Pacific Abrasive Supply Co.

PACIFIC ABRASIVE SUPPLY CO: Pacific Abrasive Supply Co., a subsidiary of the Carborun- dum Company and International Longshoremen's and Warehousemen's Union , Local No. 6 International Longshoremen 's and Warehousemen's Un- ion, Local No. 6 and Pacific Abrasive Supply Co., • a subsidiary • of the Carborundum Company. Cases 20-CA-4968 and 20-CB-1952 ' DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On May 23, 1969, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engag- ing in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent Employer had not engaged in other unfair labor practices alleged in the complaint. Thereafter, the Respondent Employer and Respondent Union filed exceptions to the Trial Examiner's Decision and supporting briefs. The General Counsel subsequently filed cross-exceptions and an answering 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 con- nection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Exam- iner 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 these cases,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, as modified below. The facts as found by the Trial Examiner may be summarized as follows. On April 22, 1968, union organiz- ers presented William R. Albrecht, manager of Respond- ent Employer's (hereinafter referred to as Respondent) Mountain View facility, with four signed cards designat- ing the ILWU as bargaining representative. The cards were signed by the Company's only four employees classified as warehousemen. As found by the Trial Exam- iner, a warehouse unit consisting of these four employees is appropriate.' Albrecht took the cards and acknowl- edged that the four signatures were genuine. At the request of union organizer King, Albrecht then photostat- ed and kept copies of the four cards. Albrecht, however, refused to sign a recognition agreement, stating that only Edward Caffery, president of the Company, could authorize such an agreement, and that Caffery was out of town. King then stated that he would get in touch with the Company in a few days, after Caffery returned. ' The Respondent Employer has requested oral argument The request is hereby denied because the record , the exceptions , and the briefs adequately present the issues and the positions of the parties Y Garrett Supph Compan1, 165 NLRB 561 329 Later that' day, Albrecht contacted Caffery by phone to relate these events. Caffery told Albrecht that, as far as he was' concerned, the Union did not represent a majority of the- employees, and that he wanted an election. He 'stated that union authorization cards did not indicate the true wishes of employees because a previous election, held a -little less than a year before in a•unit of warehousemen, shipping and receiving clerks, and maintenance men, had resulted in a union loss. He also mentioned that the size of the bargaining unit was in question The parties' briefs dispute vigorously whether or not cards were presented at the time of the demand of a year before, but the Trial Examiner makes no finding on this point. However, it is uncontro- verted that the Union's request of the previous year was made by telegram and that the telegram had repre- sented that the Union had a card majority. Thereafter, on April 23, after consultation with Caffery and a Mr. Tobin of Respondent's labor relations department, Albrecht drafted a letter expressing doubt of the Union's majority and asserting that a Board election was the most appropriate way of resolving the issue. On April 24, Albrecht called union organizer King to tell him Respondent would not recognize the Union, and that a letter to that effect was in the mail. On April 23, prior to the time the letter was sent, Albrecht, by his own admission, spoke to all four of the warehousemen' In substance, Albrecht expressed his surprise at their wanting a union, and stated that, with such a small group, he did not see the need for a union. He told them the Company always had an "open door" policy, and expressed his belief that their problems could be worked out. He asked each employee what he thought of it, and asked each why he wanted a union. The employees answered that they had made their decision, and were all in it together. Employee Sutton, whom Albrecht saw separately from the other three, gave the employees' desire for increased security as another reason for signing. Albrecht also told Sutton that he was processing an incentive raise which was due Sutton, a subject which had been raised between them previously The Trial Examiner found the above discussions not to be in violation of Section 8(a)(1) of the Act. The General Counsel excepts to the Trial Examiner's failure to find an 8(a)(1) violation, the principal contention being that the incidents constituted a poll of employees without Struksnes' safeguards. The Trial Examiner's finding that the incidents did not violate Section 8(a)(1) is based on his conclusions, first, that Respondent's inquiries were not aimed at ascertaining its employees' union sympathies, and, second, from all of the surround- ing circumstances, that there was no coercion, explicit or implicit, in Albrecht's remarks or questions. Thus, Albrecht already knew that all four had signed cards, and his remarks to them assumed that they were indeed union adherents. Furthermore, the employees presuma- bly knew that the Union had already shown their cards The Trial Examiner inadvertently gives this date as April 24 Struksnes Construction Co Inc . 165 NLRB 1062 182 NLRB No. 48 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Albrecht. The thrust of Albrecht's remarks was, as found by the Trial Examiner, to convey the Compa- ny's position on unionization to the employees and to try to persuade them of the Respondent's past fairness, rather than to delve into their sentiments or activities relating to the Union. For these reasons, we affirm the Trial Examiner's dismissal of this 8(a)(1) allegation. After Albrecht's telephone call of-April 24 to organizer King, King informed the four employees of Respondent's position. The employees had made a standing decision to strike in the event that recognition was refused. On the morning of April 25, all four went out on the picket line.5 Two employees stopped picketing in the middle of May, and the other two by early June. The picket line did not succeed in preventing trucks owned by Valley Express, a contractor used by Respond- ent during the strike, from coming and going to the warehouse. Union Business Agent Corley told two of the pickets that he would import some "thugs" to prevent this. On May 13, four men driving a car registered in the name of Union Agent William LuFrano arrived on the premises. The Valley Express truck was already gone . Donald Elam, a nonstriking employee of the Employer, who was driving a pickup truck, was request- ed to stop at the instance of one of the pickets.-When Elam rolled down his window, he was asked by two of the unidentified men whether he was a union member. Upon giving a negative reply, he received a blow under the eye. After a brief scuffle, Elam escaped to the company office and the assailants escaped down the highway in their car. Elam's eye cut required three stitches. The Trial Examiner's Decision sets forth in greater detail the facts which establish the deliberate and premeditated nature of the violence. The Trial Exam- iner found, and we affirm, an 8(b)(1)(A) violation based thereon. Although he found no independent unfair labor prac- tices by Respondent, the Trial Examiner found that Respondent knew that the Union represented all of the warehousemen at the time of its refusal to bargain and thereafter, and, "as controlling Board law establishes that the factual knowledge of majority status rebuts any claim by an employer that it entertains a good- faith doubt as to majority," he concluded that the refusal violated Section 8(a)(5) and recommended the issuance of a bargaining order. ,In doing so, he held that the 8(b)(1)(A) violation committed by the Union did not require application of the Laura Modes'' principle of denying a bargaining remedy to a union which evinces an intention to secure recognition by unlawful, rather than lawful, means. The Trial Examiner's Decision in this case issued before the Supreme Court's decision in N.L.R.B. v. Gissel Packing Company, Inc.7 We have examined the Trial Examiner's Decision, the record in this case, and the briefs of the parties in the light S It should be noted that the strike began within' 1 year of the election held April 27, 1967, in a somewhat larger unit However, no charge was filed under Sec 8(b)(7)(B) See fn 12, infra ` Herbert Bernstein, et al, dlb/a Laura Modes Company, 144 NLRB 1592. 1 395 U S 575 of the Gissel decision, and we adopt the Trial Examiner's recommendation that a bargaining order should issue. In Gissel, the Court approved the practice of requiring an employer to bargain with a union on the basis of authorization cards signed by a majority of the employees in an appropriate unit where the employer, by committing unfair labor practices, has made ,it unlikely that a fair election could be held. The Court held that such a determination could be made without reference to wheth- er the employer's claim of doubt of the union's majority status was made in bad faith. The Court's decision, however, leaves open the ques- tion of whether a defense of "good-faith doubt" is available to an employer who refuses the union's demand but does not interfere with the election process. The Court stated: We thus need not decide whether, absent election interference by an employer's unfair labor practices, he may obtain an election only if he petitions for one himself; whether, if he does not, he must bargain with a card majority if the union chooses not to seek an election; and whether, in the latter situation, he is bound by the Board's ultimate deter- mination of the card results regardless of his earlier good-faith doubts, or whether he can still insist on a union-sought election if he makes an affirmative showing of his positive reasons for believing there is a representation dispute." However, in the course of its opinion in Gissel, the Court reaffirmed its longstanding position, announced in United Mine Workers of America, et al. v. Arkansas Oak Flooring Co.,9 that a "Board election is not the only method by which an employer may satisfy itself as to the union's majority status," and that "[i]n the absence of any bona fide dispute as to the existence of the required majority of eligible employees, the employer's denial of recognition of the union would have violated Section 8(a)(5) of the Act." 10 In Gissel, the Court also succinctly stated the Board's present position on the employer's duty to recognize a union, in the absence of unfair labor practices: When confronted by a recognition demand based on possession of cards allegedly signed by a majority of his employees, and employer need not grant recognition immediately, but may, unless he has knowledge independently of the cards that the union has a majority, decline the union's request and insist on an election, either by requesting the union to file an election petition or by filing such a petition himself under Section 9(c)(1)(B). [Emphasis sup- plied.] In the instant case, Respondent had the benefit of three separate demonstrations of employee sentiment, all of which corroborated the Union's claim that it represented a majority of the employees in the unit found appropriate. Thus, Manager Albrecht not only was presented with signed authorization cards from all Id at fn 18 351US 62 Id at fn 8, ,d. at 69. PACIFIC ABRASIVE SUPPLY CO. 331 four employees in the unit, but he verified the signatures, acknowledged their authenticity, and kept photostat cop- ies of the cards. That the cards in fact represented the true sentiments of the signers could no longer have been doubted after the employees conveyed their desire for union representation to Albrecht in the course of his conversations with them. Finally, all four unit employees went out on strike in support of the union recognitional request in their behalf." We find on these facts that "any bona fide dispute as to the existence of the required majority of eligible employees" which might have existed at the time the Union made its demand upon Respondent was dissipated by the subsequent discussion between Albrecht and the employees, and the fact, known to Respondent, that all four unit employees were on the picket line.12 Regardless of Respondent's prior experience with the validity of union claims of card majorities, these events constituted independent knowledge beyond the cards themselves that the Union enjoyed majority status. There being no dispute as to the question of representation at the time of Respondent's refusal to grant recognition and thereafter, we conclude that Respondent's refusal to bargain in these circumstances constitutes a violation of Section 8(a)(5) of the Act.t3 Respondent's final contention is that because of Respondent Union's violation of Section 8(b)(1)(A), a bargaining order is inappropriate under the principles announced in Laura Modes Company, supra. We agree with the Trial Examiner that, while the assault on employee Elam is not to be condoned, one incident in 6 or 7 months of picketing does not establish a total disinterest on Respondent Union's part in enforcing its representation rights through the peaceful legal proc- ess provided by the Act so as to warrant withholding the customary order to bargain. For all of the above II NL R.B v Preston Feed Corp., 309 F 2d 346, 350 (C A 4) In N.L R.B. v Harris-Woodson Company, Inc, 179 F 2d 720, 723 (C. A. 4), the court said: The contention that the company was in doubt as to the union's representing a majority of employees is little short of absurd in view of the fact that practically all of the employees went out on strike in an attempt to compel the company to bargain with the union See also N.L R.B v World Carpets of New York, Inc., 403 F.2d 408, 411 (C A 2), vacating and remanding 163 NLRB 597, in which picket line par- ticipation is acknowledged to be a reliable indicator of employee senti- ment .; N.L.R.B. v. Frick Company, 397 F.2d 956 (C.A 3, 1970), fn. 4, and Independent, Inc , dlbla The Daily Advertiser v. N.L.R B , 406 F.2d 203 (C A 5) 11 Respondent takes the position that because the strike took place within 1 year of an election held in essentially the same unit as that involved here, it violated Sec 8(b)(7)(B) of the Act, and cannot be invoked as independent evidence that the Union represented a majority. The prior election took place on April 27, 1967, the strike on April 25, 1968 While noting that no charge of any 8(b)(7)(B) violation was ever filed, we find it unnecessary to resolve the questions raised by Respondent in this contention. The strike continued after April 27, 1968, and, after that date, constituted protected activity It was in either case evidence which, at the very least, we may consider as an indication of the employees' true desires. 13 Cf. Stecher-Traung-Schmitt Corporation, Wheeler-Van Label Com- pany, its subsidiary, 172 NLRB No 186, enfd sub nom Wheeler- Van Label Company, 408 F.2d 613 (C.A 2). reasons, we find no merit in either this or any other of the contentions of Respondent Employer. ORDER" Pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as herein modified, and orders that Respondents, Pacific Abrasive Supply Co., a subsidiary of the Carborundum Company, Mountain View, California, its officers, agents, successors, and assigns, and International Longshoremen's and Ware- housemen's Union, Local No. 6, San Jose, California, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: Delete the first sentence in section 2(b) of the Trial Examiner's Recommended Order in Case 20-CA-4698 and substitute therefor the following: "Upon application, reinstate Dale Butterfield, George Sutton, Joseph Ravanelli, and George Jensen to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace the above- named employees." 14 In the event that this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading "a Decision and Order" shall read "a Judgment of the United States Court of Appeals enforcing an Order " TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Trial Examiner: This is a con- solidated proceeding' on complaints of unfair labor prac- tices against Pacific Abrasive Supply Co., a subsidiary of the Carborundum Company, herein called the Compa- ny, and International Longshoremen's and Warehouse- men's Union, Local No. 6, herein called the Union. In Case 20-CA-4968 a charge was filed on April 25, 1968,2 against the Company by the Union. The complaint issued on September 4 alleging that the Compa- ny unlawfully interrogated employees as to their activi- ties and sympathies in behalf of the Union and threatened employees that they would receive less favorable work- ing conditions in the event they selected the Union to represent them, in violation of Section 8(a)(1) of the National Labor Relations Act, as amended; and unlawfully refused to recognize and bargain with the Union as the exclusive representative of its warehouse employees in violation of Section 8(a)(5) and (1) of the Act. In addition the complaint alleges that the ware- housemen engaged in a strike to protest the Company's unfair labor practices. The two captioned cases were consolidated during the hearing s All dates are in 1968 unless otherwise specified 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Case 20-CB-19523 a charge was filed on October 30 against the Union by the Company The complaint issued on December 10 and an amendment to the com- plaint issued on January 10, 1969, alleging that the Union through its agents assaulted an employee because the employee refused to honor the Union's picket line, in violation of Section 8(b)(1)(A) of the Act The Company and the Union in their respective answers each denied that they engaged in any unfair labor practices These cases were tried before me in San Francisco, California, on March 3 and 4, 1969 All parties were given full opportunity to participate, adduce evidence, examine and cross-examine witnesses, submit briefs, and present oral argument Thereafter briefs which have been carefully considered were filed on behalf of the General Counsel and the Company Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, a California corporation, with its princi- pal place of business in Mountain View, California, herein called the Mountain View facility, is engaged in the business of selling at wholesale, cutting tools, files, saws, and other machine shop items During the year preceding the issuance of the complaints the Compa- ny shipped goods and materials valued in excess of $50,000 directly from the State of California to customers located outside of the State of California The complaints allege , the Company's answer and the Union's amended answer admit, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaints allege , the answers admit, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Setting As a wholesaler of machine shop items the Company's operation at its Mountain View facility consists of sales and clerical work which is performed in an office, and warehouse work which is performed in the warehouse To some extent as is discussed in detail below, some of the office staff have duties that require them to work in the warehouse ' This charge was originally filed under case 20-CC-840 By order dated December 3 Roy 0 Hoffman Regional Director for Region 20 of the Board changed that to case 20-CB-1952 The Union has been attempting to organize the Compa- ny's employees at the Mountain View facility for many years In 1962 the Union filed a petition in Case 20-RC-5110 seeking an election in a unit composed of all of the Company's employees at the Mountain View facility, except office clerical employees, sales employees, guards and supervisors At the same time a different'local of the International Longshoremen's and Warehousemen's Union participated in an election in an office worker unit Both unions lost the ensuing elections In 1967 the Union tried again and filed a petition in Case 20-RC-7486 The Union sought two separate units One consisted of warehousemen, shipping and receiving clerks, maintenance men, including refi- nishing operators, excluding office clericals, guards and supervisors The other consisted of office clerical employees However prior to the election the Union withdrew with regard to the office employees unit and the election, which was conducted in April 1967, proceed- ed in the warehouse unit Once again the Union lost The only warehouse employee who was employed at the time of the 1967 election and was also employed at the time of the hearing was Dale Butterfield In early April Butterfield spoke to the other warehouse employees about joining the Union Shortly thereafter he called Roland Corley, the Union's business agent, who he knew from the 1967 election, and asked him to speak to the employees One evening about that time Butterfield went to see Corley to discuss organiza- tion of the warehouse and was given blank authorization cards which he brought back to the warehouse with him These cards designated the Union as bargaining agent and petitioned the National Labor Relations Board to conduct an election On April 17 all of the warehouse employees employed by the Company at the Mountain View facility attended a meeting at the Union's office in San Jose, California, with Union Business Agent Roland Corley and LeRoy King, an International organiz- er for International Longshoremen's and Warehouse- men's Union who was assisting the Union in its organiza- tional activity The warehouse employees were Butter- field, Joseph Ravanelli, George Sutton, and George Jen- sen At this meeting the employees were told that if they signed one type of card the Union could petition for an election and if they signed another type of card the Union would approach the Company and demand recognition without going to an election The employees decided that because there were only four warehousemen and all of them were in agreement about joining the Union that they did not want an election They agreed to have the cards that had previously been given to Butterfield destroyed and each of the warehousemen signed an authorization card which designated the Union as his bargaining agent with the Company on wages, hours, and working conditions All four were signed at the meeting on April 17 On April 22 Union Business Agent Roland Corley and International Organizer LeRoy King went to the Company's Mountain View facility and spoke to William R Albrecht who was manager of the Company's Moun PACIFIC ABRASIVE SUPPLY CO. tain View facility.4 King told Albrecht that the Union represented all of the Company's warehouse employees for the purpose' of bargaining and asked him to sign a recognition agreement. Albrecht asked how he could know that the Union represented a majority of the employess and King gave him the four original designa- tion cards. King asked whether those were the signatures of the employees and Albrecht answered that they were. King then told Albrecht to take the cards and photostat them. This was done5 and King took the originals back. King again asked Albrecht to sign a recognition agree- ment and Albrecht answered that he did not have the authority, and that only Edward Caffery, the president of the Company, could authorize such an agreement. Albrecht also said that Caffery was out of town. King replied that the cards were given in good faith and the Company would be in trouble with the Union if it intimidated the men. The conversation ended with King saying that he would be in touch with the Company in a few days.8 B., The Alleged Violations of Section 8(a)(1) of the Act 1. The facts About noon on April 24 Manager Albrecht asked Warehouse Foreman Jolliffe to call the warehousemen so that he could speak to them. Warehouseman Sutton was not working at the time but Albrecht and Jolliffe did meet with warehousemen Ravanelli, Jensen, and Butterfield. Albrecht told the employees that he, had been caught unaware and was surprised by their wanting to join the Union and he could not see why with such a small group there was a need for a union. He also told them that he was sure that they could sit down and discuss things to work out any problems and that he always had an open-door policy. Albrecht then asked each employee in turn what the employee thought of it and why the employee wanted a union.7 Butterfield answered that he had made his decision and that's why he signed. Ravanelli answered that they were all in it together, that they all made the decision, and that is why they signed. Jensen answered that they all felt the same way.8 ' The complaint alleges and the answer admits that Manager William R. Albrecht and Warehouse Foreman Karl Jolliffe are agents of the Company and supervisors within the meaning of Sec 2(11) of the Act I so find. King's testimony only implies that Albrecht made copies of the cards However, the Company in its brief acknowledges that the copies were made These findings are based on the credible and uncontroverted testimo- ny of King ' This factual finding is based on the testimony of Butterfield , Ravanel- li, and Jolliffe None were exactly certian of the words that were used . Butterfield remembered Albrecht asking such questions as what do you think about it, why do you think this is necessary Ravanelli remembered Albrecht's asking why they felt they needed a union and why they wanted a union Jolliffe recalled Albrecht's asking what they thought about it, the union situation , what their feelings were The sense of the questions as set forth above is common in all the testimony and is uncontroverted 9 This finding is based on the credited testimony of Butterfield, which is corroborated in substance by Ravanelli Jolliffe's testimony was sub- 333 Later in the same day Albrecht spoke to warehouse- man Sutton. Once again Jolliffe was present. Albrecht said that he was surprised when he,was approached by the union representatives and he wanted to know what seemed to be the problem among the warehousemen. Sut- ton replied that the employees wanted more security. Al- brecht then said that the Company treated the employees fairly. Albrecht asked why Sutton felt he needed a union and Sutton answered that they just thought they ought to be organized.9 In the same conversation Albrecht said that the Company was lenient in such matters as giving the men time off and that he was going through the ad- ministrative changes relating to incentive pay that was due Sutton. Albrecht acknowledged that he had two con- versations with Sutton about incentive pay. Sometime be- fore, the conversation to which Sutton testified, Sutton asked whether he was entitled to incentive pay after 6 months. Albrecht answered that he was and that he would look into it. In a second conversation Albrecht explained to Sutton that the incentive pay was only due after a full 6 months and therefore the first payment would be re- ceived in the seventh month. Albrecht did not remember whether the second conversation occurred at the same time that Sutton testified to. I find that the conversation regarding incentive pay did occur as testified to by Sut- ton, but in the context of Albrecht's assurances to Sutton that the Company was fair to employees. On the night of April 24 warehouseman Butterfield called Warehouse Foreman Jolliffe and told him that they were going on strike but that it was nothing personal against Jolliffe. Butterfield asked Jolliffe what he thought about it and Jolliffe answered that the timing was wrong because there was going to be a change in the warehouse and there would be a lot of overtime.10 '2. Analysis 'as to the,alleged violations of Section 8(a)(1) of the Act Paragraph VI(a) of the complaint in Case 20-CA-4968 alleges that the Company by Manager Albrecht interro- gated employees ' as to their activities and sympathies in behalf of the Union in violation of Section 8(a)(1) of the Act. I have found that Manager Albrecht did ask all four warehousemen why they felt they needed the Union or why they wanted a union and how they felt about it. However, for interrogation to violate Sec- tion 8(a)(1) of the Act it has to interfere with, restrain, or coerce employees in the right to engage in the concert- ed activities set forth in Section 7 of the Act. In evaluat- ing whether interrogation is lawful or unlawful all the surrounding circumstances must be considered. In this case prior to the interrogation union officials had not only demanded recognition but had given Manager staniially corroborative except that he testified that Jensen remained silent However Jolliffe also testified that he • was not present during the entire conversation. 8 These findings are based on the uncontested and credited testimony of Sutton and Jolliffe i" This finding is based on Jolliffe's testimony Butterfield simply testified that Jolliffe told him the strike was at the wrong time, but he in no way contradicted Jolliffe's testimony 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Albrecht copies of authorization cards signed by all four warehousemen. Albrecht had acknowledged to the union officials that the signatures on the authorization cards were the signatures of the warehousemen. The thrust of Albrecht's remarks to the four warehousemen was in the nature of an exposition of the Company's position on unionization. Albrecht did not ask them whether they had joined the Union or whether they were sympathetic toward the Union. He already knew that they had signed cards for the Union. The questions were not aimed at ascertaining which employees favored the Union nor did they imply that union adherents would be singled out for discriminatory treatment. The total impact of the conversation was that Albrecht was stating the Company's position on unionism and as part of his method of communicating with the employees he asked questions to involve them in a discussion about the merits or demerits of unionization. In sum I find that the interrogation was an attempt to start a dialogue about unionization in an effort to convey to the employees the Company's position on unionization and was not an attempt to delve into the activities and union sympathies of the employees. The conversa- tion did not carry any overtones of threat or promise to interfere with the employees' rights. Nor did the interrogation fit into a pattern of unfair labor practices so as to give it additional meaning. I find that Albrecht's questions to the warehousemen did not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act and I therefore recommend that section VI(a) of the complaint in Case 20-CA-4968 be dismissed. Paragraph VI(b) of the complaint in Case 20-CA-4968 alleges that the Company through Manager Albrecht threatened employees that they would receive less favor- able working conditions in the event they selected the Union to represent them. The only evidence in the record with regard to this allegation relates to the conver- sation between Albrecht and Sutton in which Albrecht stated that the Company was going through administra- tive changes relating to incentive pay that was due Sutton. However this subject had been raised before and the repetition of it at the meeting in which Sutton and Albrecht discussed the Union had no relation to any threat that an employee would receive less favorable working conditions if the Union were selected. Albrecht told Sutton that the Company treated employees fairly and in that connection mentioned the incentive pay question. I therefore find that the General Counsel has failed to establish by a preponderance of the evidence that the Company threatened employees that they would receive less favorable working conditions in the event that they selected the Union to represent them and I recommend that paragraph VI(b) of the complaint in Case 20-CA-4968 be dismissed." " Though there is no specific allegation in the complaint that Ware- house Foreman Jolliffe engaged in any unfair labor practices, there is testimony that Jolliffe told Butterfield that they had picked a bad time to strike However I find that this remark related to the fact that there was overtime work which the employees would not get because they were on strike and therefore were not available for work C. The Alleged Violation of Section 8(b)(1)(A) of the Act 1. The strike Manager Albrecht's conversations with the ware- housemen discussed above occurred during the day on April 24. That evening International Organizer LeRoy King had a telephone conversation with Manager Albrecht King asked Albrecht what the Company's decision was with regard to the recognition of the Union. Albrecht answered that recognition would not be granted because the Company thought there should be an elec- tion. King then told Albrecht that he had heard that Albrecht was interrogating and intimidating the employ- ees and if that was the kind of game the Company was going to play, and the Company would not recognize the Union, that the Company had a strike on its hands. Later that evening Business Agent Corley called ware- houseman Butterfield and told him that the Company refused to acknowledge the Union and they were going out on strike. Butterfield in turn called the other ware- housemen and told them that the Company would not acknowledge the Union and that they would strike the next morning. At 6:30 a.m. on April 25 all four ware- housemen struck. Picket signs carrying the legends "Unfair to Organized Labor" and "On Strike, Local 6, ILWU" were carried. At one time or another each of the four warehousemen participated in the picketing. Prior to the commencement of the strike the employees had agreed among themselves that if the Company re- fused to recognize the Union they would strike. Jensen and Ravanelli did not picket after the middle of''May and Butterfield and Sutton did not picket after early June. None of these employees have returned to work with the Company. According to the uncontradicted testimony of King the strike lasted for 6 or 7 months. 2. The events preceding the violence Officials of the Union actively participated in the strike. A few days after the picketing began Business Agent Corley, International Representative King, and Union Agent William LuFrano12 were on the picket line when a railway train was approaching the Company's property. Corley and King asked the engineer of the train to stop and the train came to a halt. Another man who had come with the union agents picked up a picket sign and walked back and forth across the railroad tracks and the railroad train left. About May 6 warehouseman Jensen called Business Agent Corley and told him that trucks from Valley Express were still taking the cargo out through the picket line. Valley Express is a trucking company that the Company relied on during the strike for shipping cargo in and out. Corley replied that if that,situation continued the strike would last indefinitely and that I find that Jolliffe's remarks did not violate the Act 12 At the hearing the Union amended its answer and admitted that LuFrano was its dispatcher and an agent of the Union acting on the Union's behalf PACIFIC ABRASIVE SUPPLY CO. he would try to put a stop to it. Though Jensen testified that Corley told him that he (Corley) would have to go to San Francisco and get some "malignants" and put a stop to the trucking , Jensen also testified that that was not the exact language Corley used but that in substance Corley characterized the people who were to be brought from San Francisco as thugs or ruffians. A day or two either before or after the telephone conversation described above Corley was on the picket line when a `truck from Valley Express was coming toward the Company's premises . Corley asked the truck- driver if he would refrain from coming in because there was a strike . In a 10- or 15-minute conversation Corley tried to convince the 'driver of the truck to honor the picket line. However the truck continued with its delivery. Corley then told warehousemen Jensen and Butterfield that they were going to have to put a stop to the trucks coming in by bringing people down from San Francisco . He then turned to Butterfield and told Butter- field to telephone him a day or two before a truck was due so that they could send some guys down there to stop it, and they would not have to be down there all the time wasting their time. On May 10 Jensen , Butterfield , and Business Agent Corley had another conversation on the picket Line. Butterfield told Corley about the trucks crossing the picket line and Corley replied that he would try and put a stop to it. 13 3. The assault Donald- Elam' is an employee of the Company who at various times has held ,the positions of, warehouseman, outside, salesman ,, and, sales . correspondent . After the, strike,, even „though he was. not then a warehouseman, Elam spent every,.other day working in ,the warehouse- doing duties that were usually performed by the ware- housemen. On some days he drove packages to United Parcel. On May 13 he loaded a pickup truck with mer- chandise with the intention of driving away from the company premises . Just before Elam started driving, four unidentified men drove up in a car which they parked just off company property. Two of them got out of the car and spoke to warehouseman George Jensen . One of the unidentified men told Jensen that they had missed the Valley truck. Then the unidentified man noticed the truck that was being loaded by Elam. He told Jensen that as they could not get the Valley truck they would settle for the one that was being loaded and that they would "Shake this guy up or scare him up pretty bad and that way it should stop." He asked Jensen if Jensen could stop the truck when, it rolled out so that they could talk to the driver. ' Elam started driving the truck and Jensen told him to stop because some people wanted to talk to him. Jensen then walked away and the two unidentified men approached the truck.14 One of the men approached 13 The above findings are based on the uncontradicted and credible testimony of warehouseman Jensen The Union did not call any witness- es " The above findings are based on the uncontradicted and credible testimony of Jensen 335 the truck from the passenger 's side , tried to open the door , and said something which Elam could not hear. As the door was locked, Elam rolled down the window and the man asked Elam if he belonged to the Union. Elam answered that he did not. The man then struck Elam under the eye with what Elam thought to be the man 's fist. Elam then slid back under the wheel and tried to drive away when someone hit him from the other side and the truck stalled. The window was open on the driver's side. Elam scuffled with the two men for a short time but then managed to make his way to the company office where the police were called.' While the assault was taking place James K. Pierce, a disinterested witness who owns a donut shop near the Company ' s place of business , was driving down the road past the Company ' s premises . He saw the assault taking place and turned into the Company's property to give assistance . By the time he arrived the two assailants had jumped in their car and left. As he saw the driver of the truck was running into the building and did not appear to be badly hurt, he followed the car in which the assailants were riding. While he was following the car he saw the driver reach into his coat pocket and then hand what appeared to him to be United States currency to the men on the passenger' s side and the back of the car. He copied the license number of the car and reported it to the police. That license number was California USV 481, which , it was stipulated at the hearing , is the registration on the automobile owned by William LuFrano, an agent of the Union. The injuries that Elam sustained were a cut under the right eye which required cleaning , three stitches, and a tetanus shot . In addition Elam received a scratch on the back of his neck. 4. The Union's responsibility for the assault-conclusion As found above: The Union engaged in a strike and picketed the Company . Union officials participated in attempts to make the strike effective as indicated by the activities of Business Agent Corley and International Representative King in stopping a railway train that was trying to enter the Company's property on or about April 27 and by the activities of Corley in his efforts to convince a driver of a Valley Express truck to honor the picket line within a few days of May 6. The fact that the Valley, Express trucks were crossing the picket line was seriously hurting the Union 's strike activities,. On May 6 Business Agent Corley told warehouseman Jensen that if the situation continued the strike would last indefinitely, that he would try to put a stop to it, and that he would have to go to San Francisco " These findings are based on the credited testimony of Elam, which is uncontradicted Jensen's version of the assault was substantially the same , to the extent that he could see it Jensen credibly testified that the two assailants went to the back of the truck and took out some of the packages and scattered them on the ground The assailants then drove away 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to get some "malignants ' 116 to put a stop to the trucking. A few days before or after May 6 Corley told Jensen and Butterfield that they were going to have to put a stop to the trucks coming in by bringing people down from San Francisco and he asked Butterfield to alert him when trucks were due. Again on May 10 Corley spoke of stopping the trucks . On May 13 two unidentified men who said that they intended to take some action against a Valley Express truck came to the picket line, told a picket that they would settle for the truck which was driven by employee Elam, said that they would shake up the driver of the truck, induced the picket to stop the truck , and then beat up employee Elam. The car in which the assailants drove was owned by Union Agent LuFrano. I find that the General Counsel has established by a preponderance of the credible evidence that the Union was responsible for the assault on employee Elam and the assault was seen by at least one other employee, Jensen . The General Counsel has proved his prima facie case of union culpability by tying together the desire of the Union to stop the trucking , the unsuccessful peaceful attempts of the union officials to stop the trucking , the statements by union officials to the effect that nonpeaceful means to stop the trucking would be tried, the assault which followed shortly thereafter by assailants who knew that the Union wanted to stop the trucking, and the use by such assailants of a car owned by a union official. The Union put in no defense but rested upon conclusion of the General Counsel's case . The assault was not a simple flareup of tempers on the picket line and cannot be considered to be 'a minor isolated incident arising out of tension and emo- tional stimulation that is inherent in most -labor disputes. Rather , it was a preconceived and coldly • calculated resort to strong arm tactics. I find that the Union was responsible for the assault on employee Elam on May 13, that the assault stemmed from Elam 's refusal to honor the Union' s picket line, and that the Union violated Section 8(b)(1)(A) of the Act. Teamsters Local 536 (The Connecticut Foundry Co.). 165 NLRB 916. D. The Alleged Violation of Section 8(a)(5) of the Act 1. The demand As set forth above, International Organizer LeRoy King demanded recognition on behalf of the warehouse- men in his conversation with Manager Albrecht on April 22. At the same time King gave Albrecht a blank recogni- tion agreement calling for recognition in a unit of "ware- house employees , exclusive of supervisors, guards and office clerical employees."" '" Though Jensen was not certain as to the exact wording Corley used in this conversation , the concept "thug" can be fairly inferred from the totality of the conversation The appropriate unit set forth in the complaint is All warehouse employees of the [Company] at its Mountain View, California location, excluding all other employees , profession- al employees , guards and supervisors as defined in the Act 2. The appropriate unit Company records as stipulated to at the hearing estab- lish that on April 22 the Company had 16 employees There was one secretary , four senior sales correspond- ents, two sales correspondents ," one customer record clerk, two order analysts, two flexotypists, and four warehousemen . In addition there were outside salesmen but there is no contention that the outside salesmen should be included in the bargaining unit.'" The flexotypists work on a machine which generates a perforated tape which transmits orders to the home office in Niagara Falls, New York, for use in connection with a computer in New York. The customer record clerk checks orders to see whether customers have previously done business with the Company, checks items on the order forms , and checks the customers' credit. The duties of the office secretary, flexotypists, and customer record clerk are clearly office clerical in nature and these employees should be excluded from the appropriate unit . However, the duties of the sales correspondents , the order analysts, and the warehouse- men, to different degrees , do take them into the ware- house and the question is presented whether a unit of warehousemen which excludes sales correspondents and order analysts can be appropriate. The warehousemen perform normal warehouse duties. They unload railroad cars and trucks when merchandise is delivered to the warehouse and put the merchandise in the proper location on stock racks. They pull merchan- dise off the stock racks to fill orders from customers, pack the merchandise , prepare it for shipment, and load it on trucks. The warehouse work is done at a separate warehouse area but under the same roof as the rest of the facility. Three of the warehousemen worked from 8 a.m. to 4:30 p.m. and'the 'fourth from 12 noon to 7 p.m. All are under the immediate supervision of Warehouse Foreman Karl Jolliffe and under the overall supervision of Manager Albrecht. They are salaried but overtime is computed on an hourly rate at time and a half. The four warehousemen were paid as follows: Butterfield, $495.12; Jensen, $461.28; Ravanelli, $461.28; and Sutton , $288.30 . 20 Though there was no particular standard of dress most of the warehousemen wore slacks and sports shirts with open collars. Sales correspondents communicate with customers by telephone, mail, or in person when the customer comes to the Company's premises . They take the order, make sure it is clear , see to it that the inventory is satisfactory , fill the order , and in general keep in touch with the customer . Many of the sales correspondents were at one time warehousemen and there is a normal '" Except for the fact that Senior Sales Correspondent Sweet fills in for Manager Albrecht in Albrecht ' s absence , the duties of the senior sales correspondents and the sales correspondents are the same Both categories will be referred to herein as sales correspondents 19 Tr p 25, '1 15, which reads " the list does include outside salesmen " is in error and should read " the list does not include outside salesmen " It is hereby corrected 2" Sutton worked from 2 p in to 7 p in on Monday, Tuesday, Wednes- day, Friday , and from 7 a in to 12 p in on Saturdays He worked the same regular schedule each week PACIFIC ABRASIVE SUPPLY CO. progression within the Company from the status of warehouseman to sales representative. The prototype of job function that the Company would desire is as follows: The sales correspondent would write up the order, the order would be, sent to the order analyst, the order analyst would enter the order in the books, one of the girls in the office would take the order to the warehouse, and the warehousemen would fill the order. In practice the prototype of the duties of a sales correspondent is not fully followed. Though the sales correspondents do spend 80 to 90 percent of their working time filling out bids, quoting on bids, writing to customers, taking orders over the telephone, and in general working out problems with customers, 10 to 20 percent of their time is spent in warehouse- related work. If a customer comes to the Company's premises in person the sales correspondent will not only take the order but will go into the warehouse and fill the order himself so as to expedite the sale for the customer who is waiting. When the sales corre- spondent goes into the warehouse to fill an order for such a customer the sales correspondent is under the supervision of the warehouse foreman, uses equipment such as forklift trucks if necessary, and obeys the same safety rules that apply to the warehousemen.21 Based on a 6-week study made by Warehouse Forman Jolliffe 2 or 3 months before the demand for recognition, office personnel (sales correspondents and order analysts) spent 4 man hours a day in rush orders and "will call" warehouse -work for customers who personally called. As there were six sales correspondents and two order analysts, on the basis of an 8-hour day, there were 64„sales correspondent or order analyst man hours worked per,day,,of which 4 were spent in ',`will call" or,rush order warehouseman-type work. ,This was 6.25 percent, of the -average, workday. In addition to "will call" warehouse work, sales correspondents also help out with' warehouse work on the comparatively rare occasions that the warehousemen fall behind because of double carload deliveries of merchandise, an unusually_ heavy work schedule, or inventory work. No firm figures as to the amount of time spent in doing this type of work was established in the record but Manager Albrecht and Sales Correspondent Trask22 credibly tes- tified that the total warehouse-type work done by sales correspondents, which included both "will call" and "help out" work, occupied between 10 and 20 percent of the sales correspondent's time. Except when doing warehouse-type work as stated above the sales corre- 21 The customers who personally come to the Employer's premises are loosely called "will call" customers However if a customer phones in an order it is usually filled by a warehouseman even though the customer thereafter personally comes to pick up the order 22 Jensen testified that the sales correspondents spent between 4 and 8 hours a week doing warehouse-type work Though he testified that he was referring to all of them," the record is not clear whether he meant that all the warehousemen each spent 4 to 8 hours each in the warehouse or the 4 to 8 hours applied to the total time spent by the group The testimony of Albrecht and Trask was convincing and is credited The testimony of warehousemen Butterfield and Sutton to the effect that sales correspondents did not do warehouse-type work very often was so vague as not to shed substantial doubt on the testimony of Albrecht and Trask 337 spondents' work is performed in the,office. Their hours are from 8 a.m, to 4:30 p.m. They are, under the supervi- sion of Manager Albrecht and when Albrecht is not present, Senior Sales Correspondent Sweet. They are only subject to the supervision of Warehouse Foreman Jolliffe when they are in the warehouse. The salary of the sales correpondents varies from a low of $560 per month to a high of $731.48 a month. There is no required standard of dress for the sales correspond- ents though in general they tend to be better dressed than the warehousemen. However there is much varia- tion in dress both among the warehousemen and among the sales correspondents. Some of the sales correspond- ents wear informal sport clothes and others are more formally attired. The order analysts enter the customer's orders on the books and write them up on a form for the warehouse- men to fill. They are not ordinarily salesmen although sometimes they correspond with customers when the sales correspondents are busy Also on occasions order analysts will help a sales correspondent by going to the warehouse to pick up merchandise for a "will call" customer. In addition the order analysts on occasion help out the warehousemen in the• normal warehouse duties when the warehousemen are running behind in orders or when there is a special need for additional help in the warehouse. The order analysts spend substan- tially less time in the warehouse than the sales corre- spondents. I find that a unit of warehousemen as set forth in the complaint is appropriate for bargaining. Garrett Sup- ply .Company,165, NLRB 561. The above findings of fact, establish ,that,, the community of interest between the, warehousemen, , the, sales correspondents, and the order analysts is not so great as to require a finding that all employees who have any contact with the ware- house must 'be included in the same bargaining unit. The warehousemen are housed in a separate part of the Company's premises, are supervised separately, are paid substantially less, and, most important, do substan- tially different work than the sales correspondents. The sales correspondents are basically inside salesmen. Their duty is to deal with the customers. Any contact they have with warehouse work is incidental and subsidiary to their basic duty in communicating with the customers. Though to properly service a customer who has personal- ly appeared at the Company's premises, the sales corre- spondent follows through the order by taking the mer- chandise from the warehouse, that is a very limited part of his job. The small amount' of time he spends in doing that one function does not warrant the conclu- sion that his community of interest is one with the warehousemen. The warehousemen have no contact with the customers and no direct contact with the office where the sales correspondents spend 80 to 90 percent of their time. The very limited time that the sales corre- spondents spend in helping out in the warehouse when the warehousemen are overloaded is not on a regular basis and is peripheral to the sales correspondent's basic job of dealing with customers. As the order analysts have even a more tenuous relationship to the warehouse 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, I also find that they may be excluded from the bargaining unit. In concluding that a 'unit consisting only of warehouse- men is appropriate for bargaining I have also considered the fact that Board elections were conducted in such a unit in 1962 and 196723 and there is no showing that any change in circumstances has occurred that would now render such a unit inappropriate 3. The Union' s majority status and the Employer's knowledge thereof As found above, on April 22 there were four employ- ees in the appropriate bargaining unit of warehousemen. They were Butterfield, Jensen, Ravanelli, and Sutton. On April 17 all four authorized the Union to represent them by executing cards which read: I designate the Warehouse, Processing and Allied Workers, Local No. 6, I.L.W.U., as my bargaining agent with the company on wages, hours and work- ing conditions. On April 22 International Organizer King showed the original authorization cards to Manager Albrecht, who kept copies of the cards and acknowledged that they contained the signatures of the warehousemen. On April 24 in conversations between Manager Albrecht and the warehousemen each of the warehouse- men personally confirmed the fact that he wanted the Union to represent him. On April 25 after the Company had refused to recog- nize the Union all four warehousemen went out on strike and thereafter each of them appeared on the picket line. I find that on April 22 the Union represented all the warehouse employees and that the Company knew the Union represented them. This knowledge was further confirmed by Albrecht's conversations with the ware- housemen on April 24 and the fact that all the warehouse- men struck on April 25 and thereafter picketed. him that the Union had dropped 'cards on his desk signed by the employees.25 Caffery told Albrecht that as far as he was concerned the Union did not represent a majority of the employees and that he wanted an election. He added that the cards did not indicate the true wishes of the employees because of the previous election and also that the size of the bargaining unit was open. As set forth in more detail above, on April 24 in a telephone conversation, Manager Albrecht told Interna- tional Representative King that the Company would not recognize the Union because the Company thought there should be an election and that a letter to that effect was already in the mail. That letter read as follows: April23, 1968 International Longshoremen's and Warehouse Union Business Agent Local 6 580 Lorraine Avenue San Jose, California Gentlemen: On April 22, 1968, two of your representatives visited us reporting your union represents our ware- house employees. We do not believe your union represents the majority; or any of our employees. Further, inasmuch as the National Labor Relations Board conducted a union representation election on April 27, 1967, and a majority of our employees at that time voted against union representation, we do not believe you represent a majority at this time. If the National Labor Relations Board determines that it has sufficient interest in your claim, a secret election by the Board is the most appropriate way to resolve this issue and protect the rights of all parties concerned. 4. The Company' s response to the union demand for recoginition As found above, on April 22 International Representa- tive King demanded recognition in his conversation with Manager Albrecht and Albrecht declined to recognize the Union, stating that the matter would be referred to Edward Caffery, the president of the Company.24 Later the same day Albrecht called Caffery and told 23 In its brief the Company states that the record is silent as to whether sales correspondents and order analysts voted in the "ware- houseman" unit in the 1967 election However at the hearing the parties stipulated that the unit in the 1967 election consisted of "ware- house people " That would be less than an accurate description of either sales correspondents or order analysts The 1962 election in a similar unit specifically excluded sales as well as office clerical employ- ees 44 Throughout 1968 Caffery was president of the Company Thereafter he became the manager of the western zone of the Carborundum Company As manager of the western zone he is still in charge of the Mountain View facility but his duties with regard to other parts of the parent corporation were extended Very truly yours, William R. Albrecht Manager 5. Analysis and conclusion as to the 8(a)(5) allegation a. The contention that the Company doubted the appropriateness of the unit Upon the facts set forth above the Company cannot successfully maintain that it had a good-faith doubt that the unit in which the Union demanded recognition was inappropriate. The 1962 and the 1967 elections " Caffery testified that he thought that the cards simply authorized an election However , as set forth above, it is clear that the responsible company official at the Mountain View facility, Manager Albrecht, knew from a simple reading of the cards that the cards designated the Union as the collective-bargaining agent of the warehousemen PACIFIC ABRASIVE SUPPLY CO were held in separate warehousemen units When the Union demanded recognition in a warehousemen s unit on April 22 Manager Albrecht did not raise the question of the appropriateness of the unit In the Company's letter of April 23 to the Union in which it declined to recognize the Union no question was raised as to the appropriateness of the unit The Company makes no contention that it ever notified the Union that it had an objection to such a unit prior to the hearing in this matter In these circumstances I find that the Company did not have a sincere belief that the unit of warehousemen was inappropriate However, even if it did have a good-faith belief that the unit of ware- housemen without sales correspondents and order ana- lysts was inappropriate , such a belief would not consti- tute a valid defense if in fact that belief was erroneous Stecher-Traung-Schmitt Corporation Wheeler- Van Label Company, its subsidiary 172 NLRB No 186, enfd sub nom Wheeler-Van Label Company, 408 F 2d 613, (C A 2) In that case the court of appeals held In any event , we have held that sincere belief that a claimed unit is inappropriate is not controlling, indeed , we have characterized it as "of no conse quence " b The Company's contention that it had a good-faith doubt that the Union represented a majority of the warehousemen General Counsel has established that the Union requested bargaining in an appropriate unit at a time when it represented a noncoerced majority of the Compa ny's employees in that unit The Company had an obliga- tion to bargain with the Union unless it had a good- faith doubt that the Union represented a majority The Board has often held that a company ' s contention of good-faith doubt can be rebutted by proof that the company engaged in serious unfair labor practices which indicate that it rejected the collective-bargaining principle or sought time within which to undermine the union and dissipate its majority 21 The General Counsel's con- tention that a violation of Section 8(a)(5) should be premised on such a theory is without weight I have found that the Company did not violate Section 8(a)(1) as alleged in the complaint Indeed , even if Manager Albrecht' s conversations with the employees which formed the basis of the allegations that the Company violated section 8(a)(1) of the Act were found to be such a violation , I would still be unable to find that the violations were so far reaching as to warrant the conclusion that the Company lacked a good -faith doubt as to the Union ' s majority or that the Company had rejected the collective-bargaining principle Morse Chain Company, 175 NLRB No 98, Fashion Fair, Inc , 173 NLRB No 28 , Grafton Boat Co , Inc , 173 NLRB No 150, J C Penney Company, Inc, 172 NLRB No 82 2h Joy Silk Mills Inc 85 NLRB 1263 enfd as modified on other grounds 185 F 2d 732 (C A D C) cert denied 341 U S 914 Jerome T Kane d/bl a Kane Bag Supply Company 173 NLRB No 180 Bauman Chevrolet Inc 173 NLRB No 78 339 In Arthur F Derse, Sr, President, and Wilder Mfg Co , Inc, 173 NLRB No 30, the Board held that the usual way for the General Counsel to rebut an employer's contention that it had a good-faith doubt of a union's majority status was to prove that the employer rejected the collective-bargaining principle or that the employer sought to undermine the union How- ever the Board did not say that this was the only evidence that could show bad faith The General Counsel urges a finding that the Company violated Section 8(a)(5) of the Act on the theory that the Company cannot maintain that it had a good-faith doubt as to the Union's majority when the Company had independent and indisputable evidence that the employees had in fact authorized the Union to represent them The Company on the other hand contends that it should not be required to rely on authorization cards in a situation where the same union had twice in the past been rejected in a Board election by the employees in the bargaining unit , particularly where the last election was within a year of the instant demand for recognition 27 In a number of cases the Board has held that even in the absence of a company' s independent violation of the Act a violation of Section 8(a)(5) could exist where the employer in fact had knowledge that the employees wanted to be represented by the union Thus in Fred Snow, et al d/b/a Snow & Sons 134 NLRB 709, enfd 308 F 2d 687 (C A 9), a company agreed to a card check and then refused to recognize the union after the union had won The Board found a violation of Section 8(a)(5) holding that a company that has no reasonable doubt as to the union's majority status has no right to insist upon a Board-directed elec- tion In that case the company's contention that it was entitled to an election because the employees might change their mind was summarily rejected by the Board In Aaron Brothers Company of California, 158 NLRB 1077, the Board made it clear that the General Counsel had the affirmative burden of showing that the company did not have good-faith doubt as to the union's majority and on the facts of that case dismissed the complaint In a concurring opinion Board Member Jenkins stated that bad vaith could be established "by independent knowledge of the employer that the union has a majori- ty " The facts in the case of Stecher-Traung-Schmitt Cor- poration, Wheeler-Van Label Company, its subsidiary, supra, are very similar to those in the instant case and the Board's adoption of the Trial Examiner's Deci- sion therein is of controlling significance In the Stecher- Traung-Schmitt case the Board had conducted an elec tiun within a year of the alleged refusal to bargain The employees voted against being represented by a 27 Though the parties did not stipulate to the date of the 1967 election Resp Exh 7(b) indicates that the election was held on April 27 1967 The date of the election is nowhere contradicted by any of the other parties The complaint alleges that the Company refused to bargain on April 22 1968 5 days before the expiration of a year from the date of the 1967 election The fact that I year had not expired is not a defense to the Company s refusal to bargain Stecher Traung Schmitt Corporation supra and cases cited therein 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union. In that election one group of employees (compos- ing area employees) were included in a larger bargaining unit. After the election the composing area employees authorized the union to represent them in a separate unit. A majority of the employees met with the company representative and, told the company that they wanted to have the union represent them as their collective- bargaining agent. The Trial Examiner in his Decision found that the unit was appropriate and that the company did not have a good-faith doubt that the union represent- ed a majority. The Trial Examiner did not find any independent violation of the Act, but did cite Board Member Jenkins' concurring opinion in the Snow case to the effect that a good-faith doubt of majority status could be rebutted by "independent knowledge of the employer that the union has' a majority." The Board adopted the Trial Examiner's Decision in full. The Board Decision in turn was enforced in full by the Second Circuit Court of appeals. , ' ' In the instant case as in Stecher-Traung-Schmitt, the employees in the bargaining unit in effect told the employ- er that they wanted the Union to represent them. In addition the employer knew of the Union's majority standing because Manager Albrecht not only saw, and kept a copy of the authorization cards but acknowledged to International Representative King that the cards were signed by, the' warehousemen. I have found above that the Company knew that the Union represented all of the warehousemen. As controlling Board law establishes that the'factual knowledge of majority status rebuts any claim by an employer that it entertains a good- faith doubt as to majority, I find that the Company did not have a good-faith doubt and therefore violated Section 8(a)(5) and (1) of the Actt c. The Union's violence and the bargaining order The customary order where an employer violates Sec- tion 8(a)(5) of the Act requires the employer to bargain with the union. However, when a union eviences a total disregard of peaceful, legal process in enforcing its representation rights, and resorts to violent tactics to compel an employer to grant recognition, the Board withholds its normal affirmative bargaining order. Laura Modes Company, 144 NLRB 1592. In the Laura Modes case the union's business agent and eight union members entered the, plant without permission and "beat up" one of the owners as he attempted to call his lawyer and "pushed around" a female office 'employee. Later during a strike another owner was beaten up. The day prior to the first incident of violence the union had demanded recognition and the employer requested a day or two delay to seek advice from his attorney. The Board found a violation of Section 8(a)(5) of the Act but declined to grant a bargaining order. In United 'Mineral and Chemical Corporation, 155 NLRB 1390, enforcement denied in pertinent part 391 F.2d 829 (C.A. '3), the 'Board reaffirmed the principle set forth in Laura Modes but found on the facts before it that the violence was not of - such a nature as to warrant withholding of the bargaining order. The Board found that the Union did engage in four or five instances of serious misconduct on the picket line during a 65- day strike. Two, of these instances involved assaults in which persons were hit and knocked to the ground. In one of those instances the victim received serious injuries. The Board held that in the facts of that case the violence did not indicate any lack of interest on the part of the union in enforcing its statutory rights through the Board's processes. The Board also pointed to the fact that the union's efforts at seeking a resolution of its claim to represent the.employees took place against the background of serious violations of Section 8(a)(1) by the company. The Court of Appeals for the Second Circuit disagreed with the Board and found that the violence was so widespread as to amount to union intimidation to secure bargaining rights. In Artcraft Mantel and Firplace Co., 174 NLRB No. 110, the Board adopted a 'Trial Examiner's Decision which relied on the Laura Modes case. In Artcraft Mantel the union engaged in numerous acts of violence and harassment both before and after a court order enjoining such conduct. The Trial Examiner found that the repeated violent acts of the union amounted to a plan of intimidation and that ' the union's violence, intimidation, and threats were, not provoked by the misconduct of the employer. The Board adopted the Trial Examiner's conclusion that a bargaining order was not warranted. In the instant case, like the Artcraft Mantel case, the Union's violence was not provoked by the Employ- er's misconduct. Rather the violence was triggered by the Union's frustration in being unable 'to maintain an effective picket line. However, unlike the Laura Modes case, the violence was not keyed to securing recognition from theCompany in a direct sense but was an attempt to beef up the, effectiveness of the picket line. The main distinction between the instant case and the other cited cases is that in the cited cases the union engaged in a series of acts that amounted to a course of conduct that was inimical to the bargaining process. Here in a strike- which lasted in its active phase for 6 or 7 months, the evidence in the record discloses only one act of violence., Though the injuries to the one employee who was the victim of the assault were minor, I have found that the assault itself was not a minor isolated incident and certainly cannot be condoned. However, this single incident cannot establish a course of conduct as the violence was never repeated. It also cannot be considered a plan of intimidation to unlawfully secure recognition as it arose in a different context. I have found the violence to constitute a violation of Section 8(b)(1)(A) of the Act and I shall recommend the custom- ary order to remedy that violation. However, I do not believe that the withholding of a bargaining order to remedy the Company's violation of Section 8(a)(5) of the Act would be warranted on the facts of this case. 6. The status of the strikers The facts set forth above establish that the strike of April 25 was to protest the Company's refusal to PACIFIC ABRASIVE SUPPLY CO 341 grant recognition to the Union on April 22 As I have found that the Company violated Section 8(a)(5) and (1) of the Act by failing to grant recognition to the Union on April 22 it follows that the employees who struck in protest against the refusal to recognize the Union were unfair labor practice strikers IV THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, D, above, and the activities of the Union set forth in section III, C, above, occurring in connection with the Company's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce V THE REMEDY A As to Case 20-CA-4968 Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act I shall recommend that it cease and desist therefrom and upon request bargain collectively with the Union as the exclusive representative of all employ- ees in the unit set forth above and, if an understanding is reached, embody such understanding in a signed agree- ment Having found that employees Butterfield, Sutton, Ravanelli, and Jensen struck to protest the Company's unlawful refusal to bargain with the Union, I shall recommend that the Company, upon application, offer to said employees reinstatement to their former or sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace the striking employees I shall further recommend that in the event that the company does not reinstate said employees within 5 days from the employees' applications for rein- statement, backpay shall commence running from the date on which the 5 days expire B As to Case 20-CB-1952 Having found that the Union has engaged in certain unfair labor practices I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act CONCLUSIONS OF LAW I The Company is an employer engaged in commerce and in operations affecting 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 The following employees constitute a unit appropriate for the purpose of collective bargaining with- in the meaning of Section 9(a) of the Act All warehouse employees of the Company at its Mountain View, California location, excluding all other employees, professional employees, guards and supervisors as defined in the Act 4 At all times since April 22 the Union has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment 5 By refusing on April 22 and thereafter to bargain with the Union as the exclusive representative of the employees in the said appropriate unit, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act 6 By the conduct set forth in number 5, above, the Company has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act 7 The strike engaged in by employees Dale Butter- field, George Sutton, Joseph Ravanelli, and George Jen- sen which commenced on April 25 was an unfair labor practice strike 8 By being responsible for an assault on employee Donald Elam on May 13 because Elam refused to honor the Union's picket line, the Union violated Section 8(b)(1)(A) of the Act 9 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec tion 2(6) and (7) of the Act RECOMMENDED ORDER As to Case 20-CA-4968 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recom- mend that the Company, Pacific Abrasive Supply Co , a subsidiary of the Carborundum Company, shall I Cease and desist from (a) Refusing to recognize and bargain with the Interna tional Longshoremen's and Warehousemen's Union, Local No 6, as the exclusive representative of its employees in the following unit All warehouse employees of the Company at its Mountain View, California location, excluding all other employees, professional employees, guards and supervisors as defined in the Act (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act 2 Take the following affirmative action to effectuate the policies of the Act (a) Upon request, bargain collectively with the Inter- national Longshoremen's and Warehousemen's Union, 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local No. 6, as the exclusive 'representative of all employees in the appropriate unit described above and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Upon application reinstate Dale Butterfield, George Sutton, Joseph Ravanelli, and George Jensen to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace the above-named employees. In the event that reinstatement is not effected within 5 days from the employees' applications for reinstatement, pay back- pay to said employees commencing from the date on which the 5 days expire. (c) Notify any of the above employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Post at its Mountain View, California, facilities copies of the attached notice marked "Appendix A. "2t Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous, places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 As to Case 20-CB-1952 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record, I recom- mend that the Union , International Longshoremen's and Warehousemen's Union, Local No. 6, shall: 1. Cease and desist from: (a) Restraining and coercing employees of Pacific Abrasive Supply Co., a subsidiary of the Carborundum Company, by assaulting any person because that person refuses to honor its picket line. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2" 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" and in the first paragraph of the notice the words "A Trial Examiner of" shall be deleted 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 " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 20, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 2. Take the following affirmative action to effectuate the policies of the Act: (a) Post at the offices and meeting halls of Internation- al Longshoremen's and Warehousemen's Union, Local No. 6, copies of the attached notice marked "Appendix B."30 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Union's authorized representative, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Union to insure that said notices are not altered, defaced, or covered by any other mate- rial. (b) Notify the Regional Director for Region 20, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 3" See In 28, supra " See fn 29, supra APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Exam- iner 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 at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things WE WILL NOT do anything that interfers with these rights . More specifically, WE WILL recognize International Longshore- men's and Warehousemen 's Union , Local No. 6, as the only collective-bargaining representative of our employees in the bargaining unit which is All warehouse employees of the Company at its Mountain View , California location , exclud- ing all other employees, professional employ- ees, guards and supervisors as defined in the Act. WE WILL bargain , upon request, with that Union on wages, hours, and conditions of employment, PACIFIC ABRASIVE SUPPLY CO and any agreement we reach will be put in writing and signed APPENDIX B NOTICE TO ALL MEMBERS OF INTERNATIONAL LONGSHOREMEN 'S AND WAREHOUSEMEN'S UNION, LOCAL No 6 Pursuant to the Recommended Order of a Trial Exam- iner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that After a trial at which all sides had the chance to give evidence a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice The Act gives all employees these rights To engage in self-organization To form, loin, or help unions To bargain collectively through a representa- tive of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things 343 WE WILL NOT do anything that restrains or coerc- es employees with respect to these rights More specifically, WE WILL NOT assault any person because that person refuses to honor our picket line INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION , LOCAL No 6 Dated By (Labor Organization) (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 members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board 's Regional Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197