Seymour Transfer, Inc.

26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seymour Transfer, Inc. and Drivers, Warehouse and Dairy Employees, Local No. 75, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-859 October 10, 1969 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On March 12, 1969, Trial Examiner Herzel H. E. Plaine issued his Decision in this proceeding, finding that Respondent had engaged 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 He further found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations be dismissed. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Respondent filed a brief in support of the Trial Examiner's Decision. 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 briefs, 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 Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondent, Seymour Transfer, Inc., Green Bay, Wisconsin, its officers, agents; successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. in affirming the Trial Examiner 's dismissal of the refusal to bargain allegation, we find , in accordance with the Trial Examiner, that Respondent's solitary violation of Sec 8(a)(1) did not preclude the holding of a free and fair election , and hold therefore that a bargaining order is not warranted under the facts here present N L R B v Gisse! Packing Company, 395 U S 575 TRIAL EXAMINER'S DECISION HERZEL H. E. PLANE, Trial Examiner This is a proceeding charging the Respondent with violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). Complaint was issued September 10, 1968, on a charge by the Union (the Charging Party) filed with the Board on July 24, 1968. The complaint alleges that since June 21, 1968, the Union represented a majority of Respondent's employees and asked Respondent (on a proposed showing of authorization cards) for recognition and bargaining, that Respondent refused, on and since June 27, and instead engaged in a course of conduct to destroy the Union's status as bargaining representative, by promise of benefits to employees to dissuade support of the Union and by interrogating employees concerning their union sympathies and those of other employees • The complaint further alleges that some of the employees went on strike on June 26, 1968, because of Respondent's refusal to bargain and that the strike has been prolonged by Respondent's unfair labor practices. The Respondent by its answer entered a general denial of any wrongdoing. The case was tried on October 8, 1968, at Green Bay, Wisconsin Counsel for all three parties have filed briefs Upon the entire record of the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I JURISDICTION Respondent is a Wisconsin corporation with its principal office and place of business in Seymour, Wisconsin, and terminals in several other locations in Wisconsin, where it is engaged, as a link in the interstate cartage of freight throughout the states of Wisconsin and Illinois, as a motor common carrier Annually, Respondent receives revenues in excess of $500,000 for the transportation of freight including revenues in excess of $50,000 for services performed in interlining arrangements with other interstate carriers Respondent is engaged, as it admits, in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A Background and Issues Respondent is a corporate motor carrier in whic'h the only stockowners, in almost equal shares, are the six Huettl brothers. The brothers participate actively in the business, three as officers, and three as dispatcher, rate clerk, and truckdriver, respectively Brother Ivo, president, manages the Green Bay terminal but also works with the other men on the dock and occasionally handles trucks; brother Francis, vice president, is in charge of the garage and mechanics; and brother Gerald (or Gerry), secretary-treasurer, is located in the headquarters and office at Seymour, Wisconsin, and is general manager of the business, handling the finance, books, and other administrative work. In addition, two sons of President No Huettl and one son of Vice President Francis Huettl are employed as truckdrivers. 179 NLRB No. 5 SEYMOUR TRANSFER, INC. Typically, in the past on matters relating to pay and other employee benefits, the brothers had met approximately annually with the group of employees comprising (less than 20) truckdrivers, dockmen, and mechanics, and reached agreement on the pay and benefit scale to be applicable thereafter. In the February 1968 meeting, the employees, who were then being paid $2 50 per hour for an 11-hour day including lunch hour, or $27.50 per day, plus 15 cents per hour for 40 hours, or $6 per week, toward retirement, had agreed to a temporary cessation of the retirement pay in order to help the company financially, on the understanding that the matter of pay and benefits would be reexamined at a mid-year meeting. In June 1968, Respondent had a unit of 19 employees (truckdrivers, dockmen, and mechanics) if the three sons of the corporate stockowners and officers were included, or a unit of 16 employees if the three sons were excluded. In addition to the question of eligibility of the three sons, there was also a question as to the inclusion in the unit of one of the 16 other employees who was not actually working in June 1968. He had suffered a heart attack on the job in late 1967, had apparently recovered and applied to be put back to work in April 1968, but was not fully medically certified until late August and returned to work in September, when he was taken ill again and died On June 20-21, 1968, the Union organized a group of Respondent's employees by obtaining nine signed authorization cards and made a written demand upon the Respondent for recognition (on a proffered card check) and for a bargaining meeting on June 25. The demand was received by Respondent on June 24. Respondent's lawyer replied to the Union first by telephone on June 25, then by letter, dated June 27 received by the Union June 28, taking the position that the Union did not represent a majority of the claimed unit and declining, therefore, to meet and bargain. The unit claimed in the demand did not expressly exclude sons of the corporate owners and officers as does the complaint Immediately following the discussion with the Respondent's lawyer, the union representatives called a strike to obtain recognition and, on June 26, eight of the nine employees who had signed union authorization cards went on strike and picketed with signs calling attention to Respondent's alleged refusal to bargain. After 3 days of the strike and picketing, three of the strikers returned to work. The remaining five strikers have continued with the strike and picketing. Meantime, on June 29, Respondent went ahead with the supposed continuation of the February 1968 meeting with employees. The meeting was scheduled and posted at the request of the employees' elected spokesman before the Union demand for recognition was made The strikers did not attend Two theories of liability, which would lead to a bargaining order against Respondent, have been projected The General Counsel contends that Respondent's refusal to recognize and bargain with the Union was a bad-faith refusal, because, it is said, following the demand for recognition Respondent sought to destroy the Union's majority by engaging in alleged serious Section 8(a)(1) violations - claimed promises of benefits at the June 29 meeting and later, and alleged coercive interrogation of an employee; and because Respondent knew in the first 3 days of the strike that a majority of its employees (8 strikers out of a claimed unit of 15 employees) openly preferred the Union.' 27 In contrast to the General Counsel, the Charging Party would not pursue an inquiry into the employer's "good faith" or "bad faith" motivation for declining recognition, but rather would examine the nature of the employer's conduct to determine whether it would have the effect of inhibiting the exercise of a free choice by the employees if a representation election were to be held If the employer's conduct would have this effect (and the Charging Party contends Respondent's conduct following the demand for recognition reached that serious proportion), the employee authorization cards, argues the Charging Party, rather than a Board-supervised election, become the best index of employee feeling, and a bargaining order (resting on a majority showing of 9 cards in a unit of 16 employees) would be the means of giving effect to employee self-determination. Both the General Counsel and the Charging Party ask that the strike be determined to be an unfair labor practice strike, and the Charging Party further requests that the strikers be held entitled to reinstatement to their jobs on demand The Respondent contends that it had a good-faith doubt that the Union had a majority when it demanded recognition; indeed, that the Union's 9 authorizations did not constitute a majority of a claimed unit of 19 employees, counting as regular employees the 3 sons (of the 2 substantial stockholders and corporate officers) to whom, it is argued, the rule of the Scandia case, fn 1, supra, should not apply, and counting the incapacitated employee who eventually returned to work. Moreover, Respondent denies that it made any promises of benefits at the June 29 meeting or later, or that it engaged in unlawful interrogation, that would constitute 8(a)(1) violations and impugn its claim of good faith doubt of the Union's majority status B. The Demand For and Refusal of Recognition 1. The authorization cards From the testimony of Union Respresentative Donald Tilkens, and employees William Van den Langenberg, Melvin Kuske, and Rollin Kleist, it appears that the Union organized a group of Respondent's employees at a meeting attended by I1 of the employees at the home of employee Robert Letter, the night of June 20, 1968 The discussion was principally a comparison of the Union's typical contract provisions for wages and benefits with the wages and benefits earned by Respondent's employees. According to Union Respresentative Tilkens "a couple of fellows" talked against joining the Union because they thought the company could not afford it and would have to close its doors, but others were for going ahead. As a result, 8 of the 11 employees present signed authorization cards,' which were in the form of application for membership in the Union and designation of the Union as representative for collective bargaining. Tilkens witnessed the completion and signing of the eight cards (G.C. Exhs. 5A through H). 'The Charging Party did not join in this latter argument since in its view the 8 strikers were not a majority of what it conceded to be a unit of 16 employees , counting as the 16th the incapacitated employee who had not yet been put back to work , but excluding (as did the General Counsel) the 3 sons of 2 of the corporate officers and substantial stockholders, under the authority of Foam Rubber City 2 of Florida. Inc d/b/a Scandia, 167 NLRB No 81 'Two of the three, who were present at the meeting but did not sign authorization cards, were employees William Van den Langenberg and 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD' That same night, Employee Kleist called employee Vernon Dretsow (who was on vacation) and told him about the meeting and signing of the cards Next day, June 21, Kleist took a card to Dreisow's home, had him complete and sign it, and delivered the completed card to the union hall the same day (G C Exh 4).' At the organization meeting the night of June 20, Union Representative Tilkens and a colleague, who was present, indicated that they would ask the board of the local for a reduction in the $75 initiation fee as a concession for the newly organized group of workers. The talk was in terms of $40 Ultimately in early July the Union set the fee at $11 ($5 plus one month's dues $6), according to employee Kleist and Local 75's President Melvin Blohowiak The offer of waiver and the waiver of part of the union initiation fees was a legitimate organizational technique, that is not regarded as improperly affecting the freedom of choice of employees in a representation election, Dit-M Co , inc , 163 NLRB No 147, or in signing union authorization cards, Amalgamated Clothing Workers (Edro Corporation) v N L R B , 345 F 2d 264, 268 (C A 2); Fabricators, Inc , 168 NLRB No 21 (TXD) Thus the evidence clearly established that the Union had in hand by June 21 nine valid employee authorizations. Union Representative Tilkens testified that the Union has had no requests to return any of the authorization cards to the employees, and, specifically, employee Dreisow testified that he has not asked for the return of his card even though he left the picket line Friday evening, June 28 (after 3 days of picketing), and returned to work Monday, July I 2 The demand On Friday, June 21, the Union sent a letter (G C Exh 2) to Respondent's President No Huettl, stipulated to have been received by him on Monday, June 24 The letter demanded recognition of the Union as the representative for collective bargaining designated by a majority of a unit of Respondent's employees comprising the transfer and truckdrivers, dockmen, and mechanics, proffered a check of the authorization cards by a neutral person to verify the majority status, and requested a meeting to negotiate a contract for the morning of June 25 Melvin Kuske, both of whom testified at the trial, see infra 'Before signing the card , either in the telephone conversation of June 20 or in the meeting of the two men on June 21, employee Dreisow asked employee Kleist "if the majority had signed " Kleist said yes, and that Dreisow could save himself $30 or $40 (by signing now - the reference being to the reduction in initiation fees discussed at the meeting) Respondent made no contention that reference to "majority " constituted fraud or coercion in the obtaining of employee Dreisow's signature While eight cards were actually one less than a majority of the unit (as found infra) "[s]uch puffing does not vitiate the cards unless the comments [that a majority had already signed] were a means of coercing employees to sign cards out of a fear of majority reprisal, " Amalgamated Clothing Workers of America (Sagamore Shirt Co ) v N L R B , 365 U S 898, 908 (C A D C ), I T T Semi-Conductors , Inc, 165 NLRB No 98 The specified unit excluded office and clerical employees , part-time employees, bus drivers, guards, watchmen and supervisors , but the exclusion made no reference (as later appeared in the complaint) to excluding the sons of corporate owners and officers (G C Exh 2) There were three such sons , employed as truckdrivers and dockmen 3. The refusal to recognize On the day following receipt of the Union's demand letter, Respondent did not appear at the meeting requested in the letter (Tuesday morning, June 25) Instead, according to Union President Blohowiak, Respondent's lawyer Trowbridge called Union Representative Carter to acknowledge receipt of the demand and say that Respondent would not attend, and followed up with a letter dated June 27, directed to Union Representative Carter, referring to their conversation and saying that Trowbridge had carefully checked and it would appear that the Union did not represent the majority of Respondent's employees in the claimed unit and, therefore, declined to meet with the Union (G C Exh 3) The letter apparently was written after Respondent's lawyer sought and received a tally from President No Huettl on the question of majority, as described under heading F infra, and see in particular note 21 The Union received this letter on June 28 4 The strike for recognition Without waiting for any written response, following Lawyer Trowbridge's telephone call on June 25, the union representatives got in touch with some of the employees, according to Union President Blohowiak, and on the following day, June 26, at 6 a m , eight of the nine men who had signed authorization cards went on strike and picketed Respondent.' The pickets carried signs announcing "Seymour Transfer Lines on Strike, Members of Local 75," and "Seymour Transfer Lines Refuses to Bargain with Members of Local 75." Because it was customary for Respondent's employees to report in at the principal office in Seymour (about 18 miles west of Green Bay) and then fan out as required to the several terminals at Green Bay, Appleton, and Stevens Point, the pickets apparently also assembled at and picketed Respondent's premises at Seymour, and then split up into groups some of which picketed at the various terminals According to Union President Blowhowiak, on June 28, in response to Lawyer Trowbridge's letter (G C Exh 3), the Union by letter renewed its demand for recognition and bargaining, calling attention to the visible support of a "substantial majority of eligible employees in the unit" in addition to proffering the card check again (C P. Exh 2) Respondent made no reply to this second demand C The Unit and Majority Status On June 24, when Respondent received the Union's demand for recognition and bargaining, Respondent had a maximum complement of 19 employees classified as truckdrivers, dockmen, and mechanics (excluding any of the 6 corporate stock owners, the Huettl brothers, one of whom Bernard Huettl, is and was a truckdriver). There is no dispute that fifteen of the nineteen employees were eligible for inclusion in the collective bargaining unit sought by the Union The dispute centers on the eligibility of the three truckdriver-dockmen sons of two of the corporate stockowners and officers, and on a fourth then incapacitated truckdriver 'The eight men were employees Hintz , Kleist , Letter, Roskom, Woodke, Peotter, Hammel, and Dreisow The latter three picketed for three days, June 26-28 (Wednesday through Friday ) and returned to work Monday, July 1 The remaining five have continued to strike and picket The ninth card signer, who did not go on strike , was employee Socha SEYMOUR TRANSFER, INC. 29 I Exclusion of sons of corporate owners and officers Larry and Timothy Huettl are the sons of President No Huettl, and Robert Huettl is the son of Vice President Francis Huettl Larry is age 28, Timothy and Robert are both between age 22 and 23. The two fathers, No and Francis, along with their four brothers , Gerald, Joe, Ervin, and Bernard, own the 100 shares of Respondent's stock in approximately equal amounts (the first four have 17 shares each , the latter two have 16 shares each) and all six brothers are members of the board of directors. According to President No Huettl in major decisions (such as whether to recognize a union ) all six brothers participate In day-to-day business four of the brothers, have supervisory responsibilities - Brother Ivo, as president , manages the Green Bay terminal , although he works alongside the men on the dock and occasionally drives a truck, brother Francis, as vice president, is in charge of the garage and maintenance mechanics , brother Gerald (or Gerry), as secretary-treasurer, is in charge of finance, records , and the office at the Seymour headquarters , and is regarded as general manager, and brother Joe is the dispatcher . Brothers Ervin and Bernard are rate clerk and truckdriver , respectively The three sons of President No and Vice President Francis, according to Secretary -Treasurer Gerry, are regular employees who drive trucks , work on the dock, and take their turn on trips without preference over other employees (Robert also did some truck maintenance work ) The sons are paid at the same rate of pay ($2.50 per hour ) as other employees , except son Timothy who has not worked long enough to reach full scale (and receives $1 90 per hour), and work the same days and hours, 7 a m to 6 p m , including some Saturday hours, with the privilege of quitting early, as may other employees , if the day' s work is complete and no other work is pending The three sons do not appear to enjoy any special status as a result of their relationship to the corporate owners and officers The Board recently held in Foam Rubber City 2 of Florida inc d/b/a Scandia, 167 NLRB No 81, that children of individuals who have substantial stock interests in closely held corporations are ineligible to be included in employee bargaining units, even though such children may not enjoy special status as a result of the parent-child relationship , on the ground that children of principals of closely held corporations have a community of interest more closely identified with management than with their fellow employees " Hence the three employee sons, Larry, Timothy, and Robert Huettl , must be excluded from the bargaining unit of employees as sons of substantial stock owners, directors , and officers in a closely held corporation , since the evidence established that their fathers own a one-sixth interest each (and together with their uncles own all ) of the Respondent ' s stock and participate , as directors and officers , in the major as well as the day-to-day decision making of the corporation. This was a change in the policy or interpretation that the Board had adhered to for the previous fourteen years, over which period it had held that the mere relationship without a showing of special status was insufficient to justify exclusion of the relative from the bargaining unit, Goetrl et at, d/b/a International Metal Products Co . 107 NLRB 65, American Steel Buck Corp , 107 NLRB 554 (1953) In Scandia the Board reinstated a pre-1953 interpretation that family relationship to the employer's owners or officers was in itself sufficient ground for exclusion from the employee unit, P A Mueller and Sons, Inc, 105 NLRB 552, and overruled International Metal Products and American Steel Buck, supra, and the Board noted its disagreement with the United States Court 2. Inclusion of incapacitated employee The incapacitated employee was Orville Fiestadt, who had driven trucks for Respondent regularly since 1936 or 1937 (he was with Respondent even earlier then 1936 for a brief period) He suffered a heart attack and had to cease working in November 1967, according to Secretary-Treasurer Gerald Huettl, then applied to be put back to work in April 1968, but did not get medical clearance that would comply with ICC requirement until August 26, 1968 (see C P Exh. 3), was put back to work in September 1968, and died after working approximately a week He was 62 or 63 years old at the time of his death While employee Fiestadt was not paid by Respondent (and did not receive any workmen's compensation) from the time of his first illness until he returned to work in September 1968, his ledger sheet in Respondent's payroll book was retained throughout and Respondent continued to pay his health insurance, according to Secretary-Treasurer Gerald Huettl. Employee Fiestadt was back on his feet by early 1968 and, said Gerald Huettl, after applying to be returned to work in April 1968 was sent by Respondent several times to doctors for physical examinations and came to the Seymour office weekly to report on his progress According to President No Huettl and employee Van den Langenberg, employee Fiestadt attended the employees' meeting with the employer on June 29, 1968, dealt with under Section D, infra ' The recited circumstances support the testimony of Gerald and No Huettl that Fiestadt's employment was not terminated during his illness and incapacity to work, and that he was wanted and expected to resume work as soon as he obtained the doctor's clearance 8 I therefore conclude that employee Fiestadt was part of the unit of employees at the time of the Union's demand for recognition.' 3 Size of unit and majority status As a result of these resolutions of eligibility, it appears that when the Respondent received the Union's demand for recognition and bargaining on June 24, 1968,10 the unit sought comprised sixteen employees of Appeals for the Sixth Circuit, which has adopted the view that the Board has no discretion to exclude children of the principals of corporate employers in the absence of affirmative evidence of special status , Uyeda v Brooks . 365 F 2d 326, 329-330 (C A 6), citing and relying upon Cherrin Corp v N L R B, 349 F 2d 1001, 1004-05 (C A 6), cert denied 382 U S 981 'The Charging Party as well as the Respondent agreed, in their briefs, that Fiestadt was an employee at the time of the demand , only General Counsel argued otherwise, though conceding the question was not free from doubt 'While Respondent did not have the formality of a sick leave system, the rule stated in Trailmobile Division , Pullman Inc v N L R B. 379 F 2d 419, 423 (C A 5), accepted in 167 NLRB No 77, appears applicable, namely, "an employee on leave of absence generally continues to be regarded as an employee unless it can be established by overt action or objective evidence that the employment relationship has been severed," citing and relying on cases such as Otarion Listener Corp, 124 NLRB 880, 881 'See Tube Distributors Co Inc, 112 NLRB 296, 297, where an employee, kept from working for a year as the result of a heart attack, but considered by the employer to be on sick leave and claiming to be recovered and expecting to return to work, was held eligible in an employee election "The time of receipt of the demand is the date for determining majority status, N L R B v Security Plating Co . 356 F 2d 725, 727 (C A 9) 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As indicated, of the 16 employees, 9 had given the Union valid authorizations to represent them, hence the Union had a 9 to 7 majority. D June 29 Employee-Employer Meeting and Alleged Promise of Benefits Two of the employees who attended the meeting of employees on the night of June 20, 1968, at employee Robert Letter's home, but did not sign union authorization cards or join in the strike, were William Van den Langenberg and Melvin Kuske, both of whom testified at the call of the General Counsel and Charging Party, respectively According to employee Van den Langenberg, several months before June 20, in February 1968, the employees attended a company meeting with the employer, which was typical of similar meetings, held approximately annually, on call of the men in agreement with the employer These meetings were called by the elected president or spokesman of the employees for the year, agreeing with the employer on a date, testified employee Van den Langenberg. He said he had attended four such meetings in the 5 years he was with the Respondent. According to Secretary-Treasurer Gerald Huettl, it was at such periodic meetings of employees and officers that pay raises and (in the February meeting) a pay decrease, had been agreed upon, and, according to President No Huettl, at such meetings agreements affecting wages and working conditions would be hammered out, although he said, not all past meetings had ended with changes made At the February 1968 meeting, according to employee Van den Langenberg, Secretary-Treasurer Gerald Huettl said that the company had had a rough winter and asked if the men would agree to suspension of the 15 cents per hour payment the company was making into the pension fund. This was actually a pay cut, said employee Van den Langenberg, since the company was putting the 15 cents per hour for the first forty hours each employee worked per week, or $6 per week, into a bank account under a pension plan for the employees, hence the pay of $2.65 per hour on the first 40 hours was being reduced to a straight $2.50 for all hours According to employee Van den Langenberg the men went along with the proposal. No date was provided for resuming the 15-cent pension payment, but Secretary-Treasurer Gerald Huettl said there would be another meeting before "school started" (meaning midsummer or before September, as Van den Langenberg said he understood it), or in midseason, according to employee Kuske, to consider whether the pension payment could be resumed On approximately June 18, 1968, according to employee Kuske, who was the employee spokesman for the year (1968), he went to see Secretary-Treasurer Gerald Huettl to ask for a meeting date, the next available Saturday, "to pick up where we left off" at the February meeting Employee Kuske said he did not discuss the pension or any other proposal in asking for the date, and he had not been instructed by the men to talk to Huettl on June 18 but figured it was time for a company meeting because work was greater and things were going good. A meeting date was agreed upon with Gerald Huettl for Saturday morning, June 29, and employee Kuske said he posted a meeting notice late Friday night, June 21, at the timeclock where the men punch in. Employee Van den Langenberg said that next Monday morning, June 24, when he punched in he saw and read the meeting notice, signed by employee Kuske It was usual, said employee Kuske, for the employees to meet prior to the company meeting and he assumed that the meeting at employee Robert Letter's home, the night of June 20, would be that meeting but it turned out to be a meeting under union auspices There was no other meeting between June 20 and June 29, testified Kuske, and he arrived at proposals he made at the June 29 company meeting by talking to a few of the men in the meantime about ideas that were mainly his own. He did not discuss his proposals beforehand, or the nature of what he was going to take up, with Secretary-Treasurer Gerry Huettl, further testified employee Kuske, the only discussion he had with Gerry Huettl, after agreeing on the date, occurred after the strike and picketing began on June 26, when Gerry asked if the meeting was still going to be held on June 29 and Kuske said yes Gerald Huettl's testimony was to the same effect, and when employee Kuske told him that the Saturday meeting was going forward, said Huettl, he understood that management was asked to attend notwithstanding the strike was going on According to employee Kuske, all of the employees, including the strikers, had notice of the meeting, which was posted at the timeclock several days before the strike began, and he did not invite the Union to the meeting because the meeting was for the employees. He did not recall discussing his proposals with any of the strikers. Secretary-Treasurer Gerald Huettl testified that there was no special invitation to anyone, the strikers had the same access to the bulletin board notice as did the other drivers, and he did not invite the Union because as he analyzed it the Union was not representative of the employees. President No Huettl testified that following posting of the meeting notice on June 21 and before going forward with the meeting of June 29, after the strike began June 26, he asked the company lawyer's advice and was told if the meeting accorded with past practice the company could continue past practice and he did not have to invite the Union if it had not been invited before He was also advised, as he told the employees in the meeting, that the Respondent could make no commitments to the employees at the risk of being guilty of an unfair labor practice Employee Van den Langenberg and the two corporate officers - No and Gerald Huettl - gave the principal accounts of the company meeting with the employees on the morning of June 29. Their accounts are not very different, except as to the order in which people spoke, from which difference General Counsel and the Charging Party evoke a greater significance than I perceive, when the total testimony of the three is considered " The June 29 meeting began about 8 a m and ran for 2 to 2 1/2 hours Attending were six, possibly all seven,12 of the employees who had not signed union authorization cards (including employee Fiestadt who died in September 1968), plus employee Socha who had signed a card, two of the three employee sons, Timothy and Robert Huettl, and five of the six Huettl brothers. It does not appear that any of the strikers were present. However, in the course of the meeting, according to Secretary-Treasurer Gerald Huettl, employee Hammel, who had been picketing, "The differences in testimony were of a not unexpected kind when several witnesses attempt to reconstruct what occurred and was said in a group meeting, and do not reflect on the credibility of any of the participant witnesses, see also fn 18 and 20, infra "The six employees were Van dan Langenberg , Kuske, Baehler, Klarner, Sherman, and Fiestadt , the seventh , not mentioned , was employee Frank SEYMOUR TRANSFER, INC. telephoned and asked if the meeting was on and could he come. Gerald Huettl said it was up to Hammel Employee Hammel then said that he had talked it over with employee Dreisow (also picketing, though on vacation that week) and they were thinking of coming back to work although hesitant to cross the picket line Secretary-Treasurer Huettl said he told employee Hammel there was no change in their status and he would not stop them from returning but would telephone back. He did telephone back, after checking with the company lawyer and satisfying himself that he was not committing any violation of law by authorizing the employees' return Employee Dreisow also made a similar call that morning to Secretary-Treasurer Huettl and was similarly told there was no change in his status While employees Hammel, Dreisow, and Peotter (also on the picket line in the first 3 days of the strike) returned to work the following Monday, July 1, there was no evidence indicating that they attended the Saturday morning meeting. President No Huettl presided and was present throughout the meeting Secretary-Treasurer Gerald Huettl and some of the other Huettl brothers were in and out of the meeting and hence not present throughout According to employee Van den Langenberg, President No Huettl opened the meeting, referred to the union problem and said that anything brought up or suggested would be tentative, that changes could not be made until the union problem was settled. Secretary-Treasurer Gerry Huettl said the company could not get in touch with the men on strike, they would have to call in on their own if they wanted to come back to work Employee Mel Kuske made a proposal on pay raises, saying that since the union people claimed to be getting over $3 per hour, he proposed putting the employees over the "$3 hump" by punching out for the presently paid for lunch hour, spreading the $2 50 now paid for the lunch hour over the ten working hours at 25 cents per hour, thereby making the current wage for working hours $2.75 per hour," further increasing the current wage by an additional 20 cents per hour, and restoring the previous pension payment of 15 cents per hour for the first 40 hours. According to employee Van den Langenberg, Secretary-Treasurer Gerald Huettl responded, saying that while the company was not financially well situated he would go along with what was proposed, that he felt it was necessary to give what the men needed and wanted to stay in business and get the union problem settled "At that point," said employee Van den Langenberg, President No Huettl did not object to what Gerry Huettl said and did not say his statement was tentative, further "at that point" Gerry Huettl did not make a statement that what he said was tentative, according to Van den Langenberg However, employee Van den Langenberg also further testified that the men were told that what was discussed at the meeting was tentative and that nothing could be changed, and that neither No nor Gerald Huettl made any promises, and, said Van den Langenberg, nothing affecting the pay has been changed. Brothers No and Gerald Huettl testified that it was President No who made the initial reply to employee Kuske's proposal for revising the wage scale, and said, "Boys, before you go anyplace and make any demands, we have a labor dispute out here and I want it fully "Employee Kuske explained that this portion of his proposal was not a true increase but merely a restatement of the hourly rate for time worked ($2 75 per hour or $27 50 for 10 working hours per day , in place of $2 50 per hour which was also $27 50 for the I 1-hour day ) to make the rate look better 31 understood at this time that we will not give you any raise or make any changes in your pay setup until after this situation has been straightened out . . If we do, it's going to be an unfair labor practice against us." He added, No said, that after "this thing" was over if the men wanted to meet with them again they would take up the demands of the men at that time, but "at this time there will be no raises or anything given."' Brother Gerald Huettl testified that he also made a statement at the meeting to the effect that "things looked favorable but there could be no decision one way or the other and it would still have to be abided by what we determined after the settlement of our labor dispute " When asked by counsel, why bother to have a meeting at all since it was clear there could be no commitments, President No Huettl's reply was, if the employees wanted a meeting we were glad to meet with them anytime as in the past, that all such meetings had not ended with a change in wages or working conditions although it was in this kind of meeting that past changes had been hammered out, and that management did not know in advance what the meeting was called for Conclusion Whether or not Secretary-Treasurer Gerald Huettl's words to the men at the meeting (be it, going along with what the men proposed, according to employee Van den Langenberg, or, that things looked favorable, as Gerald Huettl phrased it) constituted a promise of benefits to dissuade them from going over to or supporting the Union depends in good measure upon whether one disassociates the words inferring promise from, or considers them in, the context of the entire meeting While it appears that some of the employees, particularly employee spokesman Kuske, went into the meeting hoping to extract commitments, it is also apparent that the Huettls were, at this point, early in the labor controversy, carefully consulting and following the advice of their counsel and avoiding the making of any employer commitments In the context of all that transpired at the meeting, even employee Van den Langenberg, who was the only employee that testified on this subject,1s did not regard what he heard Secretary-Treasurer Gerald Huettl say as a promise of wage and benefits increase. A few of the words, by themselves, strayed close to the line of promise, but, again in context, the tenor of it all was that the Huettls weren't saying no to the proposals but they also weren't saying yes 16 In my view, the General Counsel has not sustained the burden of proving a violation of the Act in connection with the June 29 meeting. "President No Huettl testified that, at the meeting, changes in runs of some of the truckers were made by mutual agreement , but indicated that the changes meant more work for the individual ("increasing drops") without any increase in paid hours In view of the fact that Respondent did not hire any replacements for the striking employees , the route adjustments presumably were a temporary expedient and could hardly be classed as a benefit (or promise of one) to the employees who continued to work "Employee Kuske, who was present throughout the meeting and made the employee proposals, and who testified at the call of the Charging Party , was not asked anything by the Charging Party or General Counsel about his presentation and the responses of the Huettls at the June 29 meeting It is a fair inference that what he might have said, if asked, would not have strengthened the case against the Respondent "I do not view the manner of participation of management in the meeting as approaching the "brinkmanship" practiced and condemned in Warsau Steel Corp v N L R B, 377 F 2d 369, 372 (C A 7, 1967) 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E July 30 Promise of Benefits As reflected in the testimony of striking employees Gerald Hintz and Robert Letter, with the continuance of the strike into July and thereafter, following its start on June 26, tempers on both sides began to heat up as evidenced by harsh exchange of words (for example, between striking employee Letter and President No Huettl) and by hostile, provocative acts (for example, deliberate parking of striking employee Hintz's camper truck in front of an interlining trailer on the public street to prevent hook-up with Respondent's tractor, and forcible removal of the camper by Respondent) Additionally, hard feelings were undoubtedly engendered in Respondent by conduct of the Union in its attempts to constrain interlining trucking companies from continuing business with the Respondent, as described in the decision of Trial Examiner Lieberman, Drivers, Warehouse and Dairy Employees, Local No 75, (Seymour Transfer, Inc ), 176 NLRB No. 69." On July 30, which was the first regular pay day after the June 29 employer-employee meeting (Respondent used a monthly payroll), employee Van den Langenberg picked up his paycheck from Secretary-Treasurer Gerald Huettl. Employee Van den Langenberg testified that he noted, silently, that the "raise that was talked about in the meeting of June 29 was not on the check . . but when Gerry handed it to me he said it would be retroactive to the first of July . .[w]hen the union problems were settled." Secretary-Treasurer Gerald Huettl did not deny the incident or what was attributed to him.' S Conclusion It seems to me that on July 30 Secretary-Treasurer Gerald Huettl clearly violated Section 8(a)(1) of the Act by promising a retroactive pay raise to employee Van den Langenberg, apparently to influence him in holding firm the position he had taken against support of the Union, N L R B v Exchange Parts Co , 375 U.S 405, 409-41019 F Interrogation of Employee The testimony of employee Van den Langenberg and President No Huettl shows that shortly after the strike began President Huettl elicited Van den Langenberg's help in identifying the employees for and against the Union in order to assist the Respondent's lawyer in determining whether the Union had a majority of the employees.30 "Respondent (who was the Charging Party in the cited case ) filed its charge against the Union on July 31, 1968 "Apart from reconcilable differences in testimony (see also fn 20), there were no material conflicts that raised credibility issues between the Huettls and employees who testified, and, of course the credibility of employee Van den Langenberg, who was in the vulnerable position of a current employee testifying (at this point) adversely to his employer, was entitled to added support, Georgia Rug Mill. 131 NLRB 1304, 1305, fn 2, Wirtz v B A C Steel Co, 312 F 2d 14, 16 (C A 4) "I have considered that perhaps the July 30 promise to employee Van en Langenberg was also evidence of an earlier general promise to all of the employees at the June 29 meeting , piscussed under heading D, supra, but have concluded otherwise , because of the wide difference in circumsyances and the intervening events in the lapse of time By July 30 the relative calm, and careful conduct, of the first days of the strike had disappeared , conflict had flared, and yhe evident restraint upon the employer of his lawyer's advice in June was not as evident on July 30 when, it seems , Secretary-Treasurer Huettl put caution aside in his attempt to hit back at the Union According to employee Van den Langenberg, while eating lunch in the presence of President No Huettl, Ivo's two sons, employees Timothy and Larry Huettl, and employee Kuske, President No showed Van den Langenberg a piece of scratch paper on which No had listed the employees for and against the Union Employee Van den Langenberg testified that No said that his lawyer needed the names and asked if they were the right names, and Van den Langenberg told No he agreed with the listing except for employee Alvin Socha who, though working, had signed a union authorization card. President No Huettl testified that employee Van den Langenberg told him, after the strike began, that he had been at the meeting with the union representatives where a group of the employees signed cards, that he (Ivo) knew (as a result) that Van den Langenberg and Kuske had not signed, and that as No prepared the list at the noon lunch soliciting help from Van den Langenberg, the latter brought up the names of those who had signed However, said President Huettl, the main criteria was whether a man was working or striking, and he did not recall Van den Langenberg's doubts about employee Al Socha in view of the fact that Socha was working, but did recall Van den Langenberg saying he didn't think the Union had a majority. President Huettl said he reported what he thought the tally was to his lawyer." Conclusion Both the General Counsel and Charging Party have assumed that the June 27 querying of employee Van den Langenberg by President Huettl was a Struksnes Construction Co , 165 NLRB No 102, type polling of employees and therefore a violation of the Act because there was no secret ballot and no assurances against reprisal. I am not persuaded that the inquiry of employee Van den Langenberg , who had volunteered what his views and knowledge were, was such a poll, or that a violation occurred in the circumstances of obtaining his assistance in ascertaining the validity of the Union's claim Rather, Respondent ' s action appeared to be a spontaneous response to the Union claim of majority and to the simultaneous union inspired strike to reinforce the claim, N L R B v. Larry Faul Oldsmobile Co , 316 F 2d 595, 597 (C A. 7), and was not conducted with any harrassment or threat of reprisal or as part of a counter campaign against the Union . There was no history of "Employee Van den Langenberg's testimony erroneously indicates this was July 10 I agree with the Charging Party that the total sense of the testimony makes it inescapable that the incident took place , as President Huettl's testimony indicated, right after the strike began on June 26, most likely on Thursday, June 27, and no later than Friday, June 28 "On the matter of the tally, which is of greater significance on the question of the employer's good faith doubt of the Union's majority infra, President Huettl said he arrived at a first assessment of ten (corrected to eleven) against and eight for the Union, since he counted as against the Union the eight nonstrikers-employees Kuske, Van den Langenberg, Baehler, Klarner, Frank, Sherman, Fiestadt, and Socha - and the three employee sons of corporate officers and owners - Larry, Tim, and Bobby Heuttl Of the eight mdn counted for the Union, President Heuttl said, there wend some doubts about emNoyee Hammel who had begun with the strikers but came back to work Monday , July 1, and employee Dreisow who was on vacation , but wa ( reported picketing, and who also came back to work July I In this connection it was noted under sec B, supra, that employee Dreisow was not at the union organizing meeting, and signed an authorization card in the presence of only employee Letter, so that employee Van den Cangehberg had no first hand information, or apparently any at that time, on Dreisow's signing SEYMOUR TRANSFER, INC 33 employer antiunion conduct or employer violation of employee rights Moreover, there was no systematic or other polling of the employees which would call for balloting, secret or otherwise Interrogation which falls short of interference with or coercion of employees is not unlawful, Blue Flash Express, Inc , 109 NLRB 591, 593. Hence this solitary interrogation of one employee, concerning information that he volunteered having, to assist the employer in ascertaining the validity of the Union's claim, of which purpose the employee was fully aware, was not made under circumstances that could be regarded as coercive or interfering The absence of express assurance that there would be no reprisal was hardly pertinent to the employee asked or to the question put to him, but if it were it seems to me, as was held in Larry Faul Oldsmobile case, supra, 316 F 2d at 598, that the failure to give such assurance "is one of the circumstances to be considered but not to the exclusion of all others "32 I would conclude here, as the court did there, that all of the circumstances surrounding the interrogation showed "that Respondent's sole purpose was to ascertain the validity of the union's claim " Respondent did not violate Section 8(a)(I) in its questioning of employee Van den Langenberg G Conclusion re 8(a ) (5) and (1) Based upon employee authorizations the Union had a card majority of one (nine out of a unit of sixteen employees) when its demand for recognition and bargaining was received by Respondent on June 24 However, Respondent's reply to the Union's June 24 demand and to the almost simultaneous strike for recognition, embodied in Respondent's lawyer's letter of June 27, was a reasonably grounded questioning of the Union's claim of a majority In the circumstances of its making, the reply was an expression in good faith of Respondent's doubt that the Union represented a majority of the unit of employees. Not more than 6 days expired between the time the Union started its solicitation and when the Respondent, not unionized and with no antiunion history, experienced the union inspired strike for recognition. There was no evidence that Respondent even knew the Union had solicited its employees until Respondent received the demand for recognition and a bargaining meeting less than 2 days before the strike for recognition began 23 Respondent did not stall or unduly delay in replying to the Union's demand for recognition and bargaining Indeed Respondent's lawyer made oral acknowledgement of receipt of the demand on the following day, June 25, and, based upon President Huettl's tally, replied in writing on the third day (June 27) following receipt of the demand, expressing Respondent's view that the Union did "Recently, the Eighth Circuit, in N L R B v Berggren & Sons, 606 F 2d 239, fn 9, (C A 8), in expressing its approval of the Board's Struksnes standards for determining the legality of employer polls of employees, and particularly the requirement of employer assurances against reprisals, noted the difference between the case before it of a systematic polling, where each and all of the Struksnes safeguards should apply, and a case such as the Larry Faul Oldsmobile case, supra, where there was no systematic polling but only isolated instances of informal questioning and where the absence of the assurance against reprisal was not a fatal infirmity in all the circumstances, compatible with the teaching of Blue Flash, supra ""The good faith of the Company must be viewed in the light of the rapidity with which the events developed " N L R B v Bedford- Nugent Corp , 317 F 2d 861, 865 (C A 7) not represent a majority of the employees in the claimed unit Respondent had observed eight of the unit employees picketing at the start of the strike for recognition, but also had observed that (excluding the three drivers who were sons of the corporate owners and officers, No and Francis Huettl)24 the other 8 employees in the unit of 16 remained at work Insofar as Respondent was informed by employee Van den Langenberg, who was a nonstriker and apparently Respondent's only source of employee information on the subject of signed authorization cards, Respondent knew of only eight card signers, but the position of one (employee Socha) was in doubt, in Respondent's viewb since Socha had not joined the strikers The employee who, unknown to employee Van den Langenberg, signed a ninth card, employee Dreisowb was on vacation when he signed and when the strike began, and Respondent regarded his position as in doubt, though he initially was reported to be one of the eight employee pickets but (along with two others) came back to work after the third day of the strike Respondent committed no unfair labor practices either before or in a substantial period following the demand for recognition, and Respondent's conduct in that time, including its dealing with the demand itself, could not be characterized as indicating a rejection of the collective bargaining principle or a desire to gain time to undermine the Union, or as preventing the holding of a fair election (if the parties had asked for one), Arthur F Derse etc and Wilder Mfg Co, 173 NLRB No 30.25 There was one act of misconduct on Respondent's part, the promise of a retroactive pay raise to one of the nonstrikers, on July 30, more than a month after the demand for recognition While in some circumstances such later occurring misconduct might be considered, with other facts, to provide insight into antiunion motivation in "Respondent also, mistakenly, included these three ineligible sons (see fn 6, supra ) in its computation of the size of the unit and calculation of even a greater number ( II) against unionization While the Union's demand was not as sharp in its exclusions, as was the later complaint which expressly excluded sons of the corporate owners and officers, the demand was not deficient in describing the appropriate unit, and though Respondent may have acted in good faith in including the three ineligible sons in the unit, such good faith mistake as to the legal situation was not additional support for its defense of good-faith doubt of the Union's majority See, N L R B v Bardahl Oil Company, 399 F 2d 365, 368-370 (C A 8) As stated in Bardahl, supra, 370, In 6, "where the dispute relates only to the size of the unit, and not as to which 'unit' the union has in mind, the company must risk unfair practice charges if it is proven wrong " "The Derse case, while parallel in many respects , is an even harder case on the facts than the instant case It involved a demand for recognition on a card showing and examination of I I authorization cards in a unit of 18 employees by an officer and general manager of a family owned corporation , who deferred a reply to the Union on the ground that all of company officers would provide it This response brought on an almost simultaneous recognition strike and picketing by the II card signers plus 2 more on the following day Entertaining an erroneous belief that the unit comprised 30 employees, Respondent gave the Union no reply and hired counsel who provided no answer to the Union's renewed requests for bargaining The Trial Examiner found a bad-faith refusal to recognize, in violation of Sec 8(a)(5), based upon the company's knowledge that the Union had a card majority and a majority picketing for recognition (facts which are absent in the instant case) Without overturning these underlying findings of facts, the Board nonetheless reversed the finding of a bad-faith refusal to recognize on the ground that the record did not preponderantly establish Respondent 's bad faith in refusing to recognize the Union because there was "no showing whatsoever that Respondent had rejected the collective-bargaining principle or engaged in any interference, restraint, or coercion of employees to undermine the Union Nor does the record show that Respondent has engaged in any other conduct which would prevent the holding of a fair election " 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD earlier conduct,26 the cicumstances here have indicated that the July 30 act of misconduct was a reaction not to the demand for recognition but to the intervening hostile acts of the Union and its supporters, inconsistent with the initial peaceful demand and peaceful picketing for recognition Of course, the misconduct of Respondent may not be excused, but it was separate both in time and circumstances from the demand for recognition, and, as an isolated and solitary violation of Section 8(a)(1), has not vitiated Respondent's otherwise established claim of a lawfully motivated refusal to recognize and bargain with the Union, Grafton Boat Co Inc, 173 NLRB No 150, Hammond and Irving, Inc, 154 NLRB 1071, 1073, Hercules Packing Corp , 163 NLRB No 35 Accordingly, I conclude that the General Counsel has not sustained his burden of proving that Respondent's refusal to bargain violated Section 8(a)(5). I am also of the view that it would be sheer speculation to find that the solitary violation of Section 8(a)(1), comprising the promise of benefit on July 30 to one employee who had not signed a union authorization card or joined the strikers, precluded the holding of a fair election, if one were to be held There is no evidence that the employer's misconduct on July 30 dissipated the union's card majority or caused attrition of support by those on strike Absent an 8(a)(5) violation, I would find it "difficult to conclude that in this case [Respondent's solitary unfair labor practice] required a recognition order as opposed to the more democratic remedy of an election." Pulley v. N L R B, 395 F.2d 870, 878, (C.A 6);27 and see N L R.B. v. Better Val-U Stores of Mansfield, 601 F.2d 691, 495-696 (C.A 2). Likewise, it is highly improbable that the isolated act of 8(a)(l) misconduct on July 30, directly affecting one nonstriking employee, converted the strike into an unfair labor practice strike or prolonged it as such I will recommend an appropriate remedy for the 8(a)(1) violation committed on July 30, 1968, and dismissal of the balance of the complaint III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing the free now thereof Upon the basis of the foregoing facts and upon the entire record in the case, I make the following CONCLUSIONS OF LAW I The Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act The Union is a labor organization within the meaning of Section 2(5) of the Act 2 By attempting to interfere with and coerce employees in the exercise of their rights under Section 7 of the Act with a promise of retroactive benefits, as approximately alleged in paragraph 6(c) of the complaint, the Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(l) of the Act The unfair labor practice affects commerce within the meaning of Section 2(6) and (7) of the Act 3 The allegations of paragraphs 6(a), 6(b), 10, and 12 of the complaint have not been established and should be dismissed RECOMMENDED ORDER Upon the basis of the foregoing facts and conclusions of lawb and upon the entire record in this proceeding, I recommend that Respondent, its officers, agents, successors, and assigns, shall I Cease and desist from promising retroactive or other wage increases and benefits to employees to discourage their support of the Union 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Post in the Respondent's headquarters in Seymour, Wisconsin, and in its terminals in Green Bay, Appleton, and Stevens Point, Wisconsin, copies of the attached notice marked "Appendix "28 Immediately upon receipt of the copies of said notice, to be furnished by the Regional Director for Region 13 (Milwaukee, Wisconsin), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained 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 (b) Notify the Regional Director for Region 13, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith 29 IV. THE REMEDY Having found that Respondent has engaged in an unfair labor practice in violation of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act "See, Angwell Curtain Co v N L R B, 192 F 2d 899, 903 (C A 7) "Note, N L R B v Priced-Less Discount Foods, Inc , 605 F 2d 67, (C A 6), reaffirming the principle, applied in Pulley, of using sparingly the bargaining order as a remedy for violations of Sec 8(a)(l), carrying with it recognition of the union, because "particularly dangerous where it may have the effect of imposing a union on employees contrary to their actual wishes", but approving the remedy where (as in that case) the employer had significantly dissipated the Union's majority, by 8(a)(I) violations after union request for recognition, and had prevented the holding of a fair election "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 in 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 the Respondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Recommended Order of a Trial Examiner of the National Labor Relations Board SEYMOUR TRANSFER, INC. 35 and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that After a trial, in which all sides had the opportunity to present their evidence, the National Labor Relations Board found that we violated the Act in one respect, and has told us to post this notice and to keep our word about what we say in this notice WE WILL NOT promise you retroactive or other wage increases and benefits for the purpose of discouraging your support of the Union. You are free to become or remain, or to refrain from becoming or remaining, members of Drivers, Warehouse and Dairy Employees, Local Union No 75, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor union. SEYMOUR TRANSFER, INC. (Employer) Dated By (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, Second Floor Commerce Building, 744 North 6th Street, Milwaukee, Wisconsin 53202, Telephone 272-3861