Crispo Cake Cone Co., Inc.

352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Crispo Cake Cone Company, Inc. and Leather Goods, Plastics & Novelty Workers Union, Local 160, AFL-CIO. Case 14-CA-5528 May 17, 1971 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On November 24, 1970, Trial Examiner Max Rosen- berg issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. The Trial Examiner further found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that those allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Ex- aminer made at the hearing and finds that no prejudi- cial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Ex- aminer's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner to the extent consistent herein. The Trial Examiner found, and we agree, that the Respondent, through Robert Shubert, Respondent's vice president and the general manager of its St. Louis, Missouri, plant, engaged in numerous violations of Sec- tion 8(a)(I) of the Act.2 As set forth in the Trial Ex- aminer's Decision, the first of such violations occurred on January 8, 1970, and the last occurred about mid- We correct the Trial Examiner's inadvertent references to Shubert as Rhodes in section III,B, of his Decision ' In view of our adoption of the Trial Examiner's numerous findings of Section 8(a)(1) violations of the Act by the Respondent, it is unnecessary to determine, as the General Counsel now urges, whether certain additional conduct of the Respondent was also violative of Section 8(a)(1) Even were we to find such violations, they would be cumulative and would not affect our Order herein However, we do find ment in the General Counsel's exceptions to the failure of the Trial Examiner to so find with respect to certain allegations that we deem to have a material bearing on the office clerical bargaining issue, infra, and in particular, the statements by Shubert on March 5 to office clerical employees Redman and Riston that "We're not going to have a union in the office", and that "if he closed this place down it would mean he would still have a job but we wouldn't " and also, Shubert's statement on that same day to Redmon which, on being consid- ered in its total context, constitutes an implied threat of discharge because of her union activities Accordingly, we find that by the foregoing statements the Respondent further violated Section 8(a)(1) of the Act 190 NLRB No. 60 June 1970. The violations included coercive interroga- tions of employees regarding their union sympathies and activities and those of fellow employees; threaten- ing employees with the loss of working privileges, loss of overtime, plant closure, and discharge if they favored or selected the Union; promising economic benefits and continued employment to employees if they rejected the Union; directing employees to carry threats of re- prisal and promises of benefit to fellow employees for engaging in or refraining from union activities, respec- tively; creating the impression of surveillance of em- ployees' union activities; and interfering with em- ployees' access to the Board's processes by threatening them with reprisals for cooperating with the Board agent investigating this unfair labor practice proceed- ing. We also agree with the Trial Examiner, for the rea- sons stated by him, that the Respondent violated Sec- tion 8(a)(3) of the Act by Shubert's reduction of over- time work for employee Jessie Butler because he joined and assisted the Union in its organizational campaign among the warehouse employees. The Trial Examiner found that the Respondent did not violate Section 8(a)(5) of the Act by its inordinate delay in meeting and bargaining with the Union and by failing to furnish to the Union, after repeated requests, certain pertinent and necessary information to which the Union was entitled in regard to the warehouse unit employees. In arriving at this finding, the Trial Exam- iner considered the following facts as militating against a finding that the Respondent had not bargained in good faith in regard to the warehouse unit: Shubert's advising Rhodes, the union representative, when the initial request for a negotiation session was made, that he lacked the authority to negotiate on behalf of the Respondent, but that he would give this information to his superiors in Chicago, Illinois; Shubert's repeated statements to Rhodes during March and April that Henry Shapiro, the Respondent's chief corporate officer, and Albert Epstein, the Respondent's newly appointed attorney, both of whom resided in Chicago, were not available; Epstein's advising Rhodes, as early as April 3, that he had been in touch with the Board's Regional Office in St. Louis and was canvassing the situation so that he could arrange "for a negotiation meeting as quickly as possible"; the Union's being ad- vised by letter, dated May 1, from Milton Yawitz, the Respondent's St. Louis attorney, that he had been in contact with Shubert, and that, after he received a briefing on all the facts and circumstances, he would expeditiously schedule a series of negotiation sessions; the parties' meeting on May 19 for the initial negotia- tion session, and thereafter until agreement was reached, during which meetings the Respondent nego- tiated in good faith except for its delay in furnishing the requested information concerning the wage rates, seni- CRISPO CAKE CONE COMPANY, INC 353 ority, and job classifications of the warehouse unit em- ployees; and finally , after the requested information was collated and proffered , an agreement was reached on all subjects and a contract was reduced to writing which made wage rates, as had been requested by the Union, retroactive to February 17, the date of the Un- ion's selection as majority bargaining representative of the warehouse unit employees . We do not agree with the Trial Examiner's evaluation of the Respondent's course of conduct. In our evaluation of the facts , as fully described by the Trial Examiner in his Decision , we are unable to conclude that the Respondent's delay, from the Un- ion's initial request for a negotiation session , February 26, until the first negotiation session, May 19 , merely resulted from Shubert's claimed lack of authority to negotiate and the unavailability of a responsible negotiator . In this regard, it is significant that Shubert, as a vice president and general manager, was the lead- ing official at the St. Louis plant . In such a capacity, the Respondent is to be held accountable for the unlawful conduct he engaged in and its impact on the Respond- ent's statutory duty to bargain in good faith . The nu- merous and flagrant violations found herein and solely attributed to Shubert, starting with his initial violation on January 8, and ending with his final violation about mid-June, clearly depict him as an individual who is unalterably opposed to the principles of collective bar- gaining and who is willing to engage in tactics designed to thwart and delay collective bargaining . Further- more, in his capacity as the leading official at the Re- spondent's St. Louis plant, it follows that he was the individual to whom the Union would normally address its initial request for bargaining and, in futuro, as the individual with whom the Union would have to deal on the day-to-day application of the collective-bargaining agreement . His unresponsive attitude , as clearly dem- onstrated herein , hardly portrays a leading official of the Respondent who was willing, or was willing to arrange for a responsible negotiator , to engage in good- faith collective bargaining . On the contrary, Shubert had no time for the Union, a fact which he told to the office clerical employees on March 2 , and otherwise amply displayed. While it is true that the parties finally met on May 19 for their initial negotiation session and that negotia- tions thereafter resulted in the reaching of an agree- ment, the fact remains that the Respondent 's conduct from February 26 until May 19 falls short of its statu- tory duty to bargain in good faith with the duly desig- nated bargaining representative. Despite the Union's requests for an initial negotiation session and for re- quested information concerning the wage rates, seni- ority, and job classifications , the Respondent failed to respond, and the Union, on March 19, had to resort to the filing of the unfair labor practice charge herein. Finally, on May 19, only after the complaint had issued 6 days earlier, did the Respondent participate in the first negotiation session . Such a course of conduct clearly indicates a foot dragging attitude and hardly comports with a reasonable meaningful response from an employer willing to bargain in good faith . Such an unreasonable attitude is further evidenced by Shubert's conduct with respect to the requested information con- cerning the wage rates, seniority, and job classifications of the warehouse unit employees . Although Shubert promised Rhodes on March 2 that he would give him this information, it was not forthcoming until July 6, and even then it was not proffered in writing. Since there were only seven employees in the warehouse unit, no justification appears for such an inordinate delay in furnishing the requested information . Such a delay, as well as the delay in the arranging for the first negotia- tion session, warrants our finding, as urged by the Gen- eral Counsel, that the Respondent engaged in dilatory and evasive tactics, failed and refused to provide perti- nent information on request, and failed in its duty to provide reasonably available authorized representa- tives to engage in negotiations . Accordingly, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union in good faith regarding the warehouse unit em- ployees. The Trial Examiner found that the Respondent did not violate Section 8(a)(5) of the Act by refusing to bargain with the Union as the collective -bargaining representative for a unit of office clerical employees. In so finding, the Trial Examiner reasoned that the Gen- eral Counsel had failed to sustain his burden of proving that the unit for which the Union was deprived of its representation rights was appropriate in the circum- stances herein . The Trial Examiner noted that there were three office clerical employees at the time of the Union's request for recognition; that one of these em- ployees, Riston, left her employment for nondis- criminatory reasons; and that another of these em- ployees, Redmon, was going to leave her employment to get married . Thus, the Trial Examiner concluded that the office clerical employee unit has been reduced to a single employee; and that , under such circum- stances, the Board may not order the Respondent to bargain with the Union. We do not agree. The record shows that the office clerical employee unit, at all times between February 16 and August 1, consisted of three employees ; that on March 2 , until the date of the hearing herein, August 25 and 26, the Re- spondent was aware of the Union's majority in such a unit. Moreover, in the light of the pervasive acts of interference , restraint, and coercion which Shubert visited upon Redmon and Riston , as well as the ware- house employees, which became readily apparent to them, it is clear that resort to the election processes 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would have been futile under the teachings of Gissel.3 Clearly, under normal circumstances, a bargaining or- der is warranted. The Trial Examiner concluded, however, that this was not the normal situation as there is no record evidence that the reduction in the office clerical unit was only temporary in nature, and therefore the Gen- eral Counsel had failed to meet his burden of proof in this regard. We disagree with the Trial Examiner. Plainly, the burden of proving that this was not a tem- porary reduction but was one of a permanent nature was on the Respondent." If such a reduction was other than temporary, the Respondent could have, and should have, presented evidence that the reduction was permanent. Although Shubert testified at length, he neither contended nor suggested that the Respondent's office clerical complement would not immediately or in the immediate future be restored to its normal three- employee complement. Under these circumstances, the possibility that only one office clerical employee might be at work temporarily, pending new hires, would not destroy the appropriateness of the unit, because a tem- porary decrease in employee complement, even if it occurs, does not reduce the unit to a single-employee unit. For these reasons, we find, in agreement with the General Counsel, that the Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing to bargain with the Union as the duly designated collec- tive-bargaining representative of the office clerical em- ployees. We also find that the issuance of a bargaining order herein is appropriate as to the office clerical em- ployee unit employees. The Trial Examiner, having recommended dismissal of the 8(a)(5) allegation with respect to the office cleri- cal employees, concluded that no useful purpose would be served by the issuance of an order against the Re- spondent to cease granting wage increases to office clerical employees without prior consultation with the Union. Since we have found that the Union was, and remained, the duly designated collective-bargaining representative of the office clerical employees, we find that the Respondent violated Section 8(a)(5) and (1) of the Act by Shubert's granting, without prior consulta- tion with the Union, a raise to office clerical employee Redmon. The Effect of the Unfair Labor Practices Upon Commerce The unfair labor practices of the Respondent, set forth above, occurring in connection with the opera- tions of the Respondent, have a close, intimate, and substantial relation to trade, traffic, and commerce ' NL R B v Gissel Packing Company, 395 U S 575 4 National Dairy Products Corporation, Sealtest Southern Dairies Divi- sion, 127 NLRB 313, 314, and 315 among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce 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. All regular warehouse employees at the Respond- ent's St. Louis, Missouri, plant, excluding over-the- road truckdrivers, office clerical and professional em- ployees, guards, and supervisors as defined in the Act, is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union was on February 26, 1970, and at all times thereafter has been, the exclusive collective-bar- gaining representative of the Respondent's employees in the aforesaid appropriate warehouse employee unit within the meaning of Section 9(a) of the Act. 5. All office clerical employees at the Respondent's St. Louis, Missouri, plant, excluding all other em- ployees, professional employees, guards, and super- visors as defined in the Act, is appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 6. The Union was on February 16, 1970, and at all times thereafter has been, the exclusive collective-bar- gaining representative of the Respondent's employees in the aforesaid appropriate office clerical employee unit within the meaning of Section 9(a) of the Act. 7. By refusing to bargain with the Union as the col- lective-bargaining representative of its employees in the aforesaid appropriate units, the Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. By the acts and conduct herein found violative of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, which unfair labor practices affect commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in various unfair labor practices affecting commerce, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent failed to bargain collectively with the Union in good faith as to the office clerical unit employees, and unilaterally granted a wage increase, we shall order that the Respondent, upon CRISPO CAKE CONE COMPANY, INC 355 request, bargain collectively in good faith with the Un- ion regarding rates of pay, wages, hours of employ- ment, and other terms and conditions of employment of the employees in such unit, and, if an understanding is reached, embody such understanding in a signed agreement. With respect, however, to our finding that the Respondent failed for a time to bargain collectively with the Union in good faith as to the warehouse unit employees, we have also found that thereafter it did bargain in good faith and entered into a collectively- bargaining agreement with respect to such unit. In these circumstances we do not believe that an affirma- tive bargaining order with respect to this unit is neces- sary to effectuate the policies of the Act, and that an appropriate cease-and-desist order will be sufficient to remedy this violation of the Act. Having also found that, on and after February 17, 1970, the Respondent reduced the hours of overtime work for employee Jessie Butler because he joined and assisted the Union in its organizational campaign among the warehouse employees, we shall order that the Respondent make him whole for any loss of pay he may have suffered as a result of the discrimination practiced against him. The backpay herein shall be computed in accordance with the Board's formula set forth in F W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. We are persuaded that the unfair labor practices committed by the Respondent herein involve conduct in derogation of the principles of good-faith collective bargaining. The inference is warranted that the Re- spondent maintains an attitude of opposition to the purposes of the Act with respect to the protection of employee rights and that a potential threat of future violations exists. Accordingly, we shall order that the Respondent cease and desist from infringing in any manner upon the rights guaranteed employees in Sec- tion 7 of the Act. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Crispo Cake Cone Company, Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, with Leather Goods, Plastics and Novelty Workers Union, Local 160, AFL-CIO, as the exclusive representative of its employees in the following appropriate units: All regular warehouse employees at its St. Louis, Missouri, plant, excluding over-the-road truckdrivers, office clerical and professional em- ployees, guards, and supervisors as defined in the Act. All office clerical employees at its St. Louis, Missouri, plant, excluding all other employees, professional employees, guards, and supervisors as defined in the Act. (b) Reducing the hours of overtime work for em- ployees in order to punish them for joining and sup- porting the Union, thereby discriminating in regard to their hire, tenure, and other conditions of employment. (c) Coercively interrogating employees concerning their union sympathies and activities, and the union sympathies and activities of their fellow employees. (d) Threatening employees with loss of privileges during working hours, such as coffee breaks, visiting a lunch truck canteen, warming up automobiles in the winter, and speaking with spouses because they join or support the Union. (e) Threatening employees with loss of overtime if they join or assist the Union. (f) Threatening employees with closure of the plant in the event they select the Union as their bargaining agent. (g) Threatening employees with discharge if they favor the Union as their collective-bargaining repre- sentative. (h) Promising economic benefits to employees if they reject the Union as their bargaining agent. (i) Promising continued employment to employees in the event they abandon union representation. (j) Creating the impression that the Respondent is surveilling the union activities of its employees. (k) Interfering with the employees' access to the Board's processes by threatening them with reprisals for cooperating with the Board in the investigation of unfair labor practice proceedings. (1) Directing employees to convey threats of reprisals and promises of benefits to other employees for engag- ing in or refraining from union activities. (m) Unilaterally granting wage increases without consulting and bargaining with the Union, except that nothing herein contained shall be construed as requir- ing the Respondent to revoke any wage increases it has heretofore granted. (n) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclu- sive representative of the employees in the above- described appropriate office clerical unit with respect to 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an under- standing is reached, embody such understanding in a signed agreement. (b) Make Jessie Butler whole for any loss of earnings suffered by reason of the discrimination against him, in the manner set forth in the section of the Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its plant in St. Louis, Missouri, copies of the attached notice marked "Appendix."6 Copies of said notice, to be furnished by the Regional Director for Region 14, after being duly signed by the Respond- ent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. CHAIRMAN MILLER , dissenting: Despite the lengthy rationale of the majority, the simple facts are, as found by the Trial Examiner, that the delays here were not shown to have been motivated by bad faith and, indeed, that the bargaining resulted in an agreement satisfactory to all concerned, and pro- vided for substantial retroactivity to compensate for the rather long period of inactivity in the bargaining. The fact also is that there is no authority to issue a bargain- ing order for a one-man unit, and that General Counsel did not prove that there is more than a one-man unit left here. I would affirm the Trial Examiner in toto. 6 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with Leather Goods, Plastics & Novelty Workers Union, Local 160, AFL-CIO, as the ex- clusive bargaining representative of our warehouse employees. WE WILL NOT refuse to bargain collectively in good faith with Leather Goods, Plastics & Novelty Workers Union, Local 160, AFL-CIO, as the ex- clusive bargaining representative of our office clerical employees, nor will we unilaterally grant wage increases without consulting with said Un- ion; except that nothing herein contained shall be construed as requiring us to revoke any wage in- crease that we have heretofore granted. WE WILL NOT reduce the number of overtime hours of work for our employees to punish them for joining and supporting the Union. WE WILL NOT coercively interrogate our em- ployees about their union sympathies and activi- ties, or the union sympathies and activities of their fellow employees. WE WILL NOT threaten our employees with loss of privileges during working time, such as coffee- breaks, visiting a lunch truck canteen, warming up automobiles in winter, and speaking with spouses because they join or support the Union. WE WILL NOT threaten our employees with loss of overtime work for joining or assisting the Un- ion. WE WILL NOT threaten our employees with closing the plant if they join or assist the Union. WE WILL NOT threaten our employees with dis- charge for selecting the Union as their bargaining representative. WE WILL NOT promise economic benefits to employees if they reject the Union as their bar- gaining representative. WE WILL NOT promise continued employment to employees in the event they abandon union rep- resentation. WE WILL NOT create the impression that we are surveilling the union activities of our employees. WE WILL NOT interfere with our employees' right to assist the National Labor Relations Board in investigating unfair labor practice charges. WE WILL NOT direct employees to convey threats of reprisals and promises of benefits to other employees for engaging in or refraining from union activities. CRISPO CAKE CONE COMPANY, INC 357 WE WILL NOT unilaterally grant wage increases without consulting and bargaining with the Un- ion, except that nothing herein contained shall be construed as requiring the Respondent to revoke any wage increases it has heretofore granted. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of rights guaranteed them by Section 7 of the Act. WE WILL make Jessie Butler whole for any loss of earnings suffered by reason of the discrimina- tion practiced against him. WE WILL, upon request, bargain in good faith with the above-named Union as the exclusive rep- resentative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment . The bargaining unit is: All office clerical employees at our St. Louis, Missouri, plant, excluding all other employees, professional employees, guards, and supervisors as defined in the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. is whether Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, by certain conduct to be detailed hereinafter. Briefs have been received from the General Counsel and the Respondent which have been duly considered.' Upon the entire record made in this proceeding and my observation of the witnesses who testified on the stand, I hereby make the following: FINDINGS OF FACT AND CONCLUSIONS I THE RESPONDENT'S BUSINESS Respondent, a Maryland corporation with its sole office and place of business in St. Louis, Missouri, is engaged in the nonretail sale and distribution of paper cups, ice cream cones, and related products. During the annual period material to this proceeding, Respondent, in the course and conduct of its business operations, purchased and caused to be transported and delivered to its St. Louis plant, paper cups, ice cream cones, and other goods and materials valued in excess of $100,000, of which goods and materials valued in excess of $50,000 were transported and delivered to said plant from points located directly outside the State of Missouri. The complaint alleges, the answer admits, and I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is undisputed and I find that Leather Goods, Plastics & Novelty Workers Union, Local 160, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. CRISPO CAKE CONE COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314- 622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MAX ROSENBERG, Trial Examiner: With all parties repre- sented, this case was tried before me in St. Louis, Missouri, on August 25 and 26, 1970, on an amended complaint filed by the General Counsel of the National Labor Relations Board and an amended answer filed thereto by Crispo Cake Cone Company, Inc., herein called the Respondent.' At issue ' The complaint, which issued on May 13, 1970, and the amendment to the complaint, which issued on July 21, 1970, are based on charges and amended charges filed and served on March 19 and April 22, 1970, respec- tively At the hearing, I granted the General Counsel's motion to dismiss para- III THE ALLEGED UNFAIR LABOR PRACTICES A. The Contentions The complaint alleges that, commencing on or about Janu- ary 8, 1970,' and continuing until June 12, Respondent en- gaged in a series of acts of interference, restraint, and coer- cion which inhibited its employees' free exercise of rights guaranteed under Section 7 of the Act, thereby violating Section 8(a)(1). It further alleges that Respondent violated Section 8(a)(3) by restricting the overtime working hours of warehouse employees since February 17 because they joined or assisted the Union. The complaint also charges that, on and after February 17 Respondent refused to bargain collec- tively with the Union in an appropriate unit of warehouse employees in violation of Section 8(a)(5) by failing timely to furnish the Union with information regarding the names of said employees, their wage rates, seniority, and job classifica- tions.' Finally, the complaint recites that Respondent unlaw- fully declined to recognize and bargain with the Union for a unit of office clerical employees since on or about March 2, and, by unilaterally changing the existing wage rates for em- ployees in the latter unit with a design to undermine and destroy the Union's majority status therein, also thereby offended the provisions of Section 8(a)(5).' Respondent de- graphs 5 PP, QQ, RR, SS, and TT from the amendment Respondent's unopposed motion to correct the record in certain minor respects is hereby granted. Unless otherwise indicated, all dates herein fall in 1970 It is undisputed and I find that a unit of all regular warehouse employees at Respondent's plant in St Louis, Missouri, excluding over-the-road truck- drivers, office clerical and professional employees, guards, and supervisors as defined in the Act, is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the statute I also find that a unit of all office clerical employees employed by Respondent at its St Louis installation, excluding all other employees, (Cont) 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vies the commission of any labor practices proscribed by the statute. B. The Evidence It is undisputed and I find that, late in 1969 or early 1970, the Union undertook a campaign to organize Respondent's warehouse employees at the St. Louis plant. On January 7, the Union filed a petition with the Board in Case 14-RC- 6341 seeking representational status in the warehouse unit. An election was conducted by the Board on February 17, the Union won, and a certification was accorded it on February 26. Le Roy Rhodes, an official of the Union during the times material herein, testified without contradiction and I find that, on February 16, the day before the election, he was distributing leaflets outside the plant when he met Dean Wadkins, one of Respondent's truckdrivers who belonged in the warehouse unit. Wadkins inquired whether the official clerical employees were eligible to join the Union and obtain collective representation. Rhodes replied in the affirmative and explained that it was necessary for his organization to acquire signed authorization cards from a majority of the office girls, after which he would essay to include them in the warehouse unit if the Union won the forthcoming election among the warehouse personnel. Otherwise, he would sepa- rately petition for a vote in the office group. Thereupon, Wadkins introduced Rhodes to Mary Redmon, an office cleri- cal, who was Wadkins' cousin. Redmon queried Rhodes as to how she could be represented by the Union, and the latter reiterated what he had told Wadkins. Wadkins then sug- gested that they pay a visit to Nelda Riston, another office employee, and the party proceeded to Riston's home. Rhodes informed Riston of the Union's need for signed designations in order to obtain exclusive representation for the office girls, either in the warehouse unit or separately. In consequence of this visit, both Redmon and Riston, after reading the content of the designations, voluntarily executed them on February 16. Inasmuch as the Respondent employed only three office clerical employees on that date, the signed designations of Redmon and Riston afforded the Union a majority showing in the office unit and I so find.' After receiving notification from the Board on February 26 that the Union had been certified as the exclusive agent for the warehouse unit pursuant to its victory at the polls, Rhodes telephoned Robert Shubert, Respondent's vice presi- dent and general manager During their conversation, Rhodes called Shubert's attention to the Union's certification and requested information pertaining to the wage rates, seni- ority, and job classifications of the individuals in the certified unit. Shubert responded that he would attempt to procure this information and relay it to Rhodes as soon as possible. Rhodes also indicated that he had scheduled a meeting of the warehouse employees and asked Shubert to set a date for the initial session between representatives of the Respondent and the Union to hammer out a collective agreement. Shubert replied that he lacked the authority to conduct negotiations and advised that he would contact his superiors about the professional employees, guards, and supervisors as defined in the Act, is appropriate for collective bargaining under Section 9(b) of the Act 6 The parties stipulated and I find that, at all times between February 16 and August 1, the unit of office clerical employees consisted of Susan Gruendler, Nelda Riston, and Mary Redmon. At some undisclosed date prior to August 1, Riston left Respondent's employ for admittedly nondis- criminatory reasons It was also stipulated that in the latter part of August or early September Redmon planned to quit her employment, move to California, and marry and that her departure was not impelled by any illegal action on Respondent's part matter. When the conversation was concluded, Rhodes dis- patched a letter to Shubert on February 27 embodying the contents of their telephonic discussion. On March 2, Rhodes again telephoned Shubert. During their dialogue, Rhodes reminded Shubert that the former had called a meeting of the certified unit employees for the follow- ing day, and he repeated his request for the data relating to wage rates paid to warehouse employees, as well as their seniority status and job classifications. Rhodes also inquired whether Respondent had arrived at a satisfactory date for holding a bargaining session . Shubert explained that he had been unable to contact his superiors to accomplish this task. Before ringing off, Rhodes for the first time informed Shubert that the Union had obtained signed authorization cards from two of the three employees in the office unit and he demanded recognition for that unit. Shubert explained that he was with- out authority to deal with these matters and that he would transmit this intelligence to the responsible corporate offi- cials. When the conversation ended, Rhodes traveled to the Board's Regional Office in St. Louis where he filed a represen- tation petition in Case 14-RC-6384 on March 2 seeking a vote in the office clerical unit. On March 4, Rhodes mailed a letter to Shubert,in which he set forth the names of the members of the Union's negotiating committee who were charged with bargaining on behalf of the warehouse em- ployees and requested a bargaining date. This letter was fol- lowed by another dated March 5, to which was appended the Union's proposed contract proposals for the certified unit, and in which Rhodes requested that Shubert fix a date for a meeting to discuss the proposals. On March 6, Rhodes tele- phoned Shubert about the desired information and a meeting date. Shubert stated that he had been tied up with business affairs but assured that he would attempt to collate the material and send it to the Union that day. Rhodes asked whether he could telephone Shubert the following week. The latter related that he planned to attend the funeral of a deceased friend and that "he would get this as soon as he could" and get in touch with Rhodes later. I further find that Rhodes telephoned Shubert on March 9. After exchanging pleasantries, Rhodes stated that he had not received the information which Shubert had promised on the preceding week and had not obtained a date for a bargain- ing colloquy. Shubert replied that the chief corporate officer, Henry Shapiro, who resided in Chicago, was out of the coun- try and would not return until the latter part of March. However, Shubert promised to contact Respondent's legal counsel in Chicago. Upon Rhodes' inquiry, Shubert advised that Respondent had retained new counsel in Chicago, namely, Attorney Albert Epstein. On March 11 or 12, Rhodes placed a call to Shubert but the latter was not at work. On March 12, Rhodes mailed a letter to Shubert which read: Would you please confirm, in writing, whether or not the date of Wednesday, March 18, 1970, will be suitable for our first negotiating meeting. I would like to suggest that our meeting be held at 1:30 p.m. on the above mentioned date and my office is available for this meeting if you prefer. Would you also confirm in writing the fact that all items agreed upon, when the contract between Local 160 and the Crispo Cake Cone Company is completed, will be retroactive to the date of the signing of the recognition agreement. Rhodes next spoke with Shubert on March 13 when the parties appeared at the Board's Regional Office to execute a Stipulation for Certification Upon Consent Election to pave the way for an election in the office clerical unit. According to Rhodes, he informed Shubert that he had heard that Shub- CRISPO CAKE CONE COMPANY, INC. 359 ert had been interrogating the office and warehouse em- ployees concerning their feelings regarding the Union and he cautioned Shubert against this, to which Shubert replied, "If the Union can do it how come I can't do it?" Rhodes added that the warehouse employees had become perturbed because Respondent had not provided the requested data concerning wages rates, seniority, and classifications. Shubert responded "that he didn't care-let's see, how did he put that to me- that he didn't care even if there was trouble, that he could get a job someplace else, he could do without this job here." Rhodes next contacted Shubert on March 19 and de- manded that the latter agree in writing that the warehouse employees would be afforded any negotiated wage increases retroactive to February 17, the date of the election. Shubert repeated that any such decision resided with his superiors in Chicago. On the same date, Rhodes wrote to Shubert com- plaining that he had not received the wage data and other information, and that Attorney Epstein had failed to com- municate with the Union as Shubert had promised. The same day, the Union filed its original charge with the Board alleg- ing that Respondent had offended the Act by failing to bar- gain regarding the warehouse unit. On March 23, the Union withdrew its petition for an election in the office clerical unit. On April 3, Attorney Epstein dispatched a letter to Philip Dexter, a Board attorney in the St. Louis Region, with a copy to Rhodes, which recited: As per our telephone conversation this morning, please be advised that [Respondent] stands ready to negotiate with [the Union] which has been certified as the bargain- ing agent for the Company's warehouse employees. The delay charged by the Union relative to this bargain- ing has resulted from the illness and the subsequent absence from the city [of Chicago] of the chief executive officer.... Inasmuch as all labor and economic policies must be cleared through Chicago, it was impossible for the St Louis manager of the Company to proceed with any meaningful negotiations . I also bring to your atten- tion the fact that the undersigned, who is labor counsel ... was also out of the city during recent weeks. In any event, all of these matters were brought to the attention of the Union. We are in the process of reviewing the situation in St. Louis and will arrange for a negotiation meeting as quickly as possible. Epstein wrote Rhodes on April 6, under the pen of Epstein's secretary, as follows: With regard to the contents of your letter of this date to Mr. Epstein regarding [Repondent], which reached us this afternoon, please be advised that Mr Epstein is out of the city, but will return to his office Friday morning, at which time he will get in touch with you. Not having received a timely response from Epstein, Rhodes mailed a letter to counsel on April 15 demanding an immedi- ate reply and the designation of a meeting date. Under letter dated April 17, which was placed in the mails on April 21, Epstein advised Rhodes that, upon the former's return to Chicago during the week following April 10, Epstein con- tacted the Board's Attorney Dexter regarding the Union's charges in Case 14-CA-5528 and informed Dexter that "the delay in setting negotiation meetings was due to my absence from the City and to the illness and absence of the executive officer We are currently reviewing wage rates and the Com- pany's financial and economic condition in order to be able to bargain effectively with your Union in light of the contract proposal which you have already submitted." The parties stipulated and I find that, on April 20, Rhodes apprised the Union's secretary-treasurer, Donald Hayes, of the status of negotiations with Respondent and, on April 23, turned over the reins to Hayes. Meanwhile, on April 22, the Union filed amended charges with the Board alleging, inter aka, that Respondent had failed to bargain in good faith regarding the terms and condition of employment for the women in the office unit. On April 23, Hayes advised Shubert that the former had taken over the bargaining chores for the Union and requested that they meet to negotiate in the near future. On April 28, Hayes wrote to Attorney Epstein in Chicago reminding Epstein that, in the course of an earlier conversation, Epstein agreed to contact Hayes but that Hayes had not heard from counsel. On May 1, Hayes received a letter from Milton Yawitz, Respondent's St. Louis counsel, which recited that Yawitz had been in contact with Shubert, that Yawitz planned to consult with the Board's agent that afternoon to obtain the details of the prior relations between the Union and Respondent, and that, after he had received a briefing on all the facts and circumstances, he would expedi- tiously schedule a series of contract negotiating sessions with Hayes. On the same date, Hayes dispatched a letter to Attor- ney Epstein expressing his sympathy over the fact that Ep- stein's mother was mortally ill.' Hayes also noted that he had communicated with Yawitz and he expressed the hope that Epstein would assist Yawitz to familiarize himself with the bargaining situation so that timely negotiations could be un- dertaken. On May 4, Hayes replied to Yawitz' letter of May 1 indicating the former's availability for negotiations as soon as Yawitz managed to assemble the information he needed. On May 5, Epstein thanked Hayes for the latter's condo- lences regarding the death of Epstein's mother and indicated that Attorney Yawitz would thereafter conduct negotiations on Respondent's behalf. On May 19, the parties met for the first time with Hayes representing the Union and Yawitz assuming the role as negotiator for Respondent . It was stipu- lated and I find that substantial agreement was reached at this meeting regarding contract language, although the informa- tion which Rhodes had originally sought regarding wage rates, seniority, and job classifications had not yet been col- lated. A second bargaining session was held on May 28 at which another local counsel, Attorney Glenn Moller, joined Yawitz in the deliberations, and further fruitful discussions ensued. Additional meetings were conducted on June 3 and June 30, at which Hayes raised the point that information concerning Blue Cross coverage, as well as wages, seniority, and classifications had not been made available to the Union. However, at a session which occurred on July 6, Hayes was provided with all of the requested information. At some un- disclosed date prior to the hearing, the parties agreed upon a complete labor contract which was reduced to writing, which carried a 3-year term without provision for reopening during that span, and which was made retroactive to Febru- ary 17, the date of the election in the warehouse unit, as to wage rates. So far as appears on this record, the contract is now a viable instrument governing the labor relations be- tween the parties. Rounding out the stipulation, the General Counsel acknowledged that, apart from the failure to produce the information requested by the Union in March, the parties engaged in bona fide negotiations throughout the period dur- ing which Yawitz and Moller served as the Respondent's negotiators, a period which extended from May 19 until July or early August. The General Counsel argues that Respondent's failure to produce the information regarding wage rates, seniority, and classifications for the certified warehouse unit until July 6 ' In the stipulation, the General Counsel conceded that Mrs Epstein's imminent demise "no doubt contributed to the delay , and that, I think would, to some extent , alleviate portions of the delaying tactics which are alleged as unfair labor practices " 360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD constituted an unlawful refusal to bargain within the ambit of Section 8(a)(5). The predicate for this argument is the Respondent's delay evinced an attitude of rejection of the collective-bargaining principle, and was designed to frustrate the bargaining process and stunt the Union's victory. After a careful review of the record made on this issue, I am not convinced that the General Counsel's argument is menton- ous. Thus, immediately following the Union's certification, Rhodes requested the foregoing information when he wrote and telephoned Shubert on February 27. Shubert reminded Rhodes that the former lacked the authority to negotiate with Respondent and promised to contact his superiors . It is un- disputed and I find that, on several dates in March and April, Shubert repeatedly informed Rhodes that Epstein, Respond- ent's attorney in Chicago, and Shapiro, Respondent's chief corporate executive who also resided in Chicago, were un- available for consultation due to illness. In the latter part of March, Shubert supplied Rhodes with the intelligence that Epstein was at that time the prime corporate counsel on the case and, as early as April 3, Rhodes received a communica- tion from Attorney Epstein advising that Shapiro was ill and absent from Chicago, and that Epstein had been out of town for business and family reasons. Moreover, Epstein noted that he had been in touch with the Board' s Regional Office in St. Louis and that he had been canvassing the situation so that he could arrange "for a negotiation meeting as quickly as possible." It is uncontroverted and I find that, during April, Epstein reiterated that he was desirous of scheduling an early bargaining meeting between the parties but explained that Shapiro remained physically indisposed and that Epstein's mother was on her deathbed, a circumstance which conced- edly justified his unavailability to undertake immediate negotiations. On May 1, Yawitz entered the picture, to be joined by Moller on May 28. The General Counsel admitted that, at all bargaining sessions until agreement was reached, Yawitz and Moller negotiated in good faith on all items other than wage rates, seniority, and classifications, and, even as to these items, the General Counsel grudgingly acknowledged that Respondent's counsel might not have had readily availa- ble to them this information because of their preoccupation with other negotiable issues. Moreover, when the information was collated and proffered by Respondent's counsel on July 6, agreement was quickly reached on all subjects and a con- tract was reduced to writing which made wages, as per the Union's antecedent request, retroactive to February IT In my opinion, the foregoing undisputed facts hardly portray an employer deliberately bent on dragging his feet in order to avoid his statutory duty of dealing with a duly designated bargaining representative, nor do they show that any delay in producing the data impeded the bargaining colloquy in any significant fashion. Accordingly, I conclude that, under the circumstances here presented, Respondent did not violate Section 8(a)(5) of the Act by failing to come up with informa- tion concerning wage rates, seniority, and job classifications until it did, and I shall dismiss this allegation from the com- plaint! I turn next to a consideration of the General Counsel's contention that Respondent unlawfully refused to bargain with the Union for an appropriate unit of official clerical employees; that Respondent's bad-faith rejection of the col- lective-bargaining principle is evidence by the series of unfair labor practices in which it indulged; and that a bargaining order should flow against the Respondent without the neces- sity of the conduct of an election in the office unit of em- ployees. ' Cf United States Sugar Corporation, 169 NLRB No 4 Dean Wadkins was employed by Respondent in the ware- house unit as a truckdriver. He testified that, on January 9, in the presence of employees Butler and Jackson, Shubert remarked that "the union might promise to get you $4.00 an hour, but that he would have to agree to it, and that he would have his own rights to o.k. or reject it." In the same conversa- tion, Shubert inquired as to how these employees felt about the Union. Wadkins further testified that, on January'29, he overheard the conclusion of a discussion between Shubert and employees Swanson and Kimbell in which Shubert stated that, if the Union was successful in its election drive among the warehouse employees, there would be no more coffee breaks and the men would no longer be permitted to visit a lunch canteen truck before noon on working days. It is Wadkins' further testimony that, a week or two before the election of February 17, Shubert approached him at work and "said ttiat they were going to vote on a union ... they were voting on a union and he asked me how I thought about it, felt about it, and I told him I didn't want a union." Some- time prior to the election, Wadkins and employees Butler and Jackson were standing near the bulletin board in the plant when Shubert pointed to a Board notice informing the em- ployees that an election was to take place. During the same period, he had a conversation with Shubert in which he asked Shubert how he could assist in keeping the Union out of the warehouse. Wadkins further testified that, after the election was conducted on February 17, Shubert lamented that Re- spondent had lost the election and mentioned that Wadkins and Butler had voted for the Union while two other em- ployees had not. Shubert then inquired whether Wadkins had cast a ballot for collective representation, and Wadkins ad- mitted that he had done so. About a week following the election, Shubert proclaimed that "overtime would probably be shut off and ... that they might close it down here." Continuing Wadkins' testimonial narrative, he recalled that, on March 5, he heard Shubert speaking with the office clericals about the Union and Shubert told Wadkins that he had asked the girls whether they desired union representa- tion. During this conversation, Shubert also noted that "they could close it down and everybody would be out of a job but him." On some undisclosed date following the election, Shub- ert inquired whether Wadkins had visited the Board's offices because two employees had advised Wadkins to do so. Wad- kins replied that he had appeared before the Board because the employees had said "that it was the government and they wanted me to come down there " On June 10, Union Repre- sentative Rhodes met Wadkins at the warehouse dock and requested that the latter again visit the Board offices. When the discussion ended and Rhodes departed, Shubert accosted the former and asked about the contents of the conversation with Rhodes. After Wadkins repeated the discussion, Shubert said, "I didn't have to go down there if I didn't want to." A few days later, Board Agent Dexter visited Wadkins on the plant parking lot. With Dexter's departure, Shubert appeared and inquired whether Wadkins had given any information to Dexter. Wadkins replied that he had not spoken to Dexter, whereupon Shubert cautioned Wadkins that "I shouldn't say anything, or shouldn't sign anything," explaining that "We'd both be in hot water" if Wadkins did so. Jack Randall Kimbell, who also toiled in the warehouse unit, testimonially recalled a conversation with Shubert about an hour prior to the balloting on February 17. During their colloquy, and according to Kimbell, Shubert reported that "if the union gets in we won't get a damn penny from him or the company, either one." Shubert also remarked that "if the union gets in he'd close the place down and go back to Kansas City." Kimbell further testified that, approximately a week following the election, he accidentally dropped an elevator CRISPO CAKE CONE COMPANY, INC full of ice cream cones. Observing the accident , Shubert warned that "if I dropped one more damn case of cones he was going to fire me." Kimbell related that he had caused accidents of this nature previously and that the only admoni- tion he received from Shubert was that "I wish you wouldn't drop any more cases of cones, it costs the company money." On cross-examination, Kimbell was asked whether, during their conversation, Shubert had told Kimbell that "if the union goes on strike he wouldn 't give you [Kimbell] a penny." Kimbell initially replied that he could not remember. However, Kimbell then recalled that Shubert had mentioned that "if we got the union and went on strike we wouldn't get a penny from him or the company, either one." Harry Lee Swanson last worked for Respondent from Oc- tober 15 , 1969, until March 31, and was a member of the warehouse unit . He testified that, a few days prior to the election of February 17, he was working at the plant when Manager Shubert beckoned to him and inquired "if I liked it there and I answered his question and I said yes, that I did." Shubert then asked "what did I think about a union being in there ... and I said that I believe that things would get better and that we would have better benefits , and Mr. Shubert . told me that if we wanted better benefits that we could ask him and that he would see that we got them.... " Mary Redmon was employed by Respondent as an office clerical employee since October 1 , 1969. As heretofore chronicled, she signed a union authorization card on Febru- ary 16 , in company with employee Riston . Redmon testified that, on January 21 or 22 , she overheard a conversation be- tween Wadkins, her cousin and a truckdriver in the ware- house unit, and Shubert. During the conversation , Shubert said "that he heard they were trying to get a union in the warehouse and how did [Wadkins] feel about it, and Wadkins said that he didn't want it." Redmon further recounted that, on or about March 2, she answered the office telephone and relayed a call from Rhodes to Shubert . Following the conver- sation, Shubert summoned Redmon and employee Riston to his office and informed them that he had received a call from Rhodes who had advised that the clericals desired to be repre- sented by the Union . Shubert asked whether this information was true. Redmon responded in the affirmative , while Riston exclaimed, "I don't know. I don't know that much about it." Before returning to their duties, Shubert remarked that "he didn't have time for the union ." Later that day, Shubert entered the main office where the girls worked and, approach- ing Riston's desk, stated that "he would close the place down first before he'd have a union in the office." On March 5, Shubert again summoned Redmon and Riston to his room and announced that "We're not going to have a union in the office," adding that "he had been offered a position in a different place and that he could take it. He didn 't say he would, he said he could take it." Shubert went on to relate that "if he closed this place down it would mean he would still have a job but we wouldn't...... Turning to Redmon, Shub- ert claimed that "he didn't have to hire [Redmon] , that he was told that I was an expert typist . He said I wasn't an expert, that I could type , though." Shubert then inquired whether Redmon and Riston had executed union designa- tions, to which Redmon replied that they had done so. Shub- ert terminated the discussion by asserting that "we could go on ahead and work up a contract but that didn 't mean he would sign it and as long as it wasn 't signed it wouldn't be any good " When Redmon reported for work on March 9, she informed Shubert that she had decided to vote against repre- sentation by the Union Shubert asked, for the reason for this change of heart, and Redmon explained that "I talked to my mother about it and she thought it was best and I decided I was going to vote no for the union." 361 Redmon also testimonially recalled an incident involving her request for a wage increase in early 1970. Based on that testimony, I find that she was earning $65 per week and asked Shubert for a raise. The latter assured her that he would look into the matter. On March 31, Redmon commenced receiving $75 weekly. When pressed about the circumstances sur- rounding this wage hike, Redmon recounted that her conver- sation with Shubert in which she sought the increase occurred before the Union had come into the picture at the plant. On March 4, after the Union had petitioned for an election in the office clerical unit , Shubert advised her of this circumstance and stated that he was unable to afford her an immediate increase because the emolument might be considered as a "bribe." After the Union withdrew its petition on March 23, the pay raise followed. Jessie Butler had been employed by Respondent in the shipping department for 11 years, and was a member of the warehouse unit . He joined the Union in early January and testified that, on January 8, he overheard Shubert tell an employee named Boehm that "They had to go by the book and according to the union rules they were going to work, you know, according to the union." Shubert added that "All the fellows in favor of the union would probably not have a job." On January 10, Shubert engaged in a conversation with But- ler during which the former questioned Butler as to how he felt about the union campaign. Butler replied that a union served a useful purpose in obtaining better wages and work- ing conditions . Shubert asked whether Butler had signed a union authorization card . Although he had done so , Butler answered in the negative. In a subsequent conversation, Shubert told Butler that the latter "should have come to him instead of going to the union , that he would do more for you than the union would." Shubert mentioned that a strike had occurred in Respondent's plant in Chicago and the employees were "out seven weeks , they never got a dime, no strike money, benefits, they had to go out and get other jobs." Shubert adverted to an organizational campaign in 1962 at a St. Louis operation and mentioned that Respondent "closed the other place down because the boss was not for the union, and he might decide to close the door down here." Shubert promised that Butler would have "a job as long as he [Shub- ert] had one" provided that Butler assisted in keeping "the union out." Shubert cautioned that the warehousemen would not be permitted to leave the premises before noon in order to obtain their lunch from a vending truck if the Union was successful, that they would be prohibited from leaving work during the day to speak with their wives at the dock, that coffee breaks would be abolished , and that they would be barred from warming up their automobiles in winter months prior to quitting time. During this conversation , Shubert di- rected Butler to convey to the latter's father -in-law, Charles Jackson, who also was employed at the warehouse, the con- tent of Shubert's thoughts, a direction with which Butler complied on the following day. A few days later, Shubert spoke to Butler and Jackson in the warehouse. It is Butler's testimony that Shubert repeated his warning that a prolonged and costly strike had occurred at the Chicago, and reiterated that, if the plant in St. Louis became unionized, "the big boss might just shut the door, close the place out." On January 17, a Saturday, while Butler was working overtime cleaning the warehouse and offices, Shubert appeared and told Butler that "we didn't need no union, we didn't need no union to push no broom, we didn't need no union to load any trucks, we didn't need no union to push broom , because he wasn't paying no union wages for no broom pushing and for loading trucks, and calling my recollection back that he did not need all the help we had, he should have laid them off but he didn't want to because of the 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposition of the union." Shubert further warned that "he might decide to close the place down " and utilize the Chicago plant and other of Respondent's plants to distribute its St. Louis products. In this connection, Butler testified that, for some 5 or 6 years prior to the advent of the Union , he cus- tomarily worked 5 hours of overtime each Saturday morning cleaning and dusting in the plant but that, during the period from February 17 to late August, he was not called upon to perform this desired work with the same frequency or in the same volume. Butler further testified that , during the early part of Febru- ary, Shubert brought up the subject of the Union approxi- mately three times a week, dunng which he would interrogate Butler as to the union sympathies and desires of his fellow employees . A few days before the February 17 election, Shub- ert told Butler that "if we could keep the union out we'd have a job ... as long as he had one." Immediately following the election, Shubert accused Butler of letting Respondent down when it became clear that the Union had been successful in the balloting. In support of its defense to this litigation, Rhodes was called as the only witness to proffer testimony on Respond- ent's behalf. I do not credit his testimony where it collides with that of the General Counsel witnesses, not only because the latter impressed me with their sincerity and candor, but also because Rhode's testimonial utterances lacked the ring of plausibility. Shubert testified that, on March 2, he received a telephone call from Rhodes in which the latter claimed that he had obtained signed authorization cards from the office girls and demanded exclusive recognition . Shubert responded that he did not quite understand the purport of Rhodes' demand, and, when Rhodes remarked that the Union sought to include the girls in the warehouse unit, Shubert replied that he could not authorize this step. Immediately after this conversation, Shubert summoned Redmon and Riston into his office, ad- vised them of Rhodes' claim, and expressed his surprise over their conduct . According to Shubert , `I asked the girls if they wanted a union in the office , and Mary Redmon said `I have signed a card." Shubert proclaimed that Riston did not indi- cate that she also had executed a designation, that he did not question her concerning the matter , that Redmon did not state that Riston had signed a card, and that he did not pursue the issue further . Shubert then admitted that he had a discussion with Riston prior to March 13 in which she volunteered that she had signed a designation although she insisted that she did not desire the Union to represent her. However, Shubert claimed that Riston told him on this occa- sion that the only reason she executed the document was to get rid of Rhodes ' and Redmon's presence. When questioned as to whether he ever notified Redmon that he would not tolerate union representation for the office clericals, Shubert initially replied "that none of the compa- nies that we were affiliated with , in any way, to my knowl- edge, had a union in the office, and that it would be kind of a job if we had, if we ended up with a union in the St. Louis office with three people working in it." He volunteered that "I did not say that we would close the office or close the business." Shubert then changed tack and retorted , "I did not say that we would not have a union in the office . I might be contradicting myself there, but I explained it to her that way." Shubert admitted that, after the Union became entrenched in the warehouse unit in February , he curtailed overtime work on Saturdays . When asked to explain the reason for such action , Shubert at first asserted that "I had no particular reason for curtailing Saturday work." He then allowed as how Respondent 's business operations were seasonal in na- ture, explaining that sales slackened during the winter months. Finally, Shubert claimed that the cutback in over- time was prompted by a strike of truckers in St . Louis, which lasted from April 1 to May 18. However , Shubert's assertions are belied by information supplied by Respondent regarding overtime hours worked by warehousemen from January 1969 until August. Thus, for example, with respect to Jessie Butler, the record shows that, during 1969, he toiled practically the same number of hours during the wintertime as he did in the course of the summer months, and this is also true of Frank Boehm, who worked with Butler on Saturdays . Moreover, the record further established that Butler continued to work the same number of overtime hours during the first 8 weeks of 1970 as he did in 1969 . For example, Butler generally averaged between 12-% and 13-% hours of overtime in 1969. From January 1, 1970, to February 28, he continued at this approximate pace. However, on March 7, the week following the union certification, Butler's overtime employment dropped to 7-K hours per week. Despite the fact that the local trucking strike, which began on April 1 , terminated on May 18, Butler's overtime never thereafter escalated to the precer- tification figure except for 2 weeks after May 18. Accordingly, I find that, true to Shubert's prediction made to Wadkins on February 24, Respondent reduced overtime work for Butler on and after February 17 because he had joined and sup- ported the Union. Concluding his testimony , Shubert denied that he had ever forbidden Dean Wadkins from giving assistance to the Board in its investigation of this proceeding . According to Shubert, he had heard from warehousemen that individuals had been summoned to the Board's offices for interviews and "I asked him if he had been called to the Labor Board." Shubert claimed that the purpose of this inquiry was to determine whether Wadkins had engaged in the venture on his own time. Wadkins then volunteered the information that he had visited the Board at the urgings of the Union and Butler. Shubert then told Wadkins that "I didn't think that he had to take instructions from the union or from Jessie Butler or from anybody else working in our place as to where he had to go or appear, or so on, and unless he possibly received a subpoena, if he felt that he didn't want to go to make an appearance someplace, that he didn't have to do it." Based upon testimony which I have heretofore credited, I find and conclude that Respondent interfered with, re- strained, and coerced its employees in violation of Section 8(a)(1) of the Act by the following misconduct: (1) Shubert's interrogation of employees Wadkins, Butler, and Jackson on January 19 as to how they felt about the Union. (2) Shubert's threat made to employees Swanson and Kim- bell on January 29 that the warehouse employees would lose the privilege of coffee breaks and access to a lunch canteen truck during working time if the Union was successful in its organizational campaign. (3) Shubert's interrogation of Wadkins about a week or two before the February 17 election concerning his union sympa- thies. (4) Shubert's creation of the impression of surveillance after the February 17 election by his comments to Wadkins that Shubert knew that Wadkins and Butler had voted for the Union while two other employees had not. (5) Shubert's threat to Wadkins, on or about February 24, that Respondent would probably eliminate overtime work or cease operations because of the Union's election victory. (6) Shubert's interrogation of the office clerical employees on or about March 5 regarding their desire for union repre- sentation, and his threat to close the plant if the Union achieved majority representative status among them. CRISPO CAKE CONE COMPANY , INC. 363 (7) Shubert's threat to Kimbell immediately prior to the election on February 17 that Respondent would terminate its St. Louis installation to rid itself of the Union. (8) Shubert's interrogation of Swanson a few days before the election as to the latter's union inclinations and Shubert's promise of benefits without the presence of the Union. (9) Shubert's interrogation of Redmon and Riston, on or about March 2, regarding whether they had joined the Union and signed union designations , and his threat to cease busi- ness if these employees selected the Union as their bargaining agent (10) Shubert's threat to Boehm on January 8, which was overheard by employee Jessie Butler, that the employees who favored the Union would probably lose their jobs. (11) Shubert's interrogation of Butler on January 10 con- cerning whether the latter had signed a union authorization card and whether Butler favored the Union. (12) Shubert's threat to Butler around the middle of Janu- ary that Respondent might shut down the warehouse if the Union was successful in its organizational campaign, and Shubert's promise of greater benefits if Butler refrained from embracing the Union. (13) Shubert's promise to Butler around the middle of January that the latter would retain his job as long as Shubert was in charge of the plant if Butler assisted in defeating the Union. (14) Shubert's threat to Butler that the employees would be prohibited from taking coffee breaks, warming up their cars, visiting the vending truck, and speaking with their wives during working time in the event the Union was selected by the warehousemen. (15) Shubert's threat to Riston on or about March 2 that Respondent would shut down its installation if the employees selected the Union to represent them. (16) Shubert's direction to Butler to convey the threats and promises to Butler's father-in-law, Charles Jackson. (17) Shubert's threat on January 17, made to Butler, that Respondent would close its installation on the heels of a union victory. (18) Shubert's repeated interrogation of Butler in early February concerning the union sympathies and desires of his fellow employees. (19) Shubert's interference with Wadkins' access to the Board's processes by his threat to Wadkins around the middle of June that he would be "in hot water " for cooperating with the Board agent who investigated this proceeding. The complaint alleges that Respondent violated Section 8(a)(1) of the Act by granting Redmon a wage increase on March 31 because she had abandoned her support of the Union. I have heretofore found that , well in advance of the Union's organizational drive, Redmon asked Shubert for a wage raise Shubert promised that he would look into the matter. On March 4, when the subject arose once more, Shubert informed Redmon that the Union had petitioned for an election among the office clerical employees and that any added wage increment would be deemed a "bribe" for her vote and, consequently, illegal. On March 31 , after the Union withdrew its petition for an election , Redmon received a raise. Under these circumstances, I am not convinced that the General Counsel has proved by a preponderance of the evi- dence that the wage grant was fashioned because of Red- mon's abandonment of the Union for, in my opinion, the inference can equally be drawn that the award was simply a followup of personnel action previously undertaken but with- held because of the legal implications involved Accordingly, I conclude that Respondent did not violate the Act in this regard and I shall dismiss this allegation from the complaint. I have heretofore found that, on and after February 17, Respondent reduced the number of overtime hours worked on Saturdays by employee Jessie Butler because the latter embraced the union cause. By so doing, I conclude that Re- spondent violated Section 8(a)(3) of the Act. The General Counsel urges that I issue an affirmative order requiring Respondent to bargain with the Union regarding the office clerical unit, without recourse to an election. This prayer is bottomed on the assertion that, on March 2, when the Union represented a majority of the girls in the unit, the Respondent lacked a good-faith doubt of that status and, because of the extensive unfair labor practices in which it engaged, Respondent so undermined the Union 's credibility as to make it impossible for that labor organization to succeed in any balloting among those employees . Proceeding from the premise that the Union was the exclusive representative of the office girls on and after March 2, the General Counsel con- tends that it was a violation of Section 8(a)(5) for Respondent to grant Redmon a $10-per-week wage increase on March 31 without prior consultation with her bargaining agent. For its part, Respondent maintains that it harbored a bona fide doubt that the Union at any time represented a majority of its office clerical personnel due to its belief that the designa- tion card which Rhodes obtained from Riston was tainted with duress . As I have heretofore found, Riston voluntarily signed the authorization card on February 16 after receiving a full explanation of its purport from Rhodes and after having read the document. I have also found that, on March 2, Respondent learned that the Union represented two of the three girls in the office unit. I therefore conclude that, on March 2, and until the date of the hearing herein , the Union was the duly designated majority representative of the em- ployees in the office clerical unit Under these circumstances, and in light of the pervasive acts of interference , restraint, and coercion which Shubert visited upon Redmon and Riston, as well as the warehouse employees, which became readily ap- parent to these office workers, I have no hesitation in finding and concluding that resort to the election processes by the Union would have been futile under the teachings of Gissel9 and that, under normal circumstances, a bargaining order would be warranted. However, on this issue, the case is much of a biologic sport. The parties stipulated and I have found that, sometime prior to the hearing, Riston left Respondent's employ for nondis- criminatory reasons. It further appears on the record that Redmon decided to abandon her employment to mount the matrimonial altar for reasons connected with the heart rather than Respondent's antipathy to her union adherence. Thus, at this stage, the unit in which the Union held sway has been reduced to one.10 It is, of course, axiomatic that the Board may not certify a labor organization as the bargaining representative of a lone employee because such a unit is statutorily inappropriate 11 It follows from this legal proscription that the Board may not order an employer to deal with a union in bargaining relations for a unit which bears this infirmity." To stride this decisional barricade , the General Counsel argues that the unit depletion was temporary in character and therefore, precedentially, a continuing majority exists." Apart from argumentative asser- NLRB v Gissel Packing Company, 395 U S 575 ° In this connection , I would note that the warehouse unit , which num- bered 7 on the date of the election on February 17, totaled 3 at the time of the hearing The General Counsel does not urge that this reduction in force had discriminatory undertones. E g, International Salt Company, Inc 74 NLRB 1253 See Transamerica Freight Lines, Inc. 122 NLRB 1033, 1040 See The Lock Nut Corporation of America, 77 NLRB 600, 601 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion, there is no record evidence to carry the claim that the reduction in force was temporary in nature. In order to pre- vail in establishing that an employer had violated the provi- sions of Section 8(a)(5) of the Act, the burden is upon the General Counsel evidentially to prove that the unit for which the labor organization was deprived of its representational rights constituted an appropriate one." This burden the Gen- eral Counsel has failed to sustain in this proceeding. Accord- ingly, although the Respondent's unfair labor practices would have denied the Union a fair chance at an electoral victory, and would have warranted a remedial order directing Respondent to bargain with that organization without a poll of the employees' sentiments, I am persuaded and conclude that the complaint should be dismissed insofar as it alleges that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union in the office clerical unit. I am also convinced and conclude that no useful purpose would now be served by the issuance of an order against Respondent to cease granting wage increases to office clerical employees without prior consultation with the Union. I shall therefore dismiss this aspect of the complaint. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, 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 commerce and the free flow thereof V THE REMEDY Having found that Respondent has engaged in certain un- fair labor practices, I shall recommend that it be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act I have further found that, on and after February 17, Re- spondent reduced the hours of overtime work for Jessie But- ler because he joined and assisted the Union in its organiza- tional campaign among the warehouse employees. I shall therefore order Respondent to make Butler whole for any loss of pay he may have suffered as a result of the discrimination practiced against him. The backpay provided herein shall be computed in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at the rate of 6 percent per annum computed in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and conclu- sions, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in 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. By reducing overtime work for employees in order to punish them for joining and supporting the Union, Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act 4. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. " See National Dairy Products Corporation, 127 NLRB 313, 315, fn 5 [Recommended Order omitted from publication.]