduct,""' here, the repudiation of the Union by the employees. Respondent's conduct which resulted in the "forseeable consequence" of the Union's repudiation started with its meeting with its employees, at the outset of which they stated that they wanted to discuss their "gripes." To this Telegraph Co , 304 U S 333,348 so The Radio Officers' Union v N L R B, 347 U S 17,45 PEMBEK OIL CORP. Respondent's president replied that perhaps "we could straighten something out by having this get together." As the meeting progressed Respondent's representatives indicated that a pension plan, the absence of which appeared to be of greatest concern to the employees, might be in the offing. Although no agreements were actually reached, hope for employee benefits through further conferences was held out by Respondent's promise to meet again with its employees the following week. After having thus instilled in its employees the expectation that matters might indeed be straightened out, the employees were informed by Respondent that there would be no further meetings because, in the words of its secretary "you have signed cards and you are automatically represented by the Union. It needs no great imagination to foresee that Respondent's entire course of conduct in this regard, including not only the manner in which its individual bargaining with its employees was terminated, but also the violative bargaining itself, and the hope which it engendered for future benefits would result in the employees' rescission of the authority of the Union to act as their bargaining representative. This action was taken by them immediately and formalized in writing some 3 weeks later. In sum, Respondent by bargaining directly with its employees started the chain of events which foreseeably resulted in their repudiation of the Union. Respondent must , therefore, be held responsible for this predictable consequence of its conduct. Accordingly, I conclude that by causing its employees to repudiate the Union, Respondent violated Section 8(a)(1) of the Act. Before determining whether, as alleged in the complaint , Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union, preliminary findings must be made concerning the appropriateness of the unit for which the Union sought recognition" and as to whether the Union represented a majority of the employees in that unit.52 3. The appropriate unit The complaint, as amended at the trial, asserts that "all employees employed by Respondent ... including fuel truck drivers, installation men, servicemen, soot men, but excluding salesmen, office clerical employees and supervisors"5 i constitute a unit appropriate for collective bargaining. It is well established that in determining the appropriateness of a unit for collective-bargaining purposes, the prime consideration is the community of interest shared by the employees involved. E. H. Koester Bakery Co., Inc., 136 NLRB 1006,1009. As further pointed out in Koester, the factors "which tend to show the presence or absence of this community of interest" are varied and include such things as the employees' "common experience, duties, wages, hours, and other working conditions." All Koester teaches must be taken 51 Joslin Dry Goods Company, 118 NLRB 555, 557, 558 52 H W. Elson Bottling Company, 155 NLRB 714, 715-716 "Although, as I have found , Respondent employs a maintenance man, he is neither specifically included nor excluded in the unit description appearing in the amended complaint However, in view of the inclusive reference to "all employees ," the absence of the term "maintenance man" from the exclusions , and the seeming understanding of the parties that the maintenance man was intended to be included by the General 375 into consideration and evaluated. I have found that the employees in question are hourly rated. Each has a timecard. All except the maintenance man wear the same work uniform. All benefit from an insurance program maintained by Respondent and enjoy the same vacation and sick leave privileges. All work in Respondent's warehouse, except when they are performing duties away from Respondent's premises. Finally, insofar as "common experience ... and working conditions" are concerned, all the employees involved share the same restroom and other facilities in the shop. The main function of the drivers is, as I have found, to deliver fuel oil to Respondent's customers. I have also found, however, that for a substantial portion of their time, generally in the summer when there are few deliveries to be made, the drivers assist the servicemen in their work. Supervision is also a factor to be taken into account in determining whether there is a community of interest among the employees concerned. L. D. Caulk Company, 158 NLRB 423; Federal Electric Corporation, 157 NLRB 1130. In this regard, there is, as has been found, a considerable amount of common and overlapping direction of the work performed by the employees in question. Thus, Respondent's president oversees its "whole operation." Its sales engineer "directs the activities" of the industrial servicemen, and, with assistance from Respondent's secretary, assigns work to all servicemen. The drivers, domestic servicemen, and maintenance man are normally supervised by Respondent's dispatcher and the sootmen by its secretary, but from time to time Respondent's sales engineer also exercises supervision over the sootmen, drivers, and maintenance man. Organizationally, although the dispatcher usually "reports" to Respondent's president, he does so, on occasion, to its secretary. An evaluation of the foregoing factors in my opinion "tends to show the presence ... of [a] community of interest" among Respondent's servicemen, sootmen, drivers, and maintenance man sufficient to warrant their inclusion in a single unit for collective-bargaining purposes.54 It is Respondent's position, however, as set forth in its brief, that to include the servicemen in a unit which also embraces the other employees in question would be improper because of their special skills, their "lack of interchangeability with other employees"75 and the coverage of some of them by Respondent's contract with the Plumbers Union, which Respondent submits "is a bar to these proceedings." For these reasons Respondent argues that a unit consisting only of servicemen, excluding those covered by the Plumbers Union contract, "would be more appropriate" than one which also includes other employees. Considering first Respondent's arguments bottomed upon the contract, it appears that this agreement covers only two of Respondent's servicemen. Accordingly, even if this were a representation proceeding,S° this contract would not operate as a bar, at least insofar as the employees not covered by the contract are concerned. Cf. N. Sumergrade & Sons, 121 NLRB 667, 669-670. Counsel, the unit description set forth in the amended complaint will be construed as including the maintenance man 11E H Koester Bakery Co , Inc., 136 NLRB 1006,1009 55 This contention appears to be effectively negatived by the assistance afforded the serviceman by the drivers, as pointed out above 55 See Hexton Furniture Company, 111 NLRB 342, 343-344, which applied contract bar principles to a complaint case alleging violations of Sec 8(a)(5) of the Act. 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Nor does the contract between Respondent and the Plumbers Union preclude the placement of the two covered servicemen in a unit which also includes Respondent's other employees. The contract is applicable to the two servicemen in question only for a 6-week period in each year during which they install oil burners in buildings under construction. During the rest of the year they do the same kind of work as Respondent's other servicemen and are subject to the same working conditions as all other persons in Respondent's employ. They are, therefore, dual-function employees. As such, regardless of the contract, they may be placed in the same unit with other employees whose interests they share. Berea Publishing Company, 140 NLRB 516, 519. In Denver-Colorado Springs-Pueblo Motor Way, 129 NLRB 1184, overruled in other respects by Berea Publishing, the employee in question was, as are the two servicemen here, covered by a contract with another union. Although the Board noted this factor, it was given no weight in determining the unit placement of the dual-function employee there under consideration. While I agree with Respondent that the servicemen exercise special skills, I do not agree that they should for this reason be set apart for unit purposes from the other employees with whom they share common working conditions and other interests. Cf. Meramec Mining Company, 134 NLRB 1675, 1676, in which the Board stated that the unit placement of certain highly skilled technical employees would be determined upon "an analysis of their community of interest," taking into consideration not only their "skills and duties," but also the other usual factors such as "the presence and absence of common supervision, the similarity or disparity of working conditions, the kind of industry, the contact or interchange with other employees, and the organization of the plant." Respondent's final argument, insofar as this phase of the case is concerned, is that a unit consisting only of servicemen, excluding those covered by its contract with the Plumbers Union "would be more appropriate" than one which also includes other employees. A short, but effective, answer to this is found in Morand Brothers Beverage Co., 91 NLRB 409, 418. There the Board aptly stated that the Act does not require "that the unit for bargaining be the only appropriate unit, or the ultimate unit , or the most appropriate unit ; the Act requires only that the unit be 'appropriate '.1157 Respondent's arguments as to why the servicemen should not be included in a unit for collective bargaining which also includes Respondent's other employees being, in my opinion, without merit. I conclude, in view of the sufficiency of their community of interest that Respondent's drivers, servicemen, sootmen, and maintenance man constitute an appropriate collective- bargaining unit. 4. The Union's majority Having concluded that a unit consisting of Respondent's drivers, servicemen , sootmen , and maintenance man is 57 Although Morand Brothers has had a checkered history on enforcement and on remand , the principle enunciated in the text does not appear to have been questioned . See Morand Brothers Beverage Co. v N.L R.B., 190 F.2d 576 (C A. 7), enfg. in part and remanding 91 NLRB 409, and 204 F.2d 529, enfg 99 NLRB 1448, cert denied 346 U.S 909; rehearing denied 346 U S 940 appropriate for collective bargaining, it must next be ascertained whether the Union represented a majority of the employees in this unit. In this regard, it is Respondent's contention that the authorization cards on which the Union's majority claim is based are invalid because of misrepresentations in their procurement. There were 15 employees in this unit on September 9 and 14, on both of which dates the Union requested recognition. To establish the Union's majority the General Counsel offered 10 cards in evidence. Nine were signed before September 9, and the 10th was signed on September 13. Although contending that each card was obtained by misrepresentations sufficient to invalidate it, Respondent refers specifically to four, those signed by Carlson, Rouleau, Emery, and MacLellan, as being illustrative of all,58 and urges that these four, at least, be not counted in determining the Union's majority. If this were done, it would, of course, result in the Union's representation of only six employees in the unit, less than a majority. The cards unequivocally authorized the Union to "represent" those who signed "for the purposes of collective bargaining." No other stated purpose appeared on the cards. "An authenticated signature on an authorization card [like those signed by the employees here] is prima facie evidence that it is what it purports to be-a designation of the Union as the employee's bargaining representative, unless it is shown that the employee was induced to sign the card through beguilement of serious misstatement of fact. "59 this is so, "irrespective of what the employee thought ... as long as the solicitor does not make a significant false statement ." South Bay Daily Breeze, 160 NLRB 1850. Considering the disputed cards in the light of these principles, I find, insofar as Carlson is concerned, that he was truthfully and in accordance with the text of the card told by Collins, who solicited cards on behalf of the Union, in response to an inquiry, that he would not become a member of the Union by signing the card and that the cards would authorize the Union to "talk to the company on [his] behalf." Collins told Rouleau substantially the same thing and added a suggestion that Rouleau attend a union meeting. No statements as to the card's purport were made to MacLellan. He was merely asked by Galullo, the Union's business representative, to sign the card, and he did so. The impressions harbored by Carlson and MacLellan as to the significance of the cards were their own and were not engendered by any statement made by Collins, Galullo, or any other representative of the Union. Thus, Carlson testified that it was his "own conclusion" that the purpose of the card was to indicate the signer' s interest in "forming a union"; the Union would so notify Respondent; and then the employees could decide "whether or not [they] wanted to vote the union in." MacLellan formed a completely different impression as to the meaning of the cards based upon, as he testified, " general conversation" ss See fn. 22 for my conclusion with respect to this. 59 To undercut the validity of an authorization card "which (as in this case] plainly designates a union as bargaining agent, the employer can prevail only with clear evidence of missrepresentation." Amalgamated Clothing Workers ofAmenca, AFL-CIO v. N.L.R B , 371 F.2d 740 (C.A.D C.). PEMBEK OIL CORP. among the employees.60 He concluded that employees had to sign cards as a prerequisite to their talking to "the Union." As South Bay Daily Breeze directs, however, I may not rely on these thoughts as to the meaning of the cards in determining their validity. I may only consider whether there is clear evidence that the employees were "induced to sign ... through beguilement or serious misstatement of fact." Finding neither present I conclude that there was no impropriety in the Union's procurement of authorization cards from Carlson, Rouleau, and MacLellan. They will, therefore, be counted in determining whether the Union represented a majority of the employees in the unit. A different conclusion is required with respect to Emery's card. By September 7, the day on which Emery signed his card, only six other employees in the unit had done so.61 Notwithstanding this, Collins told Emery on that day that all the other employees had signed cards and that he was the only one who had not. This misrepresentation was serious enough to invalidate Emery's card. Pizza Products Corporation, 153 NLRB 1265, 166, 1271, enfd. as modified in other respects 369 F.2d 431 (C.A. 6). It will, therefore, not be considered in ascertaining the Union's majority status. Adding the cards signed by Carlson, Rouleau, and MacLellan to the six other cards signed by employees in the unit,6' all of which I find to be valid, the Union represented eight employees in the unit on September 9, the date of its first request for bargaining and nine on September 14, the date on which it again requested recognition. Inasmuch as there were a total of 15 employees in the unit on those dates, I conclude that the Union represented a majority on both occasions. 5. Respondent's refusal to bargain with the Union In justification of its refusal to bargain with the Union, Respondent makes two basic arguments. The first is that the unit for which the Union sought recognition is inappropriate. The second is that in good faith it doubted, at the time of the bargaining requests, that the Union represented a majority. Accordingly, Respondent argues in its brief, it had sufficient reason "to refuse recognition and to demand that the Board processes be followed to, first, determine what the appropriate unit was, and, second, by the use of the Board's election procedures to determine whether or not the employees in such an appropriate unit desired to be represented by the Union." Countering the General Counsel's contention that Respondent's refusal to recognize and bargain with the Union was not based upon its foregoing claims but upon its determination to gain time within which to destroy the Union's majority status, Respondent also asserts in its brief "that absolutely no independent 8(a)(1) violations have been proved by substantial evidence" and that there "was no flagrant violation of the Act." 60 Although Collins was present when this "general conversation " took place , MacLellan admitted that Collins did not say anything which contributed to the establishment of his impression 611 am including Padden's card in this figure , although it, too, was signed on September 7. "These consist of cards signed by Collins, Robert Chiaro, Thomas Yale, Padden, John Yale, and Parisi 11 Even if Collins ' violative discharge had been Respondent's 377 Respondent's argument concerning the appropriateness of the unit is without merit. It is well settled that an employer acts "at its peril" in refusing to bargain on the ground that the unit in which the Union seeks recognition is inappropriate if it is concluded, as in this case, that the unit is appropriate. Tom Thumb Stores, Inc., 123 NLRB 833, 835. See also Hoskins Ready-Mix Concrete, Inc., 161 NLRB 1492. Respondent's other arguments in defense of its refusal to bargain with the Union are likewise without merit. Where an employer in good faith genuinely doubts that a union seeking recognition represents a majority of the employees involved he may refuse to recognize the union until its claim is established by an election. An employer, however, is not entitled to an election where he engages in serious unfair labor practices in order "to gain time within which to undermine the Union's support" and then asserts a good-faith doubt as to the union's majority. In such a case the election procedure will be bypassed and the employer will be required to bargain with the union provided the unit involved is appropriate and the union in fact represented a majority of the employees when it requested recognition. This is the teaching of Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified in other respects 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914, and of countless subsequent cases. The facts of this case, I am convinced, require the application of the Joy Silk rationale . Respondent's serious unfair labor practices, including the discharge of Collins in violation of Section 8(a)(3) and (1), its direct bargaining with its employees, and its having caused them to repudiate the Union, in violation of Section 8(a)(1) of the Act, belie Respondent's professed good-faith doubt as to the Union's majority." 1, therefore, reject Respondent's contentions in this regard, and find, in view of Respondent's serious violations of Section 8(a)(1) and (3) of the Act, that its refusal to bargain with the Union was in bad faith, and was designed to gain time in which to destroy the Union's status as its employees' collective- bargaining representative. Accordingly, having found that the unit for which the Union requested recognition was appropriate for purposes of collective bargaining and that the Union represented a majority of the employees in that unit when it requested Respondent to bargain with it, I conclude that Respondent's rejection of those requests and its refusal to bargain with the Union constituted violations of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and only unfair labor practice , my conclusion with respect to this phase of the case would not be different See Dee's of New Jersey, Inc , 161 NLRB 204, where the Board stated in a related context that "a discriminatory denial of employment [is] the kind of conduct which is most likely to impress upon employees the disfavor with which the employer regards his employees' organizing activities " and that, therefore, "a serious view must be taken" of such a violation 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, my recommended order will direct Respondent to cease and desist therefrom and to take such affirmative action as will effectuate the purposes of the Act. 64 In this connection, as Respondent has already offered reinstatement to Collins, Respondent will be required only to make him whole for loss of earnings he may have suffered by the discrimination practiced against him. Any backpay found to be due to Collins shall be computed in accordance with the formula set forth in F.W. Woolworth Company, 90 NLRB 289, and shall include interest in the amount and manner provided for in Isis Plumbing & Heating Co., 138 NLRB 716. Contending that the strike which took place on September 14, was an unfair labor practice strike, the General Counsel urges that the order to be entered herein provide that the strikers "be made whole for the consequences of Respondent's actions." While I agree that the work stoppage in question was an unfair labor practice strike,''r' there is no evidence that the strikers were refused reinstatement when they decided to return to work. Absent this, as is well settled, a "make whole" remedy, insofar as they are concerned, is unwarranted. In view of the repudiation of the Union by Respondent's employees, Respondent urges that the entry of a bargain- ing order would completely disregard the right of those employees, as set forth in Section 7 of the Act, to refrain from collective bargaining. Respondent, however, as I have found, is responsible for its employees' defection from the Union. Were Respondent to be permitted to continue its refusal to bargain with the Union because it does not now represent a majority of its employees would be to permit Respondent to profit from its own wrong. As the Supreme Court stated in Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678, 687, which involved a situation substantially similar to the one presented here: Petitioner cannot, as justification for its refusal to bargain with the Union, set up the defection of union members which it had induced by unfair labor practices, even though the result was that the union no longer had the support of a majority. It cannot thus, by its own action, disestablish the union as the bargaining representative of the employees, previously designated as such of their own free will. See also, to the same effect, Franks Bros. Company v. N.L.R.B., 321 U.S. 702, 703-705. Accordingly, my Recommended Order will contain a provision requiring Respondent to bargain with the Union. It will also contain, in view of the nature and extent of the unfair labor practices engaged in by Respondent, broad cease-and-desist provisions. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) of the Act. 64 Having concluded that Respondent has already cured the unfair labor practices involved in its direct bargaining with its employees, I will not recommend the entry of an order remedying 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By bargaining directly with its employees and by causing them to repudiate the Union and to rescind the authority of the Union to represent them for purposes of collective bargaining, as set forth in section III hereof, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 4. By discharging Carl Collins because of his membership in, and activities on behalf of, the Union, thereby discouraging such conduct, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All employees employed by Respondent, including fuel truckdrivers, installation men, servicemen, power cleaners, also known as sootmen, and maintenance man, excluding salesmen, office clerical employees and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 6. At all times material herein the Union has represented a majority of the employees in the unit set forth in Conclusion of Law 5, above. 7. By failing and refusing to recognize and bargain with the Union as the collective-bargaining representative of the employees in the unit set forth in Conclusion of Law 5, above, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. Respondent did not engage in unfair labor practices in the manner set forth in those portions of paragraph 15 and related paragraphs of the complaint insofar as those paragraphs make reference to Respondent's having caused its employees to abandon a lawful strike. Upon the foregoing findings of fact, conclusions of law, and upon the entire record in this case, I hereby issue the following: RECOMMENDED ORDER The Pembek Oil Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Causing or inducing employees to repudiate International Brotherhood of Temasters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other labor organization. (b) Causing or inducing employees to rescind the authority of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other labor organization, to represent them for purposes of collective bargaining. (c) Discouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other labor organization, by discriminating against employees in regard to hire or tenure of employment or any term or condition of employment. (d) Failing or refusing to recognize or bargain collectively concerning rates of pay, wages, hours, or other terms or conditions of employment with International Brotherhood of Teamsters, Chauffeurs, Warehousemen this violation See D, 2, supra, for my reasons 85 Mitchell Concrete Products Co , Inc , 137 NLRB 504,506 PEMBEK OIL CORP. and Helpers of America, Local Union No. 677, as the exclusive collective-bargaining representative of its employees in the following appropriate unit All employees employed by Respondent, including fuel truckdrivers, installation men, servicemen, power cleaners, also known as sootmen , and maintenance man, excluding salesmen, office clerical employees and supervisors as defined in the Act. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act, as amended, 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 a condition of employment in conformity with Section 8(a)(3) of the Act. 2. Take the following affirmative action, which it is found will effectuate the policies of the Act: (a) Make Carl Collins whole for any loss of earnings he may have suffered by reason of the discrimination practiced against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (c) Upon request, recognize and bargain with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, or other terms or conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Post at its premises copies of the attached notice marked "Appendix A."66 Copies of said notice, to be furnished by the Regional Director for Region 1, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.67 IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 66 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 " 67 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 A NOTICE TO ALL EMPLOYEES 379 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. After a trial in which both sides had the opportunity to present their evidence it has been found that we violated the law by committing unfair labor practices and we have been ordered to post this notice and to keep the promises that we make in this notice. WE WILL NOT cause, induce, request, or encourage you to repudiate or withdraw or resign from International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other union. WE WILL NOT cause, induce , request , or encourage you to cancel, or seek the return of, any card you may have signed naming, authorizing , or designating International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other union , to act as your collective- bargaining representative. WE WILL NOT discourage union activity or membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, or any other union, by discriminating against you if you choose to engage in union activity, or if you join International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Local Union No. 677, or any other union. WE WILL NOT in any other way interfere with, restrain, or coerce you in the exercise of any rights guaranteed to you by the Act. In this connection, we will respect your rights to self-organization , to form, join, or assist any union, and to bargain collectively through any union or representative of your choice as to wages, hours of work, and any other terms or conditions of employment You also have the right, which we also will respect, to refrain from doing so. WE WILL NOT discriminate against any employees for engaging in union activity or for joining any union Since it has been found that we did so when we fired Carl Collins, to whom we have already offered full reinstatement to his old job, WE WILL pay him for any loss he suffered because we fired him. WE WILL, upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 677, as the exclusive representative of all our employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and put into writing and sign any agreement which is reached. The appropriate unit is: All persons whom we employ, including fuel truckdrivers, installation men, servicemen, power cleaners, also known as sootmen, and maintenance man, but excluding salesmen, office clerical employees and supervisors. All our employees are free to become, remain, or refrain from becoming or remaining, members of International 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters, Chauffeurs, Warehousemen This notice must remain posted for 60 consecutive days and Helpers of America, Local Union No. 677, or any other from the date of posting and must not be altered, defaced, union. or covered by any other material. THE PEMBEK OIL If employees have any question concerning this notice CORPORATION or compliance with its provisions, they may communicate (Employer) directly with the Board' s Regional Office, 20th Floor, John F. Kennedy Federal Building, Cambridge and New Dated By Sudbury Streets, Boston, Massachusetts 02203, (Representative) (Title) Telephone 223-3300.