Solvay Baking Co.

SOLVAY BAKING COMPANY Chris Christou d/b/a Solvay Baking Company and Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 3-CA-3624' June 16, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 25, 1969, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. The Trial Examiner also found that certain conduct of Respondent had interfered with the election held on October 16, 1968,' and recommended that the election be set aside and a second election held. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision with a supporting brief, and Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as modified below. 1. We agree with the Trial Examiner that Respondent violated Section 8(a)(1) by illegally threatending and interrogating employee Woosley with respect to his union activities, giving Woosley the impression that Respondent was keeping the employees' union activities under surveillance, advising Woosley that he would have cause to regret his advocacy of the Union, and interrogating employees Gian$iobbe and Papazides about their union membership and activities. We also agree with 'This case was previously consolidated with Case 3-RC-4524. In the Trial Examiner's Decision of March 25, 1969, the cans were severed and Can 3-RC-4524 was remanded to the Regional Director for Region 3 for further appropriate action. On May 7, 1969, the Regional Director set aside the election. 'All dates hereinafter are in 1968. 673 the Trial Examiner's conclusion that by engaging in the foregoing conduct, Respondent interfered with the employees' exercise of their free choice in the election held on October 16, which the Union lost 1-2.' 2. The Trial Examiner dismissed the Section 8(a)(5) allegation of the complaint, as in his opinion, Respondent's Section 8(a)(1) conduct was not "so flagrant, widespread or continued" that it can be said that it evidenced a rejection of the Act's policies. The Trial Examiner further stated that the "paucity" of evidence of interference with the employees' rights and the lack of significant delay in agreeing to secret-ballot election (14 days from petition for election to consent agreement, and 9 days from agreement to election)' negate any idea that Respondent desired to gain time within which to undermind the Union and dissipate its majority. For the reasons set forth below, we disagree with the Trial Examiner's conclusion that Respondent did not violate Section 8(a)(5) of the Act. This case involves events arising out of the Union's organizational campaign at Respondent's plant in Syracuse, New York. By September 20, the Union had secured the signatures on authorization cards of four of the five employees in the unit, including one employee, Orlando, whose status as a supervisor is in question and was not passed on by the Trial Examiner. On that date, the Union requested Respondent by letter to recognize and bargain with it as the majority representative of its route salesmen. On September 23, Respondent's attorney, Panels, wrote the Union that Respondent would not recognize it, as Respondent had a good-faith doubt of the Union's majority. The Union, however, repeated its demand on September 24. On September 25, Panels visited the Union's offices and inspected the authorization cards, apparently questioning only that of Orlando, on the ground that he was a supervisor. After looking at the Union's contract, Panels said he would recommend that Respondent recognize the Union. Seven days later, apparently on October 2, Panels informed the Union vice president that Respondent was unwilling to recognize the Union. However, as the Trial Examiner found, Respondent apparently in the interim initiated his campaign of threatening and interrogating employees and also let Orlando know that if the Union came in he would replace his route salesmen with his sons and a mechanic. Whether Respondent's refusal to recognize or bargain with the Union was motivated by a good-faith doubt of the Union's majority is to be determined by all the relevant circumstances.' It is obvious to us that in finding that Respondent's violations were not "widespread," or that there was a "paucity" of evidence of interference, the Trial 'One eligible employee did not vote. The Trial Examiner inadvertently computed the time between the consent agreement on October 7 and the election on October 16 to be 6 days. 'Aaron Brothers Company of Cal4fomia. 158 NLRB 1077. 176 NLRB No. 92 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner overlooked the fact that there were only three employees on whose support the success or failure of the Union's effort depended, since of the five employees in the unit, one was unalterably opposed to the Union and another, Orlando, was considered by Respondent to be a supervisor.' As to the other three employees in the unit , it can hardly be said that there was a "paucity" of evidence of interference with their rights when all three union supporters, as the evidence clearly shows, were coerced, threatened, interrogated, and told that they were being spied upon. Moreover, we cannot agree that Respondent did not engage in a "continued" campaign of threat and interrogation . The record clearly shows that Chris Christou, who apparently believed Woosley to be the instigator of the movement, told Woosley about a week prior to the election to come to him if he ever had a problem; his son James Christou interrogated and impliedly threatened Woosley a few days after he had signed a card; and approximately a week later , another son, Paul Christou, threatened Woosley and told him that he, Woosley, and the others, were being spied upon. In fact, Paul Christou left his customary inside job to ride with Woosley on his route in order to bring a more sustained pressure on him. Nor can we agree with the Trial Examiner that the relatively short period of time between the petition, or consent agreement , and the election "refuted the notion" that Respondent was seeking time to dissipate the Union 's majority. We can see no relevant connection between the time available and the existence of an intent to dissipate a union's majority. Certainly it is evident that Respondent took full advantage of the time , as he began his campaign against the Union almost immediately after receipt of the Union' s initial demand. And if there was only a period of 9 days between the execution of the consent agreement and the election, there were only three employees whose support of the Union had to be undermined. In view of the foregoing , and on the record as a whole, we find that, contrary to the Trial Examiner, the General Counsel has carried his burden of demonstrating that Respondent 's refusal to bargain with the Union was not motivated by a good-faith doubt of the Union's majority status in an appropriate unit . We find that Respondent's refusal to bargain and its insistence upon an election was made in bad faith and that Respondent's conduct rendered the holding of a fair election impossible. Consequently, we conclude that Respondent thereby violated Section 8(aX5) and (1) of the Act.' THE REMEDY We have found in agreement with the Trial Examiner that Respondent engaged in conduct violative of Section 8(axl) of the Act and accordingly, we adopt his remedial recommendations in that regard . However, we have found, contrary to the Trial Examiner, that Respondent has engaged in certain unfair labor practices in violation of Section 8(aX5) and (1) of the Act. Accordingly, we shall issue a bargaining order to remedy Respondent's unlawful conduct in this regard. Upon the basis of the foregoing findings of fact and upon the record as a whole , we make the following: CONCLUSIONS OF LAW We adopt only the Trial Examiner's Conclusions of Law 1, 2, 3, and 4, and we make the following additional Conclusions of Law: 5. At all times since September 20, 1968, Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been the exclusive bargaining representative of all the employees in the following unit: All route salesmen of Solvay Baking Company at its Syracuse, New York, location, excluding all office clerical employees, production employees, professional employees, guards and supervisors as defined in the Act. 6. By refusing to bargain collectively with Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of its employees in an appropriate unit composed of "all route salesmen of Solvay Baking Company at its Syracuse, New York, location, but excluding all office clerical employees, production employees, professional employees, guards and supervisors as defined in the Act," Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8(aX5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER 'Although the parties differed on Orlando's status as a supervisor, they ultimately agreed that he would not be eligible to vote in the election. 'We believe that the cases of Grafton Boat Co., Inc., 173 NLRB No. 150, and J. C. Penney Company, Inc.. 172 NLRB No. 82, cited by the Trial Examiner in support of his findings, are factually distinguishable in that in those cases the units were larger and the unfair labor practices Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, committed did not affect as great a percentage of the unit employees as here, where practically all of the eligible unit employees were involved. SOLVAY BAKING COMPANY Chris Christou d/b/a Solvay Baking Company, Syracuse, New York, his officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective- bargaining representative of its employees in an appropriate unit composed of "all route salesmen of Solvay Baking Company, at its Syracuse, New York, location , but excluding all office clerical employees, production employees, professional employees, guards and supervisors as defined in the Act." (b) Threatening employees with discharge or reprisals if they join or assist a labor organization, or select a representative for collective bargaining. (c) Interrogating employees concerning union membership or activities in a manner interfering with, restraining , or coercing employees in the exercise of their rights under the Act. (d) Creating the impression of surveillance of the union activities of its employees. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the aforesaid unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding into a signed contract. (b) Post at its place of business in Syracuse, New York, copies of the notice attached marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 3, shall after being duly signed by the Respondent's representative , 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 its employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply 'In the event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 675 herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed as to any alleged violations not found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: You have the right under the law to Organize, or form, join, or help unions Bargain for your working conditions through a representative freely chosen by a majority of the route salesmen in an appropriate unit Act together for mutual aid or protection of your working conditions Refuse to do any or all of these things. WE WILL on request recognize and bargain with Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in a unit composed of all route salesmen, but excluding all office clerical employees, production employees, professional employees, guards and supervisors as defined in the aforesaid Act, regarding their 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 signed contract. WE WILL NOT interfere with, restrain, or coerce you in your right to join or help Dairy & Bakery Salesmen & Dairy Employees Local Union 316, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or in your right to vote for such labor organization to represent you in dealing with the company about your pay or other terms and conditions of your employment, if you want. Since it has been found that the Company has in the past interfered with, restrained, and coerced you in the exercise of your rights under the law, we are required to tell you that: WE WILL NOT threaten or warn you that you might be discharged or that the company will harm you in any way because you join or help or vote for a labor organization of your own choice. WE WILL NOT ask you any questions about your union membership or activities or the union membership or activities of anyone else, in order to interfere with your rights under the law. WE WILL NOT try to give you the impression that we are spying on your union activities, or have asked anyone else to bring us back reports as to your union membership or activities. CHRIS CHRISTOU D/B/A SOLVAY BAKING COMPANY (Employer) Dated By (Representative) (Title) 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Telephone 716-842-3112. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner : These matters were heard before me at Syracuse , New York, on February 5, 1969, upon allegations in the complaint in Case 3-CA-3624, issued on January 8, 1969 (based upon charges filed by the Charging Party (herein called the Union) on October 21, 1968, and January 3, 1969). The complaint alleges that the Respondent violated Section 8(a)(l) of the Act by illegally interrogating employees about the Union, creating the impression that the Respondent was keeping the employees' union activities under surveillance, threatening employees with reprisals because of the Union, requesting employees to spy upon and report on union activities, and promising benefits if employees refrained from union activities . The complaint further alleges that Respondent violated Section 8(axl) and (5) of the Act by refusing to bargain with the Union upon request from September 20, 1968 , and thereafter (all dates herein are in 1968, unless otherwise noted). Upon a petition by the Union filed on September 23, in Case 3-RC-4524, an election was held at which the Union was rejected. Objections were duly filed on grounds encompassed within the allegations of the complaint in this matter, which objections have been consolidated with the complaint for hearing in this matter . Respondent's answer to the complaint denies the commission of the alleged unfair labor practices. The answer admits allegations of the complaint sufficient to support the assertion of jurisdiction under current standards of the Board, and to support a finding that the Union is a labor organization within the meaning of the Act. Upon the entire record in this case, and after due consideration of the briefs filed by the General Counsel and the Respondent , the Trial Examiner makes the following: FINDINGS OF FACT AND CONCLUSIONS 1. THE ALLEGED UNFAIR LABOR PRACTICES Preliminary There are some references to a prior unsuccessful organizational attempt by the Union, at an unspecified time, which apparently involved an election among Respondent's route salesmen . The present effort of the Union to become the statutory representative of the route salesmen seems to have begun on September 16, although there is some indication of a contract between Parry, vice president of the Union, and John Papazides, one of Respondent's route salesmen, 2 or 3 months previous. On September 17, Parry obtained the signatures of three route salesmen (William Woosley, Anthony Giangiobbe and Charles Orlando) to cards clearly authorizing the Union to represent the men for the purposes of collective bargaining, and agreeing to a checkoff of Union dues and fees from their pay. Of these three , Respondent claims that Orlando is a supervisor within the meaning of the Act, which is contested by the General Counsel and the Union. Later, Parry obtained the signature of route salesman John Papazides to similar cards. The fifth route salesman, Roy Micelli, refused to execute authorizations for the Union . Respondent does not dispute the validity of these cards, except that of Orlando. After receiving signed cards from the four route salesmen noted above, the Union by letter dated September 20, advised the Respondent that it represented a majority of • the route salesmen and requested recognition of the Union and collective bargaining in the unit involved. Respondent's attorney, Panels, answered by letter dated September 23, declining to recognize the Union, on the ground that Respondent "has a good faith doubt that you represent a majority of the employees in the appropriate unit." On September 24, the Union sent Respondent another letter requesting recognition and bargaining, and on the following day, Panels visited the Union's offices . According to Parry, who was the only witness testifying to the occurrence, Panels looked at the authorization cards in the Union 's possession, apparently questioned only that of Orlando, whom Panels said was a supervisor, and, after looking at the Union 's contract, said he would recommend that Respondent recognize the Union. The following Wednesday , Panels again met with Parry and advised that Respondent was unwilling to recognize the Union on the basis of a card check, and desired an election conducted by the Board . Panels again raised the supervisory status of Orlando , and, according to Parry, "rather than go through the delay of a formal hearing to determine this, we agreed to an election with him excluded from the voting unit." The Union and the Respondent thereafter, on October 7, executed an Agreement for Consent Election in an unit of "All route salesmen [employed by Respondent at its Syracuse, New York, plant,] excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act," which the parties in this proceeding agree constitutes an appropriate unit within the meaning of the Act. The Agreement was thereafter approved by the acting Regional Director, and a secret ballot election was conducted by the Board on October 16, at which the Union was rejected by a vote of two to one, with one eligible employee not voting. As noted above, the Union filed timely objections to the election. Alleged Interference With Employee Rights. Shortly after receiving the Union's request for recognition the Respondent's owner, Chris Christou, spoke to Orlando about this matter in Christou's office. Although there are certain significant differences between the testimony of Christou and Orlando as to this conversation, there is no necessary conflict between them. Christou, called as a hostile witness by General Counsel under Section 43(b) of the Federal Rules of Civil Procedure, testified: Q.... do you recall telling Mr. Orlando to find out who was for the Union or how many of the guys were for the Union? A. No. When I got the letter from the Labor Board, . . . . When I get the paper, I read it and I say to SOLVAY BAKING COMPANY 677 myself, "What happens now? What's going on now?" So I don't say nothing . When Charlie Orlando comes, I call him in the office and I said, "Charlie ," I says, "What's the matter? What's going on here?" I said to him, "What the drivers want, " I said . "Dq you talk to them? Ask them do you know?" "What do you mean," he said, "Chris, I don't know nothing." I said, "What's the matter? You're my supervisor, you load and unload them and you don' t know what the hell is going on?" And He said to me, "No ." "What kind of supervisor I got?", I said, "I pay you a guarantee , and anything I want to know about the drivers not satisfied, why you no tell me." He said , "Chris, I don't know nothing." He say, "I'm going to let you know Monday." I says, "Okay, that's it." I don' t say nothing. Q. What was it he was to find out by Monday: Who was for the Union? A. Yes. I asked him what's going on Monday and he said to me, "Chris, everyone signs." He said, " I sign too." . . "How can you do it," I said. He then said, "Well, I don't know . I get paid something ." He say, "I signed ." I says, "Good." I don't say nothing. Orlando's testimony is to the same effect, except that he does not mention that there were two conversations, and he also added that Christou said that if he had to have the Union , he would put his sons and the mechanic on the salesmen's routes . This was not denied by Christou, who has two sons presently workin for Respondent and another son who previously worked in Respondent's operation . Orlando denied that Christou asked him to go and find out "about the other guys," in this conversation. Route salesman Giangiobbe testified, without contradiction, that within 2 or 3 days after he signed the union authorization, Chris Christou spoke to him in Respondent's office, asking if he had signed a card, and if he was going to vote for the Union . Giangiobbe stated that he told Christou that he had signed a card and would vote for the Union . Christou stated that if the Union won the election, he would not be able to afford it. Giangiobbe also stated , somewhat uncertainly, that he thought that Christou "did say he might close up," adding "[t]hat I can't promise, I don't know, but it could have been put in there accidentally." Sales Manager James Christou was present during this conversation. Route salesman Papazides testified that 2 days after he signed the Union card, Chris Christou asked him if he had signed, to which Papazides admitted that he had done so. Christou then asked Papazides "about the other guys," but, according to the latter, "I tell him I don't know." There was no denial of Papazides' testimony. Route salesman Woosley stated that a few days after he had signed a union card, Sales Manager James Christou, an admitted supervisor, asked if Woosley was a Union member, to which Woosley answered that he had signed a card . When James Christou persisted , Woosley gave a similar answer . Then James Christou advised Woosley that he should recall what Christou had told him when Woosley had first come to the Respondent, which apparently occurred sometime after November 1967. Christou did not elaborate on this statement . Woosley later recalled that when he was being trained for the job by James Christou , the latter had told him about someone whom Woosley vaguely recalled as a relative of Christou who had been released because he favored the Union. James Christou testified that during the period referred to by Woosley, Christou had questioned whether Woosley was or had been a union member, to which Woosley replied that a member of his family was a union man, "or something." Woosley, however, according to Christou, indicated that he wasn't too well pleased with unions, himself. Christou stated that he advised Woosley that Respondent was nonunion and did not have union benefits, indicating that if Woosley didn't want to work under these conditions, he should not come to work for Respondent. Christou asserted, in answer to a specific question, that "[he] didn't make any threats or intimidations" to Woosley. Within a week and a half after Woosley had signed a union card, and following his conversation with James Christou, Woosley testified he had a conversation with Paul Christou, another son of Respondent's owner, who, it is found, is also a supervisor within the meaning of the Act. Paul Christou's duties normally keep him within Respondent's bakery, and he had never previously, nor has he since ridden with Woosley on the latter's route. On this occasion, however, Paul Christou took the opportunity to ride with Woosley. According to Woosley, much of the conversation centered around his activity with the Union, Christou stating that "the Union was Communist inspired and backed by Communists . . that if the Union was accepted , how could I .... face the family knowing what I have done." Woosley replied that this was his constitutional right . Christou said "they were surprised and shocked when they discovered who was the original instigator among the drivers, because they had been so fair to him . . . ," adding that "We know what's going on, we have somebody in the inside ." Christou told Woosley that "in the end [Woosley would) be left holding the bag." Respondent, in lieu of bringing Paul Christou in to testify, offered to stipulate that he would deny Woosley's testimony involving him. General Counsel and the Union agreed that if Paul Christou were brought in as a witness, he would deny Woosley's testimony, but did not thereby stipulate the truth of Christou's testimony, and, in fact, asserted that Christou's testimony to this effect would not be credible. Woosley also adverted to a conversation with Chris Christou about a week prior to the election, in which Christou told Woosley that if he ever had a problem, Christou wished that Woosley would come to him with the problem. Orlando's Supervisory Status Charles Orlando has been employed by Respondent for 10 years. He was originally a route salesman on an assigned route. The duties of such a salesman, in brief, are to order the amount of product which he will require the next day, and upon arrival the next morning, from about 4:30 a.m. on, to load his truck in accordance with a pattern which will make it convenient for a supervisor to check the load in the truck in order that the driver can be charged with the goods which he is taking out. The driver visits the customers on his assigned route, leaves the product required by the customer, receives payment or some other type of accounting for the product left, and at the end of the day's work, from about 1:30 p.m. on, comes back to the plant with his receipts and his returns of product with which he has been charged. At this point, the route salesman is checked out and goes home. There are indicated other incidental duties, such as washing the trucks when they become dirty, turning in names of prospective new customers, and perhaps other similar matters. The route salesmen are paid on the basis of a 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percentage of their gross receipts , and work 6 days a week. About May 1967, Respondent lost the services of an individual who had the title of route supervisor, whose duties and authority are not detailed in the record. About this same time, James Christou, Respondent's sales manager, and clearly a supervisor over the route salesmen, also left to go into the armed forces. Respondent prevailed upon Orlando to take the job of route supervisor, after giving him a guaranteed weekly wage which Orlando stated exceeded to some degree what he had been previously making . Orlando was taken off his route and devoted his time exclusively to supervisory duties. As a route supervisor , Orlando saw to the distribution of the product in the morning on the loading dock, checked out the drivers before they left, and checked them in when they returned. He interviewed applicants for employment and hired route salesmen . He also rode with new route salesmen, teaching them their duties, and with the other route salesmen when necessary . When he was not engaged in other duties, Orlando would visit prospective customers and solicit business for the Respondent. When he was assigned to this position, Chris Christou told him that he would be in charge of sales, and responsible for the hire, discipline , and discharge of route salesmen . Orlando also testified that he had discharged a route salesman. It was stipulated that between May, 1967, and November , 1967, Orlando was a supervisor within the meaning of the Act. About November 1967, it appears that Respondent's business became somewhat slow, and Orlando was assigned to handle a short route , which was vacant, and later when, in January 1968, the sales route which Orlando had previously handled became open, Chris Christou asked Orlando to take that over on a temporary basis. Christou told Orlando that he would nevertheless continue to be a supervisor, although Orlando advised him that because of the size of the route, he wouldn't be able to check the drivers in and out. About this time, it seems that James Christou returned to work as sales manager for the Respondent . Orlando has continued to work full time on the route. Since Orlando has gone back on his route, two employees have been hired as route salesmen . These men were interviewed, hired and trained by James Christou. Orlando was not consulted about their hire and played no part in their employment. He does not ride with the other drivers or solicit business for the Respondent as he did prior to going out on the sales route . He continues to come in about 4:30 a.m. and sees to the distribution of the product on the loading dock . He checks out two route salesmen who leave before he does . Orlando loads his own truck, as the others do, and is checked out by James Christou if he is there, or checks himself out otherwise. James Christou checks out the other two salesmen. In the afternoon, if James Christou is not present , Orlando may check the route salesmen in who return to the plant while Orlando is there. Orlando still retains the title of route supervisor and the pay status which he received upon promotion to that position. He considers himself to be "in charge" of the route salesmen . Thus, when calls come in from route salesmen in the morning reporting sick, they are directed to him while he is there. However, it would appear that he exercises no discretion with respect to those calls. The men understand that they are to bring their complaints, such as those about the trucks , the quality or quantity of the product, or the wrappings, etc., to Orlando, who takes them to Christou. Similarly, when Christou has problems with the routes or route salesmen , it appears that he would be likely to call Orlando in to discuss the matter. Orlando may adjust complaints, but he stated that these were so minor that he was unable to give an illustration of such action at the hearing . When asked for examples of directions or orders which he might give to the route salesman, he stated that he might tell a salesman in the morning to reload his truck , if the truck was improperly loaded so that it could not be checked out, or that he might tell a driver to wash his truck , if it was dirty, which, he stated, the driver "sometimes" did. Orlando also testified that on occasion he would address sales meetings of routes drivers, and that he attended management meetings at which sales problems were discussed , that he participated in the discussions, but played no part in making the decisions. He would, however, carry the decisions back to the men and tries to see that they are carried out. Conclusions 1. Orlando's supervisory status This case raises a number of close, difficult problems, not the least of which is the issue of Orlando's supervisory status. On the basis of his actual relationship to the other route drivers at the time of the election, it is quite difficult to find that he meets any of the elements set forth in Section 2(11) of the Act, because his current responsibilities do not tend to require the "exercise of independent judgment," but rather indicate he acts as a channel of communication between management and the men, administering decisions and routines which have been established by Respondent 's management . Moreover, if both Orlando and James Christou are statutory supervisors, Respondent would have the improbable ratio of two supervisors for four rank and file employees. Further, not only is Orlando presently performing a full day's work on a route like the other route salesmen, but the very nature of that work gives him a minumum of opportunity to be in contact with the other employees or supervise them . On the other hand there is substantial evidence that both Respondent and the men consider Orlando still .to be "in charge" of the route salesmen, indicating recognition of a residual authority which Orlando was advised he continues to possess , but has had little or no opportunity to exercise since January 1968. Recognition of this status also seems inherent in the Union' s agreement that Orlando be excluded from the list of those eligible to vote in the election . On the basis of these facts, and the entire record, as well -as my observation of the witnesses, I am inclined to the conclusion that Orlando is not a mere vehicle of communication between the men and management, administering only matters decided by management, but that his directions and instructions to the men have an additional significance because of his acknowledged status. Cf. Ceilheat, Inc., 173 NLRB No. 127, especially the Trial Examiner's decision in that case. In the particular circumstances of this case , however, inasmuch as the Union's majority status does not depend on Orlando's card, and since it appears that Christou's remarks to Orlando did not, in any event, have an impact on the election , it is not necessary in this case to finally determine Orlando's status. It seems evident that Orlando did not repeat his conversation with Christou to the other SOLVAY BAKING COMPANY 679 men. Although Orlando was a witness for the General Counsel, no effort was made through him or the other route salesmen to show that Orlando made known to the others what Christou told him. Tie General Counsel was aware of the close supervisory issue involved, and if such evidence existed, it must be assumed that he would have produced it. Further, since Orlando was not eligible to vote in the election, it cannot be said that Christou's remarks had an impact upon his right to vote. While Christou's remarks to Orlando would have constituted illegal interrogation, as well as threats in violation of the Act if addressed to a rank and file employee, since it is hereinafter found that Respondent engaged in other such violations involving other employees, it becomes unnecessary to determine that Christou also possibly violated the Act in his conduct toward Orlando, himself.' 2. Alleged violations of section 8(a)(1) It is found that James Christou intended to and did threaten as well as engage in illegal interrogation of Woosley with respect to his Union activities. Christou does not deny Woosley's testimony that after questioning him about the Union, Christou referred him to a previous conversation, which Christou, himself, indicates had reference to the Union. Clearly the actions of James Christou, and those of his father and brother were designed to defeat the Union, and I am satisfied that Christou in his conversation with Woosley was engaged in a subtle tactic designed to threaten Woosley to that end. Woosley's testimony not only impressed me as being credible at the time given, but seems the more probable account on the record as a whole, and it is therefore credited. It is further found, in the circumstances of this case, that Chris Christou's interrogation of Giangiobbe and Papazides constituted an illegal invasion of their rights under the Act. In addition to the context in which the interrogation occurred, it is perfectly apparent that Christou had no reason to engage in such conduct other then to interfere with the employees' free exercise of their rights under the Act. He was not only aware of the employees' choice from interrogation of Orlando (whether or not that was violative of the Act), but it is quite clear that Christou was determined not to recognize the Union no matter what reply he"received from the employees. On the other hand, Christou's lack of good faith in the interrogations is shown by his remarks to Orlando noted above. Though the employees admitted their Union participation to the Christous, with some reservations on the part of Papazides and Orlando, in the circumstances of the case (including the small number of men involved and the fact that their activity was known to Orlando), it would not be unreasonable that they should have considered it useless to deny the fact, or should have affirmed what they had done or intended. However, on this record, it cannot be found, as the General Counsel urges, that Christou threatened to close the plant in his conversation with Giangiobbe, for the latter's testimony was too uncertain on the point. While it 'Alit is alleged in the complaint that Christou requested "employees" to spy upon and report employee Union activity, apparently referring to the conversation between Christou and Orlando, this is not mentioned in the General Counsel's brief and seems to have been abandoned . In any event, it is found that the evidence does not support this allegation. is possible Christou may have made such a statement, the evidence does not rise above the level of mere ,possibility. It is equally possible that Giangiobbe was, led to this impression from Christou's statement that he could not afford the Union. It is also clear from Woosley's testimony, which is credited, that Paul Christou in his conversation with Woosley sought to and did give the impression that the Respondent was keeping the employees' union activities under surveillance, and by advising Woosley that he would have cause to regret his advocacy of the Union, indicated Woosley would suffer reprisal for his activities. No evidence was adduced in support of the allegation in the complaint that Respondent made promises to the employees in connection with their union activities. On the basis of the above findings and analysis, and the entire record, it is found that the Respondent, by threatening reprisal and coercively interrogating employees in connection with their union activities and creating an impression of surveillance of employee union activities, violated Section 8(a) (1) of the Act. 3. Alleged violation of Section 8(a)(5) It is stipulated that the unit in which the election was conducted in Case 3-RC-4524 is an appropriate unit within the meaning of the Act. And, as previously noted, there is no dispute that the Union was in possession of authorization cards signed by a majority of the employees in the unit designating it as their collective bargaining representative at the time it requested the Respondent to recognize and bargain with it. There is further no doubt that within a short time after the Union's request for recognition, and while Respondent continued to refuse to bargain with the Union, Chris Christou knew that the Union possessed authorization cards from a majority of the employees in the unit. It seems quite clear, however, from the Board's most recent decisions that mere knowledge that a majority of employees in the unit have signed cards designating the Union their representative will not preclude an employer from insisting that the Union's status be demonstrated in a Board election, in the absence of "evidence indicating that the employer has completely rejected the collective bargaining principle or seeks to gain time within which to unlawfully undermine the Union and dissipate its majority," or "has engaged in other conduct which would prevent the holding of a fair election." See Wilder Mfg. Co., Inc., 173 NLRB No. 30; Agway Petroleum Corporation, 170 NLRB No. 95; Diana Shops of Washington, Inc., 170 NLRB No. 54 (Board found no violation although Trial Examiner found that "Respondent had every reason to know that the Union" possessed cards from a majority in the Union.) Clarks Stores, 168 NLRB No. 43 (TXD).2 Although evidence that the employer has engaged in unfair labor practices tending to destroy the union's majority, and certainly evidence that the employer has engaged in conduct which tends to make the conduct of a fair election impossible, constitutes clear proof that the employer is unworthy of credit when he asserts an alleged good faith desire to have the Union's majority status decided in a Board election, the Board has many times 'But compare the opinions of the Court in, among others , N.L.R.B. v. Sehon Stevenson & Company, Inc.. 386 F.2d 551 (C. A. 4k Retail Clerks Union. Local No. 1179, etc. (John P. Serpa, Inc.) v. N.L.R.B.. 376 F.2d 186 (C. A. 9), indicating a contrary view. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD emphasized that "this does not mean that any employer conduct found violative of Section 8(axl) of the Act, regardless of its nature or gravity, will necessarily support a refusal-to-bargain finding." See Aaron Brothers Company of California, 158 NLRB 1077, 1079. While, of course, each case must be considered on the basis of its own particular facts, the Trial Examiner has noted, for example, in two recent cases, that the Board in one case reversed a finding of refusal to bargain , although the employer there had immediately upon learning of a union meeting, made threats to fire employees, engaged in coercive interrogation, created an impression of surveillance, as well as promised and granted benefits (Grafton Boat Co. Inc. 173 NLRB No. 50), and in another, confirmed a dismissal of a refusal to bargain allegation although there was evidence of an instance of coercive interrogation and three instances in which employees were told that they were courting discharge by wearing union buttons . J. C. Penny Company, Inc.. 172 NLRB No. 82. The unfair labor practices which have been found herein are not so flagrant , widespread or continued that it can be said that they evidence a fixed rejection of the policies of the Act. The paucity of the evidence of interference with the employees' right and the lack of significant delay in agreeing to a secret ballot election (14 days from petition for election to consent agreement, and 6 days from agreement to election ) fairly refute any notion that Respondent sought time to dissipate the Union's majority by illegal means. On the basis of the above analysis and the record as a whole it is found that the Respondent did not violate Section 8(a)(5) and (1) by its refusal to bargain with the Union, and it will be recommended that this allegation be dismissed. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All route salesmen employed by Respondent at its Syracuse , New York, plant, excluding all office clerical employees, professional 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. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(axl) of the Act, which unfair labor practices affect commerce within the meaning of Sections 2(6) and (7) of the Act. 5. The Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. The Respondent has engaged in conduct interfering with, restraining and coercing employees in their exercise of a free choice in an election conducted by the Board on October 16, 1968. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. [Recommended Order omitted from publication.] 4. Objections to the election While it has been found that the Respondent's unfair labor practices were not of such magnitude as to make a fair election impossible in the unit , because of the small number of employees in the unit and the closeness of the vote, the Respondent's conduct unquestionably had a substantial impact on the election. Accordingly, it will be recommended that the election of October 16, 1968, be set aside, and a new election be conducted at a time to be determined by the Regional Director. ORDER SEVERING AND REMANDING CASE 3-RC-4524 Pursuant to the terms of the Order Consolidating Cases issued by the Acting Regional Director of Region 3 in Case 3-RC-4524, it is ordered that Case 3-RC-4524 be, and it hereby is, severed and remanded to the Regional Director for Region 3 for further action in accordance with Section 102 .62(a) of the Board's Rules and Regulations.