Nat Harrison Associates, Inc.

NAT HARRISON ASSOCIATES Nat Harrison Associates, Inc. and International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO. Case 12-CA-4305 (1-2) June 27, 1969 DECISION AND ORDER B) MFMBI RS PANNING, BROWN, AND JFNKINS On March 12, 1969, Trial Examiner Richard D. Taplitz issued his Decision in the above-entitled case, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, 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.' 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, Nat Harrison Associates, Inc., Ft. Lauderdale, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. we agree with the Trial Examiner that the Respondent engaged in extensive violations of the Act including wholesale unlawful interrogation, threats to discharge employees because of their union activities , promises of benefits to employees to refrain from union activity, and the discharge of two employees because they joined the Union Moreover, as concluded by the Trial Examiner, Respondent may not destroy the very conditions needed for a fair election , as we find occurred herein , and at the same time successfully maintain that an election is the sole means for determining the desires of the employees Accordingly, as we conclude that the Respondent' s massive unfair labor practices have made the holding of a fair election unlikely, we shall provide, as did the Trial Examiner, for an 8(a)(5) bargaining order See N L R.B v. Gissel Packing Co . Inc , 395 U S 575 TRIAL EXAMINER'S DECISION STATE MENT OF THE CASE RICHARD D. TAPI.ITz, Trial Examiner: This case was 177 NLRB No. 24 113 tried in Miami, Florida, on December 3, 4, 5, 6, and 9.' The issues litigated were framed by a complaint dated November 1, as amended at the hearing , alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, and an answer, as amended at the hearing , filed by Nat Harrison Associates, Inc., herein called Respondent, which denies that Respondent violated the Act. The complaint was based on a charge in Case 12-CA-4305 dated August 9 , a charge in Case 12-CA-4305-2 dated August 26, and an amended charge in Case 12-CA-4305 ( 1-2) dated October 23, all filed by the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO, herein called the Union . All parties appeared at the hearing and were given full opportunity to participate , to adduce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. A brief which has been carefully considered was filed on behalf of the Respondent. Issues 1. Whether Respondent violated Section 8(a)(1) of the Act by interrogating employees concering their activities on behalf of the Union and by interfering with their right to engage in such activity by threatening them with reprisals if they were for the Union and promising them benefits if they were against the Union. 2. Whether Respondent violated Section 8(a)(3) and (1) of the Act by discharging James F. Aldridge and Willie L. Jeter in order to discourage membership in the Union. 3. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union. Upon the entire record and from my observation of the demeanor of the witnesses while they were testifying under oath, I make the following: Findings of Fact 1. THE BUSINESS OF RESPONDENT Respondent, a Florida corporation with its principal place of business at 5600 Northeast Fourth Avenue, Miami, Florida, is engaged in the construction business. Its primary work is electrical construction, such as the installation of electrical high lines, pipe cable, and satellite towers, in various States of the United States and in foreign countries. This work is necessarily done at various construction sites in the field. Minor maintenance and repair of Respondent's machinery and equipment is done by mechanics in the field but for major maintenance and repair and for the dispatching of equipment to the various jobs Respondent maintains three maintenance and equipment yards. One is at Florence, New Jersey, one in Baton Rouge, Louisiana, and a third at 3615 Southwest 47th Avenue, Ft. Lauderdale, Florida. The Ft. Lauderdale yard is the situs of the alleged unfair labor practices in this proceeding. During the 12 months immediately preceding the issuance of the complaint, Respondent purchased goods and materials valued in excess of $50,000 directly from suppliers located outside the State of Florida. 'All dates are in 1968 unless otherwise specified. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. 111. THL ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Violations of Section 8(a)(1) of the Act Facts 1 The organizational activity and Respondent's knowledge thereof In about May Elbert A. Pirkle, a mechanic-welder in Respondent's employ, began discussing the possibility of organizing Respondent' s employees with the employee of another employer in Respondent's industry . By July 18 Elbert A . Pirkle had received from the other employee and from the Union blank application cards for membership in the Union . On that date he passed out about 20 cards to employees of Respondent at the Ft. Lauderdale yard . Groups of cards were given to some of the employees and they in turn passed them out to other employees . On July 31 the Union held a meeting which was attended by many of Respondent's employees . At this meeting W. L. Henderson , the Union's business manager, told the employees that they would be processed through the Local and that they would be represented by the Local Union. At that time Pirkle turned in a number of cards and other employees turned in the cards that they had signed. Woodrow E . Maddy is Respondent's equipment superintendent and an admitted supervisor within the meaning of the Act. Though John Flora, Respondent's shop foreman and yard supervisor for the Ft. Lauderdale yard, is ordinarily in charge of that yard, Maddy who is over Flora in Respondent's supervisory hierarchy was given Flora' s duties from July 28 through August 5 while Flora was absent from the yard. Maddy testified that on August 1 he saw an unidentified stranger in the yard and that he spoke about it to Ora (Bud) M. Paul, a truckdriver and equipment mover in Repondent's employ. At that time Ora Paul told Maddy that there was union activity going on and that some of the employees, including Ora Paul' s brother, Maxwell (Boots) L. Paul, were passing out cards. 2. The individual conversations After learning about the union activity at the Ft. Lauderdale yard, Maddy engaged in wholesale interrogation of the employees concerning their union activities. Maddy's testimony leaves the dates of these interrogations somewhat in doubt but it is clear that it all occurred between July 28 and August 5 as that was the only period of time that Maddy was at the Ft. Lauderdale yard . Though Maddy's recollection of the exact date kept changing , his best recollection was that he spoke to employee Pirkle and the other employees on August I which was the date that he allegedly noticed the stranger in the yard . Maddy admitted that he spoke to 15 employees.' Respondent has approximately 32 employees at the yard . Maddy testified that he asked each of these employees whether they had signed a union card. He also admitted that he asked most of them what they knew about the Union or whether they had heard anything about the Union . Maddy spoke to each one individually at various places in the Ft. Lauderdale yard. William Crane, Respondent's export manager and also an admitted supervisor under the Act, testified that he also engaged in interrogation . He admitted that on August 2, in his office at the yard in the presence of Maxwell Paul and Maddy, he asked Willie L. Jeter whether Jeter had signed the union card . Jeter answered that he had.' Crane also admitted that at the same meeting he asked Maxwell Paul whether Paul had signed for the Union.' A number of employees testified that Respondent did not stop with interrogating them concerning whether they signed for the Union or what they heard about the Union. E. Pirkle testified that, in the same , conversation in which Maddy asked him whether he had signed a card and what he had heard about the Union , Maddy bragged about firing employees at the Baton Rouge, Louisiana, yard because the employees were trying to get the Union in and that Maddy said he could understand it if it was a Teamsters or Operating Engineers who were trying to organize the Ft. Lauderdale yard but he could not understand the drive by Local 728. Employee J. McGlamory testified that when Maddy asked him whether he signed a card Maddy also asked if he went to the union meeting . Employee J . Mandeville testified that, when Maddy asked him whether he signed a card or heard anything about the Union , Maddy also told him that the ones who stayed out of the Union would be better off and get better benefits and specifically that he (Mandeville) would be better off if he didn't sign. Employee J. Callender testified that, in addition to asking him whether he had signed a card and what he knew about the Union, Maddy told him not to sign a union card . Employee R. Cuthbertson testified that Maddy not only asked him whether he signed a card but told him that , if employees did not sign cards, they would get uniforms and a pay raise and that he, Cuthbertson , would be all right as long as he did not sign a card. Employee L. Ellis testified that, in addition to Maddy's asking him whether he signed a card, Maddy told him that he would not be sorry if he did not sign. Employee A . Fusco, Jr., testified that Maddy called him into his office and asked him what he knew about the union meeting the other night. When Fusco equivocated Maddy told him not to lie because he would find the answer anyway . Maddy asked him whether he had been at the meeting and Fusco answered that he was. Maddy asked him if he had signed a card and he answered that he had . Maddy then said "Well, now you know what' s liable to happen to you don' t you?" Employee J. Baughman testified that, in addition to being asked whether he had signed a card or knew anything about the Union, Maddy told him not to let anyone talk him into signing a card . Employee D. Dasher testified that Maddy asked him if he knew anything about the Union and that he answered that he had just heard rumors. Maddy asked if Dasher had signed and Dasher answered 'E Pirkle, E. Tatum, J McGlamory, J. Mandeville, G. Ashcraft, J. Callender, R. Cuthbertson, L. Ellis, A. Fusco, D. Dasher, D. Keith, R Marchman, L. Brown, R. Sorrells, and J. Aldridge. 'Deter was discharged on August 7, allegedly in violation of Sec. 8(aX3) of the Act 'Maxwell Paul's status as an employee or supervisor is discussed infra. NAT HARRISON ASSOCIATES 115 that he had not Maddy then told him not to sign because it could only get him in trouble and that if anyone did sign that person would be terminated as soon as he could find out who it was. Employee D. Keith testified that Maddy asked him whether he had signed He answered that he had not since he was on that job and Maddy told him to keep it that way. Employee L Brown testified that, in addition to being asked whether he signed a card and what he knew about the Union, Maddy told him not to sign because these would probably be a skeleton crew around and they would be in the money. Brown also testified that about the same time he asked Supervisor John Flora for a raise and Flora told him that there would not be any increase as long as people kept running around signing papers.' Employee Clarence Paul testified that his conversation with Maddy occurred in the yard with no one else present . Maddy asked if Paul had signed a card and said that he would get Paul more money if Paul did not sign . Clarence Paul answered that he had signed and that his brother had given him the card.' Maddy told Clarence Paul to get the card back, and C. Paul answered that he would if he could but be believed it had been sent in . Maddy then told him that he could fire any instigators who passed out the cards and that he could fire any man who joined the Union. Later in the same day there was a second conversation in which Maddy told C. Paul that he (Maddy) could fire anybody in the yard even if he had to use a safety reason and that if the Union came into the yard Respondent would close the gates. Maddy also said that he would fire the instigators if he could catch them and that he was going to fire any man who signed a union card . James F . Aldridge, who is also alleged as a discriminatee under Section 8(a)(3) of the Act, testified that Maddy asked him whether he signed a card and he answered that he did. Maddy replied that he had been associated with the Union and "I can fix any of those smart boys. I know all about the union, they can't touch the State of Florida." Maddy specifically responded to the testimony of each of the employees set forth above and categorically denied that he had made any of the statements attributed to him except to the extent that he asked employees whether they had signed for the Union and what they knew about the Union.' I am unable to credit Maddy in regard to these denials . After observing the demeanor of the employees as they testified under oath and considering the fact that the tenor of the testimony of the employees is mutually corroborative, I credit that testimony . Maddy did not impress me with his candor and where a conflict in testimony appears between him and the employees I credit the employees.' 'Flora admitted telling Brown that the way things looked there wouldn't be any raises for some time and that Brown answered that he wished he hadn't signed for the Union. However, the complaint does not allege that Flora engaged in any activity in violation of Sec. 8(a)(l) of the Act and, therefore, no finding will be made with regard to this incident 'Clarence Paul credibly testified that in fact Pirkle had given him the card but that he (C. Paul) told Maddy that it was his brother because he was trying to protect Pirkle and he knew that Ora Paul had already told Maddy that Maxwell Paul was involved with the Union. 'Maddy denied having any conversation with J. Baughman. All the employees who could recall the date of the conversation with Maddy with accuracy placed the conversation as occurring between August I and August 5, with the bulk of the conversations on August 1. 1 so find 3. The lunchroom meeting with Maddy On August 1 Supervisor Maddy was having a conversation with Ora Paul in the lunchroom at the Ft. Lauderdale yard when Maxwell Paul entered the room. Maxwell Paul credibly testified as follows: Maddy asked what Maxwell Paul knew about the Union's coming in and Maxwell Paul answered that he didn't know anything much . Maddy asked Maxwell Paul if he signed a card to join the Union and Maxwell Paul answered that he did. Maddy asked if he could get his card back and he answered that it had already been turned in and he would not get it back. Maddy then said "Well, I will personally have your pink slip of termination in the morning." Maddy asked Maxwell Paul if anyone else signed a card and Maxwell Paul answered that he didn't know but as far as he did know everybody had signed . Maddy asked if Jeter had signed and Maxwell Paul answered that he didn't know . Maddy then said "Well, if he has, I have his pink slip, too , and anybody - anyone else who has signed a card." Maddy asked who the instigator was and Maxwell Paul answered that he could not tell him. As Maxwell Paul was leaving the room he saw employee Jim Bowen come into the lunchroom and heard Maddy ask him if he had signed a card. Bowen answered that he had. He also heard Maddy speak to Dasher, the night watchman, and heard Maddy ask Dasher whether he had signed a card. Dasher answered that he didn' t know what Maddy was talking about and Maddy replied that he had better not sign. Maddy recalled the conversation in the lunchroom but he denied the substance of Maxwell Paul's testimony. Maddy testified as follows: Maddy was talking to Bud Paul when Maxwell Paul entered the lunchroom. Maddy asked Maxwell Paul what he knew about the Union and then Bud and Maxwell Paul got into a heated discussion about the merits of unionization . Maddy said that, if something didn't happen and they didn 't start getting work done, he would get a whole handful of pink slips. Sometime during the conversation Clarence Paul walked into the room . Maddy specifically denied that he asked Maxwell Paul whether he had signed a union card and stated instead that Bud Paul had asked that question. In a like vein Maddy denied that he questioned Maxwell Paul about who the instigator was. Ora Paul's version of the conversation is somewhere between that of Maxwell Paul and Maddy. Ora Paul testified as follows : It was Maddy who asked Maxwell Paul if he signed a union card and Maddy asked Maxwell Paul who was creating all the disturbance . Maddy said that the men were slowing down and creating a disturbance and were getting dissatisfied with their Employer and he would like to find out who those men were who were causing the disturbance because he would give them their pink slips to terminate them. After this conversation Clarence Paul came into the room. Employee Dasher testified that he was outside the lunchroom and overheard part of the conversation and that he heard something about the Union not doing any good and causing loss of jobs. I credit Maxwell Paul's testimony with regard to this conversation. On significant details such the question of who asked Maxwell Paul whether he had signed a union card, Maddy and Ora Paul differed in their testimony. My observation of both Maddy and Ora Paul as they testified leads me to the conclusion that both are less than reliable in their testimony. On the other hand Maxwell Paul was very convincing. 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The conversation in Crane's office As set forth above, Crane admitted that in the presence of Maxwell Paul and Maddy he asked Willie Jeter and Maxwell Paul whether they had signed union cards. Maddy's testimony was substantially the same. Maxwell Paul credibly testified that more was said in this conversation, as follows: Before Jeter came into Crane's office Crane asked Maxwell Paul whether he signed a union card. Paul answered that he had. Crane asked if he was the instigator and Paul answered that he was not. Crane then asked if Jeter had signed a card or if Bowen, Jack Carr, or'Jim Aldridge had signed. Paul answered that he didn't know. Crane then asked Paul to go out and get Bill Jeter. Paul went into the yard and returned with Jeter. Crane interrogated Jeter asking why he didn't come to the Company first. At that point Maddy said that the same thing had happened before and they had gotten rid of the instigators and they could do it again. Willie Jeter in his testimony concerning this conversation did not remember Maddy's remark about getting rid of instigators but he did testify that Maddy asked him whether he signed a card and he answered he had, that he was asked who else joined and he answered he did not know, and that Maddy said that that was all right because he, Maddy, would find out who they were. I credit Maxwell Paul's version of this conversation. The testimony of both Crane and Maddy where it differed from Maxwell Paul's was unconvincing. My observation of Jeter leads me to the conclusion that he was an honest witness telling all that he recalled but that Maxwell Paul had a fresher recollection of exactly what happened at the meeting. 5. The employee status of Maxwell Paul Maxwell Paul testified as follows: He was hired in 1962 and worked until August 7 when he was discharged.' Some time prior to his discharge he worked in the overseas shipping and receiving department where he received, crated, and shipped materials for overseas jobs. While he spent 10 to 20 percent of his time ordering parts, his work consisted primarily of manual labor. He was a leadman in a four-man department. He sometimes showed new men how to crate materials but he worked with the other men doing the same jobs. Bill Crane who was his supervisor never told him that he (Paul) was a supervisor. He was hourly rated at $2.50 an hour, punched a timeclock, and had no special privileges. Though he relayed messages and orders from Crane, he never attended supervisory meetings. He never hired, fired, or recommended the hire or fire of any employee, had no authority to grant time off on his own, and never reprimanded or disciplined any employee. With regard to the granting of time off, he would ask Crane and relay Crane's decision. On occasions Crane would ask him how a new man was doing. With regard to the ordering of parts, he was given the orders which were already written up and okayed. Crane decided what overtime work was needed and named who was to work. Supervisor William Crane testified as follows: New employees were told to report to Maxwell Paul and Paul would tell them what to do. Four or five employees generally worked in Paul's department and at times there were extras so that there were eight or nine employees in 'The complaint does not allege that Maxwell Paul was discharged in violation of the Act and therefore that question was not litigated. all. A normal procedure was for Crane to give the shipping schedules to Paul and tell him to get the materials crated. Paul handled the entire shipment from purchases through final recordings. Paul picked men for overtime work at his discretion. In January, while Crane was away from the yard, Paul handled Crane's affairs. In December 1967, after Crane had been sick for 5 days, he came back and found things in good order. Paul interviewed employees and recommended their hire. One of these employees was Urbano Matos who was interviewed and hired in July. Another employee interviewed by Paul was hired by Flora. Paul recommended the discharge of employee Rip Miller in or about December 1967 and the recommendation was followed." Paul got 40 cents an hour more than the next highest paid employee in his department. Where a conflict in testimony exists between Maxwell Paul and Crane, I credit Paul. Based on this credited evidence, I find that Maxwell Paul was not vested with the type of independent discretion in the performance of his duties with relation to other employees so as to warrant the finding that he was a supervisor. Though he was clearly a key man as well as a strawboss, he did not have the authority, with the use of independent judgment, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees, or responsibly direct them or adjust their grievances, or effectively recommend such action. I find, therefore, that Maxwell Paul was not a supervisor within the meaning of Section 2(11) of the Act. 6. Conclusions as to the alleged violations of Section 8(a)(1) Based on the credited testimony set forth above, I find that Respondent violated Section 8(a)(1) of the Act by the activities of its supervisor, Maddy, who between August 1 and 5: (1) Interrogated 20 of the approximately 32 employees at the Ft. Lauderdale yard concerning whether they signed a card for the Union, interrogated most of those 20 employees concerning what they knew about the Union, and interrogated employees McGlamory and Fusco about the union meeting. (2) Implied that employees would be discharged if they joined the Union by telling employee E. Pirkle that Respondent had discharged employees for union activity in Louisiana, and by telling employee Fusco that he knew what was liable to happen to him if he signed. (3) Directly threatened to discharge employees because of their union activities in statements to employees Dasher, Clarence Paul, and Maxwell Paul. (4) Promised benefits to employees for not joining the Union as expressed to employees Mandeville, Cuthbertson, and Brown. (5) Threatened to close the plant if the Union came in as expressed to Clarence Paul. (6) Instructed employees Callender, Baughman, Keith, and Dasher not to sign union cards. In addition I find that Respondent violated Section 8(a)(1) of the Act by the activities of its Supervisor Crane "Maxwell Paul specifically denied that he had recommended the discharge of Miller and testified that he had an argument with Miller as a coemployee because he, Paul, didn't think that Miller was holding up his end of the work and that Miller walked off the job and didn't return, but that he never recommended that Miller be discharged. NAT HARRISON ASSOCIATES who on August 2 interrogated Maxwell Paul and Willie Jeter concerning whether they signed cards for the Union. B. The Discharge of James F. Aldridge 1. The facts James F. Aldridge worked for Respondent as an engine rebuilder and automotive machinist from January 2, 1967, to August 5, 1968, when he was discharged. On Friday, August 2, in the engineroom at the Ft. Lauderdale yard Aldridge had a conversation with Supervisor Maddy. Maddy asked him if he had signed a card for the Union, and he answered that he had." Maddy asked why he signed and Aldridge answered that the cost of living was going up but that the wages didn 't. Maddy told him that that was not the way to do it, that he (Maddy) had been associated with the Union and "I can fix any of those smart boys. I know all about the union, and they can't touch the State of Florida." About 5 o'clock the following Monday, August 5, Supervisor Flora summarily discharged Aldridge and told him to turn in his keys and get his tools out. When Aldridge asked what he had done wrong, Flora answered that there was a warped camshaft in the Reo motor that Aldridge had worked on. The decision to discharge Aldridge was made solely by Supervisor Maddy. During the time that Maddy was filling in for Flora at the Ft. Lauderdale yard, two engines which had been rebuilt by Aldridge were put on the test stand and did not perform properly. One was a Reo engine which had a warped camshaft that had to be replaced . The other was a Waukesha engine which also needed some additional work . Both motors were delayed in shipment because of the needed repairs. Maddy testified that he thought Aldridge had fouled up both engines and as a result, when Flora returned to the yard, Maddy told him that something would have to be done about the situation or somebody else would be doing Flora's job. Flora confirms the fact that it was solely Maddy's decision to discharge Aldridge by testifying that, when he returned to the yard on August 5, Maddy told him that Aldridge had messed up some engines and that he, Flora, had either to let Aldridge go or that he, Flora, would be let go.'= As noted above, Aldridge worked for Respondent for over a year and a half. He was hired at $2 .50 an hour and during his period of employment he received three 10-cent-per-hour raises, the last about June 15. While employed he rebuilt approximately 80 engines. During the entire period of his employment no one from Respondent ever complained to Aldridge about his work. About June Flora did mention to Maddy that he had received a phone call from Louisiana and was told that a couple of Reo engines had the rods in backwards. However, Aldridge "Maddy admitted that he asked Aldridge whether he signed a card but denies that Aldridge answered in the affirmative . Instead Maddy testified that Aldridge told him that he had not signed but that he thought it might be a good idea. Maddy denies that there was any further conversation. I credit Aldridge. "It is apparent from the testimony of both Flora and Maddy that Flora had nothing to do with the decision to terminate Aldridge. It follows that Flora's testimony about his father-son type of conversations with Aldridge about Aldridge's drinking, about Aldridge being inefficient in the ordering of parts, and about his feeling that they were going to have to do something with Aldridge was irrelevant with regard to the reason for Aldridge's discharge Even if this were not the case Flora admits that he knew when Aldridge was hired that he drank and he never told Aldridge that he had to stop drinking. He never reprimanded Aldridge with regard to the ordering of parts or with regard to his work generally 117 answered that in that particular model engine the rods did go in in an opposite direction from most engines and he then took some oil pans off similar engines to show Flora that they did go in the way he said. Nothing else was said of this incident. No supervisor ever made any comment to Aldridge about any other motor or engine that he worked on. With regard to the two engines that didn't properly work on the test stand shortly before his discharge, Aldridge credibly testified as follows: In putting in the camshaft when the engine was rebuilt he checked it as best he could with the equipment available. However, it didn't appear until the motor was tested on the test stand that the camshaft was warped. He then replaced the camshaft. He never had a similar problem in the yard. With the Waukesha engine that wasn't working properly on the test stand, he took out the camshaft and replaced it with another camshaft but found that there was nothing wrong with the original camshaft and that there was a vacuum leak instead. 2. Conclusions as to the discharge of Aldridge Aldridge engaged in an activity that is protected under Section 7 of the Act when he signed the union card. Respondent obtained knowledge of this protected activity when it unlawfully interrogated Aldridge on Friday, August 2. Aldridge was discharged on Monday, August 5. The facts found in section A, above, establish that Respondent bore a virulent animosity toward the Union as shown by the commission of many violations of Section 8(a)(1) of the Act. Included in these violations was the direct threat to employees that they would be discharged if they engaged in union activity." The General Counsel has established a prima facie case against which the Respondent's defense must be evaluated. Supervisor Maddy does not contend that he considered anything other than the allegedly poor work by Aldridge on two particular engines before coming to the decision to discharge Aldridge. As Maddy's decision was a sole and final one with regard to the discharge, any doubts Flora may have had as to the caliber of Aldridge's work, which doubts were buried in the bottom of Flora' s mind and unexpressed to either Maddy or Aldridge, have no bearing on the instant case. The mere fact that Maddy gave an ultimatum to Flora in directing Flora either to fire Aldridge or be fired himself indicates that Aldridge's discharge was not based on run-of-the-mill business considerations as Respondent contends. Aldridge had worked for over a year and a half and during that time Respondent considered that work to be of sufficient worth to warrant three increases in pay. During the entire time he was never reprimanded for poor work. Maddy, who had very little contact with Aldridge's work, as he was just filling in for Flora for a limited time, never bothered to even ask Flora what kind of worker Aldridge was but instead on the basis of an extremely limited observation summarily decided to discharge him. I find that Respondent's alleged reason for discharging Aldridge was a transparent pretext to shield the real "Of the 20 employees that Respondent unlawfully interrogated concerning the signing of union cards, 14 answered that they had not signed cards and 6 answered that they had. The six who had admitted signing cards were Fusco, Clarence Paul, Maxwell Paul, Jim Bowen, J. Aldridge, and Jeter. The two alleged discrimmatees, J Aldridge and Jeter, were both among the group of six that had indicated they had signed cards. Maxwell Paul was also discharged about this time but as he is not alleged as a discriminatee in the complaint no inference will be drawn from his termination. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reason, which was Aldridge's protected activity in signing a union card. I therefore find that Aldridge was discharged in violation of Section 8(a)(3) and (1) of the Act. C. The Discharge of Willie L. Jeter Facts Willie L. Jeter worked for Respondent from his date of hire in the latter part of 1961 until his discharge on August 7. He worked in the freight and shipping department at the Ft. Lauderdale yard where he received, packed, crated, and hauled freight. Though he was not a regular driver in the freight department, he did make three or four local trips a week as well as an average of one out-of-State trip a month. On July 31 he signed a union card. As is more fully set out in the section above entitled "The conversation in Crane's office," Respondent learned that Jeter had signed a card for the Union after unlawfully interrogating him. August 2 was on a Friday. The following Wednesday, August 7, Supervisor Crane called Jeter into his office in the middle of the day, paid him till the end of the day, and summarily discharged him, telling him that he hated to do it but that it was out of his hands. Crane told Jeter that he was being let go because he did not operate the forklift and because the day before he had left at 4:30 without saying anything to Crane." Respondent contends that Jeter was discharged because he was unable to complete reports on over-the-road trips by himself, he left work at 4:30 p.m. on August 6 without checking with Crane, and he was unable to drive a forklift truck. Jeter was in Respondent's employ approximately 7 years. He was hired at $1.50 an hour and during his employment he received increases raising his pay to $2.10 an hour. The last wage increase was 10 cents an hour in or about May. Neither Crane nor any other supervisor had ever complained to him about his work. Crane admitted that Jeter was able to do the work with regard to the physical driving of the truck. Respondent contends that Jeter's inability to fill out the forms relating to over-the-road truckdriving became a problem on August 6 because Maxwell Paul who had previously helped Jeter in filling out the forms was discharged on that date. However, Jeter's testimony that Maxwell Paul helped him prepare the documents simply because it was quicker for the two of them to do it was never questioned by Respondent and no one ever told Jeter that he should make out the forms by himself. As the forms only had to be made out for out-of-State trips and Jeter only took about one such trip a month, the completion of the forms must have been a very minor part of his duties. Respondent contends that Jeter's leaving work at 4:30 on August 6 was a serious matter because Maxwell Paul was absent and as second senior man Jeter knew that, when Maxwell Paul was not there, he was in charge. However, Crane admits that he never told Jeter that he (Jeter) was going to be boss. As 4:30 p.m. was the normal quitting time, no one told Jeter that he was supposed to work overtime, he was never told to check with Crane "Crane testified that the reason he gave Jeter for the discharge was that Jeter could not make out the fuel reports and that he failed to report before leaving the yard on August 6. Crane also testified that he might have said something about Jeter's not driving the forklift I credit Jeter. before punching out, and he was never told that he was in charge of the other employees, this defense cannot be taken seriously. The third item raised by Respondent is that Jeter did not drive the forklift. However, about a year and a half before the discharge, Crane told Jeter to let the younger men drive the forklift and Jeter hadn't operated it since. It is difficult to see why this duty which was apparently a matter of minor concern for a year and a half before the discharge became suddenly important as a reason for discharging Jeter. The General Counsel has established a prima facie case by evidence that Jeter engaged in protected activity within the meaning of Section 7 of the Act in the signing of a card, that Respondent gained knowledge of this activity through its unlawful interrogation on August 2, that Respondent demonstrated its virulent animosity toward the Union by engaging in the severe pattern of 8(a)(1) conduct described above in section A which included the threat to discharge employees who joined the Union and the specific threat to fire Jeter if he signed for the Union, and that Respondent discharged Jeter on August 7, just 5 days after it learned of Jeter's protected activity. Respondent's asserted reasons for discharging Jeter are so patently frivolous that I can only conclude that they are a pretext to disguise the real reason for Jeter's discharge, namely his protected activity in signing a union card. I therefore find that Jeter was discharged in violation of Section 8(a)(3) and (1) of the Act. D. The Alleged Violations of Section 8(a)(5) of the Act 1. The facts a. The appropriate unit The complaint, as amended, alleges and the answer, as amended admits that: All employees employed by the Respondent at its Broward County equipment yard," excluding office clerical employees, guards, professional employees and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act. b. The Union's demand for recognition On August 2 W. L. Henderson, the Union's business manager, sent a letter to Dan Stoneberger, Respondent's vice president and a supervisor within the meaning of the Act, which read as follows: This is to inform you that we now represent a majority of your Equipment Mechanic employees in this jurisdiction, namely Broward County. We would like recognition as their collective bargaining agent and will be happy to discuss this with you at your earliest convenience. On August 5 Stoneberger called Henderson's office and in Henderson's absence spoke to Frank E. Harper, the Union's assistant business manager. Stoneberger asked Harper if he had ever heard of the IBEW representing Respondent's kind of employees. When Harper started answering, Stoneberger told him not to bother because he would talk to Henderson. The following day, August 6, "Referred to herein as the Ft . Lauderdale yard NAT HARRISON ASSOCIATES Stoneberger called again and did speak to Henderson. Stoneberger said that he received the letter but that he didn't think that the IBEW could represent his employees. Stoneberger also said that he didn't think that the Union represented a majority of employees at the Ft. Lauderdale yard. Henderson replied that the Union could represent the employees and that they did represent a majority. On the same date, August 6, Henderson wrote a second letter to Stoneberger as follows: We have been advised that on August 5, 1968 you discharged two (2) employees because of their membership or activities in behalf of this Labor Union. Be advised that we shall seek relief for this discriminatory practice by filing a charge with the National Labor Relations Board, unless these employees are immediately reinstated with back pay. In my letter to you of August 2nd I specifically advised you that we represent a majority of your employees performing repair work on equipment and are employed by you as Equipment Mechanics . I can only assume by your discharge of James Aldridge and Jack Carr that you are refusing to recognize and negotiate with us. If we are mistaken, that is, if you are willing to recognize our majority representative capacity, please advise us of that fact immediately and we can arrange to prove that we represent the majority of your employees by any fair and impartial means . We are anxious to commence negotiations covering wages , hours and conditions of employment for the employees we represent, and therefore we request that you take prompt action to accept us as the collective bargaining agent for the employees in the Unit described above. I shall await your response. On August 9 Stoneberger wrote to Henderson as follows: Thank you for your letter of August 2, 1968 and August 6, 1968. Please be advised that we sincerely doubt that you represent a majority of our employees at our Broward County equipment yard, and therefore, do not recognize you as their bargaining representative at this time. Accordingly we respectfully invite you to use such proceedures [sic] as are available to you under applicable Federal law. On September 30 Henderson sent the following telegram to Stoneberger: PLEASE REEI R TO MY L I TTERS OF AUGUST 2 AND 6. IN FLTHER CLARIIICATION Of THE SNIT OF YOUR EMPLOYEES WHICH WE CONTEND WE REPRESENT . BI ADVISED THAT WE REPRESENT A MAJORITY OF YOUR EMPLOYFES AT YOUR 119 BROWARD COUNTY EQUIPMENT YARD. WE DEMAND RECOGNITION AND ASK FOR IMMEDIATE NEGOTIATIONS AND WE ARE WILLING TO PROVE OUR REPRESENTIVE CAPACITY BY A CROSS CHECK OF OUR AUTHORITY CARDS OR ANY OTHER FAIR AND IMPARTIAL MEANS OF PROVING OUR MAJORITY STATUS. PLEASF ADVISE. c. The number of employees in the bargaining unit and the Union's majority As noted above, the Union demanded recognition by letter dated August 2 and Respondent through Stoneberger responded to their demand in a telephone conversation to Henderson on August 6. In that conversation Stoneberger questioned the propriety of an IBEW local representing Respondent's employees and the Union's majority status, and in doing so he, in effect, on that date refused the Union's demand to bargain. As this refusal to bargain first occurred on August 6, the Union's majority status on that date must be considered. General Counsel's Exhibit 2(b) is a list of 30 employees. It was stipulated that these 30 were all employees in the appropriate unit on August 6. It was further stipulated that the parties could introduce additional evidence concerning employees who should or should not be on the list. Evidence was so introduced with respect to four individuals: Maxwell Paul, Billy Harris, O. Natali, and W. Jeter. As I have found that W. Jeter was discharged in violation of Section 8(a)(3) of the Act and will therefore be entitled to full reinstatement, his name must be added to the list. As I have found that Maxwell Paul, for the reason set forth in detail above, was an employee and not a supervisor within the meaning of the Act, his name should also be included because he was still employed for at least part of the day on August 6.16 The General Counsel contends that Billy Harris and O. Natali should also be included on the list. Harris and Natali both testified that they are field mechanics who receive no supervision from the Ft. Lauderdale yard and whose job is to maintain equipment while it is in the field. It is clear from their testimony that any connection they have with the Ft. Lauderdale yard is a casual one and that they are not employed at the Ft. Lauderdale yard so as to be included within the appropriate unit. They therefore cannot be added to the list. I find that the total employee compliment in the appropriate unit on August 6 was 32 employees. Of these 32 employees 20 signed cards for the Union. The cards were all dated between July 18 and August 1, were all properly authenticated, and were admitted in evidence." At the time the August 2 demand for recognition was written the Union had all 20 cards in its possession. "Paul testified that he worked until about August 7 . Crane testified that Paul had been terminated on August 6 .1 EMPLOYEE DATE CARD CLASSIFICATION SIGNED I Wilson, F. July 31 Machinist 2. Marchman, R July 19 Mechanic 3. Callender, J. July 18 Mechanic 4 Pirkle, E. July 18 Mechanic 5 Ellis, L July 29 Mechanic 120 DECISIONS OF N'\TIONAL LABOR RELATIONS BOARD The union cards which the 20 employees signed were entitled "Application for Membership in International Brotherhood of Electrical Workers (AFL-CIO & CLC)." The part of the card that was signed by the employees read: I, ... .. in the presence of members of the International Brotherhood of Electrical Workers, promise and agree to conform to and abide by the Constitution and laws of the I.B.E.W. and its Local Unions. I will further the purposes for which the I.B.E.W . is instituted . I will bear true allegiance to it and will not sacrifice its interest in any manner. 2. The Respondent's defenses In substance Respondent contends that no violation of Section 8(a)(5) should be found because: a. The Union' s demands for recognition dated August 2 and August 6 related solely to a unit of equipment mechanics and that such a unit differed so substantially from the stipulated appropriate unit that no obligation on the Respondent's part could arise to bargain in the appropriate unit. b. The employees who signed cards for the Union were merely applying for membership in the Union and were not authorizing the Union to represent them for the purpose of collective bargaining. Therefore, the Union was never authorized to represent the employees in the bargaining unit. c. The Union would not fairly represent two employees whose national origin was Cuban and one negro employee in the bargaining unit. d. Respondent had a good-faith doubt that the Union represented a majority of the employees in the bargaining unit." 3. The facts with regard to the fair representation issue With regard to the Respondent's allegations concerning the Union's discrimination in membership policy, the facts are as follows: Joseph Butler is the only negro employed by Respondent at the Ft. Lauderdale yard. Though he was employed since September 1967, he was unaware that the employees were joining the Union and no one ever asked him to apply for membership . Butler is a parts pickup 6 Keith, D July 30 Mechanic 7 Brown, L July 20 Mechanic 8 Fusco, T July 22 Mechanic 9 Mandeville, J July 29 Mechanic 10. Pirkle. T July 19 Mechanic Helper 11 Tatum, E. July 24 Welder 12 Ashcraft, G. July 29 Welder 13 Sorrells, R July 29 Welder 14 Paul, C Aug. I Painter 15. Dominguez, E. Painter 16 Hernandez, R Painter 17 Jeter, W July 31 Warehouse Man 18 Andrus, E Warehouse Man 19. Matos, V Warehouse Man 20. Dominguez, H Laborer 21 Forte, P. Laborer 22 Robledo, A Laborer 23 McGlamory, J July 31 Truck Driver 24. Romich, C Truck Driver 25. Paul, 0 Truck Driver 26 Gessner, B. Clerk Parts Purchasing 27. Butler, J Parts Pickup Man 28. Baughman, J. Aug. I Parts Storekeeper 29. Cuthbertson, R July 31 Lubeman 30 Bowen, J. Messenger 31 Aldridge, A July 22 Engine Rebuilder 32 Paul, M July 31 Warehouse Man On the list "Wilson" has the initial "F ", while the card is signed "Wiley F Wilson." The list also shows "T Fusco" while the card is signed "Anthony Fusco, Jr." As both card signers credibly testified that they were employees during the time period that included August 6, 1 conclude that they are the "Wilson" and "Fusco" named in the list "As to the Respondent's good-faith doubt that the Union represented a majority of its employees, Respondent in its brief states that the doubt was based on the fact that only three employees and one supervisor had admitted signing a card, that one employee had been coerced because he refused to sign, and because a supervisor (Maxwell Paul) had purportedly been soliciting for the Union. Ora Paul testified that employees Cuthbertson and McGlamory told him that he would have to join the Union or get out. He also testified that employee Marchman made the same threat . Cuthbertson, McGlamory, and Marchman all denied that they told Ora Paul he would have to leave the job if he didn't join the Union . I credit the three denials. For the reasons set forth above I have found that Maxwell Paul was not a supervisor within the meaning of the Act . Even if he were, the record does not establish that he solicited the employees, upon whom the Union's majority status rests , to join the Union. NAT HARRISON ASSOCIATES man and therefore is in the bargaining unit. W. L. Henderson, the Union' s business manager, testified without contradiction that he was unaware that any Negro was employed at the Ft. Lauderdale yard, that at the present time the Union has no Negro member, and that the Union has had negro members in the past and is now processing one Negro for membership. He further testified that the Union does not discriminate against any minority group on the basis of race , creed, national origin , or color. Two employees of Cuban origin, Eneldo Dominguez and Pedro Alberto, did sign union cards. These cards were dated July 29 and August l respectively. Employee Elbert Pirkle took these cards together with the $ 10 initiation fee for each employee and kept them in his truck until December 9. Pirkle testified that he intended to give the cards to the Union when they were given to him but that he spoke to employee Clarence Paul who told him to hang on to the cards until things cooled off because they did not want to get Dominguez and Alberto fired . Pirkle further testified that he forgot he had them in his truck until Thursday, December 5 (during the course of this trial). Union Business Manager Henderson testified that he heard for the first time about the cards of Dominguez and Alberto during the trial on December 5 and he called Pirkle that evening . Henderson asked Pirkle for the cards and took them on December 9. Henderson testified that the cards would be processed. I find Pirkle' s allegation that he kept possession of the Dominguez and Alberto cards to protect those employees and later because he forgot about them simply incredible. However, I do credit Henderson' s assertion that he found out about those cards during the trial and then took possession of them . There is no evidence in the record, other than set forth above, to be evaluated in determining whether in fact the Union does discriminate because of color or national origin." 4. Analysis as to the alleged violation of Section 8(a)(5) a. The fair representation issue It can well be argued that a labor organization whose membership policies invidiously discriminate against employees on the basis of race or national origin inherently is incapable of fairly representing such employees . It can further be argued that such inability to fairly represent should be a defense against an 8(a)(5) allegation where members of the discriminated against group are part of the bargaining unit . Cf. United Packinghouse, Food and Allied Workers International Union, AFL-CIO v. N.L.R. B., 416 F.2d 1126 (C.A.D.C.). However, a legal analysis of these propositions would only be warranted in a case where the evidence on the record establishes that the Union does so discriminate. I have found that the reasons given by Pirkle for his retaining the union cards of Dominguez and Alberto were not credible . In the absence of any other explanation I believe that a fair inference can be made that Pirkle held the cards because of the national origin of those two employees. From the evidence on the record it is more "In fn 7 of its brief Respondent suggests that it was not allowed to fully explore this issue. During the trial Respondent offered to prove that if Ora Paul were permitted to testify he would testify that several employees told him that they did not approach Joe Butler because they didn't want him in the Union. I ruled that such testimony would be hearsay unless Respondent made and supported the contention that the employees were acting as agents of the Union No such contention was made 121 difficult to infer that Joseph Butler was not asked to sign a union card because he was Negro . However, even if such an inference can be made , it must be noted that all of the solicitation of cards at the Ft. Lauderdale yard were made by employees. The Union did not seek out Pirkle and designate him as its agent in the solicitation of cards. Rather, Pirkle who Respondent in its brief describes as "the self-appointed employee organizer" received cards from an employee in another shop and other cards from the Union. He distributed some and gave some to other employees to distribute. There is absolutely no evidence in the record that the Union had knowledge that there was any discrimination based on race or national origin prior to the date of the trial. Shortly after becoming aware of the problem the Union took possession of the cards signed by Dominguez and Alberto and Henderson has testified they will be processed . In no sense can it be said that the Union ratified the conduct of the employees who solicited cards. I therefore find that the failure to solicit a card from Butler and the withholding of the cards of Dominguez and Alberto can not be attributed to any membership policy of the Union. The admission by Business Manager Henderson that at the present time there are no Negro members in the Union indeed raises a suspicion. However, standing alone it does not prove that the Union had discriminatory membership policies, particularly where Negroes have been members in the past and the application of a Negro is now pending. As the evidence does not establish that the Union's membership policies discriminate on the grounds of race or national origin a legal analysis of the propositions of law mentioned above is not in order. b. The unit and the demand The appropriate unit as stipulated to at the hearing consists of all Respondent's employees at the Ft. Lauderdale yard with the usual exclusions (office clericals, guards, professionals and supervisors). Of the 32 employees in this unit on August 6, 8 were mechanics, 1 a mechanics' helper, I an engine rebuilder, 1 a machinist, and the balance welders, painters, warehousemen, laborers, truckdrivers, and other nonmechanics. The Union's demand for recognition dated August 2 states that the Union represents a majority of equipment mechanics . The letter of August 6 states that the Union represents a majority of employees performing repair work on equipment and who are employed as equipment mechanics. Not until the September 30 telegram did the Union specifically tell Respondent that the Union sought representation in an all-employee unit. The question presented is whether the Union's demand of August 2 sufficiently identified the unit in which bargaining was sought to provide a foundation for a finding that Respondent refused to bargain in an all-employee unit . In determining whether the parties understood that an "all employee" unit was the subject matter of the Union's demand, the wording of the demand in itself is important. However, all the surrounding circumstances must be ce.isidered, as no magic words are needed in this field of law. Benson Wholesale Company, Inc., 164 NLRB No. 75. The important question is whether the Employer knows he is being asked to bargain with the Union as a representative of a certain group of employees. The Union's August 2 letter did mention equipment mechanics. However, Respondent, through its unlawful interrogation, did ascertain that a mechanic, a painter, two warehousemen, a messenger, and an engine 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rebuilder had signed cards for the Union 2° On August 6 when Respondent's vice president, Stoneberger, called Union Business Manager Henderson , Stoneberger said that he doubted that the Union represented a majority of the employees at the Ft . Lauderdale yard . Henderson replied that he did represent the majority. There was no mention of mechanics as such and both the Union and Respondent appeared to have an all-employee unit in mind. Certainly Respondent did not question the size of the unit nor indicate that it thought the Union was seeking a mechanics only unit. Respondent's stated reasons for not recognizing the Union were that Respondent did not think the IBEW could represent its employees and that Respondent doubted that the Union represented a majority of employees at the Ft. Lauderdale yard. The refusal was not based on the scope of the Union's demand. In its followup demand of August 6 the Union's letter also contained the phrase "equipment mechanics." However, in its reply of August 9 Respondent wrote that it doubted the Union represented a majority of "our employees at our Broward County equipment yard" and therefore refused to bargain. The language of Respondent's August 9 letter makes it clear that Respondent was interpreting the Union's demand as one which encompassed an all-employee unit . As Respondent understood the Union's demand to be in an all-employee unit and as Respondent made no objection to the narrow language of the Union's letter of August 2 and did not base its refusal to bargain on such language , I find that the Union did make a proper demand for bargaining in the appropriate unit. c. Majority status On August 6, the date of Respondent's refusal to bargain with the Union, 20 out of the 32 employees in the bargaining unit had signed cards for the Union. These cards were not the ordinary authorization cards but were applications for membership in the Union. The Board, with court approval, has long held that signing of an application for membership in a labor organization in itself authorizes that labor organization to bargain for the card signer . Blade-Tribune Publishing Company, 161 NLRB 1512; Delaware-New Jersey Ferry Company, 30 NLRB 820, enfd . in pert. part 128 F.2d 130 (C.A. 3); N.L.R. B. v. Somerset Shoe Company, 111 F.2d 681 (C.A. 1). I find that on August 6 the Union was authorized by a majority of the employees in the appropriate bargaining unit to represent them in collective bargaining with Respondent. d. The alleged goodfaith doubt The criteria for determining whether an employer is acting in good or bad faith in questioning the Union's majority is set forth in Hammond & Irving, Incorporated, 154 NLRB 1071, where the Board held: The Board has long held that an employer may insist upon a Board election as proof of a union's majority if it has a reasonable basis for a bona fide doubt as to the union' s representative status in an appropriate unit. If, however, the employer has no such good-faith doubt, but refuses to bargain with the majority representative "Fusco, C Paul, M Paul, Jeter, Bowen, and Aldridge. In addition Ora Paul, a truckdriver, told Respondent that he had been solicited to join the Union of its employees because it rejects the collective-bargaining principle or desires to gain time within which to undermine the union and dissipate its majority, such conduct constitutes a violation of Section 8(a)(5) of the Act. (Joy Silk Mills, Inc., 85 NLRB 1263, enfd. as modified on other grounds 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914.) In determining whether the employer's action was taken to achieve either of the said invalid purposes, the Board considers all the surrounding circumstances as well as direct evidence of motivation. Absent such direct evidence, where extensive violations of the Act accompany the refusal to grant recognition, they evidence the employer's unlawful motive and an inference of bad faith is justified. In applying these criteria the Board has held that the commission of narrow violations of Section 8(a)(1) of the Act do not necessarily indicate a rejection of the collective-bargaining principle. Fashion Fair, Inc., 173 NLRB No. 28; Grafton Boat Co., Inc., 173 NLRB No. 150; J. C. Penney Company, Inc., 172 NLRB No. 82. However, the Board has consistently held that substantial violations of Section 8(a)(1) and (3) of the Act do warrant a conclusion that an employer does not have good faith in questioning a union's majority status. In the instant case Respondent engaged in extensive violations including wholesale unlawful interrogation, threats to discharge employees because of their union activities, promises of benefits to employees to refrain from union activity, and the discharge of two employees because they joined the Union. This conduct on the part of the Respondent evidenced its complete rejection of the collective-bargaining principle rather than any good-faith doubt that the Union had a majority. Respondent may not destroy the very conditions needed for a fair election and at the same time successfully maintain that an election is the sole means for determining the desires of the employees. Respondent's unlawful coercive conduct began on August 1 immediately after it learned that its employees were engaging in union activities and culminated with the discharge of Jeter on August 7, the day after it notified the Union that it would not bargain. The Respondent's conduct both before and after the demand for recognition is part of the same pattern which clearly establishes Respondent's rejection of the collective-bargaining principle. Gibson Products Company of Washington Parish, La., Inc., 172 NLRB No. 243. Such conduct violates Section 8(a)(5) of the Act. Jerome T. Kane d/b/a Kane Bag Supply Company, 173 NLRB No. 180; Rish Equipment Company, 173 NLRB No. 136; Bauman Chevrolet, Inc., 173 NLRB No. 78; Heck's Inc., 172 NLRB No. 255; Beaver Bros. Baking Co., Inc. d/b/a American Beauty Baking Co., 171 NLRB No. 98.21 Violations of the Act both before and after a demand for recognition may show bad faith. San Angelo Packing Company, 163 NLRB No. 118; Boot-Ster Manufacturing Company, Inc., 149 NLRB 933, enfd. 361 F.2d 325 (C.A. 6). "In reaching this conclusion I am not relying on the testimony of employee Dasher who testifies that Maddy admitted to him that the Union had 51 percent of the employees . Though Dasher was honestly trying to recall the entire incident, he was obviously confused as to whether Maddy said that the Union claimed to represent the employees or whether Maddy said the Union did represent the employees In addition he was very uncertain as to when the conversation occurred. Under these circumstances I do not believe that Dasher's testimony in this regard has probative weight. NAT HARRISON ASSOCIATES Respondent's attitude toward collective bargaining was well summed up in Supervisor Maddy's remark to employee Aldridge: "I can fix any of those smart boys. I know all about the union, they can't touch the State of Florida." I therefore find that Respondent on August 6 did not have a good-faith doubt that the Union represented a majority of employees in the appropriate unit. e. Conclusion as to the 8(a)(5) allegation Having found that the Union made a demand for recognition in an appropriate unit, that the Union was authorized by a majority of the employees in said unit to represent them, that the Respondent refused to bargain with the Union, and that the Respondent did not have a good-faith doubt that the Union represented the majority of the employees in the unit but instead sought by unlawful means to undermine the Union, I find that the Respondent violated Section 8(a)(5) and (1) of the Act. f. The unilateral change facts and conclusion For several years the regular hours of employment at the Ft. Lauderdale yard were from 7 a .m. to 4:30 p.m. on weekdays and 7 a.m. to 12 noon on Saturdays. The number of hours worked per week varied from time to time depending on the workload but the usual workweek was as stated . On December 2 Respondent posted a notice on its bulletin board stating that the workday on December 2 would be 7 a.m. to 3 :30 p.m. and that on December 3 and thereafter it would be 8 a .m. to 4:30 p.m. There was no mention of Saturday work . This was the first time such a notice had been posted . The new hours were thereafter observed . During the hearing the General Counsel amended the complaint to allege this change in hours as a violation of Section 8(a)(5) and (1) of the Act. The General Counsel made clear that he was not alleging that the change in hours was a discrimination because of union activity and he did not argue that the change had other than economic motivation . His theory simply was that a unilateral change was made at the time when Respondent had a duty to bargain with the Union. Respondent did not bargain with the Union about the change . I find that the change was a unilateral modification of existing working conditions and as I have already found that the Respondent had a duty to bargain with the Union , the change is an additional violation of Section 8(a)(5) and (I) of the Act. I will therefore recommend that the Respondent be ordered to cease and desist from making such unilateral changes. However, in the, circumstances of this case where the underlying duty to bargain is being litigated, I do not believe that any additional remedy for the unilateral change would be warranted . Cf. Donna Lee Sportswear, 174 NLRB No. 54. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY 123 Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it cease and desist therefrom and upon request bargain collectively with the Union as the exclusive representative of all employees in the unit set forth above and, if an understanding is reached, embody such understanding in a signed agreement. I3 Having found that Respondent discharged and failed to reinstate James F. Aldridge and Willie L. Jeter in violation of Section 8(a)(3) and (1) of the Act, I shall further recommend that Respondent offer reinstatement to said employees and make them whole for any loss of pay resulting from their discharge from the date of their discharge to the date on which they are offered reinstatement, less their net earnings during that period. Such backpay shall be computed on a quarterly basis in a manner prescribed in F. W. Woolworth Company, 90 NLRB 289, and shall include interest at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(a) of the Act: All employees employed by Respondent at its Broward County equipment yard, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. 4. At all times since August 2 the Union has been the exclusive representative of the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing on August 6 and thereafter to bargain with the Union as the exclusive representative of the employees in the said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discharging and refusing to reinstate James F. Aldridge and Willie L. Jeter because of their activity on behalf of the Union, thereby discouraging membership in the Union, Respondent has violated Section 8(a)(3) of the Act. 7. By the foregoing conduct and by interrogating its employees about their union activities, by threatening them with discharge if they engaged in such activity and "In view of the Respondent's numerous and serious violations of Sec. 8(a)(1) and (3) of the Act, I would recommend a bargaining order as a remedy to those violations even if no violation of Sec 8(a)(5) were found Irving Air Chute Company, Inc. 149 NLRB 627, Frito-Lay, 169 NLRB No. 115, Heck's Inc, 172 NLRB No. 255 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by promising them benefits if they refrained from such activity, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed to them by Section 7 of the Act and thereby has violated Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, I recommend that Respondent, Nat Harrison Associates, Inc., shall: 1. Cease and desist from: (a) Interrogating its employees about their union activities. (b) Threatening its employees with loss of jobs or economic benefits if they become members of or assist the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO. (c) Promising its employees economic benefits if they refrain from becoming a member of or assisting that labor organization. (d) Discriminating against its employees by discharging them in order to discourage membership in that labor organization. (e) Refusing to recognize and bargain with the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO, as the exclusive representative of its employees in the following unit: All employees employed by Nat Harrison Associates, Inc., at its Broward County equipment yard, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. (f) Unilaterally changing the terms and conditions of employment of its employees in said unit without bargaining with said labor organization as the exclusive representative of the employees in that unit. (g) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Offer to James F. Aldridge and Willie L. Jeter reinstatement to their former or substantially equivalent positions without prejudice to their seniority and other rights and privileges. (b) Make whole the above-named employees for any loss of pay they may have suffered by reason of the discrimination against them by payment to each of them of a sum of money equal to the amount he normally would have earned as wages from the date of the discharge to the date of the offer of reinstatement, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify the above-named employees 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. (d) Upon request bargain collectively with the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its Fort Lauderdale, Florida, yard, 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 Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (t) 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.r4 "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" and in the first paragraph of the notice the words "a Trial Examiner of' shall be deleted. 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 the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " 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: After a Trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this Notice. The Act gives all employees these rights: To engage in self organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all of these things WE WILL NOT do anything that interferes with these rights. More specifically, WE WILL NOT ask you whether you are a member of or are helping the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO. WE WILL NOT threaten you with loss of your job or any benefits you now enjoy if you become a member or help that Union. WE WILL NOT promise to reward you in any way if you refrain from becoming a member of or helping that Union. WE WILL NOT discharge any employee to discourage membership in that Union. WE WILL immediately offer to reinstate James F. Aldridge and Willie L. Jeter to their former or substantially equivalent positions without any change in seniority or other privileges they enjoyed before we discharged them and we will pay to them any money NAT HARRISON ASSOCIATES they lost as a result of the discrimination against them with interest at 6 percent. WE WILL notify the above-named employees 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 recognize International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO, as the only collective-bargaining representative of our employees in the bargaining unit which is: All employees employed by us at our Broward County equipment yard , excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. WE WILL bargain on request with the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO, on. wages, hours, and conditions of employment and any agreement we reach will be put in writing and signed. 125 WE WILL NOT change your hours or other conditions of employment without bargaining with the International Brotherhood of Electrical Workers, Local No. 728, AFL-CIO. Dated By NAT HARRISON ASSOCIATES, 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, Ext. 227.