Hoffman Bros.

HOFFMAN BROS. The Dalf Corporation, d/b/a Hoffman Bros. and Re- tail Delivery Drivers, Driver Salesmen & Helpers' Union Local No. 278, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 20-CA-5816 February 2, 1971 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On August 19, 1970, Trial Examiner Robert L. Pip- er issued his Decision in the above-entitled case, find- ing that the Respondent had engaged in and was engaging in certain unfair labor practices, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respon- dent filed, exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 Respondent's exceptions and brief, and the entire record in this case, and here- by adopts the findings,' conclusions, and recommen- dations of the Trial Examiner. 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 and hereby orders that the Respondent, The Dalf Corporation, d/b/a Hoff- man Bros., its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order .2 i The Respondent excepts to the credibility resolutions made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions as to credibility unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Such a conclusion is not warranted here. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C.A. 3). 2 In footnote I I of the Trial Examiner's Decision, substitute "20" for "10" days. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 319 ROBERT L. PIPER, Trial Examiner: This proceeding, under Section 10(b) of the National Labor Relations Act, as amended, was heard at San Francisco, California, on March 26, 1970, pursuant to due notice. The complaint, which was issued onDecember 31, 1969,' on a charge filed October 30 and amended December 3 and 17, alleged in substance as amended that Respondent en aged in unfair labor practices proscribed by Section 8(a)(1) and (5) of the Act by (1) various specified acts of interference, restraint, and coer- cion; and (2) refusing to bargain with Retail Delivery Driv- ers, Driver Salesmen & Helpers' Union Local No. 278, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (hereinafter called the Union), on and after October 29. Respondent's answer de- nied the alleged unfair labor practices. The General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a California corporation engaged in the wholesale distribution of frozen food products with its prin- cipal office and place of business located in South San Francisco. During the past year it purchased and received goods valued in excess of $50,000 directly from points out- side the State of California . Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Introduction and Issues This proceeding involves an alleged refusal to bargain with the Union after its request based upon the possession of signed authorization cards from d majority of the em- loyees in the appropriate unit, alleged subsequent unilat- ral institution of more strict work rules, and alleged e interference, restraint, and coercion of employees. The issues as framed by the pleadings are: (1) refusal to bargain on and after October 29 with the Union as the exclusive bargaining representative designated by a majori- ty of the employees in the appropriate unit; (2) refusal to bargain and interference, restraint, and coercion by unilat- erally instituting more strict work rules because ofthe em- ployees' union activities; and (3) interference, restraint, and coercion by (a) interrogating employees about their union activities; and (b) threatening to discharge employees for engaging in union activities. B. Chronology of Events Respondent, a corporation doing business as Hoffman Bros., was engaged in the wholesale distribution of frozen i All dates hereinafter refer to 1969 unless otherwise indicated. 188 NLRB No. 57 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD food products from its warehouse in South San Francisco. The four Hoffman brothers, David, Fred, Leon, and Ab- raham, each owned 25 percent of the corporation's stock. David was the president and general manager and Ab- raham, employed full-time was Respondent's treasurer. Ex- clusive of office and clerical help, Respondent employed six delivery drivers and warehousemen, the status of one of whom, Arnold Hoffman, the son of Abraham, is in dispute, as considered more fully hereinafter. The other five were Edward Nishimura, David Figone, Salvador Reyes, Larry Jackson, and Steven Cohen. All five performed both ware- house and driver duties with Nishimura's job being prima- rily that of a warehouseman, Cohen about 50-50 and the others primarily delivery drivers. On the evening of October 27 at the request of one of the employees, Charles J. Ciolino, an organizer for the Western Conference of the Teamsters, and William Chapman, bus- iness agent for the Union, held an organizational meeting at the home of Reyes, attended by Reyes, Nishimura, Jack- son, and Figone. At the conclusion of the meeting, after Ciolino had explained the benefits and desirabilities of be- longing to the Union, all four employees signed unambigu- ous applications for membership in the Union which also authorized it to act as their collective-bargaining representa- tive. Ciolino informed them that he would contact Respon- dent in a day or two to request recognition and bargaining. The following evening, October 28, Jackson called David Hoffman (hereinafter called David), and informed him of the union meeting at Reyes' home the previous night. Jack- son told David the identity of all who had attended the meeting, including the Union's representatives, and that all four of the employees present had signed applications for membership in the Union. David was also informed by Jackson that he had had some second thoughts about join- ing the Union and wanted to know what to do. David told him that if he did not want to belong to the Union to call and so advise it. According to David and Jackson, Jackson replied that he planned to call the Union the following morning to withdraw his application. Jackson informed David that the Union's representatives would be in to see him the next day. According to David, not corroborated by either Jackson, who was called by Respondent, or Nishimu- ra, both of whom testified fully with respect to the incidents at Reyes' home, Jackson told David that Nishimura had said when they were leaving that he too had misgivings about having joined the Union. I do not credit the testimony of David unless undisputed, corroborated, or constituting an admission. According to David, he then called his attor- ney who instructed him to ask for a Board election if the Union's representatives came to see him. The following morning David commenced a series of interrogations, warnings, threats, and the imposition of more strict work rules, concerning and because of the em- ployees' union activities. Shortly after starting time David asked Nishimura why he wanted to join the Umon. Nishi- mura answered that he had joined because he wanted some retirement benefits. David replied that he should have spo- ken to David first because Respondent was considering establishing a retirement plan for its employees. Neither Nishimura nor any of the other employees had ever heard of any such possibility before. Shortly thereafter David spoke to Cohen and told him that David did not want the Union in the plant. David knew that Nishimura had attend- ed the meeting and joined the Union and that Cohen had not. Cohen replied that he didn't know anything about it. David then said that he knew that Cohen had not joined the Union and asked him whether he wanted to join or not. Cohen replied that he wanted to look into the situation and he would think about it. David thereupon stated that he was planning to discharge Reyes and Figone, thereby increasing the work load of Cohen, Jackson, and Nishimura. Cohen, because he believed that this would increase his pay, re lied that that was fine. David, whom I do not credit, deniedpever having any conversation with Cohen about the Union. Shortly thereafter, according to Jackson and David, neither of whom I credit in that respect, Jackson came to the office and with David's permission called Chapman at the union office to withdraw Jackson's membership applica- tion. According to David, Jackson showed him Chapman's business card, said that he wanted to call Chapman to with- draw from the Union, David told him to do so and re- mained present during the conversation, hearing all that Jackson said, including that he had changed his mind and did not wish to be in the Union. According to Jackson, contrary to David's testimony, Jackson called Ciolino and David left the room during the telephone call and did not hear anything that Jackson said. Jackson said that he did not reach Ciolino but spoke to Chapman and asked to withdraw Jackson's application card. Chapman, whom I credit, testified that he had never been called or contacted by Jackson with respect to the withdrawal of his member- ship application, and in fact was not present in the Union's office at any time on the morning of October 29. About 11 a.m. October 29 Ciofino, Chapman, and Ber- nard Zarry, a business agent of the Union, arrived at the warehouse to see David. Ciolino informed David that the Union represented his employees and requested recogni- tion. Thereupon the four of them went into Respondent's office conference room. When David replied that he did not believe that the Union represented his employees, Ciolino handed him the four signed membership applications, which David carefully perused. Ciolino also handed David an unsigned form of the contract entered into with the Union by other employers in the frozen food industry, ad- vising him that this was the type of contract that the Union wanted to negotiate. When David, although he knew from Jackson that the four employees had in fact signed the applications to join the Union, questioned the authenticity of their signatures, Ciolino suggested that they obtain an impartial third party to check the signatures, and also su-- gested that they could be checked against Respondents payroll or paychecks to determine authenticity. When David would not agree to a third party check or to recognize the Union, Ciolino took back the signed membership appli- cations but left the form contract with David. At no time did David mention that Jackson or any employee had alleg- edly withdrawn his membership application from the Un- ion. Ciolino informed David that the Union would return on Monday with respect to its request and advised him that he had better consult an attorney. Contrary to his testimony and the advice he had allegedly received from his attorney the prior evening, David did not request a Board election. Later the same day David issued a written warning to Reyes about parking his truck after work against the dock instead of in the parking space on the left side of the drive- way. Admittedly Respondent had never previously issued written warnings, and did so upon advice of its attorney after the advent of the Union in order to establish a written record to justify any future disciplinary action. Reyes ad- mitted that on one or two occasions some 3 or 4 months previously, David had warned him about parking his truck at the dock after work. On October 30, the next day, Res- pondent issued written notices to all of its drivers prohib- iting carrying any riders unless authorized by management. This was contrary to its past practice. Both Nishimura and Reyes testified that David had informed them that they HOFFMAN BROS. 321 could carry riders, but that it would be at their own respon- sibility because such riders were not covered by Respondent's insurance. The same day Respondent issued a written starting-time work schedule to all of the em to - ees, the first time this had been done . On October 30 the Union filed its original charge. On October 31 Respondent issued a written notice to employees prohibiting all personal telephone calls except in a dire emergency and when author- ized by management . Although Nishimura had seen a sim- ilar notice some 2 or 3 years before, he testified that he had constantly made personal telephone calls to his wife ever since andhad never been warned or repreimandedfor doing so. Reyes testified that no one had ever given him any instructions not to make personal telephone calls . On Octo- ber 31 , Cohen voluntarily appeared at the office of the Union and signed a membership application. On or about October 31 , Nishimura informed David that Nishimura had had a conversation with his wife about the Union, that she thought he had not made a very good move, that he should have talked it over with Respondent before t the Union to ascertain what would happen , and that he too thought that maybe he had done the wrong thing and was considering withdrawing his application . Nishimura did not tell David that he was going to call the Union to withdraw his card . David suggested to Nishimura that he call the Union and withdraw his application. Nishimura testified that later that day he called the Union's office but was unable to contact any representative. It was undisputed that Nishimura never told any union agent that he wished to withdraw his application. During one of these conversa- tions with Nishimura, David informed him that Respondent was planning to discharge Cohen and Figone. Nishimura had known before the advent of the Union that Respondent was considering discharging Cohen , but had never heard of any such plan with respect to Figone. David, whom I do not credit, denied having any conversations with Nishimura about the Union after the one on the morning of October 29. On November 1 David issued another warning notice to Reyes with respect to parking his truck on the street after work, advising him that it must be parked on the left side of the driveway and failure to do so would result in suspen- sion of I day's employment. Reyes, whom I credit, testified that most of the time he had parked his truck on the street after work and had never previously been criticized for doing so. O{i November 5 David issued a notice to Figone warning that continuation of reporting in between 8 and 10 p.m. with the excuse of being lost on his route would be cause for discharge. There was no proof that Figone had ever previ- ously reported in "late" or been warned about doing so. David admitted that, while the drivers had fixed starting times, they were expected to work until they finished their deliveries and thus their reporting-in time varied from early to late. On November 6, a Thursday, David issued another warning notice to Reyes for reporting to work at 8:10 a.m. that morning, allegedly 10 minutes late , threatening him with suspension of 1 day's employment for any repitition. Reyes testified, and it was undenied, that some months previously David had specifically authorized Reyes to come in later, between 8 :20 and 8 : 30 a.m., on Thursdays because he always worked very late on Wednesdays and hursday was a light day for him. Thereafter Reyes had consistently reported between 8:20 and 8 :30 a.m. on Thursdays. Thus Respondent's warning notice was clearly contrary to its undenied arrangement with Reyes . Cohen testified, and it was undisputed, that he was present in the warehouse on the morning of November 6, that Reyes arrived at work about 8:05 a.m., and that approximately 1 minute previously David had called Nishimura to ask if Reyes had shown up at work. David admitted that to his knowledge Reyes had never previously been late for work. The record establishes, and I find, that after the advent of the Union David was searching for reasons to issue warning notices and threats of disciplinary action. On or about November 12 David asked Cohen how his "union buddies" were doing. Cohen testified that he did not know what to say, but replied that they were doing fine. According to Cohen, whom I credit, he did not consider David's question either casual or in jest . In the latter part of February or early March 1970, David asked Nishimura what he was going to do about the Union . Nishimura rep- lied that he had not decided. David asked Nishimura to think about it and let David know . A day or so later David spoke with Nishimura by telephone and again asked him if he had decided what he was going to do about the Union. Nishimura replied that he had not and David told him to forget the whole thing. C. Interference, Restraint, and Coercion The complaint as amended alleged that from on or about October 29 to and including the first week of March 1970 Respondent by David interrogated employees concerning their union activities, on or about October 29 threatened to discharge employees for engaging in union activities, and on or about October 30 and 31, unilaterally instituted more strict work rules because of the employees' union activities. As hereinabove found, David, promptly after learning that four of his employees had joined the Union , the following morning queried Nishimura as to wh he had Joined the Union, and upon learning that he haYdone so because he wanted retirement benefits, admonished him for not coming to Respondent first because it had planned to institute such benefits, concerning which the employees had never previ- ously been advised. This clearly constituted interrogation coupled with an implied promise of benefit. David next warned Cohen that Respondent did not want the Union in the plant, although David knew that Cohen had not attend- ed the meeting and joined the Union . When Cohen replied that he didn't know anything about it , David admitted that he knew that Cohen had not joined the Union , and asked him whether he wanted to do so . When Cohen replied that he wanted to look into the situation and think it over, David promptly observed that he was planning to discharge Reyes and Figone, thus increasing the remaining employees' work load. Clearly this interrogation was coupled with an implied threat of discharge, and an implied promise of benefit con- sisting of increasing Cohen's earnings. During another discussion with Nishimura about the Un- ion, 2 days later, David suggested that Nishimura call the Union and withdraw his application for membership. Dur- ing that conversation or the prior one, David informed Nishimura that David was planning to fire Cohen and Fi- gone. The implication, during a conversation solely con- cerning union activities, is patent. About 2 weeks later David again interrogated Cohen about the Union, which Cohen understood to be neither a casual remark or in jest. As late as the following March , David was still trying to discourage and restrain the union activities of Respondent's employees by interrogating Nishimura about what he was going to do about the Union and asking him to let David know. A day or so later, David again asked Nishimura if he had decided what he was going to do about the Union, and told him to forget the whole thing . I am satisfied and find that Respondent, by such coercive interrogation, coupled 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with implied threats of discharge and implied promises of benefit, interfered with, restrained, and coerced its employ- ees in violation of Section 8(axl) of the Act. On October 29, the same day the Union requested recog- nition and bargaining, Respondent by David, admittedly because of the advent of the Union and upon advice of counsel, commenced issuing a series of written notices, in- cluding work schedules, warnings for conduct previously approved or condoned, and threats of suspension and dis- charge for such conduct, all contrary to its past practice, and unilaterally imposing more strict work rules and condi- tions. Because of their timing, and in some instances lack of any justification, it is apparent and I find that Respondent did so because of the employees' union activities. On Octo- ber 29 Respondent issued Reyes a warning notice for park- ing his truck at the dock after work . On October 30 Respondent issued notices prohibitingidrivers from carrying any riders unless authorized by management , contrary to past practice. On October 30 Respondent also issued writ- ten starting-time work schedules to all employees , although it had never previously done so . On October 31 Respondent issued notices prohibiting all personal telephone calls except in a dire emergency and when authorized by management, contrary to past practice. On November 1 Respondent is- sued a second notice to Reyes, warning him against parking his truck on the street after work, although the record estab- lished that Reyes customarily had parked his truck on the street after work without criticism. On November 5 Respon- dent threatened Figone with discharge for reporting in be- tween 8 and 10 p.m. with an excuse of being lost on his delivery route, although Respondent admitted that the driv- ers had no fixed quitting time and were expected to work until they had completed all of their deliveries and returned the truck and their invoices to the warehouse . There was no evidence that Figone had ever been so previously warned. On November 6, a Thursday , Respondent threatened Reyes with I day's suspension of employment for reporting in at 8:10 a.m., allegedly 10 minutes late, although the record establishes that David had specifically authorized him to report in as late at 8 :30 a.m. on Thursdays, and that David had never previously known Reyes to be late for work. I am satisfied and find that Respondent , by such unilateral impo- sition of more strict working rules and conditions contrary to past practice, and by written warnings coupled with threats of suspension or discharge for engaging in conduct previously approved or condoned , all because of the em- ployees' union activities, interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. D. Refusal to Bargain 1. The appropriate unit The record establishes, Respondent conceded, and I find the following to be a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All drivers and warehousemen employed by Respon- dent at its South San Francisco, California facility, excluding office clerical employees, guards and super- visors as defined in the Act. 2. The status of Arnold Hoffman Respondent employed six drivers and warehousemen, in- cluding Arnold Hoffman, some of whom worked primarily as warehousemen and others primarily as drivers. Arnold s inclusion in the appropriate unit is disputed by the parties. Arnold is the son of Abraham, one of the four Hoffman brothers, each of whom owned 25 percent of Respondent's stock. Abraham was employed by Respondent full-time and was the Treasurer of the corporation. The General Counsel contends that Arnold should be excluded from the appropriate unit because he is the son of one of the principals of a closely held corporation, because he enjoys special status and privileges not accorded to the other driver and warehouse employees , and because he was a supervisor within the meaning of the Act. Respondent contends that Arnold should be included in the unitbecause the Board's admitted rule with respect to the exclusion of children of principals of closely held corporations is either not here applicable or should be modified, because Arnold did not enjoy any special status or privileges vis-a -vis the other driver-warehousemen and the record establishes an appropriate community of interest among Arnold and the other employees, and because Arnold was not a supervisor. Unlike the other drivers and warehousemen, Arnold spent 25 percent of his time during the relevant period selling and establishing new "fish and chips" restaurant franchises for Respondent and another corporation in which Respondent owned 50 percent of the stock. In August of 1968 Respondent's stockholders entered into a voting trust agreement under California law, under the terms of which the voting power was transferred to three named trustees, David, Leon, and Fred Hoffman, with each stockholder retaining a beneficial interest in the trust, in- cluding dividends, equivalent to the number of shares trans- ferred to the trustees. Because Abraham was then residing in Los Angeles, he was not named as one of the trustees. However Abraham and Arnold in that order were named as successor trustees in the event of the death or resignation of any of the trustees. Because of this voting trust agreement, Respondent also contends that the rationale relied upon by the Board in excluding children of the principals of closely held corporations from the appropriate unit is inapplicable. In Foam Rubber City,2 the Board, reversing an earlier ,holding and assuming the inapplicability of Section 2(3) of the Act, which provides that `the term 'employee' shall not include ... any individual employed by his parent ", held that children of the principals of closely held corporations should be excluded from bar g units be- cause "such children, because of their relation hip with a substantial owner of this type of enterprise, have interests more closely identified with management than with their fellow employees." Clearly Arnold was the son of a princi- pal and the nephew of the other three principals of a closely held corporation. The fact that under the voting trust agree- ment the voting power was transferred to three trustees, all uncles of Arnold, does not negate the applicable principle, namely, the exclusion of individuals whose interests are more closely identified with management, particularly where the stockholders retained a beneficial interest and Abraham and Arnold were both named as successor trus- tees. I am satisfied and find that Arnold should be excluded from the appropriate unit as the son of one of the principals of a closely held corporation. In the same decision the Board made clear that, in cases not involving children or spouses of principals , it was re- affirming its established standard of excluding from appro- priate units employees who because of their family relationship enjoyed special status or privileges not availa- ble to other employees generally. The record establishes that Respondent paid Arnold $ 1,170 a month, allegedly as a driver-warehousemen, whereas it paid Figone $14 a day, 2 Foam Rubber City No 2 of Florida, Inc, 167 NLRB 623 (1%7) HOFFMAN BROS. Cohen and Reyes $25 a day, Jackson $600 a month and Nishimura $750 a month , all allegedl performing the same work . Thus Respondent paid Arnold percent more than the next highest paid employee and 286 percent more than the lowest paid employee . In addition Respondent fur- nished Arnold without expense a 1970 Cadillac for his per- sonal and business use, the latter limited to ap proximately 10 percent of his duties. I am satisfied and findpthat because of his family relationship Arnold enjoyed a special status and privileges not available to other employees , did not possess the requisite community of interests with his fellow employees but on the contrary had interests more closely identified with those of management, and accordingly should be excluded from the appropriate unit for this reason as well as the fact that he was the son of one of the principals of a closely held corporation. With the exception of some minor direction of the activi- ties of another employee in connection with the installation and establishment of the "fish and chips" restaurant fran- chises, there is no evidence in the record that Arnold exer- cised any supervisory functions . I am satisfied and find that the General Counsel has failed to sustain his burden of proving that Arnold was a supervisor within the meaning of the Act. 3. The majority designation The complaint alleged that on or about October 28, a majority of Respondent's employees in the appropriate unit designated the Union as their representative for the purpos- es of collective bargaining with Respondent, and that on or about October 29 the .on requested and continued to request Respondent to bargain collectively with it as the exclusive bargaining representative of the employees in said unit. The record establishes and I find that, exclusive of Arnold, at all times relevant herein there were five employ- ees in the appropriate unit. The record further establishes that on October 28 the Union had signed membership appli- cations also constituting authorization cards from four of the employees in the appropriate unit and on October 31 had such signed authorization cards from all of the employ- ees in the appropriate unit. The membership application and authorization cards were both single purpose and un- ambiguous, of substantially the same type and lan.&uage as those approved by the Supreme Court in its Gissel de- cision.3 They merely designated the Union as the employ- ees' collective-bargaining representative and applied for membership in the Union, just as the cards were approved by the Supreme Court. There is no evidence or contention that any of said cards were secured by misrepresentations made to the signers with respect to the use or purpose of the cards. They clearly comport with the criteria of the Board's Cumberland Shoe doctrine, also approved by the Supreme Court in Gissel.4 Thus the record establishes that at the time of the Union's original request for recognition and bargaining on October 29, the Union possessed signed authorization cards from 80 percent of the employees in the appropriate unit, and 2 days thereafter 100 percent . It has been found hereinabove that none of the employees ever requested withdrawal of their cards from the Union. Assuming arguendo that Jackson's card had been withdrawn, and that Cohen's card should not be counted because it was signed 2 days after the request, nevertheless disregarding their cards the Union represented 60 percent of the employees at the time of its request. More- 3 N.L.R.B. v. Gusel Packing Co., 395 U.S. 375 (1969) b ld 323 over, the record establishes that the Union's request for recognition and bargaining was a continuing one, inasmuch as the Union left with Respondent a copy of its proposed contract with the request that Respondent consider it, add- ing that the Union would return on the following Monday, November 3, to negotiate. Where the request for bargaining is a continuing one, it is well settled that authorization cards obtained following the initial request are counted in de- termining the majority status.5 I conclude and find that at the time of the original request for recognition and bargain- ing on October 29 and thereafter, the Union was designated by a majority of the employees in the appropriate unit as their bargaining representative and was then and thereafter the exclusive bargaining representative of the employees in the aforesaid unit. 4. The refusal to bargain The complaint alleged that on and after October 29 and continuing to date Respondent refused to recognize and bargain with the Union as the exclusive representative of the employees in the appropriate unit . On October 29 the Union requested David to recognize and bargain with it. David, although he knew that four of the employees in the unit had signed membership applications the previous evening, nev- ertheless questioned the authenticity of their signatures and stated that he did not believe that the Union represented a majority of his employees. Thereupon the Union presented David with the original signed applications, suggesting that their authenticity be checked by an impartial third party or against Respondent's payroll records . David did not agree to such suggestions or to recognizing the Union. Contrary to the advice he had allegedly received from his counsel, he did not request a Board election . The Union also presented David with a form contract, with the suggestion that he consider it, consult an attorney , and the statement that the Union would return on the following Monday to negotiate. Later that day David had his attorney write the Union a letter refusing its request for recognition and bargaining, stating that Respondent had a good-faith doubt that the Union represented a majori ty because an employee had informed it that he had withdrawn his authorization card prior to the request. Patently this contention was also based upon Respondent's belief, hereinabove found to be inaccu- rate, that the appropriate unit included six employees. In the light of the Supreme Court's decision in Gissel,6 it is now established that an employer 's good- or bad-faith doubt that a union represents a majority of the employees at the time =Vin st for recognition is largely irrelevant, the criteria gg whether or not the Union in fact represented a majority of the employees and the employer engaged in substantial unfair labor practices making the holding of a fair election impossible or unlikely. Here the record establishes beyond doubt that the Union at all times at and after its request in fact represented a substantial majority of the employees in the appropriate unit. As a result of the Supreme Court's decision in Gissel,7 it must now be considered settled law that the ma- jority status of a union may be established by methods, other than certification by the Board after an election, in- cluding the securing of a majority of unambiguous authori- zation cards. Under Gissel, supra, and the Board's subsequent explications thereof,' it is also well settled that 3 Scobell Chemical Corp v. N.L R .B., 267 F.2d 922 (2nd Cir 1959). 6 Fn. 3, supra 7 Fn 3, supra E.g., Great Plains Steel Corp, 183 NLRB No. % (1970); Martin Electron- Coaarned 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD where an employer rejects a bargainin demand based upon unambiguous authorization cards, and then engages in sub- stantial unfair labor practices, the Board is authorized to issue a barggaining order, both when the employer has en- gaged in unfair labor practices "so coercive that, even in the absence of a Section 8(aX5) violation , a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices]" and, as the Court further stated: .. . . . in less extraordinary cases marked by less pervasive practices which nonetheless still have a tendency to undermine majority strength and impede the election processes." In the latter situation, the Court noted: If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would , on balance, be better protected by a bargaining order , then such an order should issue ... Here, instead of standing upon its request for an election, Respondent, both immediately before and after the Union's request for recognition , engaged in a series of unfair labor practices clearly designed to coerce the employees and make the holding of a fair election unlikely . Respondent, knowing the Union was coming to request recognition, in- terrogated two employees about their union activities and included implied threats of discharge and promises of bene- fit. After the Union's request for recognition and bargain- ing, Respondent continued its coercive interrogation of employees about the Union, again including threats of dis- charge, and also suggesting withdrawal of their applications from the Union. Respondent continued such coercive inter- rogation to and including March 1970 . Promptly upon the advent of the Union, in fact the same day, Respondent started issuing a series of written notices , including the uni- lateral institution of more strict working rules and condi- tions and warnings for engaging in, and threats of suspension of employment or discharge for, conduct previ- ously approved or condoned , all contrary to its prior prac- tice. I conclude and find that as a result of this series of unfair labor practices the possibility of erasing their effects and of ensuring a fair election is slight, and that the employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order. In addition, I find Respondent's refusal to bargain in these circumstances to be in violation of Section 8(a)(5) and (1) of the Act, and Respondent's unilateral changm i g of its working rules and conditions of employment after the Union's request for bar- gaining also to constitute a refusal to bargain in violation of Section 8(aX5) and (1) of the Act. Upon the basis of 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 engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of ics, Inc., 183 NLRB No 4 (1970); Central Soya of Canton, Inc, 180 NLRB No 86 (1969), Heck's, Inc, 180 NLRB No 64 (1969), W T Grant Company, 180 NLRB No. 45 ( 1969), The Brescome Distributors Corporation, 179 NLRB No 137 ( 1969); and Garland Knitting Mills of Beaufort, South Carolina, Inc, 178 NLRB No. 62 (1969). 9 Fn. 3, supra the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(axl) of the Act. 3. All drivers and warehousemen employed by Respon- dent at its South San Francisco , California facility, exclud- in office clerical employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times on and after October 28, the Union has been and now is the exclusive representative for the purpos- es of collective bargaining of the em loyees in the above unit within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union on and after October 29, Respondent has engaged in unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and to remove the effects of the unfair labor practices and to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Dalf Corporation, d/b/a Hoffman Bros., its officers, agents, successors, and assigns, shall; 1. Cease and desist from: (a) Coercively interrogating its employees concerning their union membership or activities. (b) Impliedly promismg its employees benefits to induce them to refrain from engaging in union activities. (c) Impliedly threatening its employees with discharge for en aging in union activities. d) Warning its employees not to engage in conduct previ- ously approved or condoned, because of their union activi- ties. (e) Threatening its employees with suspension from, em- ployment or discharge for engaging in, conduct previously approved or condoned, because of their union activities. (f) Refusing to bargain collectively with Retail Delivery Drivers, Driver Salesmen & Helpers' Union Local No. 278, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the exclusive repre- sentative of its employees in the appropriate unit found herein. (g) Unilaterally instituting more strict working rules and conditions because of its employees' union activities, or instituting any changes in its working rules and conditions without first notifying, consulting, and bargaining with the Union concerning such. (h) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which will effec- tuate the policies of the Act: (a) Upon request, bargain collectively with the aforesaid Loca 278 as the exclusive representative of its employees in the appropriate unit found representative with respect to rates of HOFFMAN BROS. pay, wages, hours, and all other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Revoke the unilateral changes of working rules and conditions, specifically the prohibition against carrying rid- ers while making deliveries and the prohibition against per- sonal telephone calls from the warehouse, instituted on October 30 and 31, 1969, respectively. (c) Post at its warehouse in South San Francisco, Califor- nia, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 20, 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, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 20, in writ- ing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith." 10 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Rela- tions 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 " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 20, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Retail Delivery Drivers, Driver Salesmen & Helpers' Union Local No. 278, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of our employ- ees in the appropriate unit noted below with respect to wages, hours, or any other terms or conditions of em- plo ment. WE WILL NOT coercively interrogate our employees concerning their union membership or activities. WE WILL NOT impliedly promise our employees bene- fits to induce them to refrain from engaging in union activities. 325 WE WILL NOT impliedly threaten our employees with discharge for engaging in union activities. WE WILL NOT unilaterally institute more strict working rules or conditions, because of our employees' union activities, or institute any changes in our working rules and conditions without irst notifying, consulting, and bargaining with the aforesaid Local 278 concerning suc . WE WILL NOT warn our employees not to engage in conduct previously approved or condoned, because of their union activities. WE WILL NOT threaten our employees with suspension from employment or discharge for engaging in conduct previously approved or condoned, because of their un- ion activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of any of the rights guaranteed them by the National Labor Relations Act. WE WILL upon request, bargain collectively with the aforesaid Local 278 as the exclusive representative of our employees in the appropriate unit noted below with respect to rates of pay, wages, hours, and all other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. WE WILL revoke our unilateral changes of working rules and conditions, specifically the prohibition against carrying riders while making deliveries and the prohibition against personal telephone calls from the warehouse, adopted on October 30 and 31, 1969, re- spectively. The appropriate unit is : All drivers and warehousemen employed by us at our South San Fran- cisco, California facility, excluding office clerical em- ployees, guards and supervisors as defined in the Act. All of our employees are free to become, remain, or re- frain from becoming or remaining, members of the above- named or any other labor organization, except to the extent that such right may be affected by an agreement conform- ing to the provisions of Section 8(aX3) of the National La- bor Relations Act. Dated By THE DALE CORPORATION, d/b/a HOFFMAN BROS (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or corn fiance with its provisions, may be directed to the Board's Office, 13050 Federal Bldg., Box 36047 , 450 Golden Gate Ave., San Fran- cisco, California 94102, Telephone 556-0335.