L. B. Foster Co.

L. B. FOSTER COMPANY 83 L. B. Foster Company and General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America 21-RC-10261 be, and it hereby is, dismissed, and that all prior proceedings held thereunder be, and they hereby are, vacated. L. B. Foster Company and International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local Union No. 692, Peti- tioner. Cases 21-CA-7457 and 21-RC-10261 November 2, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 14, 1967, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged 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 found further that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these al- legations. The Trial Examiner also found merit in certain objections to the election conducted on December 20, 1966, and recommended that the election be set aside, that the petition in Case 21-RC-10261 be dismissed, and that all proceedings in connection therewith be vacated. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and -finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, L. B. Foster Company, Long Beach , California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the petition for cer- tification of representative filed in Case 168 NLRB No. 15 TRIAL EXAMINER'S DECISION AND REPORT ON CHALLENGES AND OBJECTIONS STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding heard at Los Angeles, California, on April 25 and 26, 1967, is based on a complaint' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), alleging that in the course of an organiza- tional campaign by International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Local 692 (herein called the Union or Local 692), L. B. Foster Company (herein called Respondent or Com- pany), interfered with, coerced, and restrained its em- ployees in the exercise of their organizational rights, and refused on demand to recognize and bargain with the Union as the duly designated collective-bargaining representative of Respondent's employees in an ap- propriate unit. Respondent by formal answer or by stipu- lation admitted certain allegations of the complaint, but denied the commission of any unfair labor practice. By order of the Regional Director issued March 6, 1967, in Case 21-RC-10261, there was consolidated for hearing with the unfair labor practice case, the issues presented by the Union's objections to conduct affecting the results of an election held December 20, which are virtually the same as the allegations of interference, restraint, and coercion in the complaint, and the validity of a challenged ballot cast in the election by Martin Synakowski, which issue turns on whether Synakowski is a supervisor within the meaning of the Act , an issue also tendered in the complaint proceeding.2 At the hearing all parties were afforded full opportunity to submit evidence, examine and cross-examine wit- nesses, argue orally on the record, and submit briefs. Oral arguments were waived. Briefs submitted by the General ' Issued February 24, 1967, on a charge filed and served January 17, 1967 z The chronology of events in the representation case , with all dates to 1966, follows November-3 Petition filed December 5 Stipulation for certification upon consent election December 20 Election held December 21 Copy of tally of ballots mailed to Union, received by latter December 22, showing that of approximately 20 eligible voters, 2 ballots were cast for the Union, 3 ballots against the Union, and 10 ballots were challenged ( I by the Union and 9 by the Board agent) December 29 Union filed and served objections to conduct affecting results of election March 6, 1967 Regional Director's report on objections and challenged ballots, and order consolidating cases March 22, 1967 Board adopts Regional Director's report and recom- mendations In his report , the Regional Director recommended that the challenges to the 9 ballots challenged by the Board agent, be sustained on the ground that at the time of the election said employees had been lawfully ter- minated and had no reasonable expectancy of recall . The remaining chal- lenge, which turns on the supervisory status of Synakowski , and the merits of the Union 's objections to conduct affecting the results of the election, the Regional Director recommended be consolidated with the unfair labor practice case, and be disposed of in that proceeding No ex- ceptions to the Regional Director's report and recommendations were filed, nor was there any request for leave to appeal to the Board 336-845 0 - 70 - 7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel and Respondent, respectively, have been duly considered. Upon the entire record in the case, including my obser- vation of the demeanor of the witnesses, I make the fol- lowing: FINDINGS OF FACT3 1. THE UNFAIR LABOR PRACTICES A. The Union's Majority Status and the Alleged De- mand for Recognition On October 28,4 Robert Johnson who had voluntarily terminated his employment with Respondent the preced- ing day, contacted James Serris, business agent for Local 692, relative to organizing Respondent's employees. Later that day Serris gave Johnson a supply of authoriza- tion cards and instructed him relative to getting the cards signed. On Monday morning, October 31, Johnson went to Respondent's plant and got 14 employees to sign authorization cards. Respondent not only conceded the authenticity of these signatures, but it raises no question as regarding their validity as authorizations to the Union. It was also stipulated that as of the payroll period ending October 31, there were 19 names on the plant payroll, and that this situation prevailed on November 2.5 On November 3, Business Agent Serris executed and filed with the Regional Office a petition for certification as representative of the employees involved. In answer to the question on said petition as to whether a request for recognition had been made, there appears the answer "None made to date." The evidence is clear that early in November, Business Agent Serris telephoned Plant Superintendent Chernove, but the evidence is in dispute as to when the call was made and what was said. On the entire record, and par- ticularly on the basis of the aforementioned answer in the representation petition, I find that such call was made by Serris to Chernove on November 4, and that all Serris said was to inquire whether Respondent had received a copy of the representation petition and state that if Respondent did not fire any employees, there would be no problem. I further find that Serris did not, on this occa- sion, ask Chernove for recognition.6 Both parties concede that except for this telephone conversation, there was no communication between the parties until they met at the Board office on December 5, when the stipulation for certification upon consent election was executed. Whether recognition was requested or otherwise discussed at that time, does not appear. 1. Employee complement on election day-ability of em- ployees to vote At the election held on December 20, only 5 unchal- lenged ballots were cast, although 19 names appeared on the eligible payroll. In the main, this was due to the fact that Respondent discharged two employees on November 2;7 laid off three employees on November 21,8 and four additional employees on November 28.9 When these nine employees sought to cast their ballots, their right to vote was challenged by the Board agent. Finding that the discharges were for cause, that the layoffs were for legitimate business reasons, and that under Respondent's usual practice laid-off employees had no reasonable expectation of recall, the Regional Director sustained the challenges to the nine ballots. 10 The parties have stipulated that on December 16, Respondent, in the regular course of its business, sent its longhaul drivers James Strawder and LeVant Walker, on a trip to Provo, Utah, and that by reason thereof neither Strawder nor Walker was able to appear at the election held December 20.11 2. Supervisory status of Synakowski Before detailing the evidence dealing with the acts of interference, restraint, and coercion alleged by the General Counsel, it is first necessary to determine whether Synakowski is a supervisor. Respondent's plant is located at Long Beach, Califor- nia, where it is engaged in processing pipe for the heavy construction and oil industries. Respondent's sales force and business office is located in Los Angeles, and from that office instructions for processing pipe to the customer's specifications and for shipment of processed materials, are transmitted to the Long Beach plant, generally by telephone. George Chernove, as plant su- perintendent, and Dudley Streetman, assistant plant su- perintendent, are the two in highest authority at the Long Beach plant, and are directly responsible for all of its operations. Both are admitted supervisors. Considerable a No issue of commerce or labor organization is presented By answer to the complaint , stipulations in the course of the hearing , and in the stipu- lation for certification upon consent election, facts are admitted which establish these elements I find the facts to be as so established It is also admitted by the answer that the unit alleged in the complaint, constitutes a unit appropriate for the purpose of collective bargaining within the meaning of the Act, and I so find The unit, is "All production and main- tenance employees, including machine operators, truckdrivers, forklift operators, welders, painters, laborers, warehousemen, and yard helpers at Respondent's Long Beach, California, plant, excluding all office clerical employees, foremen, professional employees, guards, and supervisors as defined in the Act " This and all dates hereafter mentioned are 1966, unless otherwise in- dicated The list included the names of James Strawder and Levant Walker, truckdrivers referred to in a subsequent section hereof, and Martin Synakowski, whose supervisory status is hereafter considered, but does not include the name of Robert Johnson, who quit on October 28 This payroll period was stipulated as the eligibility payroll in the stipulation for certification upon consent election, which the parties executed December 5 " Based on the credited evidence of Chernove Serris testified that he made such call about November 2, and certainly before he filed the representation petition, he told Chernove that the Union represented a majority of the employees, he demanded recognition, but that the latter refused, saying that he wished to see how the Board election came out Serris explained the answer in the representation petition, above referred to, by saying that the document was prepared by a Board agent, and that he gave the latter no such information I do not credit Serris ' Stanford Montgomery and James Sanders 8 Clevelan Allen, Lloyd Smith, and Evers Hiner 9 Richard Majors, Charles Johnson, Tino Montoya, and Herbert McLain 10 The other challenged ballot was cast by Synakowski whose super- visory status is hereafter considered it The General Counsel contends that for this reason alone the election should be set aside Respondent, on the other hand , contends that Synakowski is not a supervisor, that his ballot should, therefore, be opened and counted and if, as Respondent believes, his vote is against the Union, the tally of ballots would then stand 4 to 2 against the Union, and assuming that Strawder and Walker would both vote for the Union, there would be a tie with no bargaining representative selected Hence, Re- spondent argues, the inability of Strawder and Walker to vote did not affect the results of the election L. B FOSTER COMPANY 85 evidence was taken, much of it in conflict, as to the time spent by Chernove and Streetman at the plant, but it may be fairly deduced therefrom that one or the other, if not both, was present at the plant the vast majority of its busi- ness hours. In addition to Chernove and Streetman, the plant force consisted of the two longhaul truckdrivers who, except while loading and unloading, apparently spent most of their time away from the plant, and a number of men en- gaged in general yardwork , and in preparing pipe to the customer's specifications. The number of men so engaged fluctuated considerably dependent on the volume of business. 12 The men engaged in general yardwork per- formed such duties as general cleanup , painting or stencil- ing pipe , moving pipe from one area to another, and assisting in loading and unloading. The preparation of pipe to the customer's order required cutting the same to a designated length, if that was less than the standard length, and threading one or both ends of the pipe, to the depth and with the bevel specified by the customer. The preparation of the pipe is done on machines, two men working on each machine, and for the period prior to November 28, four machines appear to have been in operation daily. Apparently, once the machine is set up for a particular order the employees operating it need lit- tle direction in the performance of their duties; a spot checking of the pipe being all that is necessary to make certain that the adjustment of the machine has not changed. All employees, except Chernove and Street- men, are hourly paid and punch a timeclock. The evidence is uncontradicted that Synakowski was among the most senior and highest paid of the hourly rated employees. It is also clear from the evidence that Synakowski was a competent and trusted employee, for he carried keys to the plant and opened it so the men could go to work, if neither Chernove nor Streetman was available at the starting hour of 8 a.m., which happened with some disputed degree of frequency. It is admitted that for a period of about 5 months, until June 1966, Respondent employed Harold Wertz in a supervisory capacity whose principle function was to schedule the work and supervise the operation of the pipe processing shop. Chernove testified that when Wertz left in June, the latter was not replaced, and that no consideration was given then, or at any other time, to making Synakowski a foreman. It is Respondent's contention that except for the 5- month period when Wertz was employed in a supervisory position, all supervisory authority at the plant involved was vested in and executed by Chernove or Streetman, and that Synakowski was no more than an experienced and trusted employee who functioned as a leadman or tutor to the less experienced or junior employees. Con- siderable testimony was adduced by the parties, much of it in conflict, or at least inconsistent with other evidence adduced by the same party, as to the amount of time Chernove and/or Streetman spent at the plant, to show that other supervisory authority was necessary, or deal- ing with the question whether Synakowski, who admit- tedly gave work instructions to the employees, did so in the sense of responsibly directing their work per- formance, or simply as a messenger for Chernove or Streetman. I deem it unnecessary to set forth in detail all testimony of the nature just referred to, or to resolve the various conflicts therein, except to the extent that I hereafter do so, for in my view the great weight of the testimony, most of it uncontradicted, conclusively establishes that at all times material Synakowski was em- ployed as a supervisor within the meaning of Section 2(13) of the Act. I rely upon the following. 1. Eight former employees gave testimony bearing on the supervisory status of Synakowski." Seven of them testified in substance, although not all gave testimony as to each element, that (1) they regarded and looked upon Synakowski as their supervisor; (2) he usually gave them their work assignments; (3) on many occasions moved them from one job to another, and (4) gave such work as- signments in language such as "you go in and paint pipe today," or today "you help the boys thread pipe." 14 Although some of these witnesses agreed that from time to time they received work instructions from Chernove or Streetman, their testimony was that this happened in- frequently and that for the most part work instructions were given to them by Synakowski.'s 2. Shortly after Wertz left in June, McLain and San- ders asked Chernove and Bellville asked Streetman who would replace Wertz as foreman. Each was told in sub- stance that Synakowski would replace Wertz, and they should take orders from Synakowski, 18 3. At least one of the three employees laid off on November 21 and three of the four employees laid off on November 28, were informed of that fact not by Street- man or Chernove, but by Synakowski." 4. At least four employees directed their requests for time off to Synakowski rather than to Chernove or Street- man. Synakowski granted such requests on his own and without checking with any other source. The employees took the time off they had requested and when they returned to work no request for an explanation was,made of them by Chernove or Streetman.18 This fact takes on added significance in the light of Chernove's testimony that it was his duty to and he did check and approve all 12 As indicated above, the number of such men on the payroll of Oc- tober 31, was 19 1i This included seven of the nine discharged or laid off during November The two in this group that did not testify were Stanford Mont- gomery and Charles Johnson " The only witness on this subject that did not give testimony of this nature was Lloyd Smith, Jr He testified that he worked as a welder's helper, that Synakowski tried to give him some orders, but he refused to obey because Chernove had told him that Synakowski was not over him Because none of the other employees worked as welders or welder's help- ers, I do not regard Smith 's testimony as necessarily inconsistent with the testimony of the remaining witnesses is The findings in this paragraph are based on the composite of the credited testimony of Bellville, Majors, Hiner, McLain, Montoya, Allen, and Sanders Hiner and McLain particularly impressed me as knowledge- able, honest, and straightforward To the extent that the testimony of Chernove and Streetman is inconsistent with my findings herein, I do not credit it 16 Streetman denied that he made such statement to Bellville Although Chernove denied that he told any employee that Synakowski was a foreman, he admitted that some employees "could have" asked him that question He also admitted that he told employees that they were required to obey Synakowski's orders His explanation that this meant any order he might have transmitted through Synakowski or any other employees, I regard as weak and unconvincing In any event, to the extent that the testimony of Streetman and Chernove is in conflict with that of McLain, Sanders, and Bellville on this point, I do not credit it 17 Based on the credited testimony of Clevelan Allen, Richard Majors, Herbert McLain, and Tino Montoya Chernove claimed that he notified one group of employees but was unsure which group it was '" Based on the credited and uncontradicted'testimony of Bellville, Majors, Montoya, and Sanders Synakowski did not testify 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the timecards and that he knew when employees were ab- sent. If, as Respondent contends, Synakowski was without authority to grant time off, and he knew em- ployees were taking time off which he had not authorized, in the case of Sanders six or seven times in approximately a 6-month period, it is simply incredible that Chernove would not at least have asked some of these employees for an explanation. 5. Employee McLain asked Synakowski for a pay raise. Synakowski responded that he would discuss the matter with Chernove and let McLain know. Shortly thereafter Synakowski told McLain he had been granted an increase, and thereafter his pay was 10-cents-an-hour greater. 19 6. Respondent's failure to call Synakowski as a wit- ness. The fair inference from the record is that the latter was employed by Respondent at the time of the hearing, and therefore under its control Even if not under Respondent's control, there is no showing that he was not subject to subpena. Instead of calling Synakowski, who with respect to a substantial portion of the case, was the only person who could directly deny the testimony given by the employees, Respondent chose to rely on the testimony of Chernove and Streetman, who, in the main, testified in generalities. This at least gives rise to the in- ference that Synakowski, if called, would not support Respondent's position. As the Supreme Court said in United States v. Interstate Circuit, 306 U S. 208, 266, "The production of weak evidence when strong is availa- ble can lead only to the conclusion that the strong would have been adverse " Upon the totality of these considerations and the entire record in the case, I find and conclude that at all times material Synakowski was a supervisor within the meaning of Section 2(13) of the Act, that he was not entitled to vote at the election held on December 20, and that Respondent is responsible for any coercive statements he may have made to employees. B. Interference, Restraint, and Coercion 1. By Synakowski Shortly after employee McLain signed his union card on October 31,20 Synakowski told him that he saw his car in front of the union hall, and asked McLain how the union meeting came out McLain professed not to un- derstand what Synakowski was talking about. Also, about mid-November, Synakowski asked McLain to talk to the boys and get rid of the Union, and he (McLain) would have a job for a long time, otherwise Synakowski added, if the Union got in, Chernove would close the plant down. Again, on November 28, when Synakowski told McLain that the latter was being laid off, and in reply to McLain's question as to the reason therefor, Synakowski replied, "Number one ... work is slow, and number two [it] is because of the Union."21 19 Based on the credited and uncontradicted testimony of McLain 20 Chernove admitted that several days before he received the represen- tation petition on November 4, he overheard a conversation in a local store, between individuals unknown to him, to the effect that Local 692 was attempting to organize Respondent 's employees 11 Based on the credited and uncontradicted testimony of McLain As heretofore stated Synakowski did not testify 22 Based on the credited and uncontradicted testimony of Montoya 23 Based on the credited and uncontradicted testimony of Hiner and Majors 14 Based on the credited and uncontradicted testimony of Allen is Chernove did not deny that he had a conversation with Majors during About 2 weeks prior to his discharge on November 28, employee Montoya while at his work station, was told by Synakowski to cease his efforts to get the Union in, and he would keep his job, but "if the Union came in that all of us would be out of a job." On the day of his discharge, Montoya was told by Synakowski that if he had "been cool and knocked the Union in the head [he, Montoya], would still be working there."22 About 2 weeks prior to his layoff on November 21, em- ployee Hiner was told by Synakowski, "If the Union get[s] in here, everybody is going to be out work." Also, on November 21, Synakowski told employee Majors that the latter and employee McLain were going to be laid off and when Majors asked why, replied "you know it is because of the Union."23 About a week after he signed the union card on Oc- tober 31, employee Allen was approached by Synakowski who stated, "Allen, so you are in the union now." When Allen denied this Synakowski added "Well you signed one of those cards." Allen then admitted that he had signed a union card. About a week later, while Allen was engaged in cleaning the plant office, Synakowski told Allen, "you do nice work. Just leave that union alone, and you will be all right."24 2. By Chernove About mid-November, Chernove had occasion to drive employee Majors from the plant to a hospital. During the trip, Chernove told Majors that he was going "to have to lay you boys off." When Majors asked why, Chernove stated that work was slow, but "mostly it is because of the Union." When Majors expressed regret at being laid off in view of the impending holiday season and his family obligations, Chernove replied "Well, the Union will take your money anyway. You pay one hundred some dollars to join. You will be paying money to the Union every month." Chernove then added that with the Union in, it would be easier for Majors to get fired, that "the first morning you come in late you will be fired." On the way back from the hospital Chernove told Majors to talk to McLain and the other boys "and try to knock this union out, and I will see what I can do for you."25 3. By Streetman The early part of December, Assistant Plant Superin- tendent Streetman came to an area in the plant, where employees Bellville, Stewart, and Barraras were, and in an angry mood made a remark to the effect that the em- ployees had "sure knifed him in the back." When Bellville asked what Streetman meant, the latter replied, "you know what I mean." Bellville asked if he meant the Union. Streetman replied that he did, and made some re- mark to the effect that "if anyone in the shop had a union card they wouldn't be working there."26 the hospital trips He did deny that he told any employee that if the Union got in it would take their money , or that it would be easier for them to get fired, or that he asked employees to knock out the Union In fact Cher- nove 's testimony was that he never discussed the Union with any em- ployee I do not credit his denials 2h Streetman denied that he ever made such a remark to any employee. The total effect of his testimony was that he never discussed the Union with any employee I do not credit his denial . It is significant also, that Stewart and Barraras , who were present and heard the conversation referred to, were not called as witnesses by Respondent , nor was the failure to call them in anyway explained L. B. FOSTER COMPANY 87 C. Concluding findings No citation of authority is necessary to support the proposition that statements of the character made by Synakowski , Chernove , and Streetman , as found, are coercive, and hence violative of Section 8(a)(1) of the Act. I so find and conclude.27 Upon the foregoing findings of fact , and upon the entire record in the 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) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3 By the conduct set forth in section B, above, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby engaged in and is engag- ing in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act 5. Having found that the Union made no demand on Respondent for recognition or bargaining, such demand being a prerequisite to a violation of Section 8(a)(5) of the Act (N.L.R.B. v Columbian Enameling & Stamping Co., 306 U.S. 292, 297), the evidence fails to establish that Respondent violated Section 8(a)(5) of the Act, and that allegation of the complaint should be dismissed.28 THE REMEDY Having found that Respondent interfered with, coerced , and restrained its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and in view of the nature and character of Respondent's conduct in that regard , it will be recommended that Respondent be required to cease and desist from in any manner interfer- ing with its employees in the exercise of rights guaranteed to them by Section 7 of the Act (N.L.R .B. v. Entwistle Mfg. Co., 120 F.2d 523 (C.A. 4); California Lingerie Inc., 129 N LRB 912, 915), and that it take the affirmative action set forth below , found necessary and designed to effectuate the policies of the Act. Although I have concluded that the evidence fails to establish that Respondent unlawfully refused to bargain with the Union in violation of Section 8(a)(5) of the Act, 1 shall nonetheless recommend , because of the nature and extent of the violations of Section 8(a)(1) of the Act, as herein found, and as a part of the remedy for such viola- tions, that Respondent be required, upon request, to recognize and bargain with the Union in order to prevent it from reaping the benefits of its own misconduct. There can be no question that the Union was the majority representative when it filed the representation petition, having on October 31 obtained valid authorization cards from 14 of the 18 employees in the unit (excluding Synakowski, whom I have found to be a supervisor). Even if there be excluded from consideration the nine em- ployees (each of whom had signed a card), that the Re- gional Director found were lawfully terminated in November, the Union still represented five of the remain- ing nine , not only when the representation petition was filed, but even on the day of the election.29 Under the facts of this case, the only logical conclusion is that the Union's failure to obtain a majority in the election was due to the fact that extensive and flagrant 8(a)(1) conduct herein found, and which clearly had for its purpose the undermining of the Union and the destruction of its majority status, had the intended effect. The law so as- sumes. Western Aluminum of Oregon Incorporated, et al., 144 NLRB 1191, 1192, and the cases there cited. In such a situation, only a bargaining order will restore the status quo ante, and prevent Respondent from reaping the benefits of its unlawful conduct. D. H. Holmes Com- pany, Ltd. v. N.L.R.B., 179 F.2d 876, 879 (C.A. 5); Piasecki Aircraft Corporation v. N.L.R.B., 280 F.2d 575, 591 (C.A. 3), cert. denied 364 U.S. 933; N.L.R.B. v. Delight Bakery, Inc., 353 F.2d 344 (C.A. 6); Editorial "El Impartial" Inc. v. N.L.R.B., 278 F.2d 184 (C.A. 1); N.L.R.B. v. Falstaff Distributing Company, 209 F.2d 265, 268 (C.A. 8); Luisi Truck Lines, 160 NLRB 530; Crystal Tire Co., 165 NLRB 563 Cf. N L.R.B v Flomatic Corp., 347 F.2d 74 (C.A. 2); Benson Wholesale Company, Inc, 164 NLRB 536. RECOMMENDED ORDER Upon the basis of the above findings of fact, conclu- sions of law, and the entire record in the case, and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order that L. B. Foster Company, its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Coercively interrogating its employees regarding their or other employees' activities or sympathies for or against any labor organization. (b) Promising benefits to any employee for ceasing to " The General Counsel contends that Synakowski, Chernove, and Streetman made statements to employees, in addition to those found above, which were violative of Section 8(a)(I) of the Act The evidence so relied upon is, for the most part, conflicting I find it unnecessary to pass upon such issues in view of the conclusions herein reached, for such in- cidents if found violative of the Act, would in no way enlarge the scope of the order to be entered herein, or change the results of this proceeding 28 Although not urged by the General Counsel, I have considered whether it might not be held that the representation petition filed by the Union on November 3 was a demand for recognition which imposed upon Respondent a duty to respond, but have concluded that such a holding would not be supported by Board precedent Although I have found no case strictly in point , the Board's Decision in Laahs, Inc , 128 NLRB 374, I regard as a holding by the Board that the mere filing of a representa- tion petition is not, standing alone, a demand for recognition In Laabs, Inc , a representation petition was filed on June 15, and on June 18 the petitioning union made formal demand on the employer for recognition The Trial Examiner there found that the employer had unlawfully refused to bargain with the Union, and dated such refusal from June 15, the date the representation petition was filed The Board modified the Trial Ex- aminer's holding, and fixed the date of such refusal to bargain as June 18, stating "Respondent correctly contends that the filing of a petition does not constitute a request for bargaining so as to make its failure to bargain without more, a violation of Section 8(a)(5) of the Act " (Emphasis sup- plied) In the instant case no such demand was ever received by Respond- ent 19 The employees on the payroll as of the date of the election (after ex- cluding the nine terminated in November), were Julian Barraras, Owen Bellville, E W Fritz, John Rabe, Henry Shanchez, Walter Stewart, Benjamin Tiajillo, James Strawder, and LeVant Walker Of these Bar- raras, Bellville, Fritz, Stewart, and Tiajillo signed authorization cards on October 3 I 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support or assist any labor organization. (c) Requesting any employee to urge other employees not to assist or support any labor organization. (d) Telling any employee that his termination is because of assistance or support of a labor organization. (e) Telling any employee that a union in its plant would result in a reduction of work for all 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 labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such ac- tivities, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as authorized by Section 8(a)(3) of said Act. 2. Take the following affirmative action found neces- sary and designed to effectuate the policies of the aforesaid Act: (a) Upon request, bargain collectively with General Truck Drivers, Chauffeurs & Helpers Local 692, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in a unit composed of "All production and maintenance employees, including machine operators, truckdrivers, forklift operators, weld- ers, painters, laborers, warehousemen, and yard helpers at its Long Beach, California, plant, excluding office cleri- cal employees, foremen, professional employees, guards, and supervisors as defined in the Act," with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a written signed agreement. (b) Post at its plant in Long Beach, California, copies of the attached notice marked "Appendix. `30 Copies of said notice, to be furnished by the Regional Director for Region 21, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."' IT IS FURTHER RECOMMENDED that the complaint herein to the extent that it alleges a violation of Section 8(a)(5) of the Act, be dismissed. ll. REPORT ON CHALLENGES AND ON OBJECTIONS TO CON- DUCT AFFECTING THE RESULTS OF THE ELECTION Having found, as herein set forth, that Respondent en- gaged in extensive and substantial violations of Section 8(a)(1) of the Act, during the period between the filing of the representation petition and the election , it follows that the election held on December 20, in Case 21-RC-10261 , must be set aside, and I so recommend. Dal-Tex Optical Company, Inc., 135 NLRB 1782; Leas & McVitty, Incorporated, 155 NLRB 389 , and the cases there cited. In view of this conclusion, it is unnecessary to decide whether the fact that Strawder and Walker were prevented from voting because they were sent out of town by Respondent , requires the setting aside of the election . Having recommended a bargaining order against Respondent, no purpose would be served by conducting a new election. Accordingly, IT IS FURTHER RECOM- MENDED, that the Board dismiss the petition in Case 21-RC-10261, and vacate all proceedings had in connec- tion therewith. ?0 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 11 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 Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT coercively interrogate our em- ployees regarding their or other employees' activities or sympathies for or against any union. WE WILL NOT promise benefits to any employee to induce him to withdraw his support or assistance to any union. WE WILL NOT ask any employee to urge other em- ployees to cease supporting any union. WE WILL NOT tell any employee that his termina- tion is because our employees are assisting or sup- porting a union. WE WILL NOT tell any employee that a union in our plant will result in a reduction of work for all em- ployees. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of the right to self-organization, to form, join, or assist General Truck Drivers, Chauffeurs & Helpers, Local 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, to bargain col- lectively through representatives of their own choos- ing, or to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activi- ties, except to the extent that such right may be af- fected by an agreement requiring membership in a labor organization as authorized in Section 8(a)(3) of the Act. WE WILL, on request, recognize and bargain with General Truck Drivers, Chauffeurs & Helpers, Local 692 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of our employees in a unit composed of all production and maintenance L. B. FOSTER COMPANY employees, including machine operators, truck- drivers, forklift operators, Welders, painters, laborers, warehousemen, and yard helpers at our Long Beach, California, plant, excluding all office Dated By clerical employees, foremen, professional em- ployees, guards, and supervisors as defined in the aforesaid Act, with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment and, if an understanding is reached, embody such understanding in a written signed agreement. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named or any other Union. 89 L. B. FOSTER COMPANY (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5229.