Profile Carpetufters

742 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD Seibert Distributing Company, d/b/a Profile Carpe- tufters and AFL-CIO, Region XIV. Case 18-CA-2962 January 7, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 21, 1970, Trial Examiner Laurence A. Knapp 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 exception 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 exception and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations 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 Recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Seibert Distributing Company, d/b/a Profile Carpetufters, Des Moines, Iowa, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LAURENCE A. KNAPP, Trial Examiner: I heard this case on June 30 and July 1, 1970, at Des Moines, Iowa, following pretrial procedures in compliance with the National Labor Relations Act, as amended (herein called the "Act.")' Motions made by Respondent during the i A charge and an amended charge were filed on April 15 and May 28, 1970, respectively; the complaint issued on June 11, 1970, and Respondent filed an answer, later amended at the hearing, verified June 19, 1970 All dates used herein refer to 1970 unless otherwise indicated 8 The transcript of testimony contains various errors but they are in most cases obvious and in all instances harmless Hence I do not formally correct them. hearing to dismiss for lack of adequate proof are to be considered disposed of in accordance with my findings and conclusions herein. Following the hearing, briefs were received from counsel for the General Counsel and for Respondent. Upon the entire record in the case2 and my observations of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Respondent, an Iowa corporation, is engaged at a place of business in Des Moines, Iowa, in the manufacture and sale of carpeting and related products; and that, in the year preceding issuance of the complaint, Respondent's total sales were in excess of $250,000 of which goods valued in excess of $50,000 were sold and shipped from Respondent's plant to customers located outside the State of Iowa; that during the same period Respondent purchased goods valued in excess of $150,000 of which goods valued in excess of $50,000 originated outside the State of Iowa and were sold and shipped to Respondent for use in its Iowa manufacturing operations; and that during the same period Respondent shipped goods valued in excess of $100,000 from its Iowa plant to points located outside the State of Iowa where additional manufacturing operations were performed on said goods which were thereupon returned to Respondent's Iowa plant. Respon- dent is an employer engaged in commerce and in activities affecting commerce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act to assert jurisdiction herein. The complaint alleges, Respondent admits, and I find that AFL-CIO, Region XIV, herein called the "Union," is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The questions presented are whether, following the inception of employee activity centering around designa- tion of the Union as bargaining representative, Respondent engaged in certain items of coercive conduct in violation of Section 8(a)(1), discharged certain employees in violation of Section 8(a)(3), and refused to bargain with the Union in violation of Section 8(a)(5) of the Act. Since the case lends itself to such treatment, I will deal with the evidence concerning the pertinent events of the case and make my corresponding findings in more or less chronological order. The evidence on many pertinent facts is not in conflict; unless otherwise indicated my findings of fact are based on uncontradicted evidence.3 Respondent is a distinctly new and small operation. In the latter part of 1969, Respondent engaged and caused to 3 Some imprecision and discrepancies mark the evidence as to the precise dates upon which took place certain of the events pertinent to the issues herein For example, as a result of the form of questions put by counsel , and particularly counsel for the General Counsel, there is some testimony that certain events took place on "April 8 or 9 " Similarly, there is a discrepancy between some of the testimony and the dates shown on 187 NLRB No. 108 PROFILE CARPETUFTERS 743 be trained a production supervisor, one Donald C. (Don) Yazel. In the early months of 1970, Respondent gradually hired employees and began manufacturing operations while training the new recruits. By early April, the period of most of the more significant events of this case, its employee complement in production and shipping operations came to only 13, including I of the 3 regular employees of the shipping department, Jerry Donnelly, whose status as supervisor of that department is an issue in the case.4 Respondent admits that Yazel (in charge of production but not shipping operations), and Respondent's two managerial officials, Mr. H. Van Seibert, president, and Mrs. Diane Scanlon, vice president, are supervisors within the meaning of the Act. Toward the end of March there were discussions concerning union representation among some five of the employees. Four of these-Jacqueline Campbell, Richard Miller, Mary Balzer, and Opal McDougal-are the alleged discriminatees in the case. As a result of such discussions it was agreed that Mrs. Campbell should contact a union representative. During further such discussions during the lunch hour on what I find was April 8, Mrs. Campbell told a group of employees that she was going to contact a union representative and inquired of them whether they wished to sign up . Among these employees were Marcia Alexander and Janilla Jordan. That evening, these two employees informed Yazel, the supervisor of production, that Mrs. Campbell was trying to get a union in the plant and was going to contact a union representative that night.5 That same afternoon Mrs. Campbell called the union office by telephone and engaged in a conversation with Mr. George O'Hara, a staff representative of the Union. Pursuant to an understanding reached in this conversation, Mr. O'Hara called that same afternoon at the home of Mrs. Campbell, where she and Miller signed union representa- tion cards provided by Mr. O'Hara. Later that day, Mrs. Campbell obtained the signatures of three additional employees, Mary Balzer, Opal McDougal, and Romana Rowe, and on the next day, April 9, two additional employees signed such cards at her behest .6 Some of the employees were scheduled to report for work on April 9 at 7 a.m., rather than 8 a.m., their usual starting hour. These included Katherine Lawson, Mary Balzer, and Marcia Alexander. At some uncertain point of time between 7 and 8 a.m. when these three and Plant Supervisor Don Yazel were grouped more or less together, Mrs. Alexander said to Yazel, "Hey, Don, guess who Jackie [Mrs. Campbell] had at her house last night"; Yazel said "Who?"; and Mrs. Alexander said "A union man." Mrs. Campbell and alleged discriminatee Richard Miller were scheduled to start work at 8 a.m. that morning. Arriving prior to that hour, they first engaged employee certain of the union representation cards as to whether those cards were signed on April 8 or 9. There is, however, other testimony casting significant light on these questions of dates. The dates stated in my findings represent what I consider are the correct dates, considering the entirety of the evidence. 4 All that turns on the question of Donnelly's supervisory status is whether he should or should not be included in the bargaining unit (production and maintenance employees) alleged in the complaint. The General Counsel contends that Donnelly has supervisory status and Respondent contends that he does not. I find hereinafter that Donnelly is a supervisor. James Townsley in a conversation concerning his signing a union card on the production floor, and then adjourned up some stairs to a sort of open balcony area overlooking the production floor where, after some further conversation, Townsley signed his union representation card. These events took place about 7:45 a.m. that morning. Mrs. Campbell and Miller returned to the production floor where, having previously punched the timeclock, Yazel came up and told Mrs. Campbell that an expected shipment of yarn had not arrived and she should go home and return to work on the following Monday, and then told Miller that the same thing applied to him. On all the previous occasions when there had been a lack of production work for Miller, he had been sent to work in the shipping department (sometimes called the "warehouse" in the testimony) rather than being sent home. On the afternoon of the following day, Friday, April 10, Yazel telephoned Miller at his home and told him he was discharged. Considering their respective accounts of this conversation, which appear to supplement each other, I find that Yazel told Miller that "they" had decided to cut the work force, that three employees were being terminated at that time, that Miller was one of the three, and that, when Miller inquired as to the reason for his termination, Yazel told him it was his poor eyesight and his "overall attitude toward his work." 7 Mrs. Opal McDougal was sent home presumably for lack of work, on Wednesday, April 8, and told to return on Friday, the 10th. She did so and worked that day. At the end of the day, Mr. Van Seibert, Respondent's president, told her that he was letting her go due to lack of material. She asked Van Seibert to give her part time work until she could find another job and he either told her he would use, or would try to use, her whenever he needed extra help. On Tuesday, April 14, Yazel called McDougal and asked her to work that day, which she did and continued until April 21. At the end of that day Yazel told her she was terminated because of her poor eyesight and age (52). With respect to her eyesight, Yazel told her that she, an inspector, had poor eyes and was failing to notice flaws in the carpeting. On several previous occasions Yazel had similarly called McDougal's attention to flaws she had overlooked and to her eyesight as the cause. On the morning of Saturday, April 11, Mr. Van Seibert called Mrs. Campbell by telephone. While the accounts the two gave of this conversation vary, the variance is mainly in length. I credit Mrs. Campbell's version and find that Seibert told Mrs. Campbell that they were accepting her resignation and had her check ready; she asked him why and Seibert said he "didn't like being stabbed in the back"; she asked him what the real reason was and he said they would "not go into that"; she asked him if it was "because 5 Alexander and Jordan testified that they were uncertain as to whether to sign and that they asked Yazel his opinion relative to unions, etc., and that he declined to advise them. The complaint raises no question relative to what Yazel told them. 6 The seven signed cards are in evidence as G.C. Exh. 3A-3G, (an eighth employee, Katherine Lawson, signed such card on April 20, after, as indicated below in the text, the Union's demand for recognition.) i Yazel testified that he did not explain to Miller at the time what he meant by Miller's "overall attitude." At the hearing he testified that this did not refer to Miller's union activity. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the union" and again Seibert said they would not go into that. Mrs. Campbell then went to the plant and got her check. I credit Seibert's testimony (Mrs. Campbell was not questioned concerning any conversation with Seibert at the plant) and find that at the plant Mrs. Campbell asked him what was "the real reason" and that he told her "Jackie, we have had quite a few rumbles8 from other people in the plant" and that he would like to "leave it at that." At the hearing, Mr. Van Seibert denied that at the time of "accepting [Mrs. Campbell's] resignation"9 and of the discharges of Balzer, McDougal, and Miller, he had any knowledge that the "employees were attempting to or considering the formation of a union." Since Balzer was not discharged until April 15, the thrust of this testimony was that he had no knowledge of any union activities until after all four had been terminated. In his subsequent testimony, however, he volunteered that he received certain informa- tion concerning the union movement from an employee on a date which he fixed as Saturday, April 11.10 It will be recalled that, on April 8, employees Marcia Alexander and Janilla Jordan had informed Plant Supervi- sor Yazel of the budding union movement and the role Mrs. Campbell was playing in forwarding it. These employees further testified that a few days later, at a time which I infer was the first of the following week (about April 13), they had a further talk with Yazel. In this conversation (in which, as I read their testimony, they again expressed doubt as to whether to sign with the Union)" they asked Yazel for his opinion. I find on the basis of Mrs. Alexander's testimony that Yazel told them that the "best thing," now that Mrs. Campbell was no longer employed, was to wait a while and let the union movement drop and then form their own union rather than "having someone outside the plant take it over." As previously found Mary Balzer signed a union card on April 8. On April 14, Yazel approached her at her work station and asked her if she had signed a union card. She told him that she had. Yazel then commented that "when you get a union you have to bargain for what you want. It is not just given to you. The country is getting more like Communism all the time, being run by the union [sic] and the government." At the end of work the next day, April 15, Mr. Van Seibert called Mrs. Balzer over to one side and told her he was discharging her because her skills had not progressed as they should. By way of further elaboration, 6 At the hearing Seibert explained that by "rumbles " he meant "complaints" that she was hard to get along with 9 1 find hereinafter that Van Seibert discharged Mrs Campbell 10 The subsequent concession came about the following way After having denied knowledge as stated in the text, Mr Van Seibert was asked by Respondent's counsel whether he had at any time discussed the formation of a union with any hourly paid employees He responded in the negative, and then, in apparent response to an earlier question as to whether he had had any such discussion with any employees, stated that he had "discussed the union matter" with Yazel but only after receipt (on April 15 or 16, see infra), of a communication from the Board's Regional Office relative to an election Shortly thereafter , and following a statement by the Trial Examiner to the effect that Van Seibert's earlier testimony was that he had never had any discussions about the union matter with any production employees, Mr Van Seibert stated that he wished to amend his testimony and went on to testify that on the same Saturday morning, April 11, that he had talked to Mrs. Campbell he had had a discussion about the union with a nonsupervisory employee, Jerry Donnelly of the shipping department (who, contrary to Respondent's position , I later find is a supervisor within the meaning of the Act ) Van Seibert testified that Van Seibert specified two respects in which her work performance was unsatisfactory and which are described and considered further hereinafter. On April 15 or 16, Respondent received in the mail a form letter from the Board' s Regional Office in Minneapo- lis (Resp. Exh. 2), which, among other things, notified Respondent that a petition for certification of representa- tives had been filed by the Union.12 On April 16, Respondent received a registered letter from the Regional Office, dated April 15 (G. C. Exh. I-B), enclosing a copy of the Union's initial charge filed with the Regional Office on April 14; and a letter from the Union, bearing the date of April 11 (G.C. Exh. 5), which, among other things, sets forth the Union's claim to majority representation and request for recognition, and a notification that the Union was simultaneously filing a representation petition with the Board. On April 16, Respondent sent to the Regional Office a letter (Resp. Exh. 3) in which, after referring to Respondent's receipt of the two communications from the Regional Office and the Union's letter, in substance Respondent denied any wrongdoing in relation to the Union's charge and, in regard to the petition, requested an election if the situation warranted. On the other hand, Respondent did not communicate in any fashion with the Union following receipt on April 16 of the Union' s letter. I turn now to other evidence, including that of Respondent, and pertinent circumstances, and will deal first with the alleged discriminatory discharges. Respondent's principal witnesses were Production Super- visor Yazel and President Van Seibert. Taking up first the testimony of Yazel, his direct testimony as Respondent's witness is devoted mainly to some specifications of asserted deficiencies he had observed in the work performance of Miller and Balzer,13 and, in the case of Balzer, to an instance of asserted poor work on her part on April 14 which, he testified, led him and Van Seibert to agree the next morning, as Van Seibert had suggested the previous evening, that she should be discharged. 14 As to McDougal, Yazel mentioned only the fact that he had discharged her the "second time," and as to Campbell gave testimony as to a conversation he had had with her concerning her alleged giving notice to quit (see infra, fn. 20). On his cross-examination, however, Yazel testified that he had not initiated any recommendation to discharge Balzer and that he did not make the decision to discharge Donnelly came in to his office , just after Mrs Campbell had left, he thought, and told him that alleged discriminatee Miller had talked to him about the possibility of forming a union , and that he, Donnelly, had told him, Van Seibert, that neither he or any other employee in the warehouse was interested 11 At the time of this conversation , Mrs Jordan had in fact already signed a union card See G C Exh 3-C 12 Contrary to statements made in this letter by the Regional Office, its letter did not enclose a copy of the petition or of the notices to employees which the letter refers to as being transmitted to Respondent 11 In the case of Miller, Yazel, apart from asserting a generalized dissatisfaction with Miller's skill and progress, pointed mainly to Miller's slowness in threading needles and lack of skill in making "glue" knots between threads of yarn (sometimes called "splicing" in the testimony) In the case of Balzer, Yazel referred to what he described as her pronounced inability to make satisfactory glue knots 14 Yazel's testimony is that Mrs Balzer had left some "ends of yarn" hanging on the "5/64" machine His further brief testimony refers to "splicing" problems PROFILE CARPETUFTERS 745 Miller or recommend his discharge. In the course of further questioning, Yazel testified that on a date which I find was April 9 or 10 he had a discussion with Mr. Van Seibert in which it was decided that it was necessary to terminate some employees due to a shortage of yarn; that Van Seibert named Campbell, Miller, and McDougal as employees he had observed were not performing as they should and should be discharged, and that he, Yazel, concurred in these selections of Mr. Van Seibert. Later in his cross- examination he included Balzer among those whom it was decided should be terminated and, in Campbell 's case, testified that it was decided to discharge her-include her in the group-because she had given notice to quit. He later testified that "we had laid them [apparently referring to Campbell, Miller, and McDougal] off mainly a couple of days" earlier that week while waiting for a truck of yarn, and then, when "we got information from the South" (presumably of a further delay in the yarn shipment "we figured out there wouldn't be as much work for as many employees as we had" and this led to their "permanent discharge." Asked why the employees were not just laid off during the delay rather than discharged, Yazel testified that they had been keeping the employees busy on odds and ends "because we didn't want to lay anyone off" [meaning, as the context shows, to discharge them] but "Then [presumbaly referring to notice of further shipment delay] we dust had to come down to a decision to get rid of some people." Yazel further testified that those selected were not "performing up to par that we thought they should be." Subsequently, Yazel reiterated that he had not recommend- ed the discharge of Miller, McDougal, Balzer, or Campbell prior to his one conference with Van Seibert and that it was Van Seibert who initiated the discussion concerning the discharge of these four. He gave further testimony the substance of which is that it was decided to discharge Campbell like the other three, using her notice to quit as simply making her all the more eligible for termination. Mr. Van Seibert testified after Yazel. Summarizing the more pertinent parts of his testimony, it is to the effect that he had to reduce the force because the yarn supplier had lengthened the yarn delivery periods; that he had observed the employees at work; that he had noticed several respects in which Miller's work was deficient15 and had several times spoken to Yazel (but not to Miller) regarding Miller's lack of progress: i6 and that he was responsible for the decision to discharge Miller and that the reason he discussed with Yazel was Miller's deficient eyesight. As to Balzer, Van Seibert testified that he discharged her; that he 15 Such as in equalizing the weight of yarn on the beams and in threading needles 16 Yazel's testimony makes no reference to any such conversations with Van Seibert regarding Miller 11 As in the case of Miller, there is no reference in Yazel's testimony to any such conversations ie Van Seibert testified earlier that McDougal could perform as an inspector but that she did miss some flaws due , as I read his testimony, to the way she looked through her bifocals 19 Asked concerning his knowledge of Campbell's notice to quit, Van Seibert stated that this was just "an item of casual conversation in the office"-that Mrs Scanlon had told him 20 Considering the combined accounts of Campbell and Yazel concerning this conversation , which generally complement each other, I find that Mrs Campbell told Yazel that since she had not received a raise had had several previous conversations with Yazel regarding Balzer,17 who he said did some work very well but other work not; and that what "capped the climax" was the incident of April 14 previously referred to in the summary of Yazel's testimony. As to McDougal Van Seibert testified that she was a "very fine" person who did some things "very fine" but that he determined she was "expendable" because she lacked the strength to perform certain creeling operations: 18 that, after he terminated her on April 10, Mrs. Scanlon urged him to give McDougal work because she needed money even if she were to do nothing but "dust"; that Yazel had a need for her when he called her back the next week; and that he was not sure whether McDougal should be considered as having been completely terminated by Yazel. As to Campbell, Respon- dent's counsel twice put to Van Seibert questions which referred to Campbell as discharged; in each instance Van Seibert corrected counsel by stating that Campbell had not been discharged but, rather, he had accepted her resignation.i9 It is appropriate at thisjuncture to deal with the question whether, as asserted by Respondent in its answer, at the hearing, and in its brief, Mrs. Campbell quit. It is clear that she did not, but was discharged. For although in the light of the testimony of Campbell and Yazel as to what transpired between them in a conversation they had in the latter part of March it would have been possible for Yazel to understand that Mrs. Campbell was serving notice of her intention to quit at some not definitely certain future date 20 and whether or not a few days later Mrs. Campbell notified Vice President Scanlon, in a further conversation on the raise matter, that she had decided not to quit ,21 it is clear from the testimony of Yazel previously referred to and I find that Van Seibert's decision of April 9 or 10 was to discharge Campbell just as it was to discharge the other three, under the cover of acceptance of a resignation.22 I turn now to other circumstances to be considered in evaluating the credibility and persuasiveness of Respon- dent's evidence and contentions . In the case of Campbell, Respondent, although taking the basic position that she was not discharged but quit, nevertheless sought to establish at the hearing that she was an unsatisfactory employee because of her use of certain profanity and because of an antagonistic disagreement she had one occasion with employee Lawson, as though her termination was warrant- ed or based on such grounds. This inconsistency in position renders suspect Respondent's true motives in the Campbell case.23 Respondent's evidence concerning alleged deficiencies in as she had expected at the end of her first 6 week 's employment she would look for another job and asked Yazel how much notice he wanted. Yazel laughed and either said , as Campbell testified, that he was not accepting any notice, or, as he testified , that he was not sure She then either asked if 6 weeks, or as Yazel testified , 3 weeks was enough , and he replied in the affirmative 21 Campbell testified that she did, and Mrs Scanlon testified that she- did not, make this statement in their conversation 22 Other testimony of Yazel lends further support for this finding He testified that his conversation with Campbell took place a week or two prior to April 10, and, as previously noted, that Campbell asked him if 3 weeks was enough notice In the circumstances , even if Yazel considered that what Campbell said was equivalent to a definitive notice to quit as of a specified time, that time had not arrived. 23 Furthermore, the evidence shows that profanity of the sort Campbell (Continued) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their skills as the true basis for discharging the other three employees is likewise suspect, since the evidence as a whole shows that the employees generally had difficulty, as the beginners they were, in acquiring the considerable skills necessary to perform various of the tasks involved in Respondent's production operations 24 Moreover, although Respondent's account of the alleged deficiencies of these employees appears to extend over much of their periods of employment, following completion of their respective first 6 weeks of employment each of the dischargees had received from Respondent a form notification extending "Congratulations" to them upon the completion of 6 weeks' service and notifying them that, as a result, they had become qualified for specified paid holidays and for participation in a hospital insurance plan, and for raises as might be recommended by their plant supervisor (G C Exh 4) Bearing in mind that the employees were told when hired that they would be on probation for 6 weeks,25 this letter signified, at the least, that Respondent was not dissatisfied with the progress of these employees at the times they received these letters and considered them as having successfully passed from probationary to some more secure employment status Taking their respective hiring dates as a guide, I find that Mrs Balzer and Miller received this letter about March 15, Mrs Campbell about March 20, and Mrs McDougal about April I Furthermore, none of the four dischargees was warned of possible discharge because of any work deficiencies 26 Analysis and Ultimate Findings and Conclusions I Concerning the alleged discriminatory discharges I find that Respondent discharged Campbell, Miller, McDougal, and Balzer because of their union activities Such finding depends, of course, in the first place on a finding that Respondent was aware of their union activities But on this question, Supervisor Yazel did not contradict the employee testimony on the basis of which I have heretofore found that on April 8 he was informed by employees that a unionization movement was in progress among the employees and, on April 9, knew that in furtherance of this movement Mrs Campbell had met with a union representative Moreover, there had been at least two discussions among groups of employees at this small plant on this subject by April 8 and as Mr Van Seibert admitted, he had information not later than April 11 which put him on notice that the movement was afoot Likewise, Yazel's inquiry to Balzer on April 14 as to whether she had signed a union card clearly implied his prior knowledge that used was prevalent among employees and supervisors and that the ill feeling between Campbell and Lawson was later smoothed over 24 This appears to have been particularly true in the matter of making glue knots upon which Respondent places particular stress in the cases of Balzer and Miller 25 i credit Yazel s testimony to this effect 26 The general tenor of the pertinent evidence is that Respondents officials attempted to assist the employees in improving their performance and overcoming specific work difficulties that is to provide further or renewed job instruction (as would be natural in training periods) and I interpret in this light various instances when employees were described in union activity had been taking place and that it entailed card signatures In all these circumstances , and bearing in mind the few employees and small plant operations involved, the fact that information concerning the move- ment was promptly passed on to Yazel and Van Seibert by various employees, and Van Seibert's initial pretense that he had no knowledge of any of this activity until after the four were terminated, I find that Yazel and Van Seibert were aware that each of the four were union adherents prior to the decision to discharge them I further find that, with this knowledge of their union activities, Mr Van Seibert discharged them for this reason Among the factors which lead me to make this finding are the following Mr Van Seibert's "stab-in-the-back" explanation to Mrs Campbell on April 11, in response to her inquiry as to the true reason for her termination, 27 the timing, that is, the fact that the decision to discharge the four was made extremely promptly after they signed the union cards, the fact that the four were among the first to sign and included the prime instigator of the movement, Mr Van Seibert's vain initial attempt to place the time of his first acquisition of knowledge of the union activities at a date subsequent to the terminations, his patently incredible effort to portray Mrs Campbell's discharge as a resignation , 28 and the various other unimpressive features of Respondent's case, such as the absence of any warnings of possible discharge, the congratulatory letters each of the four had received not long before their terminations, the absence of any recommendations for discharge from Yazel, the supervisor presumably most familiar with their work, and the fact that they were discharged rather than laid off, despite Yazel's testimony that a day or so before the discharge decision, when Respondent laid some employees off due to the delay in yarn receipts , it was disinclined to discharge anyone 29 Accordingly, I conclude that in discharging Campbell, Miller, McDougal, and Balzer, Respondent violated Section 8(a)(3) and (1) of the Act 2 Concerning the alleged independent violations of Section 8(a)(1) of the Act Yazel's undenied questioning of Balzer as to whether she had signed a union card , and his undemed advice to employees Alexander and Jordan that they should let the union movement drop and thereafter form their own rather than join an outside union, constituted coercive conduct violative of Section 8(a) (1) of the Act 3 Concerning the alleged refusal to bargain Respondent admits that the unit of production and maintenance employees described in the complaint is an appropriate one for collective-bargaining purposes The the record as "criticized 27 Mr Van Seibert did not contradict Mrs Campbell s testimony in this regard 28 This misguided effort to claim that Mrs Campbell quit carves with it the implication that Van Seibert considered Respondent hard put to establish any persuasive nondiscriminatory basis for a discharge in her case 29 Whether or not Respondents decision to accomplish a reduction in force by discharge was a genuine response to its yarn delivery problem I would find that those chosen for discharge were selected on a discriminatory basis for the other reasons stated PROFILE CARPETUFTERS parties have stipulated the names of 12 employees composing this unit(G C Exh 2), leaving in dispute only the question whether a 13th employee, Jerry Donnelly, should or should not be included depending on a resolution of the question whether he has supervisory status Since there are at most 13 employees in the unit and since, at the time Respondent received the Union's letter, the Union possessed representation authorization cards signed by 7 of the admitted unit employees,30 it then enjoyed majority representation whether the total of unit employees was 12 or 13 But since the matter of Donnelly's status was fully litigated and its disposition may well be in the larger interests of the parties, I pass on it and find and conclude that Donnelly is a supervisor within the meaning of Section 2(11) of the Act 31 Respondent does not dispute that it made no reply to but, rather, ignored the Union's letter According to President Van Seibert, there were three reasons for this inaction, I e (1) his feeling that the Union's charge alleging a refusal of recognition, which he received from the Board's Regional Office the same day (April 16), "preempted" the Union's letter requesting recognition, (2) his assumption that there was going to be an election (referring no doubt to his receipt of notice on April 15 or 16 of the filing of the Union's certification petition), and (3) the assertedly `.conditional" character of the Union's letter As to the first two of these points, under settled Board and court decisions it is clear, as a matter of law, that neither the filing of the petition or of the charge nullified or put in suspense the recognition request so as to warrant Respondent's ignoring it Hence, Respondent took these risks in ignoring the recognition demand Van Seibert's third reason, as amplified in Respondent's brief, appears to refer to that portion of the Union's letter in which, after asserting its majority designation, the Union offered to submit its substantiating proof of majority to a neutral observer provided Respondent would agree, upon the Union's proving its majority in this fashion, to recognize it More precisely stated, Respondent's position seems to be that by this language the Union was somehow "conditioning" its claim of majority representation, leaving Respondent in doubt as to whether the Union had, or was even claiming to represent, a majority I confess my inability to follow this obscure reasoning, but what is dispositive of the whole contention is the fact that the Union's offer to use the neutral observer procedure was plainly in support and affirmation of its claim to majority representation, and not in derogation of limitation of it 32 Respondent s inaction relative to this demand might not 90 In view of their unlawful discharges Campbell Miller McDougal and Balzer retained their employee status on and after April 16 Si Among the factors and circumstances I rely on in reaching this conclusion are the fact that the shipping receiving and carpet warehousing operations in question (which purely for convenience I will call the shipping department) are earned on in a separate building located a block or so from the building housing Respondents production operations and offices the fact that there is no supervisor in direct charge of this department or in direct authority over its nonsupervisory employees unless it is Donnelly the fact that Donnelly is responsible for the filling of orders sent to this department from the office and gives corresponding instructions to the other employees regarding the cutting tagging and packing of carpet the fact that Donnelly who did not testify described himself to a new employee as the head of these operations the fact that 747 have involved it in a violation of Section 8(a)(5) or otherwise subject it to the issuance of a bargaining order if this were all there were to the case But instead, Respondent set out to smother the union movement by discriminatory discharges while engaging in other, albeit lesser, coercive conduct, all designed to undermine the Union's support among the employees Its unfair labor practices, and particularly the discharges , were so flagrant and coercive in nature as to require, even in the absence of an 8(a)(5) violation, a bargaining order to repair their effect I further find that Respondent's unfair labor practices were of such a pervasive character as to make it unlikely that their coercive effects would be neutralized by conventional remedies and thus permit or ensure a fair election Accordingly, I find and conclude that employee sentiment as expressed through the Union's authorization cards is a more reliable measure of their desires on the issue of representation in this case than an election would be I therefore find and conclude that Respondent refused to bargain with the Union in violation of Section 8(a)(5), and that to effectuate the policies of the Act a bargaining order is required to remedy this violation as well as Respondent's other unfair labor practices N L.R B v Gissel Packing Company, 395 U S 575, 615-616, and Supplemental Decision of the Board in the same case, 180 NLRB No 7 III THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's business operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce IV THE REMEDY Having found that Respondent engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Such affirmative action will include recognition and bargaining on demand with the Union as the representative of its employees in the appropriate unit Having found that the Respondent unlawfully discharged four of its employees, I shall recommend that Respondent offer them immediate and full reinstatement to their former jobs or, if their jobs no longer exist, to substantially equivalent jobs, without Donnelly took up with Mr Van Seibert the matter of granting a raise to one of the department s employees and Mr Van Seibert s testimony that he would obtain Donnelly s recommendations and give weight to them in the matter of raises for employees of the shipping department On these bases I find and conclude that Donnelly has authority to assign employees responsibility to direct them and effectively to recommend their reward and that the exercise of such authorities is not of a merely routine or clerical nature but requires the use of his independent judgment 32 Fairly interpreted when read as a whole the Union s letter put forth a claim of majority representation and a request for recognition for the purposes of negotiating a contract coupled with references to the neutral observer procedure and Board election procedures as methods of verifying its claim of majority if necessary The letter was thus an effective recognition and bargaining demand 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to that she or he normally would have earned as wages from the date of his or her discharge to the date of Respondent's offer of reinstatement, less her or his net earnings during such period. This sum shall be calculated in the manner established by the Board in F. W. Woolworth, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Because of the character and scope of the unfair labor practices herein found, the Recommended Order will provide that the Respondent cease and desist from the specific unfair labor practices found, and that it cease and desist from in any other manner interfering with, restrain- ing, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. 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. Respondent discharged Jacqueline Jean Campbell, Richard Miller, Mary Balzer, and Opal McDougal because they engaged in union activities and in order to discourage membership in the Union and thereby violated Section 8(a)(3) of the Act. 4. By the above-named discharges, by coercively interrogating an employee concerning her union activities, and by coercively advising employees that they form their own union rather than affiliate with the Union, Respondent violated Section 8(a)(I) of the Act. 5. All production and maintenance employees at Respondent's Des Moines, Iowa plant, including shipping department employees, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. By failing and refusing to recognize and bargain with the Union as the exclusive collective-bargaining representa- tive of Respondent's employees in the unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment of such employees, Respon- dent has violated Section 8(a)(5) and (1) 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 ORDER33 Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I 33 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 10248 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 recommend that Respondent Seibert Distributing Compa- ny d/b/a Profile Carpetufters, Des Moines, Iowa, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in or affiliation with AFL-CIO, Region XIV, or any other labor organization, by discharging any employee or by discriminating in any other manner with respect to hire or tenure of employment or any term or condition of employment. (b) Coercively interrogating employees concerning their union activities , coercively advising them to form their own rather than join or affiliate with an outside union , or in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. (c) Refusing to bargain collectively in good faith concerning rates of pay, hours of employment, and other terms and conditions of employment with AFL-CIO, Region XIV, as the exclusive representative of the employees in the appropriate unit described in the section above entitled "Conclusions of Law." 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Jacqueline Jean Campbell , Richard Miller, Mary Balzer, and Opal McDougal immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs and make them whole for any loss of pay suffered by the reason of their unlawful discharge in the manner set forth in the section entitled "The Remedy." (b) Notify any of the above-named persons if presently serving in the Armed Forces of the United States of his or her right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (d) Upon request bargain collectively in good faith with the above-named Union as the exclusive representative of all employees in the appropriate unit and embody in a signed agreement any understanding reached. (e) Post at its plant in Des Moines, Iowa, copies of the attached notice marked "Appendix." 34 Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's representative, shall be posted by 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 19 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 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 " PROFILE CARPETUFTERS 749 to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 18, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.35 35 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 18, 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 After a trial in which all sides had a chance to give evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: 1. To engage in self-organization 2. To form, join, or help unions 3. To bargain collectively through represent- atives of their own choosing 4. To act together for collective bargaining or other mutual aid or protection 5. To refrain from any or all of these things WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT coercively interrogate our employees about their union activities, or coercively advise them to form their own union rather than join or affiliate with an outside union. WE WILL NOT discourage membership in or affilia- tion with AFL-CIO, Region XIV, or any other labor organization, by discriminatorily discharging any of our employees, or by discriminating in any other manner in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL offer Jacqueline Jean Campbell, Richard Miller, Mary Balzer, and Opal McDougal reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and we will make them whole for any loss of earnings suffered as a result of their discharge. WE WILL NOT refuse to but WILL bargain collectively with AFL-CIO, Region XIV, as the exclusive bargain- ing representative of all the following employees: All production and maintenance employees at Respondent's Des Moines, Iowa, plant, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act. SEIBERT DISTRIBUTING COMPANY, D/B/A PROFILE CARPETUFTERS (EMPLOYER) Dated By (Representative ) (Title) This is an official anyone. notice and must not be defaced by 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, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Telephone 612-725-2611.