Michael's Artists and Engineering Supplies, Inc.

206 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD Michael's Artists and Engineering Supplies , Inc. and TRIAL EXAMINER'S DECISION International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, Local Union No. 452. Case 27-CA-2730 JUNE 30, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN, AND JENKINS On March 2, 1970, Trial Examiner James R. Hemingway issued his Decision in the above-enti- tled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner found, in addition, that the Respondent's unlawful conduct had interfered with a Board election held in Case 27-RC-3635 on June 20, 1969, and recommended that the election be vacated and set aside. Thereafter, the Respon- dent filed exceptions to the Trial Examiner's Deci- sion and a supporting brief, and the General Coun- sel filed an answering brief to Respondent's excep- tions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and hereby orders that the Respondent, Michael's Artists and Engineering Supplies, Inc., Denver, Colorado, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recom- mended Order i In adopting the Trial Examiner's finding that Koenig unlawfully inter- rogated employee Marshall we rely solely on Koenig's inquiry as to the na- ture of the employees' grievances In the context of the union activity and the recent demand for recognition, this inquiry was, in our opinion, calcu- lated to elicit information as to why the employees were engaging in or- ganizational activities STATEMENT OF THE CASE JAMES R. HEMINGWAY, Trial Examiner: Upon a charge filed on June 11, 1969, by International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers • of America, Local Union No. 452, herein called the Union, and amended charges filed on June 12 and 24, 1969, against Michael's Artists and Engineering Supplies, Inc., herein called the Respondent, a complaint is- sued on July 23, 1969, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. Following the filing of a petition for certification on May 23, 1969, the Union and the Respondent, on June 2, 1969, entered into an agreement for consent election and such election was held on June 20, 1969. The election resulted in two votes against the Union and two challenged ballots. Thereafter, on June 25, 1969, the Union filed ob- jections to the election which, the Regional Director found, raised substantial issues with respect to conduct affecting the results of the elec- tion. The Regional Director therefore ordered a hearing to be held before a Trial Examiner on such objections, and he consolidated such hearing with the hearing in the complaint case previously re- lated. In substance, the complaint alleges that Respond- ent changed the hours of employees and withdrew certain benefits to discourage union membership or activity; in May 1969, interrogated two employees with respect to union activities; on about June 10 and 11, 1969, discharged two employees (Bernard Polzkill and Kathleen Mooney) because of their membership in or activities on behalf of the Union, and thereafter failed and refused to reinstate them; and about May 26, 1969, reduced the hours of em- ployment of employees. Following an extension of time for the filing of an answer, Respondent, on August 15, 1969, filed an answer in which it denied the alleged unfair labor practices. Pursuant to notice, a hearing was held before me on October 16 and 17 and November 5, 1969. At the opening of the hearing, the Respondent moved to amend its answer to admit some of the allegations of the complaint which it had denied in its answer, including the allegation of failure and refusal to reinstate Polzkill and Mooney. The motion was granted. At the close of the hearing, the parties requested and were granted time in which to file briefs with the Trial Examiner, and both have done so. In the General Counsel's brief, a motion is made to amend the complaint for the purpose of deleting the allegations contained in paragraph VI(e) concerning a reduction of hours of employees and the reference to paragraph VI 184 NLRB No. 24 MICHAEL'S ARTISTS AND ENGINEERING SUPPLIES 207 contained in X1I(b). Since all the evidence is in and is recited hereinafter, the motion is disposed of consistently with the conclusions herein reached. Upon all the evidence and from my observation of the witnesses, I make the following. FINDINGS OF FACT I THE FACTS OF COMMERCE The complaint alleges and the answer admits that Respondent is a California corporation with offices located in Denver, Colorado, where it is engaged in the business of wholesaling in artists' and engineer- ing supplies, that Respondent annually, in the course and conduct of its business operations in the State of Colorado, received goods and materials valued in excess of $50,000 directly from sources located outside the State of Colorado, that Respon- dent is now, and has at all times material herein been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act In addition, the evidence shows that the Respondent has business houses in several other States of the United States I find that the Respondent is engaged in commerce within the meaning of the Act and that the Board has jurisdiction. mitted and if an employee desired it, he was al- lowed to take an hour for lunch. More often than not, however, the employees took half an hour for lunch During the busy season, the employees often worked overtime, sometimes working late and on Saturdays. In April 1969, the Respondent installed an em- ployees' lunchroom with a coffeepot, a refrigerator, and a soft drink machine in it. In addition to their lunch period, the employees also were given a cof- feebreak in the morning and in the afternoon. Be- fore May 27, 1969, the employees contributed $1 a week to a doughnut fund, and each morning the su- pervisor of the warehouse would send one of the employees, usually the truckdriver (Marshall), out to buy doughnuts to eat at their coffeebreaks Such emissaries would take anywhere from one-half hour to an hour, and it once took the truckdriver (who also had the duties of receiver and stocker) an hour and a half During April, the supervisor requested the four full-time warehouse employees-two men and two women-not to take their coffeebreaks and lunch all at the same time Thereafter one woman and one man would take their breaks or lunch together. However, there was no fixed time for the breaks B Interference, Restraint, and Coercion II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A Background The Respondent's place of business in Denver consists of offices and a warehouse. In its warehouse, the Respondent, in 1969, employed three men and a varying number of women, some of whom were hired only as temporary help during times of heaviest business. In May 1969, there were a supervisor, one man who acted primarily as a receiver but also acted as a truckdriver for local deliveries, a man who acted as a packer or shipper, aid two women, who "pulled" and priced merchandise. Another girl, who worked primarily in the office, assisted in the warehouse when needed. The supervisor assigned work to the other employees, and he was supposed to check the accu- racy of their work To speed up the work during rush periods the supervisor occasionally assisted with the work of the employees as needed, at least he did prior to May 26, 1969 Only two local representatives of the Respondent were over the warehouse supervisor-the branch manager and the assistant branch manager Both had offices in the office space adjacent to the warehouse. The hours of the warehouse employees, prior to May 27, 1969, were 8 a m to 5 p.m. If work per- Organization of the Union and changes instituted by Respondent After discussing the matter with the other warehouse employees, Bernard Polzkill telephoned the Union and set up a meeting at his apartment for the night of May 20, 1969. Polzkill invited not only the other three warehouse employees but also Kimon Kefalas, the warehouse supervisor. All ac- cepted except Kefalas. At that time Polzkill was on friendly terms with Kefalas and would ride to and from work in the latter's car. At the meeting on May 20, each of the four em- ployees, Carl Marshall, Kathleen Mooney, Chantal Schoenfeld, and Polzkill were given union authorization cards and they all signed them, but Marshall did not turn his in to the union's represen- tative. He held it and mailed it in the next day On Friday, May 23, 1969, Edward Toliver, the Union's organizer, wrote a letter to the Respondent claiming to represent a unit of employees, offering to prove its majority , and requesting a meeting to negotiate a collective-bargaining agreement. This letter was received by the Respondent on Monday, May 26, 1969. On the same day that it received this letter, the Respondent prepared a new schedule of worktime for each of the warehouse employees on separate slips of paper. These schedules were to be effective on May 27 but the slips showing the schedules were delivered to the employees on the 26th Prior to May 27, all employees had the same hours, 8 a m. to 5 p m., with a half hour off for lunch, unless 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work was slow, when they were allowed to take an hour. However, they were paid for an 8-hour day The slip handed to Mooney showed her new schedule to be 8 a.m. to 4:30 p.m., with a morning break from 9.30 to 9.45 a.m. (previously there was no set time for coffeebreaks and she had been al- lowed to go with one of the men, while the other girl and man waited and took theirs together later), lunch from 11 30 to 12, and an afternoon break from 2:30 to 2:45 o'clock. Polzkill's new hours, as shown by the slip handed him, were 8 a.m. to 4:30 p.m., lunch from 12 to 12:30, with 15-minute breaks starting at 9:45 a.m. and 2.45 p.m Marshall's new hours were 8:30 am._ (half an hour later than before) to 5 p.m., lunch from 12.30 to 1, with 15-minute breaks starting at 10 a.m. and 3 p.m. The result was to make each employee take his coffeebreak and his lunch by himself. The evidence does not show whether or not Schoenfeld received-one. She quit on May 29 and might al- ready have given notice thereof before these schedules were prepared. These changes were directed to be made by David Swinehart, the assistant branch manager, but the slips with the new schedules were handed out by Kefalas, the warehouse supervisor, on May 26. When the latter delivered the slips to Mooney and Polzkill, they were in the lunchroom. Kefalas said, "Here, this will give you something to talk about." Kefalas left but returned shortly and added that there would be no more playing of the radio, that there would be no more doughnuts, that the doughnut fund would be split up and refunded, and that Mooney should no longer park her car in front of the building but should park it in a lot at the side. On the following day, May 27, when Polzkill was in the lunchroom by himself, Kefalas came in, and asked, according to Polzkill, "Are you the spokesman for the Union?" (Kefalas admitted ask- ing this). Polzkill answered, "Well, if you need a spokesman, I guess." Kefalas asked, "Well, aren't you the one that called the union representative?" Polzkill answered that he was and asked Kefalas who_ wanted to know. Kefalas told him, according to Polzkill, that it was "Mr. Koenig,"' the branch manager,' and left. At about this time, Kefalas asked Polzkill to drive to work in his own car in- stead stead of riding with him as he had been doing. ' Kefalas testified that he had asked his question because he was curious I do not credit this explanation Both the form of his question and the abruptness of the conversation suggest something other than idle curiosity ' Leonard Koegnig at that time had a title of National Sales Manager for the Wholesale Division but he was in charge in Denver over Swinehart and either had the title or the duties of the branch manager as well 1 Marshall fixed the time as either the Friday after the union meeting of May 20 (which would have been May 23) or the following Friday (which would have been May 30, a holiday), when the employees did not work) Although it is possible that Koenig had learned by May 23 (when he returned from a trip out of town), of the results of the employees' meeting of May 20, there is no actual evidence that he was informed of the union About May 29,3 while Marshall was sweeping out the warehouse after the others had left, Koenig came back and asked him to step into his office. When Marshall got there, Koenig said (according to Marshall, Koenig not being asked about the inci- dent) that he had heard that there were some grievances and it puzzled him that nothing had come to his attention, and he asked Marshall what the grievances were. Marshall replied that he, personally, did not have any, but that Polzkill had complained about wages4 and that Mooney had complained that the insurance provided by the Respondent was inadequate because it did not cover dependents. Marshall also told Koenig about the meeting of May 20 and of his signing of a card. Marshall did not testify that Koenig had or had not questioned him about the meeting, but I am skeptical that Marshall would have volunteered the information with- out some prompting. Marshall testified that he had told Koenig that he had not turned in the card until the next day and that he had not decided "either way" but would see how things went.' Marshall quoted Koenig as saying that he would not "fire anybody over a union" because "everybody has their free belief to believe the way they want to believe, and if they want to believe in a union or contact a union, they feel that their duty." I have some doubt about this portion of Marshall's testimony, first, because there was no testimony of anything that would have prompted such a state- ment by Koenig, secondly, because Marshall gave the appearance of one desiring to curry favor with his employer, and thirdly, because this testimony appeared to be a garbled version of something Marshall had attempted to memorize. I give this portion of Marshall's testimony no weight. At some time prior to the week of Memorial Day, Kefalas had told the employees that the Respon- dent would take inventory on May 30 and that they were all expected to work that day. Under the Respondent's rules, that was a paid holiday. Schoenfeld asked Kefalas to speak with manage- ment about not requiring that day to be worked. Kefalas said he would. Later, Kefalas reported what Swinehart had said-that they would work on, Memorial Day at time and a half pay and if they did not work that day, they need not bother to return the following Monday. The Respondent later organization before May 26, when he received the Union'sletter Further- more, under the new schedule effective May 27, Marshall would have been working half an hour later than the other employees and would more likely have been alone while sweeping at the end of the day , as he testified I deem it more probable , therefore , that the incident related by Marshall took place after receipt by the Respondent of the Union's letter ' This will be more fully related in connection with the discharge of Polz- kill 5 Although Marshall appeared not to have been regarded as a very good employee, he received a raise to $2 25 in July 1969 The recommendation therefor would have been sent to the head office in June according to Swinehart MICHAEL'S ARTISTS AND ENGINEERING SUPPLIES 209 changed the date for taking the inventory from May 30 to May 31 It does not appear whether or not the related incident had anything to do with Schoenfeld's decision to quit on May 29 Shcoen- feld was quoted by Polzkill as saying to Kefalas, when the latter reported that they would work on Memorial Day, "Things will be different once we have our union in here." Polzkill testified that Kefalas had replied, "Well, you're not going to get a union in here and you'll see why." Neither Schoenfeld nor Kefalas was questioned about this incident. I have some reason to doubt the accuracy of Polzkill's memory either as to the date or as to what Schoenfeld said, in view of the fact that Polz- kill testified that this incident was the main reason why the employees had gone to the Union; yet from the way Polzkill quoted Schoenfeld, the latter's words sounded more as though getting a union was something that had already been settled by the em- ployees. This leads me to believe either that this in- cident took place after the union meeting of May 20 or that Schoenfeld had not said "once we have our union " bu,t had said something more like "if we had a union.'.' If the incident took place, I find it more likely that it occurred on or after May 26, because I believe it unlikely that, before the arrival of the Union's letter demanding recognition, Kefalas would have discussed the Union with his su- pervisors and, I doubt that, before he had discussed it with them, Kefalas would have so positively pre- dicted that the employees would not have a union. However , because the testimony leaves these un- resolved doubts , I refrain from making an affirma- tive finding on this incident The Respondent contends that in May 1969, Kefalas was not a supervisor within the meaning of the Act. Contrary to this contention, I find that he was. He received a higher rate of pay than the warehouse employees. Kefalas testified at one point that he had held the title of warehouse foreman for only 2 months prior to the date of the hearing. Be- fore that time, he testified, he had had no title but he had "more or less run the warehouse on my own " When the new lunchroom was finished in about April 1969, Swinehart spoke to all the em- ployees there. He told them that Kefalas would be in charge of the warehouse and would tell them what to do and that they should go to Kefalas if they wanted time off or had any questions about their work, and if Kefalas could not make a deci- sion, it would be passed along to himself and then to Koenig if he could not give the answer. He said that Kefalas would not be helping them as much as he had before because he would be in charge of checking the work to see that there were no mistakes He told them that the telephone could not be answered by anyone except Kefalas6 and that, if the office wanted one of the other em- ployees, it would call them on the loud speaker Kefalas at one point could not remember whether he got the title of foreman before or after the union requested recognition, but he testified, without con- tradiction, that he had the authority to recommend hire and discharge and that his recommendations would carry weight. Also he could and did reprove employees for their mistakes As previously stated, prior to May 27, 1969, Kefalas would send one of the employees out for doughnuts in the morning and he could and did instruct them as to when they could take their breaks and lunch periods. Although Kefalas testified that if an employee requested time off, he would take the request to Swinehart, Kefalas' recommendations would appear to be determinative, because he was the one who would know whether the work in the warehouse would or would not permit excusing an employee. I find that by Koenig's questioning of Marshall and by Kefalas' questioning of Polzkill, as previ- ously related, the Respondent interfered with, restrained, and coerced its employees in the exer- cise of their rights guaranteed in the Act I do not regard these as isolated acts. Rather the questioning was designed to get information which would lead to reprisals in the form of discharges. I further find that the Respondent scheduled the coffeebreaks and lunch periods of employees one at a time, a procedure not shown to be necessary, in order to keep the employees from communicating with each other about the Union. Although Swinehart testified that this change was made to conform to company policy, I do not credit his testimony that such a policy existed. Prior thereto the only limitation had been that all the employees should not eat at the same time because someone should be present in case a delivery was to be received. Swinehart was unable to give any details about this policy, such as when it was adopted and in what form it was expressed. But even if such a policy did exist, it is apparent that it was not fol- lowed until the Respondent had received the Union 's letter requesting bargaining and that the change was prompted by that letter. The other changes instituted by the Respondent on May 26- discontinuance of the doughnut fund and radio playing' I find to be part and parcel of the Respon- dent's adverse reaction to the Union's demand for recognition. With respect to the change in hours (other than a definite reduction in the length of the lunch period) whereby two employees were released at the end of the day half an hour earlier, while one was to come in half an hour later in the morning, I find that they suffered no loss, since the change in hours resulted in no reduction in pay. However, the change did result in a conformity of c Kefalas testified that if he was not present , the one nearest the telephone answered it Outside calls did not come to this telephone without going through the office If Kefalas did not answer his telephone when the front office rang his telephone , the girl in the office would call him on the public address system 1 find that no one else answered Kefalas' telephone r Kefalas testified that an efficiency man had recommended discon- tinuance of the radio playing practice in April 1969 but that , in spite of that, he had occasionally permitted it before May 26 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours to the preexisting paid time and thus was ap- parently designed to remove a possible cause for grievance. Because of the timing of this change and its obvious purpose of removing a cause for com- plaint, I regard it as designed to dissuade the em- ployees from their desire for union representation. Hence, I find that by all the changes effected by the Respondent as of May 27, 1969, the Respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. C The Discriminatory Discharges of Polzktll and Mooney 1. The nature of the work in the warehouse When the Respondent's office would receive or- ders for merchandise, it would make an IBM com- puter run, prepricing the items, and would then write up the order on an attached form which would be sent to the warehouse supervisor, who had a desk and a telephone in the warehouse. The supervisor would start one of the women on the job of pulling the merchandise (i.e., taking it out of stock) and one on the job of running off the price tags, if pricing the items for the customer was required. The supervisor did not always specify which of the two regularly employed women was to do the pulling or the pricing, and they occasionally alternated. When the merchandise was assembled and the tags were run off, one or both of the women would stick the price tags on the merchan- dise; then they would put the items on a conveyor belt, which would carry them to the packer, who would put them in cartons. Before the merchandise was packed into the cartons, the supervisor would check the items for conformity to the order. After the merchandise was packed, in cartons, the Super- visor or the shipper would call the front office to prepare address labels. When the labels were ready, the supervisor or shipper would go to the office, get them, and put them on the cartons, fill out a bill of lading, and then call a trucking company to come for the shipments. When the truck would arrive, the shipper would take the cartons to the dock, where the truckdriver would put them in his truck and sign the bill of lading. There were opportunities for errors in almost all steps of the procedure. The puller might pull the wrong number of items (resulting in shortages or overages), the pricer might put the wrong price tag on an item , the pricing machine might be jarred ac- cidentally and, as a result, print the wrong depart- ment number on the price tag, the pricer might run the wrong number of price tags or fail to remove the last one from a previous run and so mismark the price of an item, the packer or supervisor might " Such an error resulted in a changed procedure Thereafter only one order at a time was worked on so that only one carton at a time would be addressed get address labels mixed, and send the boxes to the wrong store.8 Usually mistakes in pricing were discovered before shipment, but sometimes such er- rors went unnoticed until there was a customer complaint. Then the assistant branch manager would call it to the attention of the employees in the warehouse either directly or through the super- visor. Because there was so much interchange of employees in the work of pulling and pricing, and even in packing and shipping, the blame for mistakes could not be definitely attributed to a sin- gle individual. So when complaints came from customers, the assistant manager or, more usually, the warehouse superintendent would notify the em- ployees collectively and caution them to be more careful. 2. The discharge of Polzkill a. Polzkill's employment history Polzkill started working for the Respondent in January 1969, as a part-time worker while he was attending morning classes at a business school. His duties were principally receiving merchandise-and putting stock away At that time, he was'paid $1.90 an hour. When Polzkill was hired, Koenig told him that he would be raised to $2 in 90 days if he stayed.' On January 24, 1969, Respondent hired a full-time man as a shipper at the rate of $2 an hour. In March 1969, when his school quarter ended, Polzkill changed his school schedule to night hours. Kimon Kefalas, the warehouse supervisor, with whom Polzkill rode to work and with whom he and his fiancee double dated,-asked Polzkill if he would be interested in working full time Polzkill hesitated, believing that he needed the time to study. However, Kefalas asked him to think it over and meanwhile he would speak with Swinehart. Accord- ing to Polzkill, Swinehart thereafter told Polzkill he considered him a good man, that Respondent could use his services, and asked him if he would be in- terested in working full time if the Respondent raised his pay to $2 an hour. Swinehart denied any promise of a raise in pay to Polzkill. I find it dif- ficult to credit Swinehart's denial of a promised in- crease to $2 for Polzkill when the latter went on full time not only because I found him to be a truth stretcher and fabricator but because as soon as Polzkill started on full time, about April 1, 1969, Kefalas switched him and Marshall, making'Polzkill the shipper and Marshall the receiver. According to Marshall, the reason for this transfer was because items "seemed to be getting in the wrong box," and other reasons like a mix-up in deliveries. Polzkill impressed me as an energetic young man with an alert mind. I found him to be an honest witness and I find his testimony to be accurate except for minor 'This is based on Polzkill's testimony Koenig did not testify about the matter MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES 211 matters explainable by vagaries of memory. Marshall appeared to be a young man who lacked Polzkill's drive, alertness, and strength of character. In April 1969, while Polzkill was the shipper, the address labels to two separate Target stores in dif- ferent cities were put on the wrong cartons, causing misdeliveries and considerable trouble. When Swinehart learned of it through the customer, he went back to the warehouse and told Kefalas and Polzkill of the mistake. At that time, address labels were often affixed by Kefalas, but these might have been affixed by either Marshall or Polzkill.10 The error apparently occurred because the two orders had been finished on a Friday night and the cartons had been stacked against the wall without being ad- dressed. When the employees returned on Monday, these orders were weighed and the address labels were affixed by one of the men, but no one knew by which one It was after this incident that the Respondent adopted the procedure of not starting on a second order until after the first one was completed and addressed. On one occasion, Swinehart told Polzkill and Kefalas that there had been a complaint that canvas had been packed too tight Canvas comes prepacked six rolls to a box, and the boxes in which they come are then packed in the cartons along with the rest of the order. If the order was for less than six rolls, paper excelsior would be packed in the box in which the remaining rolls of canvas come in order to keep them from rattling. The evidence does not indicate whether the complaint concerned a surplus of paper excelsior in boxes of less than six (an improbability) or whether it con- cerned pressure on those container boxes after they were packed in the cartons, and it was not ex- plained to Polzkill which it was I deduce that Swinehart made no effort to get the customer to elucidate. Under date of June 9, 1969, a presumed agent of a Target store signed a memorandum addressed to no one, reading- "Merchandise has been packed so tight that when we unload it in the dept. it tears " There is no explanation of what the merchandise was or when it was shipped of received. The signer of the memorandum was not called as a witness Swinehart testified that this memorandum "was received, as I recall, probably with an order " His use of the word "probably" detracts from his "re- call." Packing too tight was one of the reasons listed for Polzkill's discharge but, according to Polzkill, when Swinehart spoke to him on June 10, at the time of his discharge, about the complaint in the foregoing memorandum, Swinehart told Polzkill that the merchandise which had been damaged was a painting substance that comes in gallon con- tainers, four to a box, and that one of them had been smashed. It does not appear that the memorandum introduced in evidence to substan- tiate the criticism was shown to Polzkill at the time of his discharge. Since the signer of the memoran- dum did not testify, I am unable to give this docu- ment much weight. Furthermore, the discrepancy between the memorandum (where the word "tear" is used) and what Swinehart told Polzkill on June 10 (where he used the word "smashed") suggests that Swinehart at that time had not yet received the memorandum. It also suggests fabrication, but since there is no clear evidence thereof I refrain from so finding. b. Polzkill's discharge Polzkill's actions in contacting the Union and holding the organizing meeting at his apartment on May 20 have already been related, as also have the Respondent's actions upon receipt of the Union's demand for bargaining. It will be remembered that on May 27, Kefalas asked Polzkill if he was not the one who had called the union representative, saying that Koenig wanted to know. During the first week in June, both Polzkill and Mooney observed that when they arrived in the morning, Swinehart, who always arrived about 7:30 a m., and who would read his newspaper in his of- fice, would look at the clock when the employees would arrive and would then make a notation on a piece of paper. Since Polzkill was usually the first employee to arrive during his employment in June 1969, Swinehart could not use this as a ground for his discharge, but he did in Mooney's case, as will be subsequently related On Monday, June 9, 1969, Polzkill was ill. He telephoned Swinehart to report that he would be unable to work that day. Swinehart asked if he would be able to come by noon Polzkill replied that if he felt better by then he would but, from the way he felt, he doubted that he would be up to it by then. He did not report for work until the next morning. On Tuesday, June 10, Polzkill worked all day When he was getting ready to leave at 4 30 p in Kefalas told him that Swinehart wanted to see him in the office. Polzkill went there accompanied by Kefalas. When he entered the room, Polzkill testified, Swinehart had a big smile on his face Swinehart said, "Well, Ben, old boy, we're going to have to let you go " Swinehart had a stack of papers on his desk, and as he leafed through these he listed reasons for Polzkill's termination. Then he told Polzkill he could return on Friday for his check Among the reasons given by Swinehart for Polz- kill's discharge were (1) the error in affixing ad- dress labels on the cartons in April, as previously related and which I find was not, and could not, have been attributed to any one of the three men with any degree of certainty, (2) packing the 10 No suggestion was made that Swmehart, himself, might have done it, although he testified that he sometimes priced, pulled, or packed 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merchansise too tight ( a complaint that never was adequately explained), (3) failing to sweep the warehouse on the previous Friday night (Polzkill protested that he had not been asked to do so and Kefalas interjected that he should not have to be asked); (4) Polzkill's absence on June 9 when he was ill. According to Polzkill, Swinehart com- mented , concerning this absence , " I suppose the company is supposed to forget about working because you can't make it." Regarding the accusation of failure to sweep out the warehouse, Polzkill testified that he was required to sweep around his work bench every night and that he had done so, but that the entire warehouse was swept out only once a week and that no one had been specifically assigned to that work. Prior to May 27, the one who would do it was often settled by a flip of a coin. This was con- firmed by Marshall, who testified that no one was actually assigned that work, that they tried to take turns at it. Then Marshall testified : " He [Polzkill] seemed to be doing most of the sweeping ... ex- cept for around the conveyor ... we'd both do that around there. As for the whole warehouse, usually he [Polzkill] started in and I'd end up helping, too." Prior to May 27, Polzkill had worked until 5 p.m Polzkill testified that during that time they would start sweeping when the regular work was finished . When Polzkill 's hours were changed to 8 a.m. to 4:30 p.m., he would not have had as much time to sweep unless he had been asked by Kefalas to work overtime, which he was not The fact that Marshall 's hours had been changed to 8.30 a.m. to 5 p in suggests that he was being held half an hour later than the other employees with a view to his sweeping the warehouse after the others had left. I can conceive of no other explanation for his later hours, unless it was to have him available for questioning after the other employees had left for the day, an inference suggested by the fact that this had occurred on May 29, as previously related According to Kefalas, it had been the Respon- dent's plan to discharge Polzkill on Monday, June 9, but when Polzkill called in to say that he was sick , the Respondent changed the date of Polzkill's discharge to June 10. If the Respondent had had real cause to discharge Polzkill on June 9, it would, in my estimation , be very strange that he should be permitted to work at all, much less all day, on June 10 Why did not Swinehart simply tell Polzkill on the telephone on Monday morning, when Polzkill called to say that he would be unable to come in, that he was terminated? The only explanation I can think of is that Swinehart had rehearsed a scene and wished to proceed as planned On June 11, 1969, the day after Polzkill's discharge, Swinehart wrote a letter to the Respon- dent's attorney, listing the Respondent's reasons for Polzkill's discharge. Although the original charge was filed on that date, the notice of filing was not received by the Respondent until the day after Swinehart's letter was written. The haste with which the Respondent sought to explain these reasons to its attorney suggests , collectively or severally, that the Respondent was expecting to have to explain its actions, that the matter had been previously discussed with that attorney, and that the attorney had requested such an explanation In this letter , Swinehart listed five reasons for Polz- kill's discharge (some of which he had mentioned to Polzkill at the time of his discharge) 1. The switch in address labels resulting in cross deliveries which occurred in April and which was just as likely the error of Kefalas as it was of Polzkill 2. "Insubordination " This was explained. "Assigned job of sweeping work area of warehouse floor was not completed on May 26, 27, 28, 29 and June 6. When asked why task was not completed, his answer was that he was doing other duties that should have been completed earlier." I find no truth in this allegation if it referred to the area about Polzkill's bench, and if it referred to the entire warehouse floor, obviously the criticism could not apply on each date, since the entire area would have been swept only on Fridays. In any event , I credit Polzkill's testimony. 3. "Lax in entire effort of job," under which were listed five alleged instances thereof: "(a) June 10, failed to pack an item for Target Store No. 5." It should be remembered that it was not the duty of the shipper to check to see that each item on the order was packed. That was the duty, first, of the one who pulled the merchansise , and, second, of the foremen , who was supposed to look over the items before Polzkill would take what was sent to him via the conveyor belt and pack them. Since the Respondent had already decided to discharge Polz- kill before June 10, I conclude that this item was fabricated to make it appear that there was cause on the very day of discharge. This was not testified to have been a cause which Swinehart and related to Polzkill at the time of his discharge. "(b) Slowed down noticeably in the last three to four weeks. Before this time he was able to keep packing work completed, and have time to do other odds and ends. Recently he could not keep up the packing of merchandise." This was not substantiated by Swinehart. Kefalas testified that Polzkill's production would depend on the number of orders received, that on some days they might pack five boxes and on other days 20 to 25. Some records of production were produced by the Respondent, but Kefalas testified that they were not reliable evidence of the amount of work Polz- kill did for this very reason. The Respondent's busi- ness was seasonal and in June was down from what it had been If Polzkill's production, in fact, was slower, it must be remembered that after May 27, Kefalas gave Polzkill less assistance than before Polzkill testified that after that date Kefalas spent MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES most of his time in the office or in the lunchroom. Polzkill was never told he was slowing down Because the evidence as a whole indicates that the Respondent's representatives who testified about Polzkill's production either fabricated or exag- gerated, I do not credit their testimony that Polz- kill's production went down because of any change in Polzkill "(c) Killing of time when taking loads to dock Talking with drivers after being in- structed to set load on dock, and let the driver handle loading " When Polzkill first started at the warehouse he and Kefalas would assist the truckdriver in loading the truck and would converse with him. Koenig came up once while they were doing this and told them not to help the driver because he was being paid to load the truck The instruction to Polzkill not to talk to the truckdriver was given by Kefalas, who testified that his order referred only to talking to the truckdriver after the truck was loaded and its doors were closed, because talk at that time just delayed the delivey. Polzkill testified that he fol- lowed these instructions of Koenig and Kefalas This alleged cause for discharge I regard as a dredging up of ancient history, yet it is worded as though it was a constant cause for complaint I find that this alleged cause was stated in this way to create a false impression "(d) Sitting on counter in mornings rather than attending to duties that needed completing " This criticism, I conclude from all the testimony, arose because, after Kefalas had ceased to drive Polzkill to work, and after it had become apparent that Swinehart was keeping track of the arrival time of Polzkill and Mooney, Polzkill had made a special point of arriving early At such times, he would sit on his bench to await starting time or an assign- ment Swinehart on at least one occasion came back into the warehouse and observed Polzkill sitting on his bench. How often this might have oc- curred is not clear, but Polzkill testified that Swinehart never came back to the warehouse dur- ing working time and found him sitting on a bench if there was any work assigned to him at the time. In his testimony, Swinehart omitted to testify (as he had stated in his letter to the attorney) that his catching Polzkill sitting on his bench was "in the morning " I find that Swinehart was consciously at- tempting to avoid a deduction that the complaint referred to a practice occurring before 8 a.m I find no valid basis for this alleged ground for discharge. "(e) On June 4, failed to send a packing slip to Bob's Florette, Ft Collins, Colorado." Polzkill testified that Swinehart had never men- tioned this to him and that he, himself, had never heard of it. I find that this alleged reason for discharge was attempted make-weight If there was such an omission, I find that Swinehart did not know if it and did not mention it to Polzkill as a 213 cause for his discharge, and there was no testimony about any such complaint from a customer. The Respondent, at the hearing, attempted to portray Polzkill as wasting time, talking in the aisles with Mooney, and throwing paper wads. Regarding talking to Mooney, this was sometimes necessary in the course of work. Kefalas never overheard conver- sations between them But even if they were talking about the Union, there was no rule against it. The evidence indicated that there were some days when there were few orders and, on such days, the em- ployees might frequently be caught up and have time to converse. Polzkill denied that he had thrown paper wads. If Polzkill had done so, Marshall (the only one to testify about that) was not very descriptive as to size of wads or where they were thrown Conceivably, an excess of paper not needed in packing might sometimes be cast aside in wads Since Kefalas gave no testimony about this, he apparently had no complaint about it. I give Marshall's testimony concerning paper wads no weight. The General Counsel adduced evidence that, about a week after Polzkill's discharge, Kefalas' fi- ancee, Janice Furlong, spoke with Polzkill and told him that on the Friday before Polzkill's discharge, Kefalas had told her that Polzkill was going to be discharged on Monday (June 9). She told Polzkill according to her testimony and according to Polz- kill's testimony of what she told him, that she had asked Kefalas the reason for discharging Polzkill and that Kefalas had told her that it was because Polzkill was not doing his work properly and because he and Mooney were the only ones who wanted the Union Apparently, the last part was mentioned by Kefalas only after Furlong had questioned Kefalas' statement that Polzkill had not performed his work properly, because it was con- trary to what she had previously heard. Furlong further testified that on Monday, June 9, on the way home with Kefalas, she had asked him if they had discharged Polzkill that day and that Kefalas had replied that they had not done so because Polz- kill had not come to work that day. On Tuesday, June 10, according to Furlong, Kefalas told her that Polzkill had been discharged and that Mooney was going to be discharged the next day. The Respondent attacks Furlong's credibility by showing that Kefalas had been the one to break their engagement in August 1969, and by claiming that Furlong was spurred by malice to testify as she did. Although I find that Furlong was an honest wit- ness, albeit somewhat confused about dates, I find it unnecessary to rely on her testimony because, even without it, I find the evidence convincing that Polzkill was discharged because he supported the Union. After Schoenfeld quit on May 29, 1969, the Respondent used Barbara Barlow, a girl who had previously spent most of her time in the office, to help with the pricing. When the consent election was held on June 20, the eligible voters were, I 427-835 0 - 74 - 15 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presume, Polzkill, Mooney, Barlow, and Marshall. The vote was two against the Union and two ballots challenged This could easily have been predicted after Koenig had questioned Marshall and after Marshall had expressed himself as having no com- plaints, while he mentioned the complaints of Polz- kill and Mooney. Although there is no evidence that the two challenged ballots were, in fact, those of Polzkill and Mooney, it seems to be a reasonable inference 11 In any event, the timing of the changes in schedules and other changes effected by the Respondent after receipt of the Union's letter of May 23, the questioning of Polzkill and Marshall, as previously related, the Respondent's transparent ef- forts to work up causes for discharging Polzkill, the absence of any warnings to him after the one time in April, and all the surrounding circumstances convince me, and I find, that the Respondent discharged Polzkill in order to eliminate a union supporter, thus discriminating in regard to his hire and tenure of employment in violation of the Act. 3. Discharge of Kathleen Mooney a. Description of pricing Respondent's business was the sale and delivery of artists' and enginerring supplies. Its principal customers were discount houses and the most prominent of these was called Target Stores, with places of business in various cities in the United States. Target and a few other customers required prepricing of the merchandise it purchased This meant affixing price stickers to each item of sale. To do this, it was often necessary to remove the merchandise from the boxes they came in, affix the price sticker to each item in the box, and replace them. To facilitate this pricing work, Target had sup- plied the Respondent with a pricing machine on which could be set, by dials, the department number, the price, and the number of tickets to be run. The Respondent had considerable difficulty with this machine, which had certain idiosyn- crasies-one being that jarring with one's elbow might change the department number it was sup- posed to print, while another was that the machine always printed one ticket more than it was set for, and this ticket would remain on the machine until the next run. Care had to be taken, therefore, to remove the extra ticket when a new run was made. b. Mooney's employment history Mooney was hired in mid-January 1969, about the time Polzkill was hired and before Marshall was 'i In a letter from Respondent's attorney, Sidney Tellis, to the Regional Director, dated June 12, 1969, the writer stated "I am sure it will be the position of the Employer to question the votes of the Employees who have been recently discharged at the upcoming vote for unionization - 11 During Mooney's period of employment, Diana Wynia, Chantal hired. She spent most of her time on pricing. Some- times she pulled merchandise. She was one of the few employees who could pull. Her duties also in- cluded sweeping the floor around her place of work and cleaning the lunchroom. In the period of Mooney's employment, other girls, during separate periods,12 assisted her in pric- ing, and sometimes the Respondent hired tempora- ry girls for a day or two at a time for that work. When two girls were pricing, one would usually run off the tickets while the other would start pric- ing. When the machine run was finished, the two of them would put the tags on the merchandise. Once in a while, Mooney would pull merchandise, but at least during the greater period of her employment Kefalas would do the pulling. Sometimes Polzkill would do so when he had time. I judge that Mooney did more pulling toward the latter part of her em- ployment than in the first part. Sometimes the girls would make mistakes as a result of a failure to remove the last ticket from a previous run, an unnoticed change of the dial for the department number, putting stickers on removable tops of certain merchandise (a practice proscribed by Target because caps with different prices on them might be changed). Sometimes the puller would pull the wrong quantity, and this could affect the pricing. Mistakes in pricing were usually discovered be- fore the merchandise left the premises but occa- sionally they were not, and then the Respondent would receive a complaint from the customer. At such a time, Swinehart would go back to the warehouse or would notify Kefalas, and would call attention to the complaint. Because of the practice of the pricers to price together, it was rarely possi- ble to ascertain who had made the mistake; so no individual pricer was blamed. They would be cau- tioned together, or collectively if there were more than two During the winter months-February or March- Mooney was warned by Kefalas once or twice about being late. She drove to work and sometimes would get caught in a traffic jam. She testified that she was late about once a month Mooney also testified that she was not docked for being late but would stay late to make it up. At the same time that he warned her about being late, she testified, Kefalas also warned her that she would be discharged if she made another mistake like a recent one when the wrong department number had appeared on the price stickers.13 Mooney testified that she was not late in May, and I find that she was either not late or was at least not late enough to be warned about it. Schoenfeld , and Barbara Barlow , during different periods , assisted Mooney in pricing at different periods of time " This did occur once thereafter, but that time Kefalas put the blame on the machine MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES One week in February , Mooney had asked for and been given 4 hours off to get her driver's license . As a result , she worked only 36 hours that week The following week , she testified , she worked 44 hours but was paid for 80 hours for the two weeks at the straight time rate. c. Mooney's union activity and her discharge Mooney testified without contradiction that she once asked Kefalas, while in the lunchroom, if he did not think they needed a union. His answer was No." As previously related , Mooney attended the meeting at Polzkill 's apartment on May 20 and signed an authorization card for the Union. The Respondent 's reaction , upon receipt of the Union's letter of May 23, has already been related. I have previously related also how Marshall told Koenig that Polzkill and Mooney were the only ones who had grievances , and, I deduce , thereby gave the im- pression that they were the only ones (after Schoenfeld had quit on May 29 ) who wanted the Union For a week between June 3 and 10, 1969, Swinehart made a note of the time of Mooney's ar- rival . He noted that on June 3 she entered the front door at 8:02 a.m., on June 4, at 8:01 a.m., on June 5 and 9 , at 8:04 , and on June 10, at 8:02 a.m. Since he made no notation for June 6, it may be assumed that Mooney was not tardy at all that day It is conceded by the Respondent that Mooney was discharged on June 11, 1969, one day after Polzkill 's discharge The reasons given by Swinehart in his testimony were "mistakes and being late " Kefalas testified that he did not initiate the discharge of either Polzkill or Mooney, al- though he had discussed both Polzkill and Mooney with Swinehart . (He was unable to remember the date of his discussion.) I deduce that Swinehart consulted Kefalas about these two employees because he wanted to discharge them and he was looking for reasons to rely on in an attempt to justi- fy such discharges. Kefalas testified that Swinehart seldom came back into the warehouse but would rely on him for information. Hence, I infer, when Swinehart decided to discharge Polzkill and Mooney, he had to get Kefalas to relate all the mistakes and faults that might be attributable to the two. There is reason to believe that Swinehart did not always understand what Kefalas had told him about those mistakes and did not remember all of them accurately It appears evident that Swinehart was attributing mistakes to Polzkill and Mooney which , if Swinehart had been honest , he would have had to say could have been committed by other em- ployees. Swinehart , himself, recognized the difficul- ty in fixing blame for errors because of the fact that the employees changed around in what they were doing. Yet he did not hesitate to put the entire blame for errors on Polzkill and Mooney regardless 215 of that difficulty, and he took it upon himself to in- itiate the discharges with no prior recommendation to that effect from Kefalas, the man who was in a position to make such a recommendation , if war- ranted. Swinehart testified that right after he received the Union 's letter demanding recognition, he noticed a distinct change in attitude on the part of both Polzkill and Mooney . With respect to Mooney, Swinehart testified that her change in attitude was, "Well , tardiness , the main one. Errors I mean, we had previous errors, but, I mean , it seemed to get worse . I can't really say it tied in that particular time, but , I mean , they were getting worse . . we were always out there griping on the errors." The lameness of this testimony and the manner in which it was given together with other facts herein re- lated , convinced me that there was no change in Mooney's performance and that any change that had taken place was a change in Swinehart's at- titude. From all the evidence , I deduce that strict promptness had never been one of Mooney's at- tributes , but it is evident that , until it heard from the Union, the Respondent had apparently tolerated her tardiness when it was no more than 5 minutes, because she was never warned by Kefalas at such times . The only time when Kefalas had warned her was when she had been 10 to 20 minutes late on one or two occasions when she had been tied up by traffic conditions during the winter. It was not until after the Respondent had received the Union 's letter requesting bargaining that Swinehart became concerned with Mooney 's tend- ency to be a few minutes late. Then , as previously related, he undertook to make a record of it. Mooney testified that there was only one error, occurring during the middle of her employment, for which she was personally blamed . The wrong de- partment number had been printed on the price tags, apparently as a result of the jarring of the price tag machine The error was discovered before the merchandise went out, but it was a rush order, and it took three people to reprice the goods On a later occasion when the wrong department number had appeared, Kefalas had blamed the machine There were occasions when the girls were cau- tioned , as a group , about pricing errors, but there is no evidence of more than the one for which Mooney was personally critized. On June 12, the day after Mooney's discharge, Swinehart wrote to the Respondent 's attorney, as he had done in Polzkill's case, giving the reasons for Mooney 's discharge These were stated as 1. Arrived late for work constantly: Late on June 3, 4, 5, 9, and 10 Late arriving back to duty from lunch on June 10. Lateness in returning from lunch was not men- tioned in the testimony of any of the witnesses. If such lateness occurred, it does not appear how late 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or the reasons therefor 14 Swinehart did not even testify that he had mentioned this to Mooney at the time of her discharge. 2 Mis-marked merchandise : (See copy of note of complaint from customer.) Warehouse foreman noted additional price errors on May 27. There is no evidence as to what was meant by addi- tional price errors noted by warehouse foreman If there were any, Mooney was not necessarily the one who committed them 3 Shortage and excess merchandise pulled on customer orders . Warehouse foreman found shortage of merchandise on June 10. Excess merchandise was found on May 29, June 9, and 10. There is only one memorandum concerning an overage which was introduced in evidence. As previously stated , the blame for overages or shortages should have been on the puller or on Kefalas. It was not shown that Mooney was the puller at such times as errors were made. In the final paragraph of his letter , Swinehart stated that "Employee records are available if further informa- tion is needed...." The Respondent was unable to produce many of its records when they were sub- penaed 15 No record of production of Mooney for the period mentioned was produced and no one specifically testified as to these matters. Swinehart's letter is, therefore , without testimonial support and no better than hearsay evidence, and I do not give it any weight , especially since I noted a tendency on Swinehart 's part to exaggerate and bend the facts. Considering the weakness of Swinehart's testimony , the timing of the change in Respondent's attitude with respect to the time of receipt of the Union's letter of May 23, an attitude indicating an intention to crack down on the employees , the fact that Kefalas had not warned Mooney about her tardiness in recent months ( indicating that he would warn her only if she were more than 5 or 10 minutes late), the lack of any egregious errors or faults on Mooney 's part in more than a month, is and all the evidence , I find that Respondent's al- leged reasons for Mooney 's discharge were pretexts and that Mooney , as was Polzkill , was discharged because of her support of the Union. By such discharge , the Respondent discriminated in regard to her hire and tenure of employment in violation of the Act D The Refusal To Bargain 1 The appropriate unit The complaint alleges and, at the hearing, Respondent conceded that a unit composed of all Respondent's employees, but excluding office cleri- cal employees, salesmen, guards, professional em- ployees, and supervisors as defined in the Act is ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act I so find. 2 The Union's majority On May 20, 1969, four employees, the only non- supervisory employees who regularly worked in the warehouse, signed authorization cards for the Union No question is raised as to the purpose of these cards. Three employees delivered their cards to the Union that night and the fourth mailed his to the Union on the following day. These four em- ployees were still in Respondent's employ on May 26, when the Respondent received the Union's letter requesting the Respondent to bargain collec- tively with it. Since I find that any loss of majority thereafter was attributable to the Respondent's un- fair labor practices, I find that all times material hereto the Union was and is the majority represen- tative of all employees in the appropriate unit within the meaning of Section 9(a) of the Act. 3. The refusal to bargain As previously mentioned , the Respondent received the Union 's request to bargain on May 26, 1969, and turned this letter over to Respondent's attorney , Sidney Tellis. The latter, on May 27, 1969, wrote a letter to the Union stating: Mr. Koenig at this point is in no position to make decisions concerning the unionization of these persons Since I have just received this correspondence , I would like to confer with my clients concerning this matter For the reason given, the letter continued, the Respondent declined an early meeting as requested by the Union and promised to communicate further in a few days. On June 2, 1969, as previously stated, the parties entered into an agreement for consent election to be held on June 20 . 17 Meanwhile , however , Polzkill " Although one of Mooney 's duties was cleaning the lunchroom, there is no evidence as to when she performed this task 15 Swmehart testified that the records had been assembled but had disap- peared before the date of the hearing 16 Respondent introduced in evidence a customer complaint dated June 5, 1969, stating that jars were ticketed on the lid, that some merchandise received had not been ordered, and that there was merchandise which had not been ticketed From this , it cannot be ascertained if the jars that were ticketed on the lid had the kind of lids that could be easily removed and exchanged There were some lids that could not be so transferred In their case, no reason for not pricing on the lid would appear Mooney testitied that in such cases they always ticketed on the lid to save the time of remov- ing and replacing each bottle or container in the container box The inclu- sion of merchandise not ordered, as already mentioned, would be the fault of the puller or of Kefalas, who was supposed to be watching for errors like that It was not shown who the puller was Without such evidence, the com- plaint could not properly apply to Mooney Because the signer of the memorandum did not testify, I am not satisfied that the listed complaints referred to any errors of recent commission or that the memorandum was unsolicited by the Respondent " As previously stated, the Union had filed a petition for ccrtitication with the Board on May 23, 1969 MICAHEL'S ARTISTS AND ENGINEERING SUPPLIES and Mooney were discharged. The election was held. The result was two votes against the Union and two challenged ballots The Union thereafter filed timely objections to conduct affecting the results of the election and the Regional Director or- dered a hearing thereon. Since the Regional Director did not specifically direct a hearing upon the challenged ballots and since I can only surmise who made the challenges and of whose ballots, I do not decide whether or not such ballots should be counted. I surmise that if they were counted, the result would be a tie. However, I find that the Respondent's conduct which has been herein found to constitute interference, restraint, and coercion as well as that constituting discrimination has inter- fered with the conduct of a free election and I recommend that the results of the election of June 20 be set aside. Because I find that the Respondent has demon- strated a purpose to interfere with the freedom of the employees to make their own choice of representative, I find that the Respondent's conduct herein found to be unfair labor practices was tan- tamount to a refusal to bargain I find that by such refusal, the Respondent has committed an unfair labor practice within the meaning of Section 8(a)(5) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial rela- tionship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that the Respondent has committed certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to ef- fectuate the policies of the Act. The affirmative ac- tion shall consist of the posting of an appropriate notice, offering reinstatement and backpay to Polz- kill and Mooney, and bargaining upon request with the Union. The latter I find to be required in order to effectuate the purposes of the Act, for I find that the unfair labor practices committed by the Respondent were of such a coercive nature that, even had there been no refusal to bargain, a bar- gaining order would be necessary to repair the un- lawful effects of these unfair labor practices. Furthermore, I find that the aforesaid unfair labor practices and the Respondent's demonstrated pur- pose to thwart the policies of the Act are of such a 217 character as to render a second election of unrelia- ble value in determining the wishes of the em- ployees.18 In any event, I find, the results of such an election would be a no more reliable test of the em- ployees' desire than the authorization cards signed by them on May 20. Hence, I consider that the poli- cies of the Act will best be effectuated by an order to bargain upon request with the Union. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following- CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. A unit composed of all Respondent's em- ployees, but excluding office clerical employees, salesmen, guards, professional employees, and su- pervisors as defined in the Act constitutes a unit appropriate for the purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. 4. On May 26, 1969, the Union was, and at all times material thereafter has been, the majority representative of all employees in said appropriate unit within the meaning of Section 9(a) of the Act 5. On and at all times after May 26, 1969, the Respondent has refused and continues to refuse to bargain collectively with the Union, although requested so to do, in violation of Section 8(a)(5) of the Act 6 By discriminatorily discharging Bernard Polz- kill and Kathleen Mooney because of their support and advocacy of the Union, Respondent has discouraged membership in a labor organization within the meaning of, and in violation of, Section 8(a)(3) of the Act. 7. By questioning employees concerning their union activities and attitudes as well as by the con- duct in paragraphs 5 and 6, immediately above, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommended that Michael's Artists and Engineering Supplies, Inc., its officers, agents, successors, and assigns, shall. 1. Cease and desist from: (a) Interrogating employees concerning their union membership, views, activities, or support of any labor organization, or their reasons therefor, or " See Chris Christou dlbla Solvay Baking Company, 180 NLRB 418 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. (b) Discharging or otherwise discriminating in regard to the hire or tenure of employment of any of its employees because of their membership in, or activities, support, preference, or sentiments for, a labor organization. (c) Refusing to bargain collectively with the In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452, or any other labor organization chosen by a majority of its employees in an ap- propriate unit. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Bernard Polzkill and Kathleen Mooney immediate and full reinstatement of their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make said Polzkill and Mooney whole for any loss they may have suffered as a result of the discrimination against them by paying them a sum of money equal to that which each would have earned in Respondent's employ, but for the dis- criminatory discharge, less their net earnings else- where between the dates of the respective discharges and the date of the respective offers of Respondent to reinstate them, said sum to be com- puted in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, together with interest on the net amount found due at the rate of 6 percent per annum in accordance with the Board's decision in Isis Plumbing & Heating Co., 138 NLRB 716. (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 In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452, as the exclusive representative of the employees in the unit herein found appropriate, and, if an understanding is reached, embody it in a signed agreement (e) Post at its place of business in Denver, Colorado, copies of the attached notice marked "Appendix."" Copies of said notice, on forms pro- vided by the Regional Director for Region 27, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding 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. (f) Within 20 days from the date of receipt of this Decision, notify the Regional Director, in writing, what steps the Respondent has taken to comply herewith.20 19 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading " Posted by Order of the Na- tional Labor Relations Board" shall be changed to read " Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 20 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 27, in writing , within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees col- lectively or severally concerning their union membership, or their activities on behalf of, or in support of, any labor organization, or their reasons therefor. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , to bar- gain collectively through representatives of their own choosing, or to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL NOT discharge any of our em- ployees or otherwise discriminate in regard to their hire or tenure of employment because of their membership in, or their activities, sup- port, preference, or sentiments for, any labor organization. WE WILL NOT refuse to bargain collectively, upon request, with a duly designated collec- tive-bargaining representative of our em- ployees in an appropriate unit. WE WILL offer immediate and full reinstate- ment to Bernard Polzkill and Kathleen Mooney without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of pay they may have suf- MICHAEL'S ARTISTS AND fered as a result of our discrimination against them. WE WILL, upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 452, as the exclu- sive representative of our employees in the unit described below with respect to rates of pay, wages, hours of employment, and other condi- tions of employment and, if an understanding is reached, we will embody it in a signed agree- ment The appropriate unit is: All employees at our Denver place of busi- ness, but excluding office clerical em- ployees, salesmen, guards, professional employees, and supervisors as defined in the National Labor Relations Act, as amended MICHAEL'S ARTISTS AND ENGINEERING SUPPLIES, INC. ENGINEERING SUPPLIES 219 (Employer) Dated By (Representative) (Title) Note We will notify the above-named 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 Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions, may be directed to the Board's Office, 260 New Custom House, 721 19th Street, Denver, Colorado 80202, Telephone 297-3551.