Jero Steel Treating, Inc.

522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jero Steel Treating, Inc. and Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union Local 705, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 13-CA-8407 May 19, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On February 20, 1969, Trial Examiner Benjamin K. Blackburn issued his Decision in the above-entitled pro- ceeding, finding that Respondent had violated Section 8(a)(1),(3), and (5) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. There- after, Respondent filed exceptions to the Decision and a supporting brief and General Counsel filed a "Motion to Disregard Respondent's Exceptions," and a brief in support of the Trial Examiner's Decision. On July 7, 1969, the Board issued an order reopening record and remanding proceeding to Regional Director for further hearing before Trial Examiner Blackburn on certain issues raised by Respondent's exceptions to the Trial Examiner' s findings concerning (a) the com- position of the appropriate unit described in the com- plaint's 8(a)(5) allegations and (b) the majority status of the Charging Union in the appropriate unit . Pursuant to that order a further hearing was conducted before the Trial Examiner on August 13 and September 23, 1969. On October 29, 1969, the Trial Examiner issued his attached Supplemental Decision in which he resolved the unit composition and majority issues remanded to him and, on the record as a whole, reaffirmed his earlier conclusions concerning Respondent's violations of Sec- tion 8(a)(1),(3), and (5) of the Act. Accordingly, the Trial Examiner recommended that the Board issue the Recommended Order contained in his Decision of Febru- ary 20, 1969. Thereafter Respondent filed exceptions and the Charging Party filed cross-exceptions to the Supplemental Decision. 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 entire record in this case, including the evidence adduced at both hearings, the Trial Examiner's Decision and Supplemental Deci- sion, the exceptions, cross-exceptions and briefs, and hereby adopts the findings, conclusions, and recommen- dations of the Trial Examiner, as hereinafter modified. Contrary to the Trial Examiner, we find that Respond- ent did not violate Section 8(a)(5) and (1) of the Act, as alleged, by refusing to accede to the Union's April 26, 1968, recognition demand, since in our opinion, the record does not adequately establish the Union's status as the majority representative of the employees in the appropriate unit at the time of the refusal. Our reasons follow: The Trial Examiner found, and we agree , that the appropriate unit encompasses all nonsupervisory produc- tion and maintenance employees including truckdrivers; that there were 31 employees in that unit as of April 26, 1968; and that the Union had in its possession valid authorization cards signed by 15 of these 31 employ- ees as of that date. The Trial Examiner further found, and we agree , that an additional authorization card pur- portedly signed by employee Angelo Mercado, and iden- tified as General Counsel's Exhibit 4-M, was not in fact signed by Mercado and could not therefore be relied upon in resolving the issue of the Union's numeri- cal majority. However, the Trial Examiner also found, on the basis of certain testimony by Mercado, that Mercado had signified his intent to join the Union by signing a blank piece of paper. The Trial Examiner therefore concluded that the Union in fact represented 16 employees out of the 31 in the unit when it demanded recognition on April 26, 1968. We do not adopt the Trial Examiner's finding and conclusion in this respect. We regard Mercado's testimony on this point-relevant portions of which are quoted in the margin-as too confusing and equivocal to constitute proof of Mercado's designation of the Union as his representative on or before April 26, 1968.' We hold, accordingly, that the Union has failed to establish that it enjoyed majority status when it requested and was refused recognition. It follows that the complaint's allegation that Respondent violated Section 8(a)(5) of the Act must be, and it hereby is, dismissed. 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 with the following modifica- tions: 1. Substitute the following for paragraph 2(a): "(a) Offer to Kinley Wallace and to Walter Willis immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to any seniority or Mercado testified in part as follows Q Is that your signature9 [on GC's Exhibit 4-M,] A I tell you that is my name Q Is that your signature9 A. It is my name and address , but I didn't sign the paper like that * * * * Q. What did Mr Cisero [Union Agent] say to you and what did you say to him9 A If I wanted to join the union, sign this piece of paper But it wasn't a paper like that, that I can tell you Q. Did you sign this paper, though9 A Not a paper-This got my name on it, but it's not like this Q But that's your signature9 A Right It was lust a plain piece of paper. 182 NLRB No. 75 JERO STEEL TREATING, INC. 523 ' other rights and privileges previously enjoyed and make ach whole for any loss of pay suffered as a result et forth in the Section entitled 'The Remedy.' " 2. Delete paragraphs 1(c) and 2(d) of the Order and enumber the paragraphs presently numbered 1(d) and (e). 3. Delete the last full indented paragraph of the kppendix together with the description of the unit as herein contained. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: heard his case, pursuant to due notice, in Chicago, Illinois, to December 3, 4, and 5, 1968.' It arose on April 6 when Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International 3rotherhood of Teamsters, Chauffeurs, Warehousemen ind Helpers of America, referred to herein as the Charg- ng Party or the Union, filed an unfair labor practice .barge against Jero Steel Treating, Inc., referred to Ierein as Respondent. On the basis of that charge, he General Counsel of the National Labor Relations 3oard, by the Regional Director for Region 13 (Chicago, Ilinois), issued a complaint against Respondent on Sep- ember 30 in which he alleged that Respondent had 'iolated Section 8(a)(1),(3), and (5) of the National Labor telations Act, as amended. Respondent's answer to the complaint, filed on Octo- ler 10, denies the commission of any unfair labor prac- ices. On November 12 Respondent filed a motion to tay the hearing herein "until such time as the Employees laimed as an appropriate bargaining unit by the Union ,ave had an opportunity to participate in a Union repre- entation election either agreed to by the parties herein ,r directed by the Board." On November 18 the Regional )irector for Region 13 denied Respondent's motion on he ground that "there is no question concerning repre- entation in this matter . . . the petition [filed by tespondent on November 12 in Case 13-RM-942] having ,een dismissed . . ." simultaneously with issuance of he order denying Respondent ' s motion herein. At the )pening of the hearing before me on the morning of December 3, Respondent moved for a continuance on the ground that its request, filed November 27, for Board review of the Regional Director's actions in this case and Case 13-RM-942 was pending. I denied the motion. On December 3 the Board denied Respondent's request for review, a fact which became known at the hearing on December 4. The issues litigated before me were: (1) Did Respondent violate Section 8(a)(3) and (1) by terminating the employment of Kinley Wallace and Walter Willis for union activities; (2) did Respondent violate Section 8(a)(1) in a conversation between its executive vice president and one of its employees; and (3) did Respondent violate Section 8(a)(5) and (1), under ' All dates are 1968, unless otherwise specified the so-called Joy Silk Mills theory,2 by refusing to recog- nize and bargain with the Charging Party as the represent- ative of its production and maintenance employees. Respondent's motion to dismiss, which I took under advisement at the close of the hearing, is disposed of by my conclusions herein. All parties appeared at the hearing and were given full opportunity to participate, to adduce relevant evi- dence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Upon the entire record,3 including briefs filed by Respondent, the General Counsel, and the Charging Party, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, an Illinois corporation , is engaged in the business of heat treating steel products at its plant in Skokie , Illinois. Its annual indirect outflow exceeds $50,000 . On the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Charging Party is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Respondent's business suffered a decline in the latter part of 1967. In the first 4 months of 1967 it showed a net profit of $35,802.22. By the end of the year, however, its profit for the entire year had shrunk to only $22,267.02. Consequently, in November 1967 Robert Michaels was brought in as executive vice president to straighten out the situation.4 In January and February Respondent suffered an additional loss of $20,971.29. March showed a profit of $7,102.48; April, a loss of $633.10. 2 Joy Silk Mills, Inc , 85 NLRB 1263, enfd as modified 185 F 2d 732 (C.A D C ), cert denied 341 U S 914 3 The following corrections in the record are ordered P 91, I 17- - insert "4-D" after "Exhibits" so that line reads " Exhibits 4- D, H, and I are "P 271, I 6-substitute "Walter Marecki" for "he." With respect to the former correction , the General Counsel identified his exhibits 4-D, 4-H , and 4-I at one time on page 86-A and offered them into evidence as a group on p 89 In ruling on his offer on p 91, I inadvertently neglected to mention 4-D with 4-H and 4-I With respect to the latter, internal evidence makes evident the fact that interrogation of the witness switched from questions about the duties of employee Walter Descher to Walter Marecki at that point ' He left in July 1968 when Respondent could no longer afford his services. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kinley Wallace was hired by Respondent in October 1962 at an hourly rate of $1 50 In October 1967 his rate was increased from $2 65 to $2 75 an hour and he was given the title of foreman On Friday, April 12, Michaels demoted him because of dissatisfaction with the way Wallace was carrying out his supervisory duties On April 13 Respondent posted a notice on its bulletin board which reads, in pertinent part NOTICE To All Supervisors & Production Employees As of Monday April 15, 1968 1 Kinley Wallace asked to be relived [sic] of any supervisory" position and responsibility He is now an operator 1st shift James Jerousek Jr General Manager Walter Willis was first hired by Respondent in January 1966 He worked partly as a truckdriver and partly in the service department until he quit in April 1967, advancing from a starting wage rate of $2 an hour to $2 80 He was rehired on January 23 at $2 80 an hour and worked in the service department On April 7 he received a raise to $2 90 Other employees received an increase at the same time Allen Zager, who also worked in the service department, was hired by Respond- ent after January 1966 but before January 1968 In early April Willis contacted the Charging Party about representing Respondent's employees It was arranged that an organizer would meet with employees at the home of Wallace on the afternoon of Sunday, April 14 Nine employees" attended the meeting All nine signed authorization cards and turned them into the organizer, George Gilmer On Gilmer's instructions they did not date the cards The next day Willis and Wallace tried to sign up Dennis Roberts, an employee, at the plant Roberts refused He told Robert Erndahl, another employee, about Willis' and Wallace's effort to get him to sign an authorization card and asked him whether he had been invited to the meeting Erndahl relayed this informa tion to James Jerousek, Jr , Respondent's general manag- ' The General Counsel contends that Wallace was never a supervisor within the meaning of the Act He would distinguish Wallace fFom three men who were employed by Respondent on April 26 the day the Charging Party demanded recognition whose names are followed by the notation Foreman on a list of employees as of that date and who all parties agree are supervisors within the meaning of the Act I can find no basis in the record for making the distinction General Counsel seeks However the fact that Wallace was a supervisor within the meaning of the Act from October 1%7 until April 12 has no significance It is undisputed that he was a rank and file employee from April 13 until 24 the date of his discharge Therefore Respondent cannot defend that aspect of this case on the ground that supervisors are not within the protection of the Act M1 Wallace Willis Angel Feliciano Antonio Feliciano Frank Cisero Willie Brooks McArthur Brooks Herbert Tribble and M C Poole er7 and son of its president, including the fact that meeting had been held at Wallace's home On April 15, at work, Wallace signed up Augustin David and James Watts On Tuesday, April 16, at work, Willis signed up Columbus Johnson, Leon Vasquez, and Anthony Marusich, Wallace signed up Dionisio David The six additional cards signed by employees on April 15 and 16 were also turned in to Gilmer The General Counsel relies on the 15 cards signed by Respondent's employees on April 14, 15, and 16 to prove the Union's majority None of them bears a date Four of them contain no entry in the blank following the printed words "I do hereby direct and authorize my employer " On several others, the words "Jero Steel Treating' were inserted by a person other than the employee who signed the card Sometime during the week of April 14, Michaels called Willie Brooks into his office and asked him whether anything was wrong, pointing out that Brooks had been acting sort of funny In the ensuing discussion Michaels asked Brooks whether the men had just had a meeting in the dressing room Brooks replied that they had only been changing clothes in order to go to work Michaels asked Brooks if he had a union card Brooks replied no Michaels asked Brooks if any of the other men had one Brooks replied, "Not that I know of Why don't you ask them9"" During his tenure as executive vice president Michaels prepared several lists of employees to be laid off in order to improve Respondent's economic position Prior to April 24 none of these recommendations was ever acted on On April 22 Michaels drafted and sent to Jerousek, Sr , and Jr a memorandum which reads Reduction of labor force effective on Friday April 26, 1968, at the end of each shift In the following order as required Kindley [sic] Wallace Herb Tribble Allen Zager Walter Willis Frank Cisero David Dionisio [sic] Art Brooks M C Poole Augie David Leon Vasquez ' While conceding Jerousek Jr s title Respondent s counsel contends that Respondent is not bound by his actions or his knowledge because he s a young man and I don t think he has the authority to make decisions as Mr Jerousek Sr who is the owner of the company and Mr Michaels His father testified that Jerousek Jr although subordinate to Michaels supervised the foremen Also Michaels testified that Jerousek Jr made the decision to retain Wallace as a rank and file employee when Michaels demoted him from foreman Conse quently I find that Jerousek Jr is an agent of Respondent and a supervisor within the meaning of the Act " I have credited Willie Brooks as to this conversation over Michaels general denial that he ever asked Brooks any questions about union activities after admitting that he had a conversation with Brooks in which he inquired whether anything was wrong JERO STEEL TREATING, INC. Allen Zager is the only employee named in this memoran- dum who did not sign a union authorization card on April 14, 15, or 16. Respondent hired one employee on each of the following dates in April: 8, 9, l1 (a part-time employee), 16, 23, and 24. ' The names of the men hired on April 9, 11, and 23 do not appear on the list of Respondent's employees as of April 26: The names of the men hired on April 8, 16, and 24 do. Subsequently, Respondent hired one man each in May, June, and July. James Jerousek, Sr., overruled Michaels' decision to lay off 10 employees at the end of their shifts on April 26. Instead, he decided to terminate the employ- ment of Zager, Wallace, and Willis on April 24. Wallace was, Respondent's third oldest employee in continuous service. There are no details in the record as to the termination of Allen Zager other than the fact that he was laid off on April 24 and recalled in late, May. The terminations of Kinley Wallace and Walter Willis took place as follows: A couple of hours after Wallace reported for work on the morning of April 24, James Jerousek, Jr., took him to Jerousek, Jr.,'s office. Jerousek, Jr., opened the conversation by telling Wallace that he had gotten chewed out for not cutting Wallace's pay when Wallace was demoted from foreman. Wallace replied that the $2.75 an hour he received was not supervisor's pay. At that point Michaels opened the door and walked in. Jerousek, Jr., told Michaels that he had just told Wallace about getting chewed out for not cutting Wallace's pay. Michaels said , "I told you, Junior, that you can't take this man off the supervisor's job and put him back in the shop. I told you to let him go when he refused the job. He's not happy." Wallace protested that he was happy and wanted to keep his job. Michaels told Wallace that Wallace knew it would be best for him to go. Michaels then left the room. Wallace asked Jerousek, Jr., what he thought. Jerousek, Jr., said he agreed with Michaels. Wallace left the office, followed by Jerousek, Jr. He stopped at Angel Feliciano ' s work station long enough to get the Union's telephone number. He then went to the locker room to change his clothes. Jerousek, Jr., waited in the locker room while he did so. When he had finished, Jerousek, Jr., took him to the service department to wait for his check. A few minutes later Jerousek, Jr., brought Wallace his check and escorted him to the door. He was paid for 8 hours' work on April 24. His personnel card bears the notation "4-24-68 Laid off." Willis received a telephone call at home from Mrs. Jerousek, Sr., on the evening of April 23. She asked whether Willis was coming to work the next day. Willis reminded her that he had arranged some time ago to take the day off because he had to go to court. Mrs. Jerousek asked him to come to the plant if he possibly could. Willis went to court as scheduled April 24 and did not get to Respondent's plant at all that day. A couple of hours after he reported for work on the morning of April 25, Jerousek, Jr., told him to report to Micahels 525- in Michaels' office. Willis,did so. Michaels told Willis that Respondent had been forced to let Zager go because of lack of work and was going to have to do the. same thing to Willis. Willis protested that he knew. there was, lots of work and he could, not understand how Respondent could be getting rid of anybody for lack of work under the circumstances. Michaels said, "Well, you know we don't keep any secrets around here." Willis said, "What do you mean, secrets?" Michael said, "You know what you and the other fellows are doing."" Willis asked, "What fellows9" Michaels changed the subject , pointing out that Respondent had expected him to come in the day before and had even paid him for the entire day. He said that April 24 would count as pay for the few hours work Willis had put in that morning. Jerousek, Jr.," was present for part of this interview. Willis received a check and left. He was paid for 8 hours work on April 24. He received no pay for April 25. His personnel card bears the notation "4-24-68 Laid off." His timecard bears a notation in the column for April 24 "Paid 8 hours (off on personal business)." It bears a notation in the column for April 25 "Laid off until business improves." Willis received unemployment compensation from the State of Illinois for the period from April 28, the date he applied for it, until May 25, the date on which he got another job. However, he,did not receive this benefit until August or September '1 Number of orders received rather than their dollar value is .the significant statistic in Respondent 's determi- nation of how much work it has on hand. In ,the period just prior to Willis' layoff, Respondent received the following number of orders: During week ending March 3, 715; March 10, 779; March 17, 723, March 24, 753; March 31, 750;. April 7, 720; April 14, 634; April 21, 749; April 28, 657. The day-by-day record from which these figures are taken indicates that , in the latter week, work orders "in" dropped off slightly on Thursday, April 25, and substantially,on Friday, April 26. On the morning of April 26. Peter Janopoulos and George Gilmer, organizers for the Union, visited Respondent's plant. They had with them the 15 authoriza- tion cards described above plus one more allegedly " I have credited Willis as to this remark over Michaels ' denial that he made any such specific statement or referred in any way, either explicitly or implicitly , to the union activities of Respondent's employees Michaels' account of the termination interview was couched in generalities He stated at one point that he could not recall what Willis said His testimony creates the impression that Willis did not say anything Willis' testimony , on the other hand , was sharp and specific It impressed me as a credible account of the sort of exchange which would have taken place between the two men I observed on the witness stand under the circumstances which admittedly prevailed at the time '" James Jerousek , Jr , 'was not called as a witness in the hearing before me ' 11 Although no statute or regulation has been brought to my attention, I have accepted the explanation of Respondent 's counsel that the delay was caused by the fact that Willis was compensated under procedures applicable to laid off employees rather than those applicable to discharged employees I attach no significance to the point Proceedings before State agencies concerned with administering unemployment compensa- tion statutes are not binding on the Board W K Manufacturing Company, 161 NLRB 1185 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed by an employee of Respondent which General Counsel was unable to authenticate during the hearing before me. They saw James Jerousek, Sr. Janopoulos acted as spokesman. Janopoulos told Jerousek, Sr., that the Union repre- sented an overwhelming majority of Respondent's employees, demanded recognition, and wanted to sit down with him forthwith to conduct a card-check recog- nition and to negotiate a contract. As he spoke Janopou- los fanned the cards in his hand like a deck of playing cards. Jerousek, Sr., glanced at them. However, he did not take them into his hands, touch them in any way, count them, read them, or inspect them closely enough to determine how many cards Janopoulos was holding or whose names appeared on them.12 Jerousek, Sr., referred Janopoulos to Respondent's attorney. There was a discussion of who represented Respondent and what his telephone number was. Janopoulos continued to try to persuade Jerousek, Sr., that Respondent did not need an attorney and that they could settle the matter between them then and there. In the course of this discussion Janopoulos told Jerousek, Sr., that Respondent had broken the law by discharging two employees for engaging in union activities and warned him against similar conduct. Jerousek, Sr., protested Respondent's innocence and refused to discuss the mat- ter further. Janopoulos told Jerousek, Sr., that the Union would take the matter to the Labor Board. Janopoulos and Gilmer went from Respondent's plant to the Board's Chicago office, where they filed the charge which gave rise to this case. A couple of days later and again a couple of weeks later Janopoulos contacted Respondent's attorney by telephone as Jerou- sek, Sr., had requested. The attorney declined to recog- nize the Union, stating that Respondent could not afford a union. On the morning of April 26 Respondent had in its employ 25 production and maintenance employees. There is no dispute that 22 of these are properly includable in a unit of such employees. The General Counsel would exclude the other three on various grounds. Respondent would include them. The facts with respect to each are as follows: Walter Marecki, the service manager, 'was the third man, along with Willis and Zager, in the service depart- ment prior to April 24. The service department writes up orders and receives and ships the materials which Respondent's customers send to its plant to be put through a hardening process. Additionally, employees in that department serve the customers by checking on the status of their orders when they telephone from time to time to inquire about them. This chore frequently takes service department employees into the production areas of the plant and brings them into contact with other production 13 employees. Marecki is hourly paid " These details, unimportant in my view of this case, are the only real disagreement between Janopoulos and Jerousek, Sr , in their accounts of what happened on the morning of April 26 I,have credited Jerousek, Sr I think Janopoulos got carried away into trying to make a good case better when he was interrogated at length on this point. 3 A list, prepared by Respondent, of Respondent's employees as and receives overtime pay for overtime work. His rate is approximately $3.10. Edmund McHugh is an inspector. It is his job to inspect the work turned out by other production13 employees, principally through the use of a machine known as a Rockwell Hardness Tester. He, too, is hourly paid and receives overtime. His rate is approximately $3. Approximately $2.60 an hour is on the high side of the range of hourly rates of pay received by most production and maintenance employees. Walter Descher is an expediter. He works from a desk in the service department. It is his job to follow orders as they are handled in the plant to make sure that they are processed expeditiously. His duties bring him into frequent contact with other production13 employees. He is salaried and does not receive any overtime pay because, apparently, he does not work any overtime hours. The record does not reveal the amount of his salary. B. Contentions and Conclusions 1. The 8(a)(3) Respondent contends that Walter Willis was laid off for economic reasons and that Kinley Wallace was laid off for incompetence. I find that both were discharged" for engaging in union activities in violation of Section 8(a)(3) and (1) of the Act. Respondent's economic defense fails for a number of reasons. Its own records reveal that its situation brightened in March and the first part of April. After substantial losses beginning in late 1967 and running through January and February 1968, March showed 'a profit of $7,102.48. This trend continued into middle April, the period when Respondent's employees began to try to organize themselves. The final figure for April, a figure which would not yet have been available to Jerousek, Sr., and Michaels when the decision was made to get rid of Wallace and Willis, was a very modest loss of $633.10, attributable to a sudden dip in orders near the end of the month. Therefore, the explanation which Respondent relies on to justify reduc- ing its service department from three men to one rests on a shaky basic premise. When the figures are weighed against the fact that Jerousek, Sr., did not find times so bad that he could hot overrule Michaels' recommenda- tion to get rid of 10 employees out of a total work force of 27 and the fact that Respondent hired a number of new employees during this same period, the argument comes toppling to the ground. Finally, it is rendered of April 26 which is in evidence categorizes employees as either "produc- tion" or "maintenance ." Marecki, McHugh , and Descher are all listed among the "production " employees i' As far as I am concerned, an employee is "laid off" when he has, for some reasonable period of time , some reasonable expectation of recall to his former job with his status unimpaired , an employee is "discharged" when he has no such expectation Despite Respondent's protestations to the contrary with respect to Willis , I find that Respondent had no intention of ever recalling either Wallace or Willis when it terminated their employment on April 24 and 25, respectively. JERO STEEL TREATING, INC. a death blow by the fact that 9 . of the 10 men named in Michaels ' April 22 memorandum to the Jerouseks had signed authorization cards for the Union. Respondent relies on the fact that Allen Zager was laid off from the service department along with Willis and recalled a month later rather than Willis because of his greater seniority . This argument , also, will not bear close scrutiny . There is no evidence that Respondent adheres to any strict seniority , system . Therefore, the fact that Zager was hired after the beginning of Willis' first period of employment but before the beginning of his second did not give him a clear seniority right to be recalled before Willis when Respondent found it needed a second man in the service department. If the shoe were on the other foot and the General Counsel were arguing for Zager as against Willis, Respondent could with equal logic argue that Willis' first period of employment gave him seniority rights over Zager even though Willis had quit and been rehired as a new employee. There is greater significance in the fact that Zager was the 1 man among the 10 named in Michaels ' memorandum who had not signed an author- ization card and in the fact that recalling him rather than Willis brought back an antiunion rather than a prounion employee. Also, Respondent concedes that its production employees are regularly transferred from job to job , but it justifies hiring new employees in the period just before and just after discharging Willis rather than transferring Willis to other duties on the ground that Willis was not trained for the other jobs. However , during his first period of employment Willis worked for a short period as a "straightener ." There is no evidence that Willis ' work as a straightener was unsatisfactory , that Willis was not capable of being trained for other jobs , or that new employees hired in the period when Willis could have been transferred rather than discharged did not have to be trained by Respondent . Therefore , I find that Michaels included Zager among the nine prounion employees he decided to get rid of when he wrote his memorandum in order to disguise his antiunion motive in recommending a reduction in force . I find that Jerousek , Sr., included Zager with Wallace and Willis when he made the final decision in order to disguise his real motive of getting rid of the two leaders in the organizing campaign. With respect to Wallace's alleged incompetency, the record shows that any dissatisfaction Michaels or the Jerouseks may have had with his work related to the manner in which he had performed as a supervisor, not the manner in which he was performing as a rank- and-file employee after his demotion. The only evidence which can be construed as falling in the latter period is an admission by Wallace on cross-examination that he had dropped "some parts behind the bench." On the other hand , Michaels stated his reasons for including Wallace 's name in his memorandum as follows: A. Why was Kinley Wallace's name placed on this list? A. In my opinion Kinley Wallace was just no good as an employee. Q. And you base that upon what? 527 A. His attitude, his ability. Q. Had you had any incidents that would indicate work ability? A. Well, he had the title as foreman on the day shift, and I had occasion to talk to this man once or twice a week. He needed constant supervi- sion. Q. And would you express an opinion as to Mr. Wallace's ability to be foreman of this opera- tion, if you have one? A. No good. Q. And what was the reason and facts upon which you base that conclusion? A. His ability to handle the shop in general, the people, his knowledge of the business, his attitude, aggressiveness. Jerousek, Sr., also testified that it was Wallace's short- comings as a supervisor which made him unhappy with Wallace, thus: Q. Now, why did you identify Mr. Kinley Wal- lace as one of those who would be laid off? A. Well, Wallace, in my estimation, wasn't a real good employee. ' Q. And wherein was he deficient? A. He just didn't seem to work in as far as the work is concerned, as far as supervision is concerned, and people were checking around trying to find jobs. He was usually off somewhere not getting in and helping where he really should. Q. So it was more efficiency reasons you named him? A. That 's right. But Wallace was not discharged from a foreman's job. He was discharged only after he had been back in the ranks for approximately 10 days, doing the work of a rank-and-file employee without criticism. Some more persuasive evidence of Wallace's alleged incompe- tency than Respondent was able to adduce is required to offset the fact that Respondent found Wallace a satisfactory employee for nearly 6 years before it sudden- ly found him unsatisfactory when he sought to join the Union. In addition, Respondent introduced as part of its defense evidence that it had from time to time received notices from Wallace's creditors of their intentions to make demands upon it under wage assignments executed by Wallace. When this subject was raised, Respondent justified its relevance on the ground that it related to the total picture of why Respondent decided to discharge Wallace. Yet, as the portion of Jerousek, Sr.'s testimony just quoted makes clear, Wallace's problems with credi- tors over the years were no part of Respondent's ostensi- ble reason for discharging him. And the fact is equally uncontroverted that other employees, namely Willie Brooks, had troubles as great if not greater than Wallace, yet Michaels testified that Brooks was not discharged because "he was a terrific man." 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The affirmative evidence presented by the General Counsel to establish Respondent 's discriminatory motive for discharging Walter Willis and Kinley Wallace is overwhelming . Willis and Wallace led the campaign to organize Respondent 's employees . Willis made the first contact with the Union . The key meeting was held at Wallace 's house . Between them , Wallace and Willis signed up all the men who did not sign cards at the meeting . Respondent learned of the organizing campaign and of Wallace ' s and Willis ' role almost immediately when Erndahl told Jerousek , Jr., what was going on. Less than 10 days later Wallace and Willis were dis- charged precipitately at a time when no valid economic or noneconomic reason existed for getting rid of them. Therefore , based on the record considered as a whole and relying especially on the timing of the discharges and the weak and shifting nature of the defenses advanced by Respondent , I find that Respondent violated Section 8(a)(3) and ( 1) of the Act when it discharged Kinley Wallace on April 24 and Walter Willis on April 25 in order to discourage the union activities of its employ- ees. 2. The 8(a)(1) Michaels asked Willie Brooks whether the men had just held a meeting in the' locker room and whether he or any of the other men had a union card . Although this is the only incident of independent 8(a)(1) alleged by the General Counsel in his complaint, it is not an isolated incident since it took place in the context of Respondent 's other unfair labor practices . I find , there- fore , that Respondent violated Section 8(a)(1) of the Act by interrogating an employee about the union activi- ties of its employees. Regency Electronics , Inc., 169 NLRB 223.'-5 3. The 8(a)(5) Respondent ' s answer admits the appropriateness of the production and maintenance unit alleged in the com- plaint but denies majority and demand . However , neither issue is raised in Respondent ' s brief and they have, I presume , been abandoned as serious defenses to the General Counsel 's argument that Respondent has com- mitted a Joy Silk Mills violation " of Section 8(a)(5) " Respondent cites this case in its brief as standing for the proposition that asking an employee if she had any union cards does not violate the Act , apparently a misreading of page 10 of the Trial Examiner's Decision Other cases cited by Respondent are inapposite since Michaels' interrogation of Brooks, under all the circumstances of this case, was not an isolated incident and was clearly coercive "` Joy Silk Mills, Inc , supra, The Charging Party goes further It argues that, even absent any findings that Respondent violated Sec. 8(a)(1) and (3) of the Act, a violation of 8(a)(5) should be found under the rationale of Retail Clerks Union , Local 1179 v N.L R B , 376 F 2d 186 (C A 9), as acquiesced in by the Board in John P Serpa, Inc., 166 NLRB 336 In my opinion , the key sentence in the court's opinion in Serpa is , "However, when the employer makes his own examination of the authorization cards and is convinced of their identity" and validity , as the Trial Examiner found that Serpa had done, a subsequent refusal to recognize the union is adequate affirmative evidence of a lack of good faith doubt as to majority status " I have specifically found, as set forth under Facts above, of the Act . In any event , they do not require extensive consideration for both are simple and based on uncontro- verted facts. As to the size of the unit , as of April 26 there were 22 men who all parties agree should be in. Since I have found that Kinley Wallace and Walter Willis were illegally discharged just prior to April 26, they must be added , bringing the total to 24. The only disputes concern Walter Marecki , the service manager , Edmund McHugh , the inspector , and Walter Descher , the expedi- ter. The General Counsel would exclude all three on the ground that they lack a community of interest with production and maintenance employees . He advances as an additional ground for excluding Marecki the conten- tion that he is a supervisor within the meaning of the Act. There is no basis in the record for excluding any of these men. While Respondent admits that Marecki is the service "manager ," there is no evidence that his relationship with other employees in the service department , when there are other employees in the service department , gives him any authority or responsi- bility greater than the routine carrying out of routine duties. If any significance is attached to the fact that his job is mainly a paper and pencil one, it is clear that his clerical duties relate to the plant and not to the office. Insofar as the community of interest argument relates to all three men, their duties are an integral part of Respondent ' s production process and all three come into frequent contact with other production and maintenance employees . The lone fact that Descher, apparently alone of all Respondent ' s production and maintenance employees , is salaried and not hourly paid is not sufficient to outweigh all the other factors which establish that he, like Marecki and McHugh, has a community of interest with production and maintenance employees . Adding Marecki, McHugh , and Descher to the 24 men already found in the unit , I find that Respond- ent had 27 production and maintenance employees on April 26. The General Counsel managed to authenticate 15 of the 16 cards which Janopoulos waved in front of Jerou- sek, Sr., on April 26 . Each is signed by one of the 27 men in the unit . The fact that they do not bear the dates on which they were signed is immaterial. The fact that they were signed on April 14, 15, or 16, as the case may be , is uncontroverted . The fact that several do not name Jero Steel Treating, Inc., as the employer involved is immaterial . The cards autho- rize the Union to deal with the signer 's "employer" on his behalf . There is no evidence that the men who signed them had any employer other than Respondent on the day they signed . American Beauty Baking Co., 171 NLRB No. 98 . The Union needed only 14 valid cards to establish its majority in a unit of 27 employees. It had at least 15. I find, therefore , that on April 26 the Union represented a majority of Respondent's pro- duction and maintenance employees. that no examination sufficient to convince Jerousek, Sr , of the identity and validity of the Charging Party's authorization cards took place Therefore , I reject the Charging Party's alternative argument JERO STEEL TREATING, INC. As to 'demand, Respondent admits that Janopoulos, on April 26, asked Jerousek, Sr. to recognize the Union on the basis of a card check and sit down immediately to work out a, contract. The fact that Jerousek, Sr., did not give Janopoulos a straight yes or no answer but simply referred him to Respondent's attorney does not make the words spoken by Janopoulos any less operative as a demand for recognition. John P. Serpa, Inc., 155 NLRB 99. It only serves to shed some light, however dim, on Respondent's motive for rejecting the demand since a union is entitled to an answer when it asks for recognition. In its brief Respondent argues that this case does not fall within the Joy Silk Mills doctrine because: 1. There has been no effort to thwart a fair election-no alleged unfair election-no alleged unfair labor practice between the date of the Union demand for recognition and the filing of Case No. 13-RM-942 by Respondent.. . . 2. Respondent took no position at the time the Union requested recognition and referred Union to Respondent's attorney. Immediately following the settlement of the Board's jurisdiction Respond- ent filed Case No. 13-RM-942. 3. There has been no rejection of the principle of collective bargaining. Point 2 requires some preliminary explanation. In his complaint, the General Counsel initially based juris- diction on an allegation that Respondent meets the Board's direct outflow standard. Respondent's answer denied that fact. At the opening of the hearing, a stipula- tion was received that Respondent meets the Board's indirect outflow standard. Respondent's brief states: Mr. Janopoulos left the company and immediately went down to the Board and filed the above entitled charges (case No. 13-CA-8407) at 9:46 A.M. of the same day [i.e., April 26]. During discussions with the Respondents attorney subsequent to the filing of these charges a question of the jurisdiction of the Board over this case arose which was finally settled by stipulation proposed by the attorney for the board on October 24, 1968 and agreed to after investigation by the attorney for the Respondent on November 13, 19_68. Said stipulation was read into the record verbatim_ . . Whereupon the Respondent filed case 13-RM-942 at 2:08 P.M. on November 13, 1968. The hearing in this case was originally scheduled for November 13. However, on October 14, at Respondent's request, it was postponed until November 19. On Novem- ber 12 Respondent filed a motion to stay hearing. A copy of the petition in Case 13-RM-942 which is in evidence indicates that it was filed by Respondent's attorney on November 12. On November 14 the hearing was again postponed from November 19 to December 3. From these various formal documents and the dates they contain, and relying especially on the statement quoted above from Respondent's brief, I gather that Respondent sought at the last minute to extricate itself from the threat of having to recognize and bargain with the Union by Board fiat which the outstanding 529 complaint posed by substituting a Board election. Be that as it may, Respondent places its main reliance on the fact that it has not thwarted the Board's election process but has, rather, sought to invoke that process in order to resolve the question concerning representation posed by the Union's demand. If the arguments set forth in Respondent's brief are considered seriatim, the weakness of Respondent's posi- tion becomes manifest. First, it argues that it has not been guilty of any effort to thwart a fair election, that there has been no alleged unfair election. But a Board election is not a sine qua non to a Joy Silk Mills violation as cases so numerous no extensive citations are required will attest. E.g., American Beauty Baking Co., Inc., supra. Apparently Respondent has confused the situation here with the Board's Bernel Foam doctrine. Bernel Foam Products Co., Inc., 146 NLRB 1277. Next, Respondent argues that all of the unfair labor practices which I have found occurred prior to Janopoulos' visit to Respondent's plant on April 26, a point well taken. But, while Joy Silk Mills itself speaks in terms of an employer faced with a demand for recognition refusing in order to gain time and dissipate the union's majority, later cases have clearly established that the unfair labor practices relied on to prove the employer's bad faith in refusing recognition need not come after the demand in a literal sense. It is sufficient if they occur in the context of the organizing campaign and thus are contem- poraneous with the demand. Here, the illegal interroga- tion of Willie Brooks took place during the week of April 14, the discharge of Kinley Wallace • on April 24, and the discharge of Walter Willis on April 25; all obviously events contemporaneous with the April 26 demand and thus sufficient basis for an inference of Respondent's bad faith. American Beauty Baking, Inc., supra; San Angelo Packing Company, 163 NLRB 842; Boot-Ster Manufacturing Company, Inc., 149 NLRB 933, affd. 361 F.2d 325 (C.A. 6). Then, Respondent argues that it did not refuse to recognize the Charging Party but merely postponed an answer by referring Janopoulos to its attorney, ultimately itself trying to resolve the question concerning recognition in a proper manner by invoking the Board's election process. As I have found, of course, Respondent's attorney explicitly told Janopoulos that Respondent would not recognize the Union when he told Janopoulos that Respondent could not afford a Union. But even that finding is not essential to a Joy Silk Mills violation since Jerousek, Sr.'s action in referring Janopoulos to Respondent's attorney on April 26 is itself a refusal to recognize. When a union demands recognition of an employer, it is at least entitled to an answer. John. P. Serpa, Inc., supra. Finally, Respondent argues that it has not rejected the principle of collective bargaining. Disagreement with the other points in Respondent's defense must of necessi- ty result in disagreement with this one. Therefore, I find that Respondent had no good-faith doubt of the Charging Party's majority when it refused recogniton on April 26. In reaching this finding I rely on the violations of Section 8(a)(1) and (3) of the Act I have 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found. In addition, I rely on the factors in this case urged on me by the Charging Party as supporting a finding of a serpa violation, namely, the fact that Jerou- sek, Sr., expressed no doubt of the number, authenticity, or validity of the Union's authorization cards in his confrontation with Janopoulos on April 26, that fact that Jerousek, Sr., at that time shunted Janopoulos off on Respondent's attorney, and the fact that Respond- ent waited 7 months before filing a petition for an election. Since Respondent acted in bad faith in refusing the Union's demand for recognition and thereby rejected the principle of collective bargaining, it has violated Section 8(a)(5) of the Act. Upon the foregoing findings of fact, and on the entire record in these cases, I make the following: CONCLUSIONS OF LAW 1. Jero Steel Treating, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by Respondent at its plant in Skokie, Illinois, excluding office clerical employees, guards, and supervi- sors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the mean- ing of Section 9(b) of the Act. 4. At all times on and after April 26, 1968, the Union has been and presently is the representative for the purpose of collective bargaining of the employees in the unit described above and, by virtue of Section 9(a) of the Act, has been and now is the exclusive representative of all the employees in said unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms and conditions of employment. 5. By refusing on or about April 26, 1968, and at all times thereafter, to bargain collectively with the Union in respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment of the employees in the unit described above, Respondent has refused to bargain with the above-named labor organ- ization and thereby has violated Section 8(a)(5) and (1) of the Act. 6. By discharging Kinley Wallace on April 24, 1968, and by discharging Walter Willis on April 25, 1968, Respondent has discriminated with respect to their hire and tenure of employment, discouraging membership in the above-named labor organization, and thereby has violated Section 8(a)(3) and (1) of the Act. 7. By interrogating an employee about his union activi- ties and about the union activities of other employees, Respondent 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. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. I have found that Respondent has discriminated against Kinley Wallace and Walter Willis. Therefore, I will recommend that Respondent offer each immediate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make each whole for any loss of earnings he may have suffered as a result of his discharge by paying to him a sum of money equal to that which he normally would have earned as wages from the date of his dis- charge until the date of Respondent's offer of reinstate- ment, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I will also recommend that Respondent bargain, upon request, with the Union in respect to the rates of pay, wages, hours of employment, and other terms and condi- tions of employment of its production and maintenance employees and, if an understanding is reached, embody such understanding in a written agreement. Finally, since the unfair labor practices which Respondent has committed are flagrant and exhibit a deliberate purpose to thwart the rights of its employees, I will recommend that it cease and desist from interfering with those rights in any manner. Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Jero Steel Treating, Inc., its officers, agents, succes- sors, and assigns , shall: 1. Cease and desist from: (a) Interrogating its employees about their union activ- ities. (b) Discriminating against its employees in order to discourage membership in Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union , Local 705, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , or any other labor organization. (c) Refusing to recognize and bargain with Truck Drivers, Oil Drivers, Filling Station and Platform Work- ers Union , Local 705, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, as the exclusive representative of its employees in the unit found appropriate herein: JERO STEEL TREATING, INC. (d) In any manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer to Kinley Wallace and to Walter Willis imme- diate and full reinstatement to his former or substantially equivalent position without prejudice to any seniority or other rights and privileges previously enjoyed and make each whole for any loss of pay suffered as a result of Respondent's discrimination against him in the manner set forth above under "The Remedy." (b) Notify Kinley Wallace and/or Walter Willis if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Upon request, bargain collectively with Truck Drivers, Oil Drivers Filling Station and Platform Workers Union, Local 705, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment of the employees in the appropriate unit described above under "Conclusions of Law" and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its plant in Skokie, Illinois , copies of the attached notice marked "Appendix. 1117 Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative of Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. 'T In the event that the Recommended Order is adopted by the Board , the words "This notice is posted by Order of the National Labor Relations Board after a trial at which all sides had the chance to give evidence , the National Labor Relations Board found that we, Jero Steel Treating, Inc , violated the National Labor Relations Act, and ordered us to post this notice ," shall be substituted for the words "Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act we hereby notify our employees that," in the notice In the further event that the Board ' s Order is enforced by a decree of the United States Court of Appeals, the words "This notice is posted by Order of the United States Court of Appeals" shall be substituted for the words "This notice is posted by Order of the National Labor Relations Board." 531 (f) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith."I IN 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 13, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial 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: 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 aid or protection; and To refrain from any or all of these things. WE WILL NOT do anything that interferes with these rights. WE WILL NOT ask you questions about your union activities. WE WILL immediately offer to reinstate Kinley Wallace and Walter Willis to their former or sub- stantially equivalent jobs without any change in the seniority or other privileges they enjoyed before we discharged them and we will pay to them any money they lost as a result of our discrimination against them with interest at 6 percent. WE WILL notify Kinley Wallace and/or Walter Willis, if either or both of them are 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 Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL recognize Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local 705, International Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, as the only collective-bargaining representative of our employees in the bargaining unit which is: All production and maintenance employees employed at our plant in Skokie , Illinois, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL bargain , on request , with Truck Driv- ers, Oil Drivers, Filling Station and Platform Work- 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ers Union, Local 705 , International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America, on wages , hours , and condi- tions of employment, and any agreement we reach will be put in writing and signed All our employees are free to join or not join Truck Drivers, Oil Drivers , Filling Station and Platform Workers Union , Local 705, Inter- national Brotherhood of Teamsters, Chau- ffeurs, Warehousemen and Helpers of America, or any other labor organization JERO STEEL TREATING, INC Dated By (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 othet material If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board ' s Regional Office, 881 U S Courthouse and Federal Office Building , 219 South Dear- born Street , Chicago , Illinois 60604 , Telephone 312-353-7572 TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE BENJAMIN K BLACKBURN , Trial Examiner I issued my Decision in this case on February 20, 1969 In it I found that Respondent had violated Section 8 (a)(1), (3), and (5) of the Act My Section 8(a)(5) finding was based , in part , on a finding that the Charging Party, on April 26 , 1968, represented 15 employees in a unit of 27, as evidenced by 15 authenticated authorization cards among 16 received in evidence as General Coun- sel's exhibits As a remedy for the refusal to bargain, I recommended that Respondent be required to bargain, upon request , with the Union in a unit composed of all production and maintenance employees employed by Respondent at its plant in Skokie , Illinois, excluding office clerical employees , guards, and supervisors as defined in the Act On July 7, 1969 , the Board reopened the record and ordered further hearing The Board 's Order reads, in pertinent part In its exceptions Respondent contends , inter alga, that , contrary to the Trial Examiner 's findings, the Union did not in fact enjoy the support of a majority of the production and maintenance employees for whom the Union requested recogni- tion on April 26, 1968 In support of this contention, Respondent alleges that , in addition to the 27 employees found by the Trial Examiner to have been employed within the unit on April 26, 1968, it had in its employ four named individuals classified as "truckdrivers " The record shows that none of the employees whose unit status was litigated at the hearing were classified as truckdrivers " and that there was no indication one way or the other as to the exist- ence of any truckdriver employees In the above circumstances , and as the question raised by Respondent's exceptions may have a relevant bearing on the disposition of this case, we shall remand the case to the Regional Director for further hearing Accordingly, IT IS HEREBY ORDERED that this proceeding be, and it hereby is, reopened , and that a further hearing be held before Trial Examiner Blackburn on Respondent's exceptions , to determine the fol- lowing matters (1) whether the individuals identified as "truckdrivers" by Respondent 's exceptions were in fact in Respondent 's employ on April 26, 1968, and (2) if so , whether, under established Board principles , they should be deemed to be part of the appropriate unit Pursuant to the Board 's Order and due notice , hearing was held before me on August 13, 1969, in Chicago, Illinois At the outset the General Counsel and the Charging Party moved for permission to introduce evi- dence relating to the 16th authorization card with a view to authenticating it I denied the motion on the ground that the hearing was limited to the two issues specified in the Board 's Order The General Counsel and the Charging Party took a special appeal to the Board under the provisions of Section 102 26 of the Board 's Rules and Regulations , Series 8, as amended I proceeded to receive evidence relevant to the truckdri- ver issues and, no response to the General Counsel's and the Charging Party's request having been received from the Board , closed the record that afternoon On August 14, 1969, the Board reversed my ruling refusing to permit General Counsel or Charging Party to authenticate a Union authorization card " Pursuant to the Board 's ruling I reopened the record on September 2, 1969 Further hearing on the issue of the authenticity of the 16th card was held, pursuant to due notice , before me in Chicago on September 23, 1969 All parties were present on both hearing days and were afforded full opportunity to call and examine or cross-examine witnesses , otherwise introduce evidence, and argue orally I have carefully considered briefs filed by all parties Upon the record made at the hearing on August 13 and September 23, 1969 , and from my observation of the demeanor of the witnesses while testifying, I make the following FINDINGS AND CONCLUSIONS I THE TRUCKDRIVER ISSUE Ted Gordon , Manuel Medeiros , Carl Behnke, and Harry Lewandowski were , indeed , employed by Respondent as truckdrivers on April 26, 1968 JERO STEEL TREATING, INC. Respondent uses four ton-and-a-half stake trucks to pick up and deliver the metal parts which its customers send to it for hardening through heat treating. The trucks are leased. Each of the four drivers is assigned one of the trucks. He services it and performs minor maintenance on it. The whole process consumes less than an hour a week. Maintenance employees who are included in the unit found appropriate in my February 20, 1969, Decision sometimes help the drivers. Each driver is assigned a geographic area. One covers the north side of the city of Chicago proper. Another goes regularly to the far north suburbs, a third to the west, and the fourth to the southwest. They arrive for work at 7:30 each morning , Monday through Friday, 15 minutes after the day shift has started. They spend approximately an hour loading their trucks, with the help of a unit employee who operates a forklift truck They determine what customers have orders for them to pick up from a list in the shipping area of the plant. They leave on their appointed rounds, delivering and picking up orders. If Respondent has some instruc- tions for them during the day, it can contact them on one-way radios in their trucks. When they have finished their rounds, generally around 3 or 4 p.m., they return to the plant where they unload their trucks, assisted again by the forklift driver. They turn in the paperwork which accompanies the orders they have picked up. They relay any special instructions or requests received from customers to the shipping clerk or a production foreman. They park their trucks in front of the plant and go home. They average about an hour and a half or 2 hours a day at the plant out of an average 9-hour workday Truckdrivers do not work on Saturdays. In-plant employees do. Truckdrivers eat their lunch when and where they please. In-plant employees get half an hour for lunch, starting generally around 12.30 p.m. when the lunch wagon shows up at the plant. Truckdrivers, like in-plant employees, are hourly paid. They punch the same timeclock as in-plant employees. The record does not reveal their rate or rates of pay, either now or in April 1968. The record does not reveal this informa- tion for in-plant employees either. Like in-plant employ- ees, truckdrivers get time and a half for overtime. Truckdrivers are supervised directly by Plant Manager James Jerousek, Jr. Jerousek, Jr., supervises in-plant employees through an intervening layer of foremen. Truckdrivers perform no production work. They some- times help wrap parts for delivery in the shipping area of the plant. Their duties regularly bring them into contact with shipping clerks, the forklift driver, and foremen; irregularly, with three maintenance employees. All Respondent's employee benefits and policies apply to truckdrivers as well as in-plant employees. This includes vacations, paid holidays, group insurance, peri- odic wage rate review, 30-day probationary period, and rules. Vacationing truckdrivers are replaced by in-plant employees. Truckdrivers and in-plant employees are list- ed together on one integrated seniority list maintained by Respondent. 533 Ted Gordon was hired as Respondent's first employee. In the beginning he worked in the plant. When Respond- ent acquired its first truck Gordon was assigned to drive it. He has not worked in the plant since. Medeiros, Behnke , and Lewandowski were all hired as truckdrivers. They have never worked in the plant The Charging Party argues that Respondent is bound by its agreement that a unit which excludes' truckdrivers is an appropriate unit, as distinguished from the most appropriate unit. As evidence of such an agreement it cites the fact that Respondent, in its answer, admitted the appropriateness of the unit as set forth in the com- plaint and the fact that Respondent has not since amend- ed its answer. The complaint alleged a production and maintenance unit, excluding office clericals, guards, and supervisors. It was silent as to truckdrivers. In view of the manner in which this issue has arisen, I cannot now find that Respondent intended any such agreement as the Charging Party would have me find. Rather, it is clear from the fact that the existence of truckdrivers was never even mentioned until Respondent filed its exceptions to my Decision of February 20, 1969, that whether or not they should be included or excluded in a production and maintenance unit was beyond the contemplation of all parties during the initial pleading stages of this case. The Charging Party also cites the fact that it has not sought a unit which includes the truckdrivers and does not now seek to represent them. While this is a factor which is normally accorded considerable weight in resolving this issue, it is not entitled to controlling weight here. The Board's Order reopening the record does not ask whether a unit of Respondent's production and maintenance employees, excluding the truckdrivers, would be an appropriate unit. Rather, it asks whether they should be deemed to be part of the appropriate unit under established Board principles. On the basis of the record as a whole, and especially in view of the relation of the truckdrivers to the flow of materials and products into and out of Respondent's plant, I find that the truckdrivers have a sufficient com- munity of interest with Respondent's in-plant employees to warrant their inclusion in the same unit and should be deemed to be part of the appropriate unit under established Board principles. E. H. Koester Bakery Co., Inc., 136 NLRB 1006; Marks Oxygen Company of Ala- bama . 147 NLRB 228; Cumberland Farms, Inc., 167 NLRB 593. Therefore, the appropriate unit in this case is more precisely described as All production and maintenance employees employed by Respondent at its plant in Skokie, Illinois, including truckdrivers, but excluding office clerical employees, guards and supervisors as defined in the Act. Conclusion of Law No. 3 in my February 20, 1969, Decision and the-Appendix thereto are hereby amended to reflect this correction in the designation of a unit appropriate for the purpose of collective bargaining with- in the meaning of Section 9(b) of the Act. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II THE MAJORITY ISSUE Adding the 4 truckdrivers to the 27 in-plant employees I originally found in the unit as of April 26, 1968, the day the Union demanded and Respondent refused recognition, makes a total complement of 31 Therefore, the 16th authorization card becomes a critical piece of evidence relating to the issue of whether the Union represented a majority of those 31 employees on that crucial day General Counsel's Exhibit 4-M, the 16th card, bears the name Angelo M Mercado Angelo M Mercado was an employee of Respondent on April 26, 1968, having been hired on April 16 Angelo M Mercado' was called as a witness by the General Counsel at the reopened hearing Mercado testified that Frank Cise- ro approached him in the locker room and asked him whether he wanted to join the Union Mercado said that he did Cisero had him sign his name and address on a blank piece of paper Mercado testified that the paper he signed was not General Counsel's Exhibit 4-M, a conventional printed authorization card with various blanks to be filled in Mercado testified that the lettered "Angelo M Mercado" which appears in the blank labelled "Employee's Signature" and the "1342 N Claremont" which appears in the blank labelled "Address" looked like his signature but had not been placed on General Counsel's Exhibit 4-M by him He testified that the "Jero Steel Treating 7337 N Lawndale- Skokie" which appears in the blank after the words "authorize my employer," the "furnice [sic] operator" which appears in the blank after "Class of Work," and the "4-17-68" which appears in the blank after "Starting Date" were not in his handwriting He pointed out a distinction between the " a's" in "Lawndale" and the "a's" in his name and address and stated that he never made an "a" as it appears in "Lawndale " Frank Cisero was also called as a witness by the General Counsel He testified that the piece of paper which Mercado had signed to signify his desire to join the Union was General Counsel's Exhibit 4-M He further testified that he had seen Mercado write not only his name and address but also "4-17-68," "furnice operator," and "Jero Steel Treating 7337 N Lawndale- Skokie " Both Mercado and Cisero testified that McArthur Brooks and Willie Brooks were presented in the locker room on this occasion Neither McArthur Brooks nor Willie Brooks was called as a witness by any party I credit Mercado over Cisero In doing so I rely on the fact that the " a's" in "Lawndale" are obviously different from the "a's" in "Angelo M Mercado 1342 N Claremont" on General Counsel's Exhibit 4-M even to my nonexpert eye and Cisero's incompatible testimony that he saw Mercado write both Therefore, I find that the paper which Mercado signed to signify his desire to join the Union was not General Counsel's Exhibit 4-M and that General Counsel's Exhibit 4-M has not been authenticated for purposes of counting it toward the Charging Party's majority A finding, however, that only 15 of the 16 authorization cards which Peter Janopoulos waved in front of James Jerousek, Sr , on April 26, 1968, had been signed by employees of Respondent does not dispose of the majori ty issue On the basis of Mercado's testimony that he intended to join the Union when he signed his name and address to a blank piece of paper, I find that the Union, in fact, represented a majority of 16 employ- ees out of 31 in the unit when it demanded recognition on April 26, 1968 In my Decision of February 20, 1969, I based my finding that Respondent had violated Section 8(a)(5) of the Act on its commission of contemporaneous viola- tions of Section 8(a)(1) and (3) Since the reopened hearing has not altered the fact that the Union represent- ed a majority in an appropriate unit, even though the size of the unit and the size of the Union's proved support in that unit have changed, I reaffirm that finding here By discharging the leaders of the campaign to organize its employees and by coercively interrogating an employee about his and other employees' union activi- ties, Respondent destroyed the conditions necessary to the holding of a fair election Moreover, the unfair labor practices committed by Respondent were so coer cive and pervasive that they not only tend to preclude the likelihood that an election would be a more reliable indication of the employees' desire than the majority enjoyed by Respondent at the time it demanded and was denied recognition but also require a bargaining order to repair their unlawful effect even absent an 8(a)(5) violation N L R B v Gissel Packing Company, 395 U S 575 Upon the record as a whole, including the record made at the original hearing as well as the record made at the reopened hearing, and pursuant to the Board's Order of July 7, 1969, I make the following RECOMMENDATION I recommend that the Board issue the Recommended Order contained in my Decision of February 20, 1969 ' The transcript of the reopened hearing on September 23 1969 is hereby corrected throughout to reflect the correct spelling of Mercado s last name