State Electric Supply Co.

STATE ELECTRIC SUPPLY CO. State Electric Supply Company and Local No. 21, United Bakery Workers Retail, Wholesale and Department Store Union, AFL-CIO. Case 9-CA-5530 December 8, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 27, 1970, Trial Examiner Sidney Sherman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, State Electric Supply Company, Huntington, West Virginia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. I As the record, exceptions, and brief adequately presents the issues and positions of the parties, the Respondent's request for oral argument is hereby denied 2 In adopting the Trial Examiner's finding that the Union had a valid majority of authorization cards, we do not rely on the observations in footnote 15 of the Trial Examiner's Decision TRIAL EXAMINER'S DECISION SIDNEY SHERMAN, Trial Examiner: The instant charge was served on Respondent on February 13, 1970,1 the complaint issued on March 25, and the case was heard on I All dates are in 1970, unless otherwise indicated 2 For corrections of the transcript, see the order of June 24 73 May 12. Briefs were filed by Respondent and the General Counsel. The issues litigated related to alleged violations of Section 8(a)(1) and (5) of the Act. Upon the entire record,2 the following findings and recommendations are made: 1. RESPONDENT'S BUSINESS State Electric Supply Company, herein called Respon- dent, is a West Virginia corporation , and is engaged in the business of selling electrical supplies , at wholesale, through two supply houses in West Virginia, including one in Huntington, which is the only one here involved. Respon- dent annually ships to out-of-State customers goods valued at more than $50,000. It is engaged in commerce under the Act. II. THE UNION Local No. 21, United Bakery Workers Retail, Wholesale and Department Store Union , AFL-CIO, hereinafter called the Union, is a labor organization under the Act. III. THE UNFAIR LABOR PRACTICES The pleadings raise the following issues: 1. Whether Respondent violated Section 8(a)(1) by threats of reprisal and interrogation, by soliciting the employees to abandon the Union, and by offering an employee an inducement not to testify in the instant proceeding? 2. Whether Respondent unlawfully refused to recognize the Union? A. Sequence of Events Respondent has about 40 employees in its electrical supply business at Huntington, West Virginia, the bulk of whom work in its warehouse and as inside salesmen. On February 5, Union Agent Johnson gave a number of union cards to Walker, a warehouse employee, who on February 11, returned 19 signed cards. About 7:30 the next morning Respondent's secretary-treasurer, F. Weisberg, having learned of the solicitation of employees on behalf of the Union, addressed a group of 15 to 18 employees, and told them inter aka, that any one who was not happy with his job was free to resign, in which case he would receive 2 week's pay. Also, A. Weisberg, Respondent's president, suggested to the same group of employees that morning that they form their own committee for the purpose of presenting grievances to Respondent. About 8 o'clock the same morning, Manager Merrit told the assembled employees that Respondent could not operate with a union and would probably have to shut down. There was conflicting testimony as to whether Merrit, in addition, threatened discharge if the men did not abandon the Union, and whether he finally ordered them to withdraw their support of the Union or "punch out." At any rate, about 9 a.m., at least 19 employees3 did punch out and absented themselves from work. Later the same day, 3 Rider testified to 19, Johnson gave the figure as at least 21 . There is no need to resolve this conflict 187 NLRB No. 9 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Johnson twice contacted Respondent's manager, Merrit, and requested recognition of the Union as the bargaining representative of the employees. There was conflicting testimony regarding Mernt's response, which will be discussed below. The next day, February 13, the Union sent a wire to Respondent, in which, purporting to speak as the representative of the employees, it stated that they desired to return to work. The same day, Respondent replied by letter, expressing its readiness to reemploy the men, but taking pains to disclaim any intention of recognizing the Union as their representative. The men returned to work on the 16th. Respondent has not recognized the Union. B. Discussion 1. The procedural issue At the outset, Respondent attacks the sufficiency of the charge. The original charge herein, filed on February 13, alleged that Respondent had violated Section 8(a)(1), (3), and (5) of the Act, but specified as the basis of the charge only certain discriminatory discharges. However, the charge concluded with the allegation that Respondent had infringed on the employees' rights under Section 7 of the Act by "the above and other acts and conduct." At the opening of the instant hearing, on May 12, it was agreed that the Regional Director had either dismissed or permitted withdrawal of the foregoing 8(a)(3) allegation in the charge,4 and the General Counsel offered in evidence an amended charge, which had just been filed and which alleged violations of Section 8(a)(1) and (5), setting forth in appropriate detail the basis for these allegations. Respon- dent objected to the amended charge on the ground of surprise. However, it is clear that the contents of the complaint afforded adequate prior notice of the basis of the 8(a)(1) and (5) allegations in this proceeding and that Respondent therefore had adequate opportunity to prepare its defense. In its brief, Respondent takes a somewhat different tack, contending that the original charge was defective in that, with respect to the 8(a)(1) and (5) allegations, there was no compliance with the instruction on the charge form that specific reference be made therein to relevant "facts, names, addresses, plants involved, dates, places, etc." However, in Cromwell Printery Incorporated, et al.,5 the Board rejected an identical contention, on the ground that the requirement of specificity in the charge form (as well as in Section 102.12(d) of the Board's Rules 4 Respondent's brief purports to reproduce the Regional Director's letter of March 19, which indicates a dismissal of the 8(a)(3) allegation of the charge and asserts that the other allegations "remain under consideration for further processing " 5 172 NLRB No 212 (TXD) 6 See also David B Klain, 127 NLRB 776, Plains Cooperative Oil Mill, 154 NLRB 1003, 1004-05 r In its brief, Respondent contends it was prejudiced by the late filing of such amended charge However, Respondent fails to state how it was prejudiced by an amendment which merely supplied certain details in support of the 8 (a)(1) and (5) allegation There is some suggestion in Respondent's brief that, had the amended charge been filed earlier, the Regional Director would have been afforded an opportunity to investigate the basis therefor and would have dismissed such charge for lack of merit This contention assumes that, before issuing the instant complaint, the Regional Director did not properly investigate the merits of the 8(axl) and and Regulations) went beyond the requirements of the Acts In any event, any lack of specificity in the original charge herein was cured by the amended charge.? Accordingly, Respondent's objection to the adequacy of the charge is rejected. 2. The 8(a)(1) issues a. F. Weisberg Lambert testified that about 8 a.m. on February 12, F. Weisberg, Respondent's secretary-treasurer, addressed 15 or 16 warehouse employees, stating that, if they did not "call off" the Union, they would be discharged, threatened to cancel Blue Cross and other benefits, and declared that any employee who wanted to leave would be given 2 weeks' "extra" pay. Mays' version of this speech was that F. Weisberg asserted that there would be no union in Respondent's establishment under any circumstances, that existing hospitalization benefits would be abolished, and the employees could have 2 week's pay and quit. According to Poindexter, F. Weisberg on that occasion asked the employees who started the Union, declared he would not have a union, threatened to shut down, and declared that anyone not satisfied with hisjob could receive 2 weeks' pay and leave the premises.8 F. Weisberg explained that the occasion for his remarks on the 12th was a report he received from his brother (A. Weisberg) that two employees had been threatened by a union solicitor. While denying that he uttered any of the other remarks ascribed to him by the employee witnesses, F. Weisberg admitted that he told the men that they did not need a Union, urged them to reconsider, and offered to discuss their problems and "do anything we can to help them." He admitted, also, the offer of 2 weeks' pay to any employee who was not happy and wished to resign, but insisted that this was merely a statement of Respondent's long-standing policy of making such payment to any employee who quit for personal reasons. However that may be, the fact remains that in the midst of a union campaign, and in the context of an antiunion speech, Respondent admittedly did invite any malcontents to quit, offering them an inducement to do so in the form of 2 weeks' pay. Under the circumstances, it must have been clear to the employees that the foregoing invitation was addressed to the union adherents among them, and that the message that was being conveyed was that such adherents were persona non grata and their departure would be welcome. Thus, (5) allegations in the original charge The only apparent basis for this assumption is that the more detailed amended charge was not filed until after the complaint issued However, the fact remains that, without the aid of a detailed charge, the Regional Director developed sufficient evidence to enable him to draft a complaint, which set forth in adequate detail the alleged violations of the Act Under these circumstances, one cannot assume that the delay in filing the amended charge precluded the Regional Director from conducting a proper investigation Nor is there any reason to suppose, in any event, that he would have reached a different conclusion as to the merits of the original charge if the amended charge had been sooner filed , for, the latter instrument does not conflict with, but merely amplifies, the former " Employee Dunford testified that on that occasion either Fred Weisberg or his brother, Arthur, told the employees to renounce the Union or they would all "go " STATE ELECTRIC SUPPLY CO. 75 even if one accepts F. Weisberg's version of his speech, it would be necessary to find that it was calculated to serve as a warning to the employees that union adherents had no future with Respondent and that it would take advantage of any opportunity to hasten their departure. It follows that by such conduct Respondent violated Section 8(a)(1). Moreover, on the basis of demeanor, I credit the mutually corroborative testimony of Lambert and Mays that on that occasion F. Weisberg warned that certain benefits would be withdrawn in reprisal for employee union activity, and the testimony of Lambert, which was substantially corroborat- ed by Poindexter, if not by Mays, that F. Weisberg threatened that adherence to the Union would result in loss of employment.9 It is accordingly found that by such threats Respondent additionally violated Section 8(a)(1) of the Act. b. Merrit In the morning of the 12th, Manager Merrit arrived at Respondent's premises just as F. Weisberg was completing his remarks to the employees, and Merrit took over at that point. On the basis of the mutually corroborative testimony of Lambert, Poindexter, and Rider, it is found that Merrit, on that occasion, declared that the employees would have to choose forthwith between giving up the Union or giving up their jobs. I find further that, as Rider testified, and Merrit, himself, in effect admitted, he threatened that Respondent would shut down rather than deal with a Union.10 Rider testified, also, that both he and Walker were interrogated on the same occasion about their solicitation on behalf of the Union. Merrit professed to be unable to recall any such interrogation, but admitted that he might have asked the assembled employees what the Union could do for them. Even such interrogation, in the context of the threats described above, would be coercive. Moreover, absent any unequivocal denial by Merrit, I credit Rider's testimony as to the interrogation of himself and Walker, and it is found that by such conduct, as well as by the threats uttered by Merrit, as found above, Respondent additionally violated Section 8(a)(l). The complaint alleges that on February 12 Respondent's 9 Poindexter's testimony about a threat to shut down, in the context of an antiunion speech , is little different in substance from Lambert's testimony about a threat to discharge all those present, if they did not abandon the Union. While Mays mentioned only an assertion that Respondent would not operate under a Union under any circumstances, such remark was readily construable as meaning that rather than deal with a Union Respondent would discontinue its operations . It is unnecessary to decide whether F. Weisberg uttered all the variations of the same theme thus ascribed to him by the three employees. It suffices that all three were in agreement that in one form or another he expressed the thought that union activity was incompatible with the maintenance of existing operations and existing employment opportunities . (Since there was no evidence that Arthur Weisberg made any similar threat, it is found that Dunford's testimony (see preceding footnote) had reference to a remark made by Fred Weisberg, and it is to that extent corroborative of the like testimony by the other three witnesses on this point.) 10 Merrit's version of his remarks was that he stated only that Respondent would be "forced to shut down " because "it couldn't have a union in this type of business." At a later point in his testimony, Merrit added that he explained to the employees that Respondent could not remain competitive under a union . Even if one credits such testimony, Merrit's remarks would not qualify as a prediction of economic warehouse foreman, B. Mills, "informed employees to form a group and decide on giving up all activity for the Union." Rider testified that at the conclusion of Merrit's remarks on the 12th, B. Mills, an admitted supervisor, instructed the assembled employees to caucus privately and decide whether they would renounce their union activity or walk out, that the employees did caucus, that Walker reported to Merrit and B. Mills, that the employees had decided to go out on strike, and that 19 employees then left pursuant to this decision. Poindexter confirmed that the employees caucused in private that morning to consider Merrit's ultimation that they choose between their jobs and the Union, and elected to walk out rather than give up the Union. However, Poindexter was silent as to any involve- ment by B. Mills in the incident. Lafferty agreed that there was such a caucus, which resulted in the walkout, but insisted that the caucus was suggested by F.-Weisberg rather than B. Mills. Dunford's version was that the walkout was in response to an ultimatum by the Weisbergs to renounce the Union or quit. B. Mills denied that he suggested the caucus, and Merrit's version was that the employees asked for permission to discuss in private among themselves whether to remain at work or walk out in support of the Union, that he and B. Mills then left the room, and that they were thereafter told by the employees that they had decided to walk out. It is clear, therefore, that, while there was general agreement that the employees caucused on the question of what action to take with regard to the Union, and that they told management that they had decided to walk out as a demonstration of their adherence to the Union, there was conflicting testimony as to who instigated the caucus, and as to whether it was suggested by management or originated with the employees. It would serve little purpose to resolve this conflict, since it has already been found that Merrit had earlier given the employees a choice between quitting the Union or theirjobs,ll so that all that is involved here is the question whether B. Mills in effect seconded this ultimatum by urging the employees to consider those alternatives in a private caucus. As any finding on that point would not affect the remedy, I do not pass on the allegation as to B. Mills. A. Weisberg admitted that, as consequences beyond Respondent's control , under the test laid down by the Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575. There, it was held that, to qualify as such a prediction, the employer's statement "must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization." Here, there is no evidence or claim that any such decision had actually been made, and to assert, even before the Union had made any demands, that unionization would so far impair Respondent's competitive position as to force it to close is not, so far as the record shows, a statement of "demonstrably probable consequences" or, as the Court put it elsewhere in its opinion , a "reasonable prediction based on available facts." See Rounsaville of Nashville, Inc., 182 NLRB No. 89; General Electric Wiring Devices, Inc., 182 NLRB No. 130. 11 Although the caucus was apparently for the purpose of considering what action to take in response to this ultimatum , I do not construe the walkout as a mass resignation, but, in view of Rider's aforenoted testimony that Walker advised Merrit that the employees had decided to strike in support of the Union, and in the absence of any evidence of any other purpose of the walkout, it is found that it was in fact a strike rather than a mass quit. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD related above, in the morning of the 12th he suggested to a number of employees that they form a committee for the purpose of presenting grievances to Respondent. The clear implication of this was that such action would obviate the need for representation by an outside union. While this was not alleged as a violation, the matter was sufficiently litigated and was sufficiently related to other allegations of the complaint. Accordingly, it is found that by the foregoing suggestion Respondent further violated Section 8(a)(l).12 3. The 8(a)(5) issue a. The appropriate unit The complaint alleges, it was in effect stipulated at the hearing, and it is found, that the following unit is appropriate for collective bargaining: All Respondent's employees at its Huntington, West Virginia, location, including inside sales personnel, ware- house employees, and miscellaneous truckdrivers, but excluding all outside salesmen, office clerical employees, and supervisors as defined in the Act. b. The Union's majority status It was agreed at the hearing that on February 12, there were 31 employees in the foregoing unit,13 and there were received in evidence 21 cards, which were duly proved to have been signed by such employees. Of these cards 19 were signed and delivered to the Union before the 12th, and 214 were signed and delivered to the Union in the morning of the 12th, after the mass walkout. The cards contained no reference to an election, purporting only to be applications for membership in the Union and authorizations of the Union to represent the subscribers in collective bargaining concerning terms of employment. Virtually all the signatures on the cards were obtained by Walker, who testified that, in supplying him with the cards, Union Agent Johnson explained (a) that they would be submitted to the Board's Regional Office to "verify" that the Union had the support of the employees, (b) that at the same time the Union would seek recognition from 12 The complaint was amended at the hearing to allege unlawful inducement of Rider by A Weisberg not to attend the instant proceeding Rider testified that a week before the instant hearing, when Rider referred to the fact that he was going to attend such hearing, A Weisberg offered him one week's pay to stay out of court A Weisberg admitted that Rider indicated his intention to testify at the hearing but denied that he was offered any inducement not to appear The witness added that Rider on that occasion made some remarks indicating a vindictive attitude toward Respondent As Rider did not dispute the latter testimony , I am reluctant to credit him wherever contradicted, absent corroborating testimony or circumstances. Accordingly, it will be recommended that this allegation be dismissed. 13 G. C. Exh. 4 lists 33 names, but it was stipulated that two were employed at another location 14 The cards of Mays and Booth is While the Board, with court approval, does not give any weight to testimony by a card signer concerning his subjective intent, where such testimony is offered to "negative the overt action of having signed a card" (Levi Strauss & Co, 172 NLRB No. 57, Joy Silk Mills, inc. v N LR B, 185 F.2d 732 (C.A D.C )), the reason for this is the unreliability of such a recantation by an employee "under the scrutiny of company counsel and officials" (N L R B v. Southbridge Sheet Metal Works, 380 F 2d 851 (CA 1), NLRB v Preston Products, 392 F 2d 801 (C A D C )), and Respondent, and (c) that, if that was refused, the men would walk out and the Union would then seek an election. Walker averred that he repeated this explanation to any employee who asked about the purpose of the cards. Although he pleaded inability to recall what other reference he may have made to an election, Walker insisted that he did not say that the cards were needed for an election or that there would have to be an election. Walker added that Johnson explained that the cards imposed no obligation on the employees other than the acceptance of union representation. Respondent seeks to invalidate certain of the cards on the ground that they were obtained by misrepresentation. Consideration of these cards follows. Booth's card was one of the two signed on February 12, after the employees walked out. He testified variously (a) that he was told only that the purpose of the card was to obtain Union recognition, and (b) that Walker represented that the only purpose of the card was to get an election. While asserting that he signed the card to get an election, the witness explained that he wanted an election as a means of obtaining representation by the Union. As already stated, Walker denied that he told any employee that the cards were needed for an election. By the time of the hearing, Walker had admittedly become disenchanted with the Union, and, being no longer desirous of union representation, had no reason to testify falsely in aid of the Union's cause. Accordingly, while Booth seemed to be a sincere witness, Walker's contrary testimony and Booth's own conflicting versions of Walker's remarks impel the conclusion that Booth either misunderstood, or was honestly mistaken in his recollection of, Walker's remarks and that Walker did not tell him that the sole purpose of the card was to get an election. In any event, it is clear from Booth's testimony that he did not sign the card because he wanted to get the union solicitor "off his back" or expected to have a chance to vote for or against the Union in a secret ballot election, after having considered the matter further, but that at the time of signing he had already made up his mind that he wanted the Union and regarded an election, if one was held, only as a means of reaffirming that decision and obtaining union representation.15 That Booth's "particularly where company officials have previously threatened reprisal for union activity " N L R B v. Gissel Packing Co, 395 U S 575, 608 There is no comparable reason for rejecting such subjective testimony where, as here, it does not negate, but dovetails with, the evidence of intent supplied by the overt act of signing and is delivered despite the open hostility of Respondent to the Union and despite prior threats of reprisal for union activity Moreover, where respondent seeks, as here, to set aside a card for false representation, it does not suffice to show only that such a representation was made. Here , as in any other branch of an jurisprudence, a misrepresentation alone will have no legal effect unless it was relied on, or, as the Board put it in Levi Strauss & Co, supra, unless there is "affirmative proof that the signing was the product of misrepresentation " (Emphasis supplied.) Thus, where a solicitor falsely states that the only purpose of the card is for an election, but the employee signs it, not because he particularly wants an election, but because he has a present desire for union representation and regards an election as an opportunity to express that desire, it cannot be said that the card would not have been signed but for the misrepresentation It is not apparent , therefore, how it can be determined that the signing of a card is the product of misrepresentation without delving into the employee's reason for signing In some cases, it may be possible to infer such reasons from objective circumstances, as where the employee contemporaneously demonstrates his present desire for union representation by joining in a strike in support of STATE ELECTRIC SUPPLY CO. 77 paramount object in signing the card was to obtain union representation is confirmed, moreover, by the objective circumstance that he joined in the mass walkout, and that he did so, as he testified, to demonstrate his desire for representation by the Union. It follows that, even if it be assumed that Walker represented the purpose of the card to be solely to obtain an election, that was not what induced Booth to sign the card, and, absent such inducement, there is insufficient basis for invalidating the card. Booth's card will be counted. Gibson, who signed on February 10, was not clear as to who solicited him, opining at one point that he did not think it was Walker, but elsewhere expressing the belief that Walker told him he could withdraw the card at any time. As the only other solicitor for the Union, so far as the record shows, was C. Stutter, who testified only that he obtained a signed card from V. Mills, and, in view of Gibson's own foregoing reference to Walker, it is inferred that he was the union solicitor in this instance. Gibson added that such solicitoi made no reference to an election, explaining only that the purpose of the card was to "get a Union in State Electric." Gibson joined in the walkout. Respondent appears to contend, nevertheless, that his card should be rejected because of the assurance given Gibson that he might withdraw the card at any time. The Board has indicated that it regards as misleading a representation that the signing of a union card imposes no obligation, because of the implication therein that no legal consequences may attach to such signing, whereas such consequences may in fact attach if a recognition demand is made on the basis of the cards while they are still unrevoked.16 However, it is difficult to see how any fault can be found with the instant statement that the cards may be withdrawn or revoked at any time. That is a correct statement of the law so far as it goes,17 and expresses no view as to the effect of such revocation on the Union's right to continue to represent the employees. I do not believe that the failure to spell out all the consequences of revocation, including the circum- stances under which revocation would affect the Union's right to continue to represent the bargaining unit, constitutes adequate ground for invalidating a card. Certainly, it cannot be said here that the unambiguous language of the card was "deliberately and clearly canceled ... with words calculated to direct the signer to disregard and forget the language above his signature." 18 In any event, since Gibson's participation in the walkout in response to Respondent's ultimatum that the employees the union, which is what happened here However, absent such objective evidence, inquiry into the employee's state of mind to determine the extent of his reliance on the misrepresentation would seem unavoidable 16 Silver Fleet, Inc, 174 NLRB No 141, Eckerd's Market, Inc, 183 NLRB No 40 i7 While there was evidence that Walker in a few cases (discussed below) refused to honor a request for return of the card, such return was not essential to revocation , it being sufficient that the employee manifested his intent to revoke , and such intent is given due effect below with respect to such cards 18 N L R B v Gissel Packing Co, 395 U S 575, 606 is He testified that he left soon after hearing Merrit's ultimatum to the employees either to repudiate the Union or punch their timecards and leave I infer from this that he left tojoin the walkout This is confirmed by the mutually corroborative testimony of Rider, Poindexter, and Merrit, himself, that all those who attended the meeting with Merrit walked out in response to his ultimatum choose between their jobs and the Union reflected a deliberate decision to cast his lot irrevocably with the Union, such participation should resolve any doubt as to the firmness of his desire for union representation. Gibson's card will be counted. Lambert, who signed on the 10th, testified variously that Walker told him the purpose of the card was (a) to "organize the Union in State Electric Supply Company," (b) "to vote a Union in," and (c) to have an election, and that after 30 days the employees would not be "obligated to anything." However, Lambert insisted that he signed, not because he wanted an election, but because he wanted a Union. He joined the walkout on the 12th to demonstrate his allegiance to the Union. 19 His case appears to be on all fours with Booth's.20 Lambert's card will be counted. Ross, who signed a card on February 10, testified variously (a) that Walker said that the purpose of the cards was to find out whether or not there were enough employees who wanted to vote for the Union, (b) that "to his understanding" Walker said the purpose of the cards was "to have an election," and (c) that Walker said that the cards were not binding to any extent. Ross joined in the walkout and insisted that he signed the card because he wanted the Union. In view of Walker's contradiction of Ross' testimony insofar as it implies that Walker said the only purpose of the card was to obtain an election, as well as the vagueness of such testimony, I find that Ross was mistaken in that regard. Walker's alleged representation that the purpose of the cards was to determine the extent of prounion sentiment would seem to be substantially accurate. As for his disclaimer that the cards had any binding effect, there was no unequivocal denial by Walker of such disclaimer and Ross' testimony to that effect is therefore credited. However, since it is clear from Ross' testimony, as well as his conduct in joining the walkout, that he signed the card because of a firm desire for union representation, and not because of any reliance on the foregoing disclaimer, his card will be counted.21 Dempsey, who signed his card on the 10th, testified that he was not sufficiently literate to read, that the card was read to him by Walker, and that he did not recall any reference by Walker to an election, but that Walker did promise that, if the employees decided within 30 days that they did not want the Union, they could "drop" it. Dempsey joined the walkout. That Dempsey had a firm, present desire for union representation is clear not only from the fact that he signed the card but also from his 20 The only noteworthy difference is the alleged remark by Walker to Lambert that the card imposed no obligation after 30 days Walker pleaded no recollection of any discussion with Lambert concerning the obligatory effect of the card At any rate, it is clear from what has been said above that Lambert signed the card because of a present desire for representation by the Union, and it would be sheer speculation to say that he was influenced to any extent by any implication in Walker's remarks that the card would have no binding effect after 30 days and that any decision the employees had made in favor of union representation could then be rescinded Moreover, in joining the walkout, in response to Respondent's ultimatum, Lambert, like Gibson, showed that he had no reservations about an irrevocable commitment to the Union 21 In this respect Ross' case, like those of Lambert and Gibson, is distinguishable from Silver Fleet, supra, and Eckerd's Market, supra, where there was no objective circumstance (and little other evidence) to show that the signing of the card was not the product of the misrepresentation 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD participation in the walkout. For reasons already stated, particularly the fact that Dempsey participated in the walkout, I do not regard Dempsey's testimony concerning Walker's assurance that the men could "drop" the Union within 30 days as requiring invalidation of Dempsey's card. It will be counted. J. Martin, who signed on the 10th, testified that Walker asked him to sign the card "for the purpose of a Union," and, although initially stating that he "understood" Walker to say that the cards "would represent us in an election," almost immediately thereafter confessed that he did not remember what Walker did say. The witness insisted, however, that he read the cards and understood their purport and that he knew the cards were "for a Union." J. Martin joined in the walkout. Such objective demonstration of his prounion sentiments serves to dispel any doubt about his reason for signing the card and dispenses with any need to evaluate his self-contradictory and vague testimony about Walker's remarks. His card will be counted. Lively, who signed on the 11th, testified that, in soliciting him, Walker said that there would be an election and that a majority was needed. I do not regard this as implying that the card would not be used for the purpose stated thereon. In view of this, as well as the fact that Lively demonstrated his union sentiments by joining the walkout, his card will be counted. V. Mills, who signed on the 10th, testified that he was solicited by C. Stutler and was told that, if enough cards were signed, there would be an election. However, C. Studer denied that he made such a statement, and V. Mills could not say who made it. In view of V. Mills' vagueness and C. Stutler's denial, it is found that he did not make the foregoing representation and there is insufficient basis in the record for finding when it was made or by whom. Since, upon the present record, it might as well have been made after the signing of the card, as before, such representation cannot, for that reason alone, affect the validity of the card. In, any event, here, as in the case of Lively, the representation was not of su.-h a nature as to require rejection of the card. It will be counted. Dunford, who signed on the 10th, testified variously that: (a) in soliciting him, Walker told him the card was "for a Union," and the witness signed for that reason, (b) Walker asked him only if he wanted to sign the card, (c) Walker told the employees, the day before he began to solicit them, that he would have to take a vote to see if the majority wanted the Union, and that there would be an election, but he made no reference to the cards at that time, (d) Walker told the employees that the purpose of the cards was to see if enough men wanted a Union to warrant holding an election and that, if enough of them signed, there would be an election to determine the question of union representa- tion, but the foregoing remarks were made several days after the witness signed his card, and (e) in soliciting the employees Walker said the cards would be counted to see how many wanted the Union and "then they'd go on from there," but he made no reference to an election at that time. While there is much apparent confusion and self-contradic- tion in the foregoing testimony, it is clear at any rate that Dunford did not claim that before he signed his card he heard any representation by Walker linking the cards to an election or implying that the cards would be used solely to obtain an election and that the only statement that could possibly be so interpreted was made several days after Dunford signed (by which time the Union had already made its request for recognition ). Moreover, Dunford made his desire for union representation abundantly clear by joining the walkout , explaining at the hearing that he and the others walked out because they did not want to give up the Union . His card will be counted. Perry, who signed on the 10th , testified, in effect, that he was told by Walker that the cards "were supposed to be in an election." However, he promptly disclaimed any imputation to Walker of any reference to an election. Perry joined the walkout . Even if one credits his apparently retracted testimony that Walker said the cards would be used in an election , such testimony would not invalidate Perry's card, particularly in view of his participation in the walkout. His card will be counted. Lafferty signed his card on the 10th but on the 11th asked Walker to return his card, which Walker refused to do. Lafferty did not join in the walkout. His card will not be counted. Jeffrey testified that he signed a card on the IOth and that his request for return of his card on the 11th was rejected by Walker. The latter professed to be unable to recall whether he received such a request. Jeffrey did not join in the walkout. Absent any unequivocal contradiction thereof by Walker, Jeffrey's testimony as to his attempt to revoke is credited and his card will not be counted. It has been found that, of the 21 signed cards, only Jeffrey's and Lafferty's may not be counted . It follows that on February 12, the Union had 19 valid signed cards, which constituted a clear majority of the 31 employees in the appropriate unit. c. The demand and refusal Union Agent Johnson testified that about 10 o'clock in the morning of the 12th he proceeded to Respondent's place ri' business, found that the employees had already walkeu out, and, approaching Manager Merrit, told him that the Union had obtained signed cards from a majority of Respondent's employees and asked for recognition. According to Johnson Mernt rejected the request, declaring that Respondent would sooner sell its business, move, or shut down. Johnson added that that afternoon he again spoke to Memt and asked for recognition, offering to show the signed cards, but was again rebuffed. The next day, when the Union transmitted to Respondent, on behalf of the striking employees, their offer to return to work, Respondent replied, inter aha, that it did not recognize the Union's representative status and that the proper way to achieve such status was through a Board election. While acknowledging that Johnson asked for recognition in the morning of the 12th, and that he might have told Johnson that Respondent would liquidate rather than deal with the Union, Merrit contended that he indicated at the same time that he would have to take the matter up with the Weisbergs but that he in fact failed to do so. He admitted the second request for recognition that afternoon but professed to be unable to recall what reply he made. Respondent's president, A. Weisberg, testified that he STATE ELECTRIC SUPPLY CO. 79 talked to Merrit about the Union between 10 and noon on the morning of the 12th, but was evasive as to what he learned that day of Johnson's request for recognition. However, the witness finally admitted that in the afternoon of the 12th he was told by Merrit that he had spoken to a "man" who was trying to organize the employees and claimed to have cards signed by them. It is found, therefore, that there were two direct requests for recognition on the 12th, in addition to the representa- tion claim in the Union's wire on the 13th, and that on the latter date Respondent disclaimed any intention of recognizing the Union without a Board election. Moreover, on the basis of demeanor, I credit Johnson's testimony that in the morning of the 12th Merrit flatly refused recognition threatening liquidation of Respondent, and I further credit Johnson's further testimony, which was not disputed by Merrit, that in the afternoon of the 12th the latter again rejected a request for recognition of the Union. It is, accordingly, found that both on the 12th and on the 13th Respondent refused to recognize the Union, and has persisted in such refusal.22 It has already been found that the majority of those in the appropriate unit had validly designated the Union as their representative at the time of Respondent's refusals of recognition and that Respondent in the morning of the 12th repeatedly threatened reprisals against the employees on account of their union activity. Respondent contends that any refusal by it to recognize the Union may, nevertheless, not be deemed unlawful under the rule of the Gissel case, supra, pointing to the holding therein that the Board may issue a bargaining order based on a card majority, where the employer has engaged in unfair labor practices, only if the Board finds that they are of such a nature that it is unlikely that their effect on the employees can be erased by traditional remedies. Respon- dent contends that such a finding is precluded here, inter alia,23 (a) because of the "minimal" nature of Respondent's unfair labor practices and (b) because the fact that the employees walked out despite such unfair labor practices demonstrated that they had no effect on their desire for union representation. As to (a), it has been found that in the morning of February 12, in captive audience speeches addressed to a majority of the employees in the unit, Respondent's top management, inter alia, threatened to discharge all union 22 In its original answer , Respondent admitted the allegation of the complaint that the Union on February 12, made an oral request for recognition as the bargaining agent of the employees in the unit found above to be appropriate. While, at the hearing, Respondent amended its answer to deny this allegation, Respondent's counsel answered in the affirmative when asked to stipulate that G. C. Exh. 9 represented a list of "the employees in the appropriate unit in which the demand was made on February 12, 1970, for recognition by the Union," and, in its brief, Respondent makes no reference to this matter. It would seem therefore that Respondent does not dispute that there was a proper bargaining demand. In any case, the record warrants a finding to that effect for the following reasons: It is clear from the findings in the text above that requests for recognition were addressed on February 12, by Johnson to Merrit, who was the manager of the instant operation, that he purported to speak for Respondent in rejecting such request, and that Respondent on February 13, in writing confirmed such rejection. These circumstances suffice to establish a request for recognition and a refusal. There remains only the question of what employees Johnson was claiming to represent, when he appeared on the scene during the walkout. While his testimony was not adherents, to shut down the plant rather than deal with the Union, and to withdraw certain fringe benefits because of employee union activity, and ordered the employees to give up the Union or punch out, thereby in effect conditioning their future employment on abandonment of union activity. While Respondent later permitted them to return to work, there is no evidence that it has at any time announced to the employees any change in its attitude toward the Union or their union activities or publicly retracted its avowed determination to shut down rather than deal with the Union. In Gissel, 24 itself, the Court approved the issuance of a bargaining order, where the unfair labor practices consisted only of communications from management to the employees which were calculated to convey the impression that selection of the union by the employees in an election could lead to closing of the plant. And, since Gissel, the Board has held that violations of Section 8(a)(1) far less pervasive than those here involved rendered unlikely the holding of a fair election and that the issuance of a bargaining order was therefore warranted.25 As for (b), this is in effect a contention that the mass exodus by 19 employees on the 12th demonstrated that Respondent's coercive acts did not succeed in undermining their allegiance to the Union and so did not preclude the holding of a fair election. However, it is not clear how Respondent can contend, on the one hand, that the Board should treat such exodus as a manifestation of unwavering support for the Union by the majority of the unit employees, and, on the other hand, contend that at the time of the Union's demand there was a question concerning representation, which could be resolved only by a Board election. It must have been as apparent to Respondent then as it is now that those who walked out in response to Respondent's ultimatum still wanted the Union, despite Respondent's campaign of intimidation, and that they constituted a clear majority of its warehouse employees. In Pacific Abrasive Supply, Co.,26 the Board pointed out that the Court in Gissel had left open the question whether an employer, even though he engages in no unfair labor practices, nevertheless violates Section 8(a)(5) by refusing to grant recognition to a union, if "he has knowledge independently of the cards that the union has a majority."27 In Pacific Abrasive the Board found that, independently of the cards presented to the respondent, it had knowledge of the union's majority status from specific on this point, the inference is warranted that he was claiming to represent all employees in the categories involved in the walkout-namely, the warehouse employees, truckdrivers and inside salesmen . Moreover, that Respondent understood that these were only categories involved in the Union's organizing campaign is indicated by the fact that, as the record shows, they were the only ones summoned by the Weisbergs in the morning of the 12th to hear their anti-Union remarks. 23 There is no need to dwell on Respondent's contention at this point that no violations of Section 8(a)(1) have, in fact, been proved. Nor is there any need to discuss at length Respondent's apparent contention that Gissel requires a showing of coercive conduct occurring after a demand for recognition has been made or after an election petition has been filed. I do not so read Gissel. 24 N. L. R. B. v. Gissel Packing Co., supra, 615-620. 25 Dawson Metal Products, Inc., 183 NLRB No. 25. 26 182 NLRB No. 8. 27 Elsewhere, the Court described the Board's position in this regard as being "that an employer could not refuse to bargain if he knew, through a personal poll for instance, that a majority of his employees supported the union ...:. N. L. R. B. v. Gissel Packing Co., supra, 594. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversations with the employees and from the fact that all those in the unit had struck in support of the union's request for recognition. The Board concluded from this that there was "no dispute as to the question of representation at the time of Respondent's refusal to grant recognition and thereafter" and that such refusal therefore violated Section 8(a)(5), even though Respondent had engaged in no other unfair labor practices. So, here, even if it be assumed that Respondent's coercive conduct did not preclude the holding of a fair election, it would be proper to find that its refusal to recognize the Union violated Section 8(a)(5), because there was "no dispute as to the question of representative at the time of Respondent's refusal to grant recognition," a clear majority of the unit employees having elected to demonstrate to Respondent their adherence to the Union by walking off their jobs. It is accordingly found (a) that there was no dispute as to the question of representation, in that Respondent had independent knowledge of the Union's majority status when it sought recognition, and Respondent's refusal of recognition was therefore unlawful for that reason alone; and (b) that, even if there were here a dispute about representation, Respondent's unfair labor practices were so pervasive as to render it unlikely that traditional remedies will insure the holding of a fair election, and reliance on the Union's cards and issuance of a bargaining order is therefore appropriate under Gissel. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be directed to cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the unit set forth above and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropri- ate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All employees of Respondent at its Huntington, West Virginia, location, including inside sales personnel, warehouse employees, and miscellaneous truck drivers, but excluding office clerical employees and supervisors as defined in the Act 4. At all times since February 11, the Union has been the exclusive representative of the employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing on February 12 and thereafter to bargain with the Union as the exclusive representative of the employees in the said appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By ordering employees to abandon their union activity or quit work, by urging them to form their own grievance committee rather than seek union representation, by coercively interrogating its employees about their union activities, by threatening them with discharge, loss of benefits, and plant shut down on account of such activity, by soliciting the resignation of union adherents, and by offering them a bonus to do so, 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)(l) of the Act. 7. 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 this case, it is recommended that Respondent, State Electric Supply Company, Huntington, West Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating its employees about their union activities. (b) Threatening its employees with plant shut down, discharge, or loss of economic benefits if they become members of, or assist, Local No. 21, United Bakery Workers Retail, Wholesale and Department Store Union, AFL-CIO. (c) Soliciting union adherents to quit their employment and offering them inducements to do so. (d) Suggesting to employees that they form their own organization to represent them in dealing with manage- ment, instead of seeking representation through an outside union. (e) Ordering employees to abandon their union activity or quit work. (f) Refusing to recognize and bargain with said Union as the exclusive representative of its employees in the following unit: All employees of Respondent at its Huntington, West Virginia, location, including inside sales personnel, warehouse employees, and miscellaneous truck drivers, but excluding office clerical employees and supervisors as defined in the Act. (g) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except as permitted by the proviso in Section 8(a)(3). STATE ELECTRIC SUPPLY CO. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Local No. 21, United Bakery Workers Retail , Wholesale and Department Store Union , AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, and, if an understanding is reached , embody such understanding in a signed agreement. (b) Post at its Huntington , West Virginia, establishment copies of the attached notice marked "Appendix." 28 Copies of said notice, on forms provided by the Regional Director for Region 9 shall be signed by Respondent's authorized representative , and posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.29 29 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 by 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 NATIONAL LABOR 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" 29 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps Respondent had taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection 81 To refrain from any and all of these things WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT ask you questions about your activity on behalf of Local No. 21, United Bakery Workers Retail, Wholesale and Department Store Union, AFL-CIO, or any other union. WE WILL NOT threaten you with loss of your job or any benefits you now have unless you give up your union activity. WE WILL NOT threaten to shut down our business because of the Union. WE WILL NOT ask those employees who want a union to quit theirjobs or order them to punch out unless they give up the Union. WE WILL NOT tell our employees to set up their own grievance committee instead of bringing in a union to represent them. WE WILL recognize Local No. 21, United Bakery Workers Retail , Wholesale and Department Store Union, AFL-CIO, as the only collective-bargaining representative of our employees in the bargaining unit which is: All our employees at Huntington, West Virginia, including inside salesmen , warehouse employees and miscellaneous truckdnvers, but excluding office clerical employees and supervisors as defined in the Act. WE WILL bargain on request with that Union on wages, hours, and conditions of employment and any agreement we reach will be put in writing and signed. All our employees are free tojoin or not tojoin Local No. 21, United Bakery Workers Retail , Wholesale and Depart- ment Store Union, AFL-CIO. Dated By STATE ELECTRIC SUPPLY COMPANY (Employer) (Representative ) (Title ) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Room 2407, Federal Office Building, 550 Main Street Cincinnati, Ohio 45202, Telephone 513-684-3663.