Indian Rivier Uniform Rental, Inc.

656 DECISIONS OF NATIONAL Indian River Uniform Rental, Inc. and Local 218, Laundry, Dry Cleaning & Dye House Workers Union and General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 12-CA-4320-1 and 12-CA-4320-2 June 30, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On March 28, 1969, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner as herein modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial, Examiner, and hereby orders that the Respondent, Indian River Uniform Rental, Inc., Fort Pierce, Florida, its 'These findings are based, in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted . After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, 91 NLRB 544, enfd . 188 F.2d 362 (C A. 3). 'The record contains reliable evidence that, at the time of the respective demands, each Union represented a majority of the employees in each appropriate unit, and that Respondent engaged in unfair labor practices of such a substantial nature as to preclude the holding of a fair and free election. N.L R.B. v. Gissel Packing Co., 395 U.S. 575 . In these circumstances, we find, in agreement with the Trial Examiner, that Respondent violated Sec. 8(aX5) and (1) of the Act by refusing to bargain with the Unions. However, we find that the refusal to bargain with Teamsters Local 198 occurred on August 27 ; the date Respondent sent a telegram to Local 198 expressly refusing to recognize it, and with Laundry Workers Local 218, the refusal occurred on August 29, the date James Bailey, the Union's organizer, was personally refused recognition. LABOR RELATIONS BOARD officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: These cases were heard at Fort Pierce, Florida, on December 10-12, 1968, pursuant to charges filed by Local 218, Laundry, Dry Cleaning & Dye House Workers Union (herein called the Laundry Workers) and by General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (herein called Sales Drivers) and ;-a, complaint issued on October 30, 1968.' The complaint, as amepded.„•at the hearing, alleged that during membership campaigns engaged in by both Unions at its plant the Respondent had engaged in various acts of interference, restraint, and coercion in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, and that thereafter the Respondent, in violation of Section 8(a)(5) and (1) of the Act, had refused to recognize and bargain collectively with both Unions, the Sales Drivers having requested recognition on behalf of the Respondent's routemen and the Laundry Workers having sought recognition on behalf of the Respondent's production and maintenance employees. Upon the entire record and my observation of the witnesses, and upon consideration of the thorough and competent briefs filed by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE NATURE OF THE RESPONDENT'S BUSINESS The Respondent, a Florida corporation , is engaged at Fort Pierce, Florida, in the laundering and renting of uniforms to industrial customers . During the last 12-month period prior to the issuance of the complaint the Respondent purchased and had shipped to its plant from out-of-State suppliers more than $50,000 worth of goods, materials, and supplies. Upon these facts I find, as the Respondent admits, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11. THE LABOR ORGANIZATIONS INVOLVED The Laundry Workers and the Sales Drivers are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Respondent's Acts of Interference, Restraint, and Coercion and Its Refusal To Recognize and Bargain Collectively With the Unions, in Violation of Section 8(a)(1) and (5) of the Act 'The charges of the Laundry Workers were filed on September 3 and October 4, 1968, and Sales Drivers charges were filed on September 16 and October 4, 1968, respectively. 177 NLRB No. 20 INDIAN RIVER UNIFORM RENTAL, INC. 657 1. The Unions sign up a majority of the employees in both the routemen's unit and the production and maintenance unit At least five of the Respondent's seven routemen met with Eli Schutzer, a representative of the Sales Drivers, on the night of August 16, 1968. After Schutzer explained to the men the procedure used in organizing, five routemen signed cards applying for membership in the Sales Drivers and authorizing it to act as their collective-bargaining representative. A sixth routeman signed a card on August 19.2 The Laundry Workers held organizational meetings of the Respondent's production and maintenance employees on the nights of August 20 and 22, 1968 . James Bailey, an organizer for the Laundry Workers, told the employees about the benefits which his organization had been able to secure in contracts in the Fort Pierce area and about the procedure normally followed in organizing employees. With respect to the latter, Bailey explained that he needed to have a majority of the production and maintenance employees sign union application cards before he could ask for recognition . At the meeting on August 22 Bailey read to the employees a letter to the Respondent which he had brought with him in which, after offering to prove the Laundry Workers majority status, he requested recognition and bargaining as the exclusive representative of the Respondent's production and maintenance employees. By the close of the August 22 meeting the Laundry Workers had obtained signed bargaining authorization cards from 31 of the Respondent's 44 production and maintenance employees . In the period from August 23 to 30 five additional production employees signed authorization cards. 2. The Unions' requests for recognition and bargaining On August 17, the Sales Drivers had the following telegram delivered to the Respondent's office: JIM BEARDEN , CARE INDIAN RIVER UNIFORM RENTAL 2610 ORANGE AVE FT PIERCE FLO GENTLEMAN THIS IS TO NOTIFY YOU TEAMSTERS UNION LOCAL UNION 198 REPRESENTS A MAJORITY OF YOUR ROUTE SALESMEN AND REQUEST A MEETING TO NEGOTIATE A UNION CONTRACT OFFICIAL LETTER WILL FOLLOW. ELI SCHUTZER TEAMSTERS UNION LOCAL 198 1119 WEST FLAGLER ST MIAMI FLORIDA The envelope containing this telegram was received by the Respondent on August 17, but because Ernest Settle, the Respondent's general manager , was away on vacation it remained unopened until August 20 when Settle called the office and was informed by Grover Leslie, the Respondent's office manager , that a telegram had come for Mr . Bearden. (C.W. Bearden was an absentee owner of the Respondent's business and was Settle's "boss," as he testified .) Settle told Leslie to open the telegram. At this point Leslie commented that the telegram was addressed to Jim Bearden but Settle nevertheless instructed Leslie to read it to him. After the telegram had been read to him, Settle advised Leslie to consult with the Respondent's local attorney, John McCarty. McCarty recommended, in view of the statement in the telegram 'The seventh driver, Mike Cybuliak, credibly testified that when John Fitzgerald, the Respondent' s assistant general manager , questioned him on August 26 or 27 concerning whether he had joined the Sales Drivers he replied that "all the boys had and [he] did too." that a letter would follow, sitting tight and doing nothing about the telegram at that time. On August 22 an envelope bearing the return address of the Sales Drivers on the front thereof was delivered by certified mail to the Respondent's plant with the notation on it, "Postage Due , 4 Cents." It was addressed , like the telegram from the Sales Drivers which General Manager Settle had instructed Leslie to read , to Mr. Jim Bearden, Indian River Uniform Rental, at the Respondent's address. Leslie refused to accept delivery of this letter, because, as he explained at the hearing, "it was addressed to Jim Bearden and I didn' t know who Jim Bearden was and it had postage due." On the night of August 22 the Laundry Workers sent by certified mail the letter requesting recognition and bargaining which Organizer Bailey had read to the employees at the meeting that evening . It was addressed to Mr. Jim Bearden, Indian River Uniform Rental, at the Respondent's address. The envelope bore the Laundry Workers name and return address on the front thereof. Two days later the unopened envelope was received back at the Laundry Workers unopened , marked "Refused." On August 26 the Sales Drivers sent another letter to the Respondent requesting recognition and bargaining identical with the one which had been refused by the Respondent . It is as follows: August 26, 1968 Mr. C. W. Bearden Indian River Uniform Rental 2610 Orange Avenue Fort Pierce, Florida Dear Mr. Bearden: This is to notify you that a majority of your employees in the collective bargaining unit described below have designated GENERAL SALES DRIVERS & ALLIED EMPLOYEES UNION LOCAL NO. 198 as their exclusive collective bargaining representative. In view of such designation , we demand recognition for purposes of collective bargaining, as the exclusive representative of such employees. The collective bargaining unit in which we demand recognition; -onsists of the route salesmen., We request a meeting between your company and one of our representatives for the purpose of negotiating a collective bargaining agreement . Please notify us when such meeting will be convenient for you. We are willing to permit a neutral person to check our authorization cards at the time of such meeting for the purpose of verifying our majority status. In the event of any discrimination against any of your employees because of their union activities, or in the event of your refusal to bargain with us, we will take prompt action to remedy such discrimination or refusal to bargain. Respectfully yours, Eli Schutzer, Sec.-Treas. and Business Manager. CERTIFIED MAIL-RETURN RECEIPT 799868 The Laundry Workers also sent a second letter requesting the opening of bargaining negotiations. This letter, which was mailed on August 27, 1968, is as follows: 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD August 27, 1968 Mr. C. W. Bearden Indian River Uniform Rental 2610 Orange Avenue Fort Pierce, Florida Dear Mr. Bearden: Local 218, Laundry, Dry Cleaning and Dye House Workers Union has been authorized by the Majority of the employees in the maintenance and production unit of your plant in Fort Pierce, Florida , excluding Route Men, Route Salesmen , Office Clerical Employees, Professional Employees, Guards, and Supervisors as defined in the National Labor Relations Act as amended, to represent them for purposes of collective bargaining in respect to rates of pay and conditions of employment. This Union is prepared to promptly prove its majority and is requesting a meeting with you at a time and place agreeable to do so and to undertake collective bargaining for the employees in this maintenance and production unit, to achieve a contract between the Union and your Company covering wages and conditions of work. Please give this your prompt attention and let us hear from you immediately. Yours very truly, Paul Jones, Business Agent. James L. Bailey, Organizer. CERTIFIED MAIL-RETURN RECEIPT 799867 3. The Respondent's efforts to counteract the Unions' organizing activites a. Coercive conversations with routemen Assistant General Manager Fitzgerald: As noted above, the Respondent learned that the Sales Drivers claimed to represent a majority of its routemen on August 20, when Office Manager Leslie opened the telegram requesting recognition and bargaining . Within the next 24 hours Assistant General Manager Fitzgerald , who was in charge of the plant in General Manager Settle' s absence, questioned four of the Respondent' s seven routemen concerning whether they had signed up for the Union. As Fitzgerald admitted , all four routemen told him that they had. And, as found below, during this period Ivan Harbor, the Respondent' s sales manager, who was in charge of the Respondent' s routemen, also engaged in questioning concerning union affiliation. Fitzgerald, after questioning Lyle Lamb about his union affiliation, added, as Fitzgerald in substance admitted, that "he didn't think it would do [him] any good by signing a union card, they wouldn' t be able to help us." Fitzgerald had a longer conversation on August 20 with Driver Enoch Myers about the Union . After Myers acknowledged to Fitzgerald that he had signed a union card, Fitzgerald went on to say, as Myers testified: Well, you realize if you get the union that probably some of the Company benefits, the little things that we do for you will be taken away from you such as driving the trucks home at night and the little contests that we might have, all that would be taken away from you. Fitzgerald then recounted to Myers an experience which he had had as a union member years before, in which after participating in a strike and picketing for about 10 weeks and "damn near starv[ing] him and his family to death," the union settled for a few cents an hour raise. Before closing the conversation Fitzgerald mentioned, Myers testified, that he knew that "if the Company had to pay union scale they would probably have to close down." Fitzgerald admitted having a conversation with Myers on this occasion along the lines testified to by Myers, and he placed a different emphasis on his words, stressing that the detriments which he stated the employees would suffer as a result of union affiliation would be the consequence of the Respondent's yielding to the Union's demands. For reasons more fully explained below, I conclude that Myers' version of the conversation with Fitzgerald is entitled to credit. Fitzgerald talked to routeman Richard Coker about the Union on August 21. In Coker's words: Mr. Fitzgerald approached me and asked me if I had heard anything about the union and I told him I had and he asked me if I had heard much and I told him I had heard quite a bit. He said that he had heard a rumor that the union was trying to organize the plant and I told him it was no rumor, that Mr. Grover Leslie had received a notice from the union that 51 percent of the drivers had signed up for the union. Mr. Fitzgerald asked me if I had signed up and I told him "Yes." He asked me didn't I know I could lose my job for this? and I told him, "No," I couldn't because for the reason that I had admitted to him that I did sign a card for the union and subsequently protected my job rights. Fitzgerald, following the pattern of his talk with Myers, then told Coker the same story about the unsuccessful strike in which he had participated years earlier. Fitzgerald concluded his talk with the following, as Coker testified: He told me that he didn't think that the Company could afford at this time for the union to come in. To enforce union wages would be to break the Company and we would all be out of a job, they would have to close the door. We would be out looking for another job. Fitzgerald remembered this conversation with Coker and denied making any threats against Coker, asserting that he merely questioned Coker concerning what he hoped to gain from union affiliation. For reasons discussed below I believe Coker's testimony regarding this aspect of the case in preference to Fitzgerald's. That same day, August 21, Fitzgerald also questioned routeman William Wegener as to whether he had signed a union card. When Wegener admitted that he had, Fitzgerald related the same sad experience he had earlier as a member of a union that he had told to Myers and Coker. Then Fitzgerald commented, according to Wegener, "You understand you could be discharged for this and probably will be fired." Wegener replied, as he stated, "You have to be kidding." Fitzgerald denied Wegener's testimony above quoted. Fitzgerald's version is as follows: I asked Bill if he had heard anything about the union and he said, "Yes," and I asked if he had joined it and he said, "Yes," and I asked him what he hoped to gain from it and Bill in his usual way just gave a big boisterous laugh and I walked away. As stated below, I find Wegener' s version more in accord with the probabilities of the situation. INDIAN RIVER UNIFORM RENTAL, INC. On August 26 or 27 Assistant General Manager Fitzgerald asked the fifth routeman, Mike Cybuliak, whether' he had joined the Union. When Cybuliak admitted that he had, and added that "all the boys had," Fitzgerald stated, as Cybuliak testified, that "if we joined the Union, . . . the boss would let us go and replace us." According to Fitzgerald, Cybuliak gave him no answer when he; asked him if he had joined the Union "and the conversation faded there." I believe Cybuliak. In re4ching the conclusion that Cybuliak, and Myers, Coker, and Wegener, as well, are entitled to credit in preference to Fitzgerald, I have been influenced by the fact that; the testimony of all four routemen who testified to threats being made by Fitzgerald indicates that Fitzgerald followed a similar pattern in his approaches to the routemen. And, as found below, the testimony of four of the production employees who testified that they were threatened by Fitzgerald indicates that Fitzgerald followed a similar pattern of conduct in talking with them about the Union. Fitzgerald admits that he related his story about the unsuccessful strike in which he participated years earlier to a number of the employees. It is noteworthy that six employees in all attributed threats of possible loss of employment to Fitzgerald in almost identical form, i.e., after the employee admitted signing a union card, Fitzgerald asked, "Do you know this could cause you to lose your job." Two other employees testified to threats of loss of jobs by Fitzgerald in other forms. Three employees testified that in his conversations with them he used the same high dues pitch against the Unions. Since the witnesses in this case were sequestered and none of the employees heard any other witness testify, the uniformity of the testimony of the employee witnesses is significant. To accept Fitzgerald' s denials in the face of this degree of uniformity in the testimony would be tantamount to concluding that a substantial group of the Respondent's employees have engaged in a scandalous conspiracy to perjure themselves. I have observed the employee witnesses on the stand and have no hesitancy in saying that in my opinion such a conclusion is out of the question. This is not to say, however, that all of the testimony of employee witnesses is entitled to credit. As found below, I have found it necessary to discredit all of the testimony of one of the employee witnesses and have rejected portions of the testimony of other employee witnesses. Sales Manager Harbor.' On August 26 Ivan Harbor, the Respondent's sales manager , also had a conversation with routeman Wegener about the Union. Harbor, who was in charge of the Respondent' s routemen , had known Wegener for several years. Prefacing his remarks with the statement that he wanted to talk to him "as a friend," Harbor, after mentioning the fact that the routemen had joined the Sales Drivers, asked him why the men had decided 1lo join. Wegener mentioned, among other things, job security and the lack of attention to the routemen's complaints. According to Wegener, Harbor disputed his assertion, that the routemen's complaints were being ignored, and that the Respondent was "trying to do better," and went on to say, according to Wegener, that "a union had no business coming into the Company and trying to run it." Wegener added that Harbor also stated on this occasion that "as far as he knew, the Company or himself would not allow the Union to come in ." While admitting asking Wegener what the men "expected to get from the Union," Harbor denied saying anything about the Company not allowing a union in the plant. In an 659 affidavit given a Board investigator about 2 weeks after this conversation, Wegener mentioned that "the Union had no right to take over a Company" but failed to mention Harbor's alleged statement about the Company's not allowing a union to come in. Under all the circumstances I conclude that this latter was an elaboration by Wegener which went beyond Harbor's actual statement on this occasion. I find that Harbor confined himself to stating at this time that "the Union had no right to take over a Company." Office Manager Leslie: On Wednesday morning, August 28, Wegener went into the Respondent's office to get his paycheck. Observing him there, Leslie told Wegener that he wanted to talk to him a minute, "personally." According to Leslie's own testimony, he told Wegener in effect that he was hurt, after having listened patiently to the men's complaints for 3-1/2 years, to have the men turn to a union the moment he had left town (Leslie had been on leave the week the men signed cards for the Sales Drivers). Leslie's testimony continues that he then asked Wegener, as follows: Bill, just for my own personal information, what brought this on? What have we done or what have we not done that would bring - cause you to go to the union?" and he didn't say much for a minute and I said, "Well, is it job security or what is it?" I said, "Bill, it bothers me because we have been real close and we have had many long conversations." . and he said, "Well, it's security. We would like for the Company to participate in the insurance program and on the hospitalization," and I said, "Well, Bill, we are paying part of that," and he said, "You are?" I said, "Yes. You are not paying the full part of the policy Blue Cross-Blue Shield, the Company is paying." He said, "Well, we would like a retirement program and paid holidays and this business of not being able to take a vacation except during the summertime," and I started to counter it with repeating the conversation that Mr. Settle and I had had several months before in regard to these things, about these problems of vacation, and I started to say it and then I said, "No, I'm not going to say it, Bill, because it sounds like I am trying to argue out of this because I don't know what the Company is going to do. I'm in no position to say that we will accept the union or fight the union. I'm not in any position in authority to say."' b. Coercive conversations with production employees Sales Manager Harbor: Linda Hobbs, who worked in the stockroom, had much closer contact with the routemen than a typical production employee. Harbor asked Hobbs around August 21 whether she had "heard anything about the union or anything pertaining to it." She replied that she "had heard some rumors." Harbor then pressed Hobbs further, asking her "if [she] was sure [she] hadn't heard anything about it or who was trying to organize it." Hobbs told him, "No." Harbor confirmed the truth of Hobbs' testimony, stating "she said that she had heard some rumors, but she did not know who was in the union at all." 'Wegener's account of this conversation is to the same effect except that he attributed to Leslie an express request that Wegener tell him what "could be done to discourage the union movement " In my opinion, in so testifying Wegener was expressing his conclusion concerning Leslie's purpose in having this long "personal" conversation with Wegener. I credit Leslie' s denial that he expressly asked Wegener what could be done to discourage the union movement 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistant General Manager Fitzgerald: According to the credited testimony of Barbara Cannon, Fitzgerald asked her on August 21 "if we had been talking about the union." Cannon answered in the affirmative. Fitzgerald also inquired as follows: He asked us who had talked to us about the union and he asked us if it was Dick Coker or all of the drivers and I told him, "All the drivers." Fitzgerald went on to say Well, if the union was to come in that we wouldn't be allowed any breaks, we wouldn't be able to go into town, we wouldn't be able to talk, and there would be no overtime. That the union would hire other people to work instead of us on overtime. That he was going to ... "suggest to the boss" to put on two or three new trucks and two or three new drivers and cut the regular drivers' routes in half and tell them to build them back up again, and if they couldn't build them back up again they would have a reason to fire them. Fitzgerald concluded with his favorite story about his past experience in belonging to a union . Cannon's testimony in this regard is as follows: He said that he received $12 a week while they were out on strike and when they went back they only got 3 or 4 cents an hour raise, that it wasn't the same any more. The plant wasn't as friendly and they weren't allowed to leave their machines and he said when he wanted to quit the union, they made sure that he was out of a job. Fitzgerald admitted questioning Cannon about whether she had joined the Laundry Workers, about which employees had talked to her about that organization, and as to the benefits she expected to gain from her union membership. Fitzgerald also conceded that he had told her about his past experience as a member of a union. However, Fitzgerald denied making the remaining incriminating statements attributed to him by Cannon. The Respondent strenuously urges that Cannon is an incredible witness . While I believe that Cannon was in part confusing statements made to her by Fitzgerald on August 21 with those made a week later in the presence of Petrinnia McBride, I conclude for the reasons stated above that Cannon is a more reliable witness than Fitzgerald. Cannon's testimony concerning Fitzgerald's proposed suggestion "to the boss" about cutting the regular routemen's routes in half has the ring of truth to it and in my opinion is not the kind of a threat that an employee would be likely to fabricate. Under all the circumstances I credit Cannon 's testimony. On August 23 or 24 Fitzgerald approached Christine Jones as she was shaking pants in the laundry and asked her whether "she knew anything about a union." When Jones said no, Fitzgerald commented, according to Jones, .. well, if I joined the Union, it would cost so much money to be in a union that I wouldn 't make nothing after I joined...." Fitzgerald denied having any conversation with Jones about a union. However, Fitzgerald admitted talking to a number of other employees about the Union and asking them whether they had signed cards.4 As found below, two other production employees, Barbara Cannon and Petrinnia McBride, testified to similar statements being made to them by Fitzgerald about the high cost of joining and remaining members of the Laundry Workers. I credit Jones' testimony. 'Among these is Phil Hamilton, a production worker , who is not otherwise mentioned in this Decision Petrinnia McBride testified that on one occasion, which I find to be about August 23,' Fitzgerald walked up to the worktable where she and Barbara Cannon were standing awaiting their next work assignment and started talking about the Union. In the course of this conversation Fitzgerald stated that "there would be a fee of about $50 and dues would be high." Cannon's testimony is to the same effect. As the conversation ended, Cannon asked Fitzgerald where they should go next. Fitzgerald replied, as Cannon testified, "I would tell you where to go except the union would get mad." Fitzgerald admitted the testimony about the latter part of the conversation, but denied having any conversation with either McBride or Cannon about the high cost of joining the Laundry Workers. In view of the mutually corroborative testimony of McBride and Cannon, the testimony of Jones that Fitzgerald made a similar statement to her, and my doubts about Fitzgerald's credibility, I find that Fitzgerald made the statments to McBride and Cannon which they attributed to him. Lillie Thomas testified that on August 23 Fitzgerald came up to her at her worktable and asked her whether she had signed a union card . After she answered, "Yes," Fitzgerald stated, "Do you know you could lose your job by signing the card?" Fitzgerald denied having any conversation at all with Thomas about a union. For the reasons stated above, I do not credit Fitzgerald' s denial and find the facts to be as stated by Thomas. Margaret Jenkins testified that about August 26 or 27 Fitzgerald approached her at her work in the plant and spoke to her about the Union. The portions of the transcript quoted below set forth Jenkins' account of Fitzgerald's remarks on this occasion: Q. Do you recall what Mr. Fitzgerald said? A. Well, he asked me had I heard anything about a union being organized and I asked him what he meant. He said he had heard that some cards had been passed out and signed and I must know about it and he asked me had I signed a card and I said , "Yes." Q. Do you recall whether he said anything else? A. He asked me if I knew that it was a cause that I lose my job for signing a card. Q. Do you recall whether or not he said anything regarding numbers of people who had signed? A. He said he had, you know, he thought that the majority of the girls were signing up. He had heard that. Q. (By Mr. Jacobs) Was there anything further said in that conversation, ma'am, between you and he? A. No more than telling me that he had worked under a union once and the union had good points and bad points. Fitzgerald denied having any such conversation with Jenkins. I conclude, however, that Fitzgerald had so many conversations with employees about the Union that he could not accurately remember which ones he had talked to and which ones he had not. Jenkins impressed me as a straightforward witness. Her account of Fitzgerald's conduct on this occasion follows the pattern testified to by a number of other witnesses. Accordingly, I credit Jenkins' testimony. 'McBride testified that this conversation occurred "a week after the 20th." In view of the fact that McBride was on vacation the week beginning August 27, 1 conclude that McBride was in error about the date of this conversation. INDIAN RIVER UNIFORM RENTAL, INC. 661 Loretta Leisen testified upon cross-examination by the Respondent's counsel that about 4 p.m. on August 29 Fitzgerald had the following conversation with her at the folding table: He asked me first if I had joined the union and before I could answer him he asked me if I had signed a card and I said, "Yes." * He said, "Do you know you can lose your job?" and I never answered him. Gladys Coker's testimony fully corroborates Leisen's. Thus Coker testified that on August 29 she overheard Fitzgerald question Leisen about signing a card and heard him warn her, when she responded yes, "Do you know that you could lose your job." Leisen also testified that at breaktime earlier that afternoon Fitzgerald had had a conversation with her, Georgia Beard, and Stockroom Supervisor Robert Roush. In Leisen's words, Fitzgerald . started to talk about the strike, when he was up north and he said that he got $12 a week while they were out and when they back started in he only got 8 cents, on the hour and he quit and he said if the union got in the plant that the girls wouldn't be able to leave their machines to go to the bathroom or to get a drink of water when it was hot. Fitzgerald could not recall having a conversation with Leisen, Beard, and Roush on August 29. However, the testimony of Roush, a witness for the Respondent, confirms the fact that these individuals did have a conversation on that day. In view of Fitzgerald's faulty memory in this regard, I have serious doubts as to the weight to be given to Fitzgerald's denial that he warned Leisen that she would be unable to leave her machine if the Union came in and his further denial that he related to Leisen on this occasion his oft-repeated story about his past unhappy experience with a union during and after a strike. Leisen's account of Fitzgerald's story contains sufficient details to be convincing and it jibes with the story Fitzgerald admittedly told other employees. While Roush denied hearing any of the comments attributed to Fitzgerald during this breaktime incident, Roush was unable to recall what was said during this conversation, except for a question concerning the health of Beard's baby. At the time of,the hearing Roush was a newly hired "supervisor" in the stockroom and as such was hardly the "neutral" witness which the Respondent characterizes him to be. Weighing all the pros and cons concerning this breaktime conversation, I conclude that Leisen's testimony regarding it is entitled to credit. With respect to the later conversation that day in which Leisen attributed to Fitzgerald the threat that she could lose her job because of the Union, Fitzgerald admitted that he had asked Leisen if she had joined the Union, but testified that after Leisen said yes, "the conversation faded there, and I let the matter drop." The Respondent notes in connection with Leisen's testimony in this regard that she failed to mention this threat in a statement given to a Board investigator less than 2 weeks after the event. Ordinarily such an omission would raise considerable doubt in my mind concerning the truthfulness of testimony concerning such a serious threat. However, in view of the fact that Leisen's testimony is fully corroborated by that of Gladys Coker, the fact that the threat to Leisen, according to Leisen and Coker, followed the same pattern as those ascribed to Fitzgerald by three other employees, and my serious doubts about Fitzgerald's credibility in general, I conclude that Fitzgerald did threaten Leisen on this occasion with the possible loss of her job because of the Union.' General Manager Settle: Settle had left on his vacation on August 16. When he called in to the plant on August 20 the Sales Drivers' telegram was read to him. Settle returned earlier than he had originally expected on the evening of August 27 and called Office Manager Leslie that same night. Leslie briefly told him of the union activity at the plant and that routeman Coker had admitted at the sales meeting that he was the "instigator of the organizing activities." Early the next morning Settle called Coker into his office. (Settle and Coker were both members of the Mormon Latter Day Saints Church.) Settle opened the discussion by asking whether Coker understood and believed in the brotherhood of the priesthood. (Settle explained at the hearing that their church has no paid ministery and that all male members of the church are members of the priesthood.) After Coker answered in the affirmative, Settle replied, as Coker testified: "Well, you have violated the ethics of the priesthood, you have betrayed me." He said, "I returned last night and talked to Mr. Leslie on the telephone and he tells me that you are the ring leader that has organized the plant against me." He says, "This is what I am talking about." He says, "You are a Judas to me, you have betrayed me, you have betrayed my family. If the union comes in," he says, "I will lose my job, I will lose my home, I won't be able to send my daughter to college. I will have to take my son off his church mission." He said, "This is what you have done to me, this is how you have betrayed me."' Settle then asked Coker, "How many drivers are signed up?" Coker said, "all seven." Settle inquired, "Well, why!" Coker mentioned "job security," Fitzgerald's "antics," and a desire for a "few other incidental things." The conversation continued as follows, according to Coker: He asked me what they were so I told him,"... ever since I have been back to work the route men have wanted an air-conditioned office in order to do their work, their paperwork. They wanted a simple thing like a light in the unloading area and this type of thing." So he said, "Well, what size of office would you men like to have?" and I told him the size of the office and he said, "Well, I can fix that up with just a couple hundred dollars." He said, "You have got it. What else do you want?" * 'The General Counsel contends that Fitzgerald threatened Louise Bowick that if anybody signed a union card they would be replaced This contention is based upon Bowick's testimony to this effect However, Bowick's testimony varies considerably from the account given a Board investigator about 2 weeks after the event. And other employees who were admittedly in the immediate vicinity when the alleged threat was made, failed to support Bowick's testimony At least one of these, Margaret Jenkins, showed no hesitancy about attributing threats of discharge to Fritzgerald Under all the circumstances I do not credit Bowick's testimony The allegations of the complaint based on Bowick's testimony are hereby dismissed Settle's testimony concerning this portion of the conversation is in accord. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD He said, "As far as the light goes, this is just a matter of a couple of dollars." Then I said, "Well, this is fine . What about wages?" and he said, "Well, you know that we are a growing company and last year we didn't make much money. We only cleared about $5,000, but as soon as the company gets on their feet and gets money coming in, we are going to put the money back into the company. I have got four or five things that I want to do for the route men and I want to improve their working conditions , et cetera." After reminding Coker of how good he had been to him in the past and of the times he had saved Coker 's job at the plant for him, Settle asked Coker - if [he] was too involved with the union, could [he] help him, could [he] make a reversal and help him get rid of the Union. When Coker answered that he did not know , Settle went on to say that if [he] could help him get the union off his back , that he could have most any job that [he] wanted ....r Coker turned the discussion to "the girls in the back" and the following conversation ensued, as Coker testified without contradiction: [Settle] said, "What about them?" I said, "Well, what about the girls in the back?" He said, "We aren't talking about them , we are talking about the drivers," and I said, "Well, don't you know, haven't you heard?" and he said, "No, what?" I told him, I said, "didn't Mr. Leslie tell you the girls were signed up in the back, about 90 percent for the union?" and . . . he tilted his chair back and looked at the ceiling and he said, "Oh, my God, No!" He asked "Why?" and I said, "Well, because of Fitzgerald. The girls signed up because of Fitzgerald," and he said, "Well, would it help if I fired Fitzgerald?" I said, "Well, I don't know, it would be a good start," and he said, "Well, I'll see about this." We didn't talk about the girls too much. I believe he then told me that our conversation was strictly between us as friends and as fellow priesthood bearers in the church and that he expected to keep my conversation with him in strict confidence and asked me would I do the same, which I said , "Yes." Settle received a telephone call at this point and the conversation was abruptly terminated. Settle also had a conversation with routeman Mike Cybuliak on August 28. As Cybuliak was passing Settle's office, Settle called him in. After discussing the matter of paying Cybuliak for some extra work which he had done, Settle turned the discussion to the union activity then going on in the plant. According to Cybuliak, the following conversation then occurred: He asked me if I could help him because he was in plenty trouble and I asked him in what way I could help and he said, "You boys have all been joining the The above quotations are from Coker 's testimony. Settle admitted that he had mentioned in this conversation that the Sales Drivers had petitioned for an election and stated that Coker "voluntarily gave [him] his assistance." In Settle's words, Coker stated " 'Well, I will do all I can to help,' or something to that effect." When asked by the General Counsel "Didn't you, in fact, ask for his help in return for the favors that you had done him in the past?" Settle answered, "I don't think I did in a direct statement." In my opinion a realistic evaluation of the testimony of Coker and Settle on this point requires acceptance of Coker's version that Settle sought during this discussion to obtain Coker s help in getting rid of the Sales Drivers. It may be that the request was put in more veiled terms than Coker's testimony indicates, but I have no doubt that a request for such aid was conveyed by Settle to Coker on this occasion. union and I want somebody to help me out." I says, "I don't know if I can help you at all." He said, "When you come to vote, vote no." He says, "Nobody will know about it," and he says, "That will help me quite a bit." Settle testified that it was Cybuliak who started talking about the Union by saying that he was the last one to sign a card. According to Settle, he told Cybuliak: Well Mike, I can't talk to you about this ... The only thing I can say to you, Mike is that I loaned you this money and I helped you out. I do not believe Settle's testimony. According to Coker, Settle had sought his help in combating the Sales Drivers, using the same approach of reminding him of past favors accorded him. Settle's own testimony tends to confirm that he made a similar appeal to Cybuliak. I credit Cybuliak's testimony which is quoted above. c. The Respondent's announcement of drastic penalties against the routemen for talking to production and maintenance employees The Respondent usually holds a meeting of its routemen on Monday mornings. Fitzgerald does not usually attend, but he attended the meeting on the morning of August 26. Harbor opened the meeting by asking that the routemen not interfere with the girls in the back because they were behind schedule. Harbor stated at this time that if any of the men had a problem with shortages, they should look up a supervisor. Harbor commented that this rule had been in effect for some time and that a violation of the rule could constitute grounds for dismissal. At this point Fitzgerald interjected as follows, as he testified: "I will emphasize the fact a little bit stronger. If you don't stop it, this will be cause for immediate dismissal." Both Lamb and Wegener protested this requirement, asserting that they needed to talk to the girls in order to serve their customers properly. Wegener charged that "this has all come about due to the fact that we are wanting a union."' Office Manager Leslie joined the discussion at this point and denied this , asserting that the Respondent had spoken to the routemen about disturbing the production employees before. Lamb heatedly accused Fitzgerald of being responsible for their shortage problems, and Wegener asserted that Fitzgerald did nothing but give the men a "hard time" when they went to him with such problems. Coker jumped up and said, as Leslie testified, "Let's calm down . We all know what they are after. They are wondering if we are union and, well, we are. You are wondering about the people in the back, they are, too. I don't want you to blame anybody but me, it is my doing and I am behind the whole thing." The General Counsel contends that the Respondent on August 26 promulgated for the first time a rule prohibiting the routemen from talking to the production employees in order to thwart the organizational efforts of the routemen among the production and maintenance employees. The evidence indicates, however, that while the Respondent did not have a formal rule banning talking to the production employees, it had over the past several years spoken to routemen at widely scattered intervals about talking to the "girls in the back." 'This is the testimony of Claude Clark, the former general manager of the plant, who at the time of the hearing was serving as a routeman. Clark was not included in the stipulated appropriate unit of routemen, however INDIAN RIVER UNIFORM RENTAL, INC. The question remains whether the Respondent in threatening to enforce the ban at this time was motivated by a desire to forestall any further spread of the organizational activities which it knew were going on in the plant. The Respondent learned from the telegram addressed to Jim Bearden which was opened on August 20 that a majority of the routemen had signed cards for the Sales Drivers and that the Sales Drivers were demanding recognition. An envelope bearing the return address of the Sales Drivers also addressed to Jim Bearden , which the Respondent had ample reason to believe was the confirmatory letter mentioned in the telegram, was received by the Respondent on August 22 and refused. Another envelope bearing the return address on the front thereof , of the Laundry Workers, and similarly misaddressed to Jim Bearden, was refused by the Respondent on August 23. Even though this letter from the Laundry Workers was refused by the Respondent, the similarity in the addressing of the envelopes-both wrongly addressed to Mr. Jim Bearden-was enough to suggest to the Respondent, in my opinion, that its production and maintenance employees were also involved in the organizing activities, and that perhaps the Laundry Workers was also seeking recognition . Although the routemen frequently had occasion to seek the help of the production employees in locating missing garments, the Respondent had not in the 2 years Harbor had been at the plant ever taken any disciplinary action against routemen for talking to the production employees. The Respondent's entire course of conduct in this case plainly shows its desire to avoid bargaining with either Union . Under all the circumstances I conclude that the Respondent announced the drastic penalty of discharge for any routemen found talking to production employees in an attempt to stop the further spread of the union movement in the plant. 4. The Respondent' s refusals of the Unions' requests for recognition; the Laundry Workers strike threat a. The Sales Drivers request As found above, the Sales Drivers first requested recognition on behalf of the Respondent's routemen in its telegram of August 17 which was opened and read by the Respondent on August 20. After its first confirmatory letter was refused by the Respondent on August 22, the Sales Drivers on August 26 sent a second letter requesting recognition and scheduling of a date for a bargaining meeting. On August 27, the Respondent answered this letter with the following telegram: YOUR TELEGRAM OF SATURDAY, AUGUST 17, ADDRESSED TO JIM BEARDEN AT INDIAN RIVER UNIFORM RENTAL AND RECEIVED AUGUST 19, IS ACKNOWLEDGED. LETTER ADDRESSED TO HIM WITH POSTAGE DUE WAS ERRONEOUSLY RETURNED. NO JIM BEARDEN ASSOCIATED WITH COMPANY, PRESUME YOU MEAN C. W. BEARDEN. FOR SEVERAL REASONS INDIAN RIVER UNIFORM RENTAL DOUBTS THAT YOU REPRESENT AN UNCOERCED MAJORITY OF OUR EMPLOYEES IN THE APPROPRIATE UNIT. SINCE YOU HAVE FILED REPRESENTATION PETITION WITH NATIONAL LABOR RELATIONS BOARD, THE CERTIFICATION PROCEDURES PROVIDED BY THE NLR ACT WOULD SEEM APPROPRIATE MEANS OF SETTLING QUESTION OF REPRESENTATION. ' s "Although the Sales Drivers had not mentioned in its letter the filing of a certification petition with the Board , the Respondent had by this time 663 b. The Laundry Workers request As found above, the Respondent refused to accept delivery of the Laundry Workers original letter requesting recognition on August 23. The Laundry Workers mailed a second letter requesting recognition and bargaining on behalf of the Laundry Workers on August 27, which was presumably received by the Respondent on August 28. About noon on August 29, James Bailey, an organizer for the Laundry Workers, went to the Respondent's office and asked to speak to General Manager Settle. After a few minutes Settle came out of his office. Bailey introduced himself to Settle as a representative of the Laundry Workers and asked for several minutes of his time to discuss recognition of the Laundry Workers. Settle said that he had a luncheon appointment and did not have time to talk to him. Bailey urged that would not take long, and asserted, "I have the authorization cards here with me and a stipulation for recognition and I would like to show you." Settle insisted that he did not have time, suggested that Bailey talk to his attorney, John McCarty, and gave Bailey McCarty's telephone number. Bailey attempted to call McCarty between 1 and 2 p.m. that day and McCarty returned Bailey's call shortly after 2 p.m. Over the telephone Bailey introduced himself to McCarty as a representative of the Laundry Workers, offered to show McCarty the bargaining authorization cards signed by the production and maintenance employees, and told McCarty that he would like him to sign a stipulation providing for recognition of the Laundry Workers. Bailey explained that he knew Mr. Settle, that he had worked with him in Jacksonville, and that he wanted to be cooperative. McCarty replied that he was not in any position to stipulate about anything, that his partner handled most of the Respondent's work, and that he was unavailable. Bailey concluded the conversation by saying that he was having a meeting that night with the production and maintenance employees, that the routemen had decided to go along with whatever decision was reached by the production and maintenance employees at the meeting, and that "he would have to see what developed there that night as to what transpired" thereafter with respect to whether the employees "would be out on the street in the morning."" 5. The Respondent's preparations to cope with the threatened strike Faced with the demand for recognition from the Laundry Workers and the threat of a strike, McCarty called for advice from the law firm in Atlanta which is representing the Respondent in this proceeding. Then McCarty called Settle and informed him of his conversation with Bailey and relayed on to Settle the Atlanta firm's advice that he should make a talk to the employees still on duty so as to get management's point of view before the employees in advance of the union meeting that night. McCarty dictated over the telephone specific suggestions concerning the content of his talk to the employees. received copies of papers relating to the certification proceeding from the Board. "These quotations are from McCarty's testimony. My Endings on this aspect of the case are based upon a blend of the testimony of Bailey and McCarty On the principal matters of substance their testimony is in accord. With respect to the exact sequence of events, however , I believe that McCarty's recollection is more accurate than Bailey's 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few minutes after 4 p.m. Settle had the employees remaining at the plant assembled. According to Settle's recollection, he told the employees as follows: "I have called you together today or at this meeting because I understand that you are having a meeting this evening and I have just returned from vacation and my desk is piled up with mail and other work and I haven't had a chance to open it and to catch up on my work. I would appreciate you giving me an opportunity to do this. I would hate to see you act in haste. As a matter of fact, I certainly urge you not to do anything hastily, that I would like for you to have the opportunity to vote in an election supervised by the NLRB according to the democratic process. That we are in a service business and we must of necessity serve our customers. Anyone who absents himself from his job will be replaced. I would also like to tell you that Florida has the right-to-work law which means that no one of necessity must belong to any labor organization and has a right to work as they see fit.... 11 Shortly after 5 p.m. McCarty called Settle to ascertain the reaction of the employees to Settle's talk. While this call was in progress McCarty's telephone rang, and McCarty interrupted his conversation with Settle to answer. It turned out to be Bailey, whereupon McCarty told Settle he would call him back. In McCarty's words, the following conversation with Bailey then took place over the telephone: - his first comment was to the effect that I was letting my client get out of hand and I said, "I don't know what you mean," and he said, "Well they have just had a meeting out there and he said some things and Mr. Fitzgerald said some things that I don't like," and I said "Well, I'm sorry about that. I wasn't present but I have a vague idea of what he said," and he said, "Well, I'm going on to this meeting tonight and if the things that I have heard so far are true, why, the workers will be on the street in the morning." McCarty replied, "I'm sorry that it has come to that point." 12 After McCarty called Settle back and reported to him about Bailey's latest strike threat, Settle called Fitzgerald, Harbor, and Leslie into his office. According to the Respondent' s witnesses, Settle told the others that he had received a telephone call informing him that the Laundry Workers representative had threatened that the employees would go out on strike the following morning and that it was necessary to do some planning about "how we could operate the plant in case the employees did go out on strike." While the Respondent' s witnesses did not give the details of this discussion, I find, in view of the fact that only an hour earlier Settle had warned the production employees that "anyone who absents himself from his job will be replaced," that replacement of striking production employees was discussed at this meeting. Also discussed, according to the Respondent's witnesses, was who would handle the various routes in the event that the drivers failed to report for work the next day. Routes 21, 9, 8, and 6 were mentioned . After allocating various runs to various supervisors, Settle declared that the one route which was not covered could be taken care of on "The foregoing findings are based largely on McCarty 's testimony While McCarty and Bailey differ in their testimony concerning the details of the conversation and the sequence of events of this particular afternoon, there is no disagreement between them as to the substance of what occurred on this afternoon Saturday. The prospect of bringing the supervisors' wives in over the long weekend" to prepare the garments for shipment which were scheduled for delivery on the following Tuesday and Wednesday was also discused at this meeting, according to the Respondent's witnesses. Production worker Barbara Cannon and routeman Richard Coker each in turn eavesdropped on this meeting from the restroom which is adjacent to Settle's office. While in the restroom on the previous day Coker had accidentally discovered that the plywood partition separating Settle's office from the restroom was not soundproof.' Cannon and Coker testified to additional statements being made at this meeting on August 29, which are strenuously denied by all of the participants in the meeting. Cannon's testimony is as follows: [Settle] said to let the regular route men take their clothes out the next day and to ship as much as possible, and I also heard him say that "When the union comes in, we will close the doors." He said, "There are some people out there that have joined the union, but I don't think the majority has, just some." He said he had to worry about routes 4, 6, 9, 11, and 20. Coker's testimony is as follows: The first words that I recall hearing is Mr. Settle stating: "Well, we have three routes now; we have six, nine, and twenty. Do you know who we can get to operate these routes for us?" No one seemed to know who they could get to operate these three routes and then he said, "We will have the girls work as late tomorrow night" - that would be Friday night - "and Saturday evening and probably Sunday. We will have them work as much as they can to ship as far ahead as they can and then Tuesday supervisors and their families will come in and work so that we will be ready Tuesday morning." Monday was a holiday. "So we will be ready Tuesday morning and just keep the doors closed and we will operate the plant ourselves as long as we can." "Labor Day was the following Monday "Coker testified that about 10 minutes after his long conversation with Settle on August 28 he went into the restroom where he overheard his name being mentioned Coker's testimony continues as follows- This was the first time I knew you could hear through that wall Well, I heard my [name] mentioned and I couldn 't hear anything so I reached over and turned off the light and this shut off the exhaust fan up on the ceiling and again I heard my name mentioned and I was curious It takes no effort at all to hear through that wall. It's so thin that if someone leans against it on the inside of Mr Settle's office, the wall bends out in the restroom. Mr. Settle was telling his supervisors the exact conversation we had just had, and I was dumb-founded to say the least because of the confidence that Mr . Settle was going to hold our conversation in, that this conversation was in strict confidence , and Mr Settle blew whatever help right then that I was going to give him Coker testified to overhearing Settle make further statements to the assembled supervisors on this occasion, including the statement that "he didn' t have to worry about the drivers, that I would take care of the drivers for him," a statement about replacing the production employees, and another statement to the effect that he was "not going to have the union in [his] plant telling [him] what to do " All of the supervisors alleged to have been present at this meeting denied that any such statements were made on this occasion or any other occasion. I think it more likely that these statements were made, if at all, at the meeting of supervisors on August 29 The Respondent had neither received a demand for recognition from the Laundry Workers nor been confronted with a strike threat on August 28. The use of the term "replace" is more logical in a strike threat situation . However, I need not resolve the conflicting testimony in this regard because it would not affect my ultimate conclusion herein INDIAN RIVER UNIFORM RENTAL, INC. 665 As indicated above, Settle, Fitzgerald, and Harbor all denied that anything was said at this meeting about the Respond'ent's closing its doors. Settle was not the owner of the Respondent' s business and was thus not in a position to be able to decide to go out of business rather than deal with unions. For this reason I think it unlikely that he would voice a determination "to close the doors" rather than deal with the Unions in what he thought was a private meeting with his departement heads. Under all the circumstances I conlude that Cannon and Coker heard fragments of the conversation in Settle's office, including the statement about replacing production workers, and jumped to erroneous conclusions about the import of the portions of the conversation which each of them overheard. I credit the testimony of the Respondent's witnesses as to what was said at this August 29 meeting and find the facts to be as stated above. 6. The Laundry Workers meeting on the night of August 29; the strike The Laundry Workers held the meeting, as scheduled, at 8 p.m. on August 29. Approximately 28 of the Respondent's 44 production and maintenance workers and 7 of the Respondent's routemen attended. Laundry Workers Organizer Bailey reported to the employees that the Respondent's attorney had claimed that he did not represent the Respondent in labor matters and said that he had received no reply to his demand for recognition. Coker reported to the group that he had overheard Settle say that he was looking for replacements for certain drivers and also that he was planning on discharging the production employees and replacing them. Cannon also made a report at this meeting about what she had overheard through the restroom wall, but the nature of this report is not disclosed in the record. Several other employees made reports about threats from the Respondent's supervisors. Routeman Wegener observed, as Coker testified, "that it looked like that Mr. Settle was getting ready to hit us and if we waited and let him get both feet on the ground, we were going to be making a big mistake . . . that we should hit him first." Bailey asked the group what they wanted to do about it. The response was, "Walk out." A vote was taken by a show of hands and all voted to walk out the next morning. Bailey made arrangments to have employees meet him at the plant in the morning and the meeting was adjourned. Early the next morning 6 routemen16 and approximately 30 production and maintenance employees congregated across the street from the plant. Picketing with hand-lettered signs commenced about 7 a.m. During the first week of the strike the Unions involved paid strike benefits to 34 production and maintenance employees and 7 drivers. Settle admitted that only about six production and maintenance employees reported for work on August 30, the first day of the strike. 7. Conclusions concerning the Respondent's interference, restraint, and coercion in violation of Section 8(a)(1) of the Act As found above, as soon as the Respondent was informed that its routemen had signed authorization cards for the Sales Drivers and that that organization was claiming bargaining rights, the Respondent embarked on a campaign to undermine the Sales Drivers. Within 24 hours Assistant General Manager Fitzgerald questioned four of the Respondent's seven routemen concerning their support of the Sales Drivers and, in the course of these conversations with three of the routemen, uttered threats of the loss of various privileges, and in two cases, their very jobs, if they adhered to the Sales Drivers. Later on, after questioning the fifth routemen concerning his union sympathies, Fitzgerald threatened him with replacement if he joined the Union. Fitzgerald followed the same general strategy with the production and maintenance employees. He questioned at least six of the production employees concerning their interest in the Laundry Workers and sought to ascertain the identity of the employees who were promoting it. Fitzgerald warned four of the six that the advent of the Laundry Workers might mean either the loss of privileges in the plant or their jobs. There can be no question but that Fitzgerald's threats to numerous employees concerning the adverse consequences of unionization constituted interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. And in the atmosphere engendered by these threats Fitzgerald's questioning of employees about their union sympathies and the identity of its promoters took on coercive coloration and therefore constituted further interference, restraint, and coercion violative of Section 8(a)(1) of the Act. General Manager Settle, after he returned to the plant on August 28, also sought to undermine the allegiance of the routemen to the Sales Drivers. In his conversation with Coker, Settle clearly exceeded permissible bounds when he sought by offers of future benefits and reminders of past favors to induce him to lead the routemen out of the Sales Drivers. Settle followed the same technique in his conversation with Cybuliak but was slightly more subtle in his approach. The Act does not permit such offers of rewards, express or implied, to induce employees to renounce their duly chosen bargaining representative. The conversations of Sales Manager Harbor and Office Manager Leslie with routeman Wegener also violated Section 8(a)(1) of the Act. Both supervisors sought to ascertain from Wegener what it was that prompted him to seek union affiliation, and when Wegener stated what the men were seeking, Harbor, at least, intimated that the Respondent would try to do something about the men's complaints. The Act, in my opinion, entitles employees who have chosen a collective-bargaining representative to be free from such prying conversations with their superiors - conversations which are obviously intended to wean the employees away from their bargaining agent. And particularly in the context of this case - with Assistant General Manager Fitzgerald repeatedly threatening employees that they would be discharged because of the Unions - such questioning assumes coercive proportions. The facts summarized above relating to the Respondent's announcement at the August 26 sales meeting of the drastic penalty of discharge for any routeman found talking to a production worker, in my opinion, warrant the conclusion that this action was taken by the Respondent in an effort to stop all contact between the Respondent's routemen, whom it knew to be organized, and its production workers, whom it was fearful would become organized. The Respondent's adoption of this stringent enforcement policy at this time for such an antiunion reason violated Section 8(a)(1) of the Act. Cf. N.L.R.B. v. Hill & Hill Truck Line, Inc., 266 F.2d 883, 885 (C.A. 5). "The seventh routeman was on vacation. 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. Conclusions regarding the Respondent's refusal to bargain collectively with the Unions a The Unions' majority status in appropriate units The parties stipulated at the hearing that the Respondent's routemen, with the usual exclusions, and that the Respondent's production and maintenance employees, with the usual exclusions and excluding also the routemen, constituted two separate units, each of which was appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The parties further stipulated that there were 7 employees in the routemen's unit and 44 employees in the production and maintenance unit. Cards signed by six of the seven routemen authorizing the Sales Drivers to act as their bargaining representative were received in evidence without objection. Five of these six cards were dated August 16 and the sixth was dated August 19." Similarly, cards designating the Laundry Workers as "sole bargaining agent," signed by 36 of the 44 employees in the production and maintenance unit, were received in evidence without objection. All but five of these cards were dated between August 20 and 22. The remainder were signed between August 23 and 30. Upon the foregoing facts I conclude that at all times on and after August 16, 1968, the Sales Drivers was the exclusive bargaining representative of the Respondent 's routemen, and that at all times on and after August 22, 1968, the Laundry Workers was the exclusive bargaining representative of the Respondent's production and maintenance employees. b. The Respondent's refusal to bargain collectively with the Unions As found above, the Sales Drivers had in both of its letters requesting recognition offered "to permit a neutral person to check [its] authorization cards." And Fitzgerald, by his own admission, had ascertained by questioning four of its seven routemen that the four men had authorized the Sales Drivers to act as their bargaining representative. Fitzgerald ascertained this fact at least by August 21. Notwithstanding these facts, the Respondent, in its telegram to the Sales Drivers dated August 27, stated that it doubted that the Sales Drivers represented "an uncoerced majority" of its employees in the appropriate unit and suggested that this question be settled through the certification procedures of the Act. With respect to the Laundry Workers request for recognition, it also had offered to prove its majority status in its letters requesting recognition . Bailey in his personal requests for recognition had twice offered to submit its authorization cards for inspection by the Respondent. The first time he offered them to General Manager Settle himself, and the second time to the Respondent's attorney, McCarty. Even in the face of a strike threat the Respondent's answer to these requests for recognition in effect was that it would replace the strikers, if necessary. It is settled that where a union representing a majority of the employees (a fact which may be evidenced, as here, by authorization cards) requests recognition and bargaining, and the employer declines such a request upon the ground the union lacks the requisite majority support, the employer may be held to have refused to bargain "The seventh routeman testified that he had told Fitzgerald that he had joined the Sales Drivers collectively in violation of Section 8(a)(5) and (1) of the Act if the evidence justified the conclusion the employer's refusal "is motivated, not by any bona fide doubt as to the union's majority, but rather by a rejection of the collective bargaining principle or by a desire to gain time within which to undermine the union." Joy Silk Mills, Inc., 85 NLRB 1263, 1264, enfd. 185 F.2d 732, 741-742 (C.A.D.C.), cert. denied 341 U.S. 914; Skyline Homes, Inc. v. N.L.R.B., 323 F.2d 642, 647-649 (C.A. 5); Independent Inc. v. N.L.R.B. 406 F.2d 203 (C.A. 5); The Madison Courier, Inc.. 162 NLRB 550, 593-596, enfd. 405 F.2d I (C.A.D.C.), and cases therein cited. With respect to the Respondent's claimed doubt as to the Sales Drivers "uncoerced majority" status, it is to be noted that the record is barren of the slightest suggestion of any coercion or misrepresentation in connection with the routemen's signing of authorization cards. The same is true with respect to the signing of the Laundry Workers cards. In view of this fact and the further fact that Fitzgerald admittedly by his own questioning of routemen, was well aware that a majority of them had signed cards for the Sales Drivers, the Respondent's lack of good faith in rejecting the Sales Drivers request for recognition is abundantly clear on these facts alone. But these are not the only facts casting light on the Respondent's lack of good faith in refusing to recognize the Sales Drivers. And these facts illuminate the Respondent's motives in rejecting the Laundry Workers request for recognition, as well. The Respondent's refusals to accept certified mail from the Unions, although it certainly had reasonable grounds to believe in the case of the letter from the Sales Drivers that the letter was intended for the Respondent and that it was the confirmatory letter mentioned in the earlier telegram from the Sales Drivers, clearly reflects the Respondent's desire to avoid dealing with the Unions. The Respondent's conduct from the time it opened the Sales Drivers telegram on August 20 establish that this was not a mere whim , but a fixed determination to avoid bargaining with the Unions. Thus every one of the Respondent's top officials and supervisors spoke to at least one of the routemen in an effort to dissuade them from adherence to the Sales Drivers. Assistant General Manager Fitzgerald talked to five of the seven routemen, and to four of them he threatened loss of employment or some other form of retaliation if they continued with their union affiliation. General Manager Settle appealed to two of the routemen to turn against the Sales Drivers, using both promises of future rewards and reminders of past benefits accorded them as inducements to them to take such action. Assistant General Manager Fritzgerald also actively sought to coerce the production employees into rejecting the Laundry Workers. Six production workers credibly testified to hearing Fitzgerald threaten the loss of their jobs or the loss of benefits or privileges because of their union affiliation . Other production employees gave credible testimony about coercive conversations with the Respondent' s supervisors about their own union affiliation, the union sympathies of their fellow employees, and the identity of the instigators of the union movement. Even when the Respondent was faced with the threat of having its entire operation shut down as a result of a strike, the Respondent made no effort to communicate with the representatives of either Union in an effort to resolve the differences separating them. On the contrary, the Respondent promptly informed the production INDIAN RIVER UNIFORM RENTAL, INC. employees that it would replace them if necessary to keep its business in operation At a time when tensions were high among the employees and a conciliatory word from the Respondent might have eased the strained relations between the parties, the Respondent chose to adopt the provocative tactic of threatening to replace any striking employees. Although the strike effectively halted the Respondent's operations for a time and the Respondent could observe a substantial majority of its employees standing around outside the plant in apparent support of the picketers (admittedly, only about six of the Respondent's production workers and none of the routemen reported for work on August 30)," even then the Respondent did not get in touch with the representatives of the striking employees in an effort to resolve the controversy. The foregoing facts, in my opinion, fully warrant the conclusion that the Respondent's refusal of both Unions' requests for recognition was not based on a good-faith doubt as to either Unions' majority status, but rather stemmed from its determination to avoid bargaining with the Unions in any event. Under the authorities cited above, therefore, the Respondent in refusing the requests of the Sales Drivers and the Laundry Workers for recognition has violated Section 8(a)(5) and (1) of the Act. 9. Conclusions concerning the cause of the strike At the meeting of the Laundry Workers on the night of August 29, Organizer Bailey reported on his efforts to gain recognition that day and said that he was unable to get an answer from the Respondent. Some employees told of the threats voiced by the Respondent's supervisors during the past week Routeman Coker reported that he had overheard the Respondent's supervisors planning to replace certain drivers and discharge the production workers. This was erroneous, as I have found, since what Settle discussed with his supervisors at the meeting on the afternoon of August 29 was the replacement of any employees who went out on strike. At the end of the union meeting that night the employees present, 28 of them, voted unanimously to go out on strike the next morning. The Respondent contends that the strike was caused by Coker's report that the Respondent was planning to discharge the employees, and that since this report was untrue, the strike was not an unfair labor practice strike While I agree that Coker's erroneous report was a factor in the causation of the strike, it was not, in my opinion, the sole cause of the strike. Organizer Bailey's unsuccessful efforts to gain recognition that afternoon were discussed at the union meeting, as were the unlawful attempts by the Respondent's supervisors to coerce the employees into abandoning their unions. And there can be no question upon this record but that the grant of recognition to the Unions involved would have brought about the immediate end of the strike. As the Board and the courts have held, it is immaterial that other factors may also have influenced the employees to decide to go out on strike, for if "unfair labor practices were a "Cf Independent, Inc v N L R B, 406 F 2d 403 (C A. 5) While it is true that the Board held in Wilder Mfg Co , 173 NLRB No 30, that the presence of a majority of an employer ' s employees on a picket line does not in and of itself establish the absence of a good-faith doubt of majority status on the part of the employer, this ruling was arrived at in a case wholly devoid of evidence of unfair labor practices or of any other conduct tending to prevent the holding of a fair election This ruling is plainly not applicable on the facts of this case 667 contributing cause of the strike" it may be held to be an unfair labor practice strike. N.L.R.B v. Birmingham Publishing Company, 262 F.2d 2, 9-10 (C.A. 5), General Drivers and Helpers Union, Local 662, Teamsters v. N.L.R.B., 302 F.2d 908, 911 (C.A.D.C.), cert. denied 371 U.S. 827. Cf Simmons, Inc v. N L.R B., 315 F 2d 143, 146 (C.A. 1) Upon all of the facts I find that the Respondent's interference, restraint, and coercion, and its refusal to recognize the Unions were contributing causes of the strike. Accordingly, I conclude that the strike was an unfair labor practice strike. CONCLUSIONS OF LAW 1. All routemen employed by the Respondent at its Ft Pierce, Florida, plant, excluding all other employees, office clerical employees, salesmen, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2 At all times on and after August 16, 1968, General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America, has been the duly designated exclusive collective-bargaining representative of the employees in the aforesaid unit of routemen. 3 By refusing on and after August 19, 1968, to recognize and bargain with General Sales Drivers & Allied Employees Union, Local No 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the routemen's unit, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. All production and maintenance employees employed by the Respondent at its Ft. Pierce, Florida, plant, excluding all routemen, office clerical employees, professional employees, guards and supervisors, as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times on and after August 22, 1968, Local 218, Laundry, Dry Cleaning & Dye House Workers Union has been the duly designated exclusive collective-bargaining representative of the employees in the aforesaid production and maintenance unit. 6. By refusing on and after August 23, 1968, to recognize and bargain collectively with Local 218, Laundry, Dry Cleaning & Dye House Workers Union, as the exclusive representative of the employees in the production and maintenance unit, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act 7. By threatening employees with discharge or other adverse consequences because of their affiliation with the Unions; making promises of rewards to induce employees to renounce their union affiliation, coercively questioning employees concerning their union affiliation and what prompted them to seek it; coercively questioning employees about the identity of union supporters and leaders; and by announcing for antiunion reasons that routemen will be discharged for talking with production employees, the Respondent has interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. The strike in which the Respondent's employees in both appropriate units engaged commencing on August 30, 1968, was an unfair labor practice strike. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent had engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, my Recommended Order will provide that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I have found that the Respondent's unfair labor practices in violation of Section 8(a)(1) and (5) of the Act were a contributing cause of the strike among the Respondent's employees which commenced on August 30, 1968. In order to restore the status quo disrupted by the Respondent' s unfair labor practices, my Recommended Order will provide that the Respondent , upon application, offer immediate reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, to all of the strikers, dismissing, if necessary, any replacements hired. The Respondent shall also make whole such strikers for any loss of pay they may have suffered by reason of the Respondent' s refusal, if any, to reinstate them, by payment to each of them of a sum of money during the period from 5 days after the date on which he applies for reinstatement to the date of the Respondent 's offer of reinstatement. In computing backpay the formulas prescribed in F. W. Woolworth Company, 90 NLRB 289, 291-294, and Isis Plumbing & Heating Co., 138 NLRB 716, shall be followed. In view of the nature of the unfair labor practices committed, the commission by the Respondent of similar and of other unfair labor practices may be anticipated. I shall, therefore, make my Recommended Order herein coextensive with the threat and order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER The Respondent, Indian River Uniform Rental, Inc., Ft. Pierce, Florida, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America, as the exclusive representative of all its employees in the appropriate unit of routemen stated in the Conclusions of Law above. (b) Refusing to recognize and bargain collectively with Local 218, Laundry, Dry Cleaning & Dye House Workers Union, as the exclusive representative of all its employees in the appropriate unit of production and maintenance employees stated in the Conclusions of Law above. (c) Threatening employees with discharge or other adverse consequences because of their affiliation with the Unions; making promises of rewards to induce employees to renounce their union affiliation; coercively questioning employees concerning union matters; and announcing for antiunion reasons the imposition of drastic penalties for infractions of employer work practices. (d) In any other manner, interfering with, restraining, or coercing employees in the exercise of rights quaranteed in Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act. (a) Upon request, recognize and bargain collectively with General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousmen and Helpers of America, as the exclusive representative of all the employees in the appropriate unit of routemen stated in the Conclusions of Law above. (b) Upon request, recognize and bargain collectively with Local 218, Laundry, Dry Cleaning & Dye House Workers Union, as the exclusive representative of all the employees in the appropriate unit of production and maintenance employees stated in the Conclusions of Law above. (c) Upon application, offer immediate and full reinstatement to their former or substantially equivalent positions to all those employees who went out on strike on August 30, 1968, or thereafter, without prejudice to their seniority or other rights and privileges, dismissing if necessary all persons hired on or after that date, and make such applicants whole for any loss of pay suffered by reason of the Respondent's refusal, if any, to reinstate them, in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." (d) Notify any of the persons entitled to reinstatement under this Recommended Order if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Ft. Pierce, Florida, plant copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by an authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days therafter, in conspicuous places, including all places where notices to 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. (g) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." "In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further 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 " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " INDIAN RIVER UNIFORM RENTAL , INC. 669 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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: WE WILL, upon request , recognize and bargain collectively with General Sales Drivers & Allied Employees Union, Local No. 198, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages , hours of employment, and other conditions of employment and, if an understanding is reached, embody such an understanding in a signed agreement. The bargaining unit is: All our routemen employed in our Ft. Pierce, Florida, plant, excluding all other employees, office clerical employees, salesmen, guards, professional employees, and supervisors as defined in the Act. WE WILL, upon request, recognize and bargain collectively with Local 218, Laundry , Dry Cleaning & Dye House Workers Union as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All our production and maintenance employees employed in our Ft. Pierce, Florida, plant, excluding all routemen, office clerical employees, professional employees, guards and supervisors, as defined in the Act. WE WILL, upon application , reinstate the employees who went out on strike on August 30, 1968, - or thereafter, without prejudice to their seniority or other rights and privileges. WE WILL notify the employees entitled to reinstatement, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT threaten employees with discharge or other harmful consequences because they join or support a union ; make promises of benefits or rewards to persuade employees to renounce their union membership; coercively question employees about union matters; and announce or impose for antiunion reasons drastic punishment for infractions of our work rules or practices. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of the right to join a union and to participate in union activities. Dated By INDIAN RIVER UNIFORM RENTAL, INC. (Employer) (Representative) (Title) 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 , Room 706, Federal Office Building , 500 Zack Street, Tampa, Florida 33602, Telephone 813-228 -7711, Extension 227.