Atlantic Steamers Supply Co., Inc.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Atlantic Steamers Supply Co., Inc. and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 2- CA-11989 January 30, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On September 25, 1970, Trial Examiner Joseph I. Nachman 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 the General Counsel filed exceptions with a brief in support of the exceptions and in sup- port of the Trial Examiner' s Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions,2 and recommendations of the Trial Examiner, as modified below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Atlantic Steamers Supply Co., Inc., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified. 1. Redesignate paragraphs 1(b), (c), and (d) as paragraphs 1(d), (e), and (f), and add the following as new paragraphs 1(b) and (c), respectively: "(b) Bargaining directly with its employees and offering changes in job positions, increases in wages, and increases in medical and other benefits to em- ployees if they abandon their support of the Union." "(c) Unilaterally changing wages, hours, and terms and conditions of employment, without notice to or bargaining with the Union as the collective- bargaining representative of the employees in the ap- propriate unit found herein." 2. In footnote 32 of the Trial Examiner's Deci- sion, substitute "20" for "10" days. 3. Substitute the attached Appendix for the Trial Examiner's Appendix. ' The Trial Examiner's findings and conclusions are based, in part, upon credibility determinations, to which the Respondent has excepted . Respon- dent also contends that the Trial Examiner was prejudiced. After careful review of the record, we conclude that the Trial Examiner's credibility find- ings are not contrary to the clear preponderance of all relevant evidence. Accordingly, we find no basis for disturbing these findings . Standard Dry Wall Products, Inc., 91 NLRB 544, enid . 188 F.2d 362 (CA. 3). We also find no support in the record for the contention of prejudice. I We agree with the Trial Examiner's conclusion that a bargaining order is warranted in the circumstances of this case. However, we disagree with his finding in this regard that N.LRB. v. Gissel Packing Company, 395 U.S. 575, requires a determination that Respondent's unlawful conduct was "calcu- lated to undermine and destroy the Union's claim of majority." Section I,B,3,c, of the Trial Examiner's Decision. Under the holding of Gisset it is sufficient that Respondent's unlawful conduct has a "tendency to undermine majority strength and impede the election processes." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence , the National Labor Rela- tions Board has found that we , Atlantic Steamers Sup- ply Co., Inc., violated the National Labor Relations Act, and ordered us to post this notice. We intend to carry out the Order of the Board, the judgment of any court, and abide by the following: The Act gives all employees these rights To organize themselves To form, join, or help unions To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things WE WILL NOT do anything to interfere with you in the exercise of these rights. WE WILL NOT coercively interrogate you as to whether you have signed a union card, or are otherwise assisting or supporting a union. WE WILL NOT bargain directly with our employees and offer any changes in job positions, increases in wages, and increases in medical and other benefits to employees if they abandon their support of the Union. WE WILL NOT unilaterally change wages, hours, and terms and conditions of employment, 188 NLRB No. 40 ATLANTIC STEAMERS SUPPLY CO. 283 without notice to or bargaining with the Union as the collective-bargaining representative of the employees in the appropriate unit as described below. As it has been found that we violated the law when we fired William Staub, WE WILL offer him his old job back if the same exists, and, if not, a substantially equivalent job, and we will make up the pay he lost, together with 6 percent interest. It having been further found that we violated the law when we refused to bargain with Teamsters Local No. 807 as the representative of our employees in an appropriate unit, WE WILL, upon request, bargain with said Union as the representative of our employees in an appropriate unit, and if an understanding is reached embody the same into a written and signed agreement. The appropriate unit is: All truck drivers, helpers and warehousemen employed at our New York establishment, excluding salesmen, office clerical employees, watchmen, guards and supervisors as defined in the Act. ATLANTIC STEAMERS SUPPLY CO., INC. (Employer) Dated By (Representative) (Title) We will notify immediately' the above-named individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, 36th Floor, Federal Building, 26 Federal Plaza, New York, New York 10007, Telephone 212-264-0300. TRIAL EXAMINER'S DECISION with all parties present and re resented by counsel, involves a complaint 2 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), allegi ng that Atlantic Steamers Supply Co., Inc. (herein Respondent or Company), (1) interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act; (2) discharged and thereafter failed and refused to reinstate employee William Staub because of his union or concerted activity ; and (3) refused to bargain collectively with Truck Drivers Local Union No . 807, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (herein the Union or Local 807), as the duly designated collective-bargaining representative of its employees in an appropriate unit, thus violating Section 8(a)(1), (3), and (5) of the Act. By answer, Respondent admitted certain allegations of the complaint , but denied the commission of any unfair labor practice. For reasons hereafter stated, I find and conclude that (1) the material allegations of interference, restraint, and coercion are estab- lished by a preponderance of the 'evidence; (2) the discharge of William Staub was discriminatorily motivated ; (3) Res- ondent unlawfully refused to bargain with the Union; and (4) an appropriate order, which will include the requirement that Respondent recognize and bargain with the Union, should issue. At the trial the parties were afforded full opportunity to participate, to adduce evidence, to examine and cross-ex- mine witnesses, to argue orally on the records, and to submit briefs. Oral argument was waived . Briefs submitted by the General Counsel and Respondent have been duly considered. Upon the pleadings, stipulations of counsel, and evidence, including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT 3 A. Chronology of Events 1. The organizational campaign On January 19, William Staub, employed by Respondent as a truckdriver, after consultation with fellow employees, telephoned the Union speaking with Business Agent John Hohmann. Staub told Hohmann that the employees wanted to organize, and arrangements were made for the two to meet the morning of January 28 near Respondent's prem- ises. In this meeting, on the basis of Staub s representation that the unit consisted of six or seven employees, Hohmann gave Staub 10 union cards to be signed-by the employees, but cautioned him to stay away from company premises when soliciting card signers. ° An hour or so later Staub and employees Livanos, Mon- talvo, and Marano went to coffee and while there Staub explained the union cards to the other three, and the four then proceeded to fill out and sign the cards. While so engaged, Shiekh Alam, an admitted supervisor, came to the table where the four employees were seated and, after look- ing over their shoulder for a moment or so, inquired what the men were doing. Staub replied, "signing cards." Alam then told Staub to come to the office, that he had some STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried before me at New York, New York on June 22-24, 1 This and all dates hereafter mentioned are 1970 unless otherwise indica- ted. 2 Issued March 31 , on a charge filed and served February 10. 3 No issue of commerce or labor organization is presented . The complaint alleges and the answer admits facts which establish those jurisdictional el- ements I find said facts to be as pleaded. ° Based on the uncontradicted and credited testimony of Staub and Hoh- mann 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deliveries for him to make. After reporting to Alam and receiving his instructions, Staub left with his truck to per- form his assigned duties. While so engaged, Staub went by the union hail and left the four signed cards as above indica- ted, with a note for Hohmann that he would have two additional cards very soon. Later the same da employee Koulikourdis signed a card and on January 30 employee Dozis also signed a card.3The card recites that the signer applies for membership in the Union, and authorizes the latter to act as his bargaining agent in the matter of wages, hours, and working conditions. There is no credible evi- dence that the cards were signed under circumstances other than voluntary. 2. Interrogation of employee Livanos Upon returning to work from the card-signing incident, Supervisor Alam told Livanos that by signin the card he had joined the Union, and asked when he ( ,ivanos) was going on strike. Livanos denied that he had signed any card and walked away.6 Also during that morning of January 28, Hondroulis, an admitted supervisor, in a conversation with employee Liva- nos, told the latter that by joining the Union he put a "knife in the boss' shoulder." Livanos denied that he signed a card. Later in the day Hondroulis again talked with Livanos, telling the latter, "I know you signed the card with the Union," and asked, "can you show it to me?" Livanos then asked why Hondroulis was pressing him, and added, ev- eryone signed a card . Hondroulis replied, "No, only you four signed cards.' 3. The discharge of Staub While performing his duties during the morning of Janu- ary 28, Staub was involved in an accident. Returning to Respondent's premises about noon, Staub reported the acci- dent and the manner in which it occurred to Alam, saying that the damage was minor and that he (Staub) would make the required reports to the authorities. Although Alam in- spected the truck to ascertain the damages to it, he said nothing to Staub about having been warned about accidents or that company policy would require his discharge. In fact, Alain assigned Staub other driving duties, which the latter performed, returning to Respondent's premises between 5 and 5:30 that afternoon.8 At that time Alain told Staub that the accident that morning was his second, and that he (Alam) "thought it was best that we call it quits," and gave him his check.9 3 Based on the uncontradicted and credited testimony of Staub , Livanos, Montalvo, Koulikourdis, and Dozis. Alam, though testifying as a witness called by Respondent, was not questioned and gave no testimony regarding the card-signing incident. 6 Based on the credited testimony of Livanos . Alain did not deny this conversation. ' Hondroulis was not asked about this specific conversation . He merely denied that he ever questioned employees about their union membership, activities, or sympathies. To the extent that his testimony may be regarded as in conflict with that of Livanos, I credit the latter. a Alain admits that he said nothing to Staub about discharge because of the accident, and that he assigned Staub other driving duties to be performed for the remainder of the day. Alam claims that he was without authority to discharge or otherwise discipline Staub ; that both Company President Sta- matiou and Secretary-Treasurer Liss were away from the office ; and that not until early afternoon when Liss called in was he able to tell the latter that Staub had been involved in an accident which appeared to be his fault, and that he was then directed by Liss to discharge Staub, which he did when Staub returned about 5 :30 p.m. 9 Based on the uncontradicted and credited testimony of Staub. 4. Union's request for recognition and reinstatement Pursuant to arrangements between them, Staub and Un- ion Agent Hohmann met adjacent to Respondent 's prem- ises the morning of January 29.10 Hohmann and Stttub then went into Respondent's office where they had a conversa- tion with Supervisor Alam. Hohmann told Alain that he wanted Staub returned to work and "a letter of recogni- tion."i 1 Alam replied that he had no authority to act on the request but invited Hohmann and Staub to wait in an outer office while he made a telephone call. The call Alain made was to company official Liss, at the latter's home, and at the conclusion thereof Alam told Hohmann that Respondent would not honor his request, and that he should discuss the matter with Company's counsel. Hohmann replied that he was left with no alternative but to take the men out on strike.12 Immediately following this conversation Hohmann established a picket line at Respondent's premises which continued until February 20, when it terminated under cir- cumstances hereafter stated. On January 29, the Union sent Respondent a letter for- mally claiming to be the duly designated collective-bargain- ing representative of the drivers and warehousemen employed by Respondent and demanding that it recognize and bargain with the Union as such representative. Compa- ny Secretary-Treasurer Liss admitted that he received this letter, but did not state when. However, on the record as a whole, I find that he received it on January 30.13 That Res- pondent refused recognition is admitted. 5. Composition of the unit On February 3 the Union filed a petition seeking certifi- cation in a unit of `drivers and warehousemen. This peti- tion (Case 2-RC-1532) lists the number of em loyees in the unit as nine . On February 2 Respondent also feed a peti tion (Case 2-RM-1607) which stated that there were eight em- ployees in the unit.14 On February 6 the parties met at the Board's Regional Office to discuss the possibility of a con- sent election. Quick agreement was reached on the unit, an eligibilit^r date of January 30, and the time and place of an election 5 and a consent agreement was prepared for signa- ture by the parties. Company Counsel Schmidt then handed Union Representative O'Leary a list containing 10 names who, Schmidt contended, would constitute the eligible vot- 10 At that time Staub gave Hohmann the card signed by employee Kouh- kourdis on January 28. 11 There is no testimony that Hohmann's recognition demand during his conversation with Alain was in any way amplified . Accordingly, I do not regard this as a legal demand for recognition. 2 Based on the credited testimony of Hohmann and Staub. Alain and Supervisor Hondroulis, who was present during the conversation, testified substantially to the same effect. 13 My finding in this regard is predicated on the statements made by Respondent in a representation petition it filed, which is hereafter referred to. That petition states that demand for recognition was made upon it on January 30. As Hohmann's conver4ation with Alain occurred on July 29, and there is no evidence of any other demand on Respondent, the statement in the petition has meaning only if it refers to the Union 's letter of January 29, which, in accordance with the presumption , was delivered in due course of mail. 14 The unit description in the employer's petition is, in substance, the same as that claimed in the Union's petition , and which is alleged in the complaint to be appropriate and which Respondent did not deny . I find the unit alleged in the complaint to be appropriate. 13 The agreement was that the election would take place at Respondent's premises between 10 and 11 a.m. on February 16. ATLANTIC STEAMERS SUPPLY CO. ers.16 O'Leary complained that the names of Staub and Livanos were not on the list and that the names of Bern- stein, Joel Liss, Garcia, and Kast were improperly on the list (the first three because they were office clerical employees, and Kast because he was not employed until February 2), and refused to sign the consent-e ection agreement until he could determine the correctness of the proposed eligibility list. Concluding that the list had been "padded," the Union refused to consent to an election, withdrew its representa- tion petition, and filed the charge which is the basis of the instant complaint. At the trial, Respondent's contention with respect to the employees in the unit changed somewhat from the conten- tion advanced at the conference on the representation peti- tions. Barnet Liss testified that on January 30 the unit consisted of 10 employees ; namely, Marano, Montalvo, Koulikourdis , Dozis, Pashalidis, Livanos, Joel Liss, Petra- tos, Bernstein, and Garcia."Although contending that neither Livanos nor Staub was in the unit on January 30 (the first because he allegedly quit on January 29 and the latter because he was lawfully discharged on January 18), Liss conceded that if Livanos did, not quit the unit consisted of 10 employees , and if Staub's discharge was unlawful the unit had . 11 employees on the demand date . The first five above named, both Resppondent and the General Counsel agree, are properly in the unit. The issue with respect to Livanos and Sttaub is hereafter dealt with . With respect to the remaining four employees (Joel Liss, Petratos, Bern- stein, and Garcia), the General Counsel and Respondent are in dispute as to whether they are embraced by the unit description. The facts with respect to each follows: Joel Liss: This employee is the nephew of Company Sec- retary-Treasurer Barnet Liss, and initially came to work at Respondent's New York operation 18 in the week ending January 13. He receives a weekly salary of $200, which Barnet Liss admitted is $50 a week more than the appropri- ate salary for the work he performs, and that this excessive amount is paid "because I want to subsidize my nephew."19Although Respondent's records do not indicate any classification for Joel Liss, as they do for all other employees .except Staub who admittedly was a driver, Bar- net Liss admitted that, while all drivers and warehousemen are paid for overtime ,- office clericals are not. The payroll records for Joel Liss show no payment to him for over- time 20 Petratos: According to Barnet Liss, Petratos was hired as a replacement for Staub who was discharged on January 28. Respondent's payroll records show that Petratos worked 4 16 The names on this list were Bernstein , Kast, Joel Liss, Kouhkourdis, Montalvo, Garcia, Dozis, Petratos, Marano, and Pashalidis. Ir It will be noted that this listing differs from the list presented at the conference on February 6, in that the name of Kast was dropped and the name of Livanos added To explain the discrepancy between this testimony and the statement in its petition that there were eight employees in the unit, the parties stipulated that, if Company Counsel Schmidt were called as a witness, he would testify that he had misplaced his file , that he had prepared the petition relying solely on his memory, and that he had simply made an error. I find it unnecessary to make any finding in that regard. IS Respondent also maintains operations at Baltimore , Maryland, and Houston, Texas, neither of which is involved in the instant case. 19 The next highest salary paid to any other employee contended by Res- pondent to be in the unit is $160 weekly paid to Livanos who worked as a driver. 20 Although Barnet Liss claimed that office clericals were compensated for overtime by a 'bonus payment or time off, and that records to support such fact were kept and which he offered to make available, such records were not produced 21 The payroll record also contains a notation that the check given in payment for this work was voided in March . The record has no explanation for this entry. 285 hours during the workweek ending February 6,21 and that he did not work again until May 1970. Bernstein: This employee was hired in November 1968, and was paid a weekly salary which at the time of the events here involved was $137 .50, subsequently .increased to $150. Bernstein is licensed to handle bonded material for customs purposes and at times rode on trucks that picked up or delivered goods in bond . According to Liss, Bernstein also drove a truck and initially claimed that he spent from 60 to 75 percent of his time driving a truck . On cross-examination Liss changed his prior estimate to say that it was 50 to 75 percent, and then changed this to say that he could not put it on the scale and weigh it.-On the other hand, truckdriver Dozis testified that, while Bernstein drove a car for delivery purposes, he "can't drive a truck." The payroll sheet for Bernstein shows his classification as "office." Barnet Liss admitted that Bernstein was not paid overtime. Garcia: This employee was hired in November 1969. Dur- ing the period here relevant, he was paid a weekly salary of $125, which in March was raised to $150. On -the payroll records his classification is listed as "office," and it is admit- ted that he was not paid overtime . Garcia has a desk as- signed for his use on which there is a telephone , and there spends considerable time ordering merchandise . Although there is testimony that Garcia at times assisted in preparing packages for delivery, there is no breakdown of the time he spent in that activity. There is also testimony that, when asked to assist drivers or warehousemen in loading a truck, he would refuse saying that he was an office man and not a warehouseman. 6. The alleged,,unilateral action The General Counsel also contends that between January 29, when the strike against and picketing of Respondent began, and February 20, when the strike and picketing ter- minated, Respondent engaged in certain additional conduct designed to interfere with the organization activities of its employees, and to bargain directly with employees in dero- gation of the Union's majority status. The facts with respect to such conduct follows: a. Employee Montalvo was one of those who participat- ed in the picketing from its inception. While so engaged Montalvo was approached by Barnet Liss who told Montal- vo that, if he wanted to come inside, he (Liss ) would give him (Montalvo) a job in the office. Montalvo dechned.22 b. Koulikourdis, who had signed a union card on Janu- ary 28, joined in the picketing of Respondent's premises on Monday, February 2. That evening he received a telephone call from Supervisor Hondroulis . Hondroulis told Kouli- kourdis that a union was unnecessary , and that there would never be one at Respondent Company. Hondroulis also asked Koulikourdis to talk to his fellow employees, especial- ly. Dozis, and pet them to agree to come back to work without the Union, and, if they did so, they would get raises and medical benefits. Koulikourdis, as promised, discussed this request with his fellow employees , and later notified Hondroulis that the men declined to go back to work.23 c. On January 30, employee Dozis signed a union card and Joined the picketing then in progress . Early in February, while at home, Dozis received a telephone call from Super- 22 Based on the credited testimony of Montalvo . Liss denied that he had am such conversation, but I do not credit his denial. 3 Based on the credited testimony of Koulikourdis. Hondrouhs did not deny this specific conversation . He did deny that he ever questioned any employee about his union membership , activities, or desires. To the extent that his testimony may be regarded as in conflict with that of Koulikourdis, I credit the latter. 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD visor Hondroulis. The latter asked Dozis to return to work and that if he did so Respondent would grant all the benefits the Union would get for the employees. Specifically, Hon- droulis mentioned that the emp oyees would receive better wages and medical insurance. Hondroulis asked Dozis to discuss the matter with fellow employee Marano , but cau- tioned him not to discuss it with anyone else, and if he did that he (Hondroulis) would deny that he had ever spoken to Dozis about the matter. The following evening Dozis telephoned Hondroulis and told the latter that he had spo- ken with Marano, and that they were going to continue with the Union? d. About noon on February 20, apparently without prearrangement, Dozis met Hondroulis in a cafeteria in the vicinity of Respondent's premises. In conversation which followed, Dozis asked Hondroulis what benefits Respon- dent would give the men if they returned to work. Hon- droulis rreepplied that he did not know what Respondent would do,-but that if Dozis so desired he would discuss the matter with Company President Stamatiou. Dozis agreed and Hondroulis left for the office . Before Hondroulis reached the office, Dozis called and spoke with Stamatiou, asking the latter the same thing he had asked Hondroulis. Stamatiou agreed to meet Dozis for further discussion of the subject, and, accompanied by Hondroulis who had by then reached the office, left for the cafeteria. In the meantime Dozis arranged for Livanos to join him , and the four just mentioned entered into a discussion. According to I on- droulis, the two employees stated that they were "fed up" with the Union and wanted to return to work. Stamatiou asked if this applied to all of the employees on strike, or just to Dozis and LLivanos . One of these replied that they had not yet ascertained the views of the remaining strikers , but be- fore speaking to them wanted Stamatiou to indicate his views on certain grievances, namely, better wages, a hy- draulic lift for the men to use in moving heavy goods, and installation of a timeclock. Stamatiou agreed to consider these matters if all the men would return to work and the meeting concluded to give Dozis and Livanos an oppuortuni- ty to discuss the situation with their fellow strikers. Later that afternoon employees Dozis, Livanos, Marano, and Montalvo went to Respondent's office and there talked with company officials Stamatiou, Barnet Liss, and Hondroulis. According to Stamatiou, Joel Liss was also present. Again the specific grievances raised at the earlier meeting were discussed. Management promptly agreed to provide a hy- draulic lift and to install a timeclock . At the suggestion of Barnet Liss basic weekly salaries were agreed upon, and were as follows : Montalvo was raised from $100 to $130, with a $5 raise in 6 months. For Marano a salary of $135, with an increase of $5 in 6 months . What his salary was prior to the strike the record does not show . Dozis was raised from $110 to $160, allegedly because he had a classified license. Although it is not clear from the record whether Koulikourdis was present at this meeting,26 his salary was raised from $110 to $145. Livanos' salary remained at $160 24 Based on the credited testimony of Dozis . Hondroulis admitted that he had several telephone conversations with Dozis during the period of the strike, but claimed that in each instance Dozis called him for advice as to what Dozis should do regarding the strike and picketing . He denied any conversations of the nature Dozis attributed to him . I credit Dozis. u it is of some significance to note the testimony of Hondrouhs that in the discussion with Dozis and Livanos it was learned that a union representative was due in the area momentarily, and for that reason he and Stamatiou'left from the back door dust in case there was someone watching us." u Stamatiou testified that Koulidourdis could have been at this meeting but that he really did not recall . Hondroulis stated in his pretrial affidavit that Koulidourdis was present but testified that this was an error which he was receiving prior to the strike. According to Hondroulis all of these men were to receive overtime if earned, which they did not get prior to the strike. With these items agreed to, the men expressed their willingness to re- turn to work immediately, but, as the agreement was reached on Friday and the following Monday was being observed as Washington's Birthday, it was agreed that men would, and they did, return to work on Tuesday, February 24. B. Discussion 1. The 8(axl) allegations Based on the foregoing, I find and conclude that Respon- dent violated Section 8(axl) of the Act in the following particulars: a. Alam's statement to Livanos on January 28 that he knew that Livanos had signed a card and joined the Union, and his inquiry of Livanos as to when the latter was going to strike. These remarks constituted interference with fights of Livanos to assist and support a union. b. The statement to Livanos by Hondroulis on January 28 that by joining the Union Livanos had put a knife in the boss' shoulder, and his further statement later that day that he knew Livanos had signed a card and his request that Livanos show him the card. This likewise constituted inter- ference with the protected right of the employees to engage in union activity. c. The offer by Barnet Liss to give employee Montalvo a clerical position if he would abandon his support of the Union, as well as the offers by Hondroulis to employees Dozis and Koulikourdis of increased wages and medical and other benefits if they would abandon their support of the Union. These were all plainly promises of benefit to induce said employees to abandon the Union, and consti- tuted interference with the protected rights of employees. 2. The 8(aX3) allegations As indicated, Staub had been employed by Respondent for something over 4 months. No claim is made that his work was in any respect deficient. Early on January 28, Staub for the first time met with Union Agent Hohmann, and at that time obtained a supply of union cards for signa- ture by the employees. When the four employees, including Staub, met to sign cards that morning, their activity was discovered by Supervisor Alam. That Alam was fully aware that the cards the employees were signing were union cards is clear from the statements he and Supervisor Hondroulis made to employee Livanos later that same day. Even at noon on January 28, when Staub reported to Alam that he had an accident that morning, nothing was said to Staub about the possibility of his discharge because of the acci- dent. At the end of the day, however, Staub is discharged. What this adds up to is that an employees whose work performance had not theretofore been questioned is dis- charged in midworkweek, without prior notice or warning, hard upon discovery of his union activity. This certainly was sufficient to establish the General Counsel's prima facie case, and to cast upon Respondent the duty of going for- ward with evidence to establish that the discharge was for some reason unconnected with the employee's union activi- ty-To discharge this duty Respondent claims that it had in effect a rule, of which all drivers were informed, that a driver would be discharged if he was involved in an acci- dent, but that in practice the rule was enforced only upon ATLANTIC STEAMERS SUPPLY CO. the happening of a second accident. Staub having admitted- I been involved in a prior accident on December 22, 1969, the accident on January 28, Respondent argues, made Staub's discharge automatic. My consideration of all the facts disclosed by this record convinces me that Respondent's reliance on its rule here is not only a pretext seized upon in an effort to obscure the true motive for the discharge, but is more consistent with antipathy for union activity than concern over compliance with company policy and rules. See N.LR.B. v. General Industries Electronics Company, 401 F.2d 297 at 301 (C.A. 8). I so find and con- clude for the following reasons. a. Alam's demeanor while testifying was not such as to inspire my confidence in his testimony. Accordingly, and notwithstanding his positive statements, which he frequent- ly repeated, that he told every driver at the time of his hire, and every time there was an accident in which any driver was involved, that no accident would be tolerated, I credit the testimony of Dozis and Staub that at no time were they ever told by Alain or any other representative of manage- ment that they would be discharged if they were involved in an accident. In this connection, I find it of some signifi- cance that Respondent did not produce any driver to testify that he had been so informed. b. Even the standard which Alam claimed was uniform- ly applied does not appear to have been followed in other cases. G.C. Exh. 7 27 shows that driver Edward Jackson had two accidents, involving property damage, one occurring on January 29, 1969, and the other on February 3, 1969, and yet he remained in Respondent's employ for several weeks after the second accident, and his employment terminated for reasons wholly unrelated to those two accidents. Alam attempts to explain this by the fact that the second accident resulted in no payment by the insurer, and therefore, ac- cording to Alam, the second accident "didn't count." It is obvious, however, that Alam regarded the accident of Feb- ruary 3, 1969, which was the second one for Jackson, as sufficiently serious to report to his insurance broker, and on that day he could not have known whether a payment for damages would result or not. c. It is clear from the record that if accidents which result in no liability "don't count" against an employee's record for the purposes of the rule, as Alam testified was the case, then Alam had no way of knowing on January 28, when he discharged Staub, that either accident that Staub had would involve a liability. Even on February 25, when the insurance broker prepared G.C. Exh. 7, both claims were pending and it was not known what amount, if anything, would be paid on either claim. It is true that subsequently the insurer paid on both claims, but the point is that such fact was not known to Alam on 'January 28. Upon the entire record, I am convinced, and accordingly find and conclude, that the motivating cause for taut s discharge on January 28 was that Respondent had ascer- tained that morning that Staub was a dominant force in the movement to organize its employees, and that his discharge, therefore, violated Section 8(a)(3) and (1) of the Act. 3. The 8(a)(5) allegations a. 1'he demand for recognition I find and conclude that Hohmann's discussion with Alain on the morning of January 29 was not a sufficient 27 This is a list prepared by Respondent's insurance broker on February 25, showing all accidents reported to it from July 16 , 1967, to the date thereof, the driver involved, and the disposition made of each claim. , 287 demand to impose upon Respondent the statutory duty to bargain. Admittedly Hohmann's only request was for "a letter recognizing the Union." Such a demand has the plain deficiency of not designating the unit for which recognition was being asked 25 The Union's letter of January 29, howev- er, is an unequivocal demand for bargaining in a unit of drivers and warehousemen, and Respondent's receipt of that demand, which I have heretofore found, occurred on January 30, imposed upon it the duty to bargain with the Union if it in fact represented a majority of the employees in the described unit, the issue which I now consider. b. The Union's majority status As set forth above, Barnet Liss admitted that when de- mand for recognition was made upon him, there were 10 employees in the unit, including Livanos, but not including Staub. Having heretofore found that Staub's discharge on January 28 was discriminatory, it follows that he remained in employee status and must be included for the purpose of determining the employee coin lement of the unit on Janu- ary 30. I also find and conclude that Joel Liss, the nephew of Barnet Liss, should be excluded from the unit. While the Board holds that a family relationship is not of itself suffi- cient to require such exclusion, where the facts establish that the relative enjoys special privileges or benefits by virtue of the relationship, he is more closely allied to management than to unit em loyees, and must be excluded from the unit. Supermarket of Dunbar, Inc., d/b/a Fas Check No. 6, 178 NLRB No. 34. Here, Joel Liss enjoyed the special privilege and benefit of a salary which is admittedly $50 a week in excess of a reasonable salary for the job he performs. Ac- cordingly, I find and conclude that his interests are more closely allied to management than to unit employees, and that he must be excluded from the unit. As Petratos first worked in the week ending February 6, the first workday of which was February 2, and then only for 4 hours, I find and conclude that he was not in employee status on January 30, the date Respondent received the Union's recognition de- mands. Accordingly, I find that on January 30 the unit consisted of nine employees, including Livanos and Staub, but excluding Joel Liss and Petratos, and, as the Union on that date hag authorization cards signed by six of the nine employees in the unit, it follows that the Union was on January 30 the duly authorized collective-bargaining9repre- sentative of the employees in the appropriate unit. c. The refusal to bargain Although, as I have found, the Union was the duly desig- nated majority representative of Respondent's employees in an appropriate unit on January 30, when the Union de- manded and Respondent refused recognition, it does not necessarily follow that such refusal violated Section 8(a)(5) of the Act. This is so because an employer enjoys the qual- ified right to refuse to recognize an d bargain with a union until such time as the latter establishes its majority status in some manner other than the bald assertion in its demand. Such right, however, is not absolute, and will be regarded 28 This is particularly true in the instant case because Respondent has employees (office clericals) whom the Union did not seek to represent. Having reached this conclusion it becomes unnecessary to decide wheth- er as Respondent contends but General Counsel denies , Livanos was not in the unit because he resigned prior to January 30. If he had so resigned, the Union represented five of eight employees, instead of six of nine as above found. For the same reason it is unnecessary to decide whether, as the General Counsel contends, Bernstein and Garcia should be excluded from the unit as office clericals. If the General Counsel were to prevail on that issue, if would only serve to increase the Union's majority. 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as forfeited if it is established that the employer acted in a manner calculated to undermine the Union s majority. Tow- er Enterprises, Inc., d/bla Tower Records, 182 LRB No. 5630 Accordingly, application of the aforementioned princi- ples makes it necessary to determine whether Respondent's refusal to bargain took place in a context of lawful conduct, or in a context of unlawful conduct calculated to undermine and destroy the Union's claim of majority. If, as the Su- reme Court held in NLRB. v. Gissel Packing Company, 395 U.S. 575, Respondent's conduct falls in the latter cate- gory, and is of a character that the effect thereof is not likely to be eradicated by the usual cease-and-desist order and posting of a notice, so as to insure a fair election, the card designations may on balance be regarded as a more reliable indicator of employee desires , than their vote in an election, and a bargaining order may issue as an appropriate remedy. N.L.R.B. v. Guse! Packing Company, supra at 610-614. Applying these principles to the facts of the instant case, it appears that, promptly after becoming aware that-the Union was organizing its employees, Respondent engaged in a campaign designed to thwart that organization and to destroy any majority the Union may have obtained. Thus, Livanos was on three separate occasions interrogated by Alam and Hondroulis, and before the day was over Staub, whom Respondent had every reason to suspect was the leader in the union movement, was discharged because of his union activity; in the week following the inception of the strike, promises of benefit were made to Montalvo, Kouli- kourdis, and Dozis to induce them to abandon their strike, and to urge other employees to do likewise ; and on Feb- ruary 20, completely ignoring the representative status on the Union, Respondent granted most substantial improve- ments in wages, as well as other benefits, in return for the promise of the employees to in effect abandon the Union and return to work. This conduct, I find and conclude, was not only coercive, but so pervasive in character as to make it unlikely that its effects could be neutralized so that a fair election could be conducted . Lowery Trucking Company V. N.LR.B., 431 F.2d 280 (C.A. 8) decided August 14, 1970. Accordingly, I find and conclude that , by its admitted refusal to recognize and bargain with the Union as the duly designated representative of its empplo ees in an appropriate unit, Respondent violated Section 8(a (5) and (1) of the Act; and that under the circumstances of this case the employees' sentiment expressed through the authorization cards is a more reliable indicator of their desires on the issue of repre- sentation than would be an election, and that to effectuate the policies of the Act, and to prevent Respondent from reaping the benefits of its own misconduct, a bargaining order is necessary and appropriate. I further find and conclude that by bargaining directly 30 Respondent's contention that because there were no more than three employees on the picket line at one time it had a good-faith doubt that the Union represented a majority is irrevelant . To begin with, while the presence of a majority of his employees on a picket line may constitute notice to the employer that a majority are supporting the union's demand for recognition (see N.L.R.B. v. Preston Feed Corporation. 309 F.2d 346 at 351 (C.A. 4), it does not necessarily follow that because one or more strikers did not parti- cipate in picketing that the employer may properly conclude that the non- picketing strikers do not support the union. Moreover, Barnet Liss admitted that he was aware that six employees were on strike (the six who signed cards), and that he observed all six of them picketing at one time or another. And finally, but more importantly, the Supreme Court has held that in judging whether a bargaining order is appropriate, where an employer has refused a request to bargain predicated on signed authorization cards, an employer's good-faith doubt is irrelevant. N.LRB. v. Gissel Packing Com- pany, 395 U.S. 575, 594. with employees on February 20, and agreeing to make and making certain improvements in their wages , hours, and terms and conditions of employment, Respondent also vio- lated Section 8(aX5) and (1 ) of the Act. An employer's statutory duty to bargain with the majority representative of his employees exacts "the negative duty to treat with no other." Medo Photo Supply Corporation v. N.LRB., 321 U.S. 678. What Respondent did here, in practical effect, was to bargain with the employees directly, in derogation of the duty to bargain solely with the majority representative. N.L. RB v. Katz, 369 U.S. 736, makes it clear that an employer violates Section 8(a) (5) of the Act if he makes unilateral changes in wages, hours, or working conditions without first bargaining to an impasse with a majority representative, regardless of his motives in effectuating such a change. Hav- ing found that since January 30 the Union was the duly designated representative of the employees in an appropri- ate unit with whom Respondent was under the statutory du to bargain, and it being conceded by Respondent that on February 20 it bargained directly with the strikers re- garding increased wages and other conditions of employ- ment and thereafter made such improvements effective, it follows that Respondent thereby violated Section 8(a) (5) and (1) of the Act. I so find and conclude. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS of LAw 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and is enga ed in commerce within the meaning of Section 2(6) and ( of the Act. 2. The Union is a labor organization within the moaning of Section 2(5) of the Act. 3. By the conduct set forth in section I, B, 1, hereof, Respondent interfered with, restrained, and coerced its em- ploees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in, unfair labor practices proscribed by Section 8(axl) of the Act. 4. By discharging William Staub on January 28, and thereafter failing and refusing to reinstate him, because of his assistance to and support of the Union, Respondent discriminated against him in regard to his hire or tenure of employment, discouraging membership in the Union, and thereby engaged in, and is engaging in, unfair labor prac- tices proscribed by Section 8(a 3) and (1) of the Act. 5. On January 30, and at all times thereafter, the Union was the duly designated exclusive collective -bargaining rep- resentative of Respondent's employees in a unit appropriate for collective bargaining consistin g of drivers, helpers, and warehousemen, excluding office clerical employees, watch- men, guards, and supervisors as defined in the Act. 6. By refusing the Union's request to recognize and bar- gain with it as the representative of employees in the afore- said unit, Respondent engaged in, and is enggaging in, unfair labor practices proscribed by Section 8(ax5) and (1) of the Act. 7. By unilaterally changing wages, hours, and terms and conditions of employment, without notice to or bargaining with the Union as the collective-bargaining representative of the employees in the aforesaid unit, Respondent refused to bargain with the Union as such collective-bargaining representative, and thereby violated, and continues to vio- late, Section 8(aX5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ATLANTIC STEAMERS SUPPLY CO. 289 •THE REMEDY Having found that Respondent interfered with, re- strained, and coerced its employees in the exercise of rights guaranteed b Section 7 of the Act, I shall recommend that it be requiredyto cease and desist therefrom and take certain affirmative action designed and found necessary to effectu- ate the policies of the Act. The unfair labor practices found being of a character which go to the very heart of the Act, an order requiring Respondent to cease and desist from in any manner infringing upon employee rights is warranted, and I shall so recommend. N.L.R.B. v. Entwistle Mfg Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. Having also found that Respondent discriminatorily dis- charged William Staub, I shall recommend that it be re- quired to offer him immediate, full, and unconditional reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent one, without prejudice to his seniority and other rights, privileges, or working con- ditions, and make him whole for any loss of earnings suf- fered by reason of the discrimination against him, by paying to him a sum of money equal to the amount he would have earned from the date of the discrimination against him, to the date of Respondent's offer to reinstate him as aforesaid, less his net earnings during that period , in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum, as provided in Isis Plumbing & Heating Co., 138 NLRB 716. It will also be recommended that Respondent be required to,preserve and, upon request, make available to authorized agents of the Board , all records necessary or useful in determining compliance with the Board's order, or in computing the amount of backpay due thereunder. Having further found that Respondent unlawfully re- fused to bargain with the Union as the duly designated representative of its employees in an appropriate unit, it will be recommended that Respondent be required , upon re- quest, to bargain collectively with the Union as such repre- sentative, and if an understanding is reached embody the same into a signed written agreement. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law and the entire record in the case , and pur- suant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board order Atlantic Steamers Supply Co., Inc., its officers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Coercively interrogating employees as to whether they signed a union card, or otherwise assisted or supported a union. (d) In any other manner interfering with, restraining, or coercing employees in the exercise oT their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively with Truck Driv- ers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America as the exclusive representative of its employees in the appropriate unit above set forth, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody the same into a written and signed agree- ment. Offer to William Staub immediate, full, and uncon- ditional reinstatement to his former job, or , if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights , privileges, or work- in and make him whole for any loss of earnings su fered, in the manner set forth in the section hereof enti- tled "The Remedy." (c) Notify William Staub if presently serving in the Armed Forces of the United States of his right to full re- instatement upon application in accordance with the Selec- tive Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request , make available to au- thorized agents of the National Labor Relations Board, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful in determining compliance with this Order, or in computing the amount of backpay due, as herein provided. (e) Post at its establishment at New York, New York, copies of the notice attached and marked "Appendix.."31 Copies of said notice on forms provided by the Regional Director for Region 2 (New York, New York), shall, after being signed by an authorized representative , be posted immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to in- sure that said notices are not altered, defaced, or covered by any other material. (f) Notify the aforesaid Regional Director , in writing, within 20 days from the date of the receipt of this Decision, what steps it has taken to comply herewith 32 (b) Discouraging membership in Truck Drivers Local Union No . 807, international Brotherhood of Teamsters , 31 In the event no exceptions are filed as provided by Section 102.46 of the Chauffeurs, Warehousemen and Helpers of America, or any Rules and Regulations of the National Labor Relations Board, the findings, other labor organization of its employees , by discriminaton- conclusions, recommendations, and Recommended Order herein shall, as ly discharging, or in any other manner discriminating provided in Section 102.48 of the Rules and Regulations, be adopted by the against any employee in regard to his hire, tenure , or other Board and become its findings, conclusions, and order, and all objections term or condition of employment . thereto shall be deemed waived for all purposes . In the event that the Board's Failing bargain collec- Order is enforced by a Judgment of a United States Court of Appeals, the (c) or refusing, upon request, to g words in the notice reading "Posted by order of the National Labor Relations tively with the aforementioned labor organization as the Board" shall be changed to read "Posted pursuant to a Judgment of the exclusive collective-bargaining representative of its employ- United States Court of Appeals enforcing an order of the National Labor ees in an appropriate unit. The appropriate unit is: All truck Relations Board." drivers, helpers and warehousemen employed at its New 32 In the event that this Recommended Order is adopted by the Board, this York establishment, excluding salesmen, office clerical em- provision shall be modified to read : "Notify the aforesaid Regional Director, ployees, watchmen, guards and supervisors as defined in the in writing, within 10 days from the date of this Order , what steps it has taken Act. to comply herewith."