Sitton Tank Co.

SITTON TANK CO. 209 Sitton Tank Company and Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 14-CA-6059 September 17, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On June 21, 1971, Trial Examiner Wellington A. Gillis issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief.I Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions,2 and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified herein, and hereby orders that the Respondent Sitton Tank Company, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order as so modified: 1. Substitute the word "other" for the words "like or related" in paragraph 1(b).3 2. Renumber paragraphs 2(b) and 2(c) as 2(d) and 2(e), respectively, and insert the following paragraphs to be numbered 2(b) and 2(c): "(b) Make whole employees Willie Williams, Kirk Harry, Mathew Hunt, and Roosevelt Yancy in the manner set forth in the section of the Trial Examiner's 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, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 3. Substitute the attached notice for the Trial Examiner's notice. i In addition , the General Counsel filed a motion to remand the case to the Trial Examiner in order that the record be reopened and consolidated with Cases 14-CA-6296 and 14-CA-6359 That motion is hereby denied inasmuch as we consider such action unnecessary to the disposition of those cases or the instant case 2 We find that the General Counsel established a prima facie case as to the 8(a)(3) violations, which the Respondent failed to rebut in adopting the conclusion of the Trial Examiner that the Respondent refused to bargain in violation of Section 8(a)(5) of the Act, we do not rely on his comments regarding the Employer 's lack of good-faith doubt. When determining whether a bargaining order is warranted, the Board now applies the standards enunciated by the Supreme Court in N L R B v Gissel Packing Company, 395 U S 575 Applying those standards to the circumstances of this case, we believe that a finding of a refusal to bargain and a bargaining order are warranted In addition , we find it unnecessary to pass on the Trial Examiner's dictum in fn 16 of his Decision that a bargaining order should issue in this case even if, contrary to the fact, the four layoffs herein had been nondiscriminatory 3 See N L R.B v Entwistle Mfg. Co, 120 F 2d 532 (C A 4) APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate our employees about the Union, make promises of benefit to our employees, and threaten them with the discontin- uance of the practice of permitting the purchase of auto parts and gasoline or the making of loans to our employees based on union activities. WE WILL NOT discourage membership in Con- struction, Buildings Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehouse- men and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or in any labor organization, by discharging any of our employ- ees, or in any like manner discriminating in regard to hire and tenure of employment, or any term or condition of employment in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their Section 7 rights. WE WILL make whole employees Willie Wil- liams, Kirk Harry, Mathew Hunt, and Roosevelt 193 NLRB No. 32 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Yancy for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL, upon request, bargain collectively with Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Work- ers, Local Union No. 682, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employ- ees in the bargaining unit described above with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All employees employed at our plant in Overland, Missouri, including truckdrivers, but excluding office clerical employees, professional employees, guards and supervi- sors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. SITTON TANK COMPANY (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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4167. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WELLINGTON A GILLIS, Trial Examiner: This case was tried before me at St . Louis, Missouri, on May 4, 1971, and is based upon a charge filed on January 21 and amended February 23, 1971, by Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter referred to as Local 682 or the Union,' upon a complaint issued March 5, 1971, by the General Counsel for the National Labor Relations Board , hereinafter referred to as the Board , against Sitton Tank Company, hereinafter referred to as the Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), and upon an answer timely filed by the Respondent denying the commission of any unfair labor practices. At the hearing, all parties were represented by counsel and were afforded full opportunity to examine and cross- examine witnesses , to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, briefs were filed by counsel for the General Counsel and the Respondent. Upon the entire record in this case, and from my observation of the witnesses , their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Missouri corporation , maintaining its only office and place of business in Overland , Missouri, where it is engaged in the manufacture , sale, and distribution of precast concrete septic tanks and manholes and related products. During the year ending September 30, 1970, the Respondent made sales to (1) St. Louis County Water Company in the amount of $8,880.29; (2) Karsten Equipment Company in the amount of $5,115.71; (3) Meiners Plumbing Company in the amount of $3,877.29; (4) The Metropolitan St. Louis Sewer District in the amount of $4,763.95; and (5) Fred M. Luth & Sons, Inc., in the amount of $28,155.78 . These sales in the aggregate amount to $50,793.02. Each of the first four companies listed, St. Louis County Water, Karsten Equipment, Meiners Plumbing, and Metropolitan St. Louis Sewer, meets one of the Board's jurisdictional standards, not excepted under Siemons Mailing Service,2 for the purpose of computing the Respondent's indirect outflow. The fifth, Fred M. Luth & Sons, is a Missouri corporation operating as a sewer contractor in the St . Louis area. The name of the Charging Party was amended at the hearing to appear as set forth in the above caption 2 122 NLRB 81 SITTON TANK CO. During the year ending September 30, 1970, Fred M. Luth & Sons, Inc., purchased goods and materials in the amount of $20,842.47 which were shipped directly from points outside the State of Missouri. Fred M. Luth is a member of Association of General Contractors of St. Louis and, as such, has delegated its labor negotiations to this organiza- tion. Employer members of the Association of General Contractors of St. Louis, in the aggregate, annually receive goods and materials valued in excess of $50,000 which are shipped directly from points outside the State of Missouri. The Respondent's argument that neither the operations of Fred M. Luth nor the latter's membership in the AGC of St. Louis may be relied upon in determining jurisdiction over the Respondent was treated by the Board in its recent Peterein and Greenlee Construction Company case.3 In that case, the Board combined the direct inflow of two employer-members of a multiemployer contractor's associ- ation in order to assert jurisdiction over an excavation contractor. As the combined inflow of the two employers met the Board's minimum nonretail jurisdictional stand- ards, the Board in that case found it unnecessary to consider the direct inflow of the other members of the contractor's association. However, as part of its reasoning therein, the Board noted that consistently it has considered all members of a multiemployer association who are bound by multiemployer bargaining negotiations as a single employer for jurisdictional purposes and reasserted the policy of asserting jurisdiction over an employer which is a member of an employer association where the employer's operations alone do not meet the Board's standards but where the association's total operations or the operations of other members of the association, do meet the requisite standards.4 Relying upon the same rationale as did the Board in Peterein and Greenlee, but carrying it one step further, recognizing that a labor dispute foreseeably would have a substantial impact on interstate commerce whether one member of the multiemployer association individually, or all of the members of that association together, meet the requisite standards, I find that, as the combined total of all employermembers of the AGC of St. Louis exceeds the Board's minimum nonretail jurisdictional standards, the Respondent's services to Fred M. Luth & Sons, Inc., may be included in determining that the Respondent meets the Board's indirect outflow standards. Thus, as the Respon- dent's aggregate of services to the above five employers exceeds the Board's minimum jurisdictional standards for indirect outflow, I find that the Board hasjurisdiction over the Respondent, and that, at all times material to this proceeding, the Respondent was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3 172 NLRB No 238 4 B & M Excavating Inc, 155 NLRB 1152. 5 At the conclusion of the General Counsel' s case, counsel for the Respondent moved for dismissal of the complaint Paragraph 5E of the complaint alleged as unlawful that the Respondent required the repayment in a lump sum the balance due on an employee loan As the General Counsel's evidence failed to substantiate the Section 8(a)(l) violation contained therein, the motion to dismiss insofar as it related to Paragraph 5E of the complaint was granted In all other respects Respondent's motion II. THE LABOR ORGANIZATION INVOLVED 211 The parties admit, and I find, that Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Issues 5 1. Whether on or about January 8 and 14, 1971, Respondent's General Manager Coolbroth engaged in interrogation and threats and other conduct violative of Section 8(a)(1) of the Act. 2. Whether, in laying off employees Willie Williams, Kirk Harry, Mathew Hunt, and Roosevelt Yancy on certain specified dates in January 1971, the Respondent did so because of their having engaged in union activity. 3. Whether the Respondent since on or about January 8, 1971,8 has refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act. B. Facts 7 In early 1971, at the time of the events herein pertinent, the Respondent employed six full-time production employ- ees plus one part-time production employee, all of whom either drove trucks or worked in the shop breaking out manholes, setting up manholes and septic tanks, and pouring concrete. The Respondent's entire operation is run almost exclusively by General Manager William Coolbroth, Jr., for his father and owner, William Coolbroth, Sr.8 On January 4, Robert Sansone, recording secretary and business representative for Local 682, received a telephone call from Mathew Hunt, one of the four alleged employee discriminatees herein, during which Hunt told Sansone that he, along with several other employees, would like to talk with him aboutjoining the Union and being represented by Local 682. Sansone arranged to meet with the employees the following evening, January 5, around 5:00 p.m. At this meeting held at the union office, Hunt, accompanied by alleged discriminatees Kirk Harry, Willie Williams, and Roosevelt Yancy, asked Sansone questions concerning the benefits of Local 682, the health and welfare plan, fringe benefits, and pension plan. Sansone answered the questions, apprising the employees of what the Union represented. After an initial discussion, the employees all indicated that they would like to join the Union, to which Sansone suggested that they first take home the union authorization cards, read them over, and then, if they was denied 8 All dates hereinafter set forth refer to the year 1971 r At the conclusion of the General Counsel's case, the Respondent also rested without putting in a case Accordingly, the factual recitation herein is based upon the General Counsel's evidence and specifically the testimony of his witnesses Thus, quoted testimony as it appears from time to time herein is that of the obvious testifying witness to the conversation 8 Reference herein to Coolbroth, unless otherwise indicated, is to William Coolbroth, Jr 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to join Local 682, to return the cards to him The four employees stated, however, that they wanted to join right then. Hunt, to one side, read the authorization card to Yancy, who could not read well, and then, after a few more questions and Sansone's explanation as to the import of their signing the cards,9 all four of the employees signed cards authorizing the Union to represent them and to negotiate a collective-bargaining contract. Specifically, this card, inter alia, states that the signatory employee does: Hereby authorize the Building Material, Construction, Ice and Coal Drivers, Helpers, Warehousemen and Yardmen, Local No. 682, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, to represent me, in my behalf, to negotiate and conclude all agreements as to hours of labor, wages, and other conditions of employment. Each employee turned over his signed card to Sansone. Sansone told the men that as soon as Coolbroth returned to town he would contact him, show him the authorization cards, and attempt to get the Company to recognize Local 682 as the bargaining representative for Sitton Tank's employees. Three days later, January 8, Coolbroth having returned, Sansone went to the plant, introduced himself to Cool- broth, and told him that he was there on behalf of his employees, that four of his employees wanted Local 682 to represent them. Coolbroth asked the names of the four employees, and Sansone obliged by giving him their names and telling Coolbroth that they had signed union authoriza- tion cards. Coolbroth asked to see the cards, and Sansone showed them to him. After Coolbroth looked them over, he returned them to Sansone, saying that he could not do anything at the present time because his father was out of town. Sansone presented Coolbroth with a recognition agreement, stating that it contained a standard recognition clause, suggesting to Coolbroth that he talk with his father, check with his counsel if he wished, and indicating that he (Sansone) would give him about a week A few hours later, around 1:00 p.m., when Hunt went into the office to get his clipboard, Coolbroth asked Hunt what he thought about the Union Hunt answered, saying that he thought it was a good idea, that it had a lot of benefits. Coolbroth then told Hunt that he was going to get some insurance and hospital benefits for the employees, that the additional cost would not matter as he would go up on his prices. Coolbroth also told Hunt that there would be no more auto parts for the employees, no more loans, and no more gas, and that by doing away with taking out advances in pay it would be a lot easier on the Company's bookkeeping. to On this same date, January 8, as Harry was picking up his clipboard in the office, Coolbroth asked him "What is this Union deal? Is this the road you want to follow, is this the 9 As Harry testified, Sansone told them that "This card we would sign would be a power of attorney that would last for I year which would give him and the Teamsters Union the right to bargain for us as an individual with Sitton Tank Company in all labor relations" 10 This was in reference to the Respondent's long-established practice of extending loans to its employees, and permitting the repayment by weekly pay deductions, and to the company practice of permitting employees to buy auto parts and gas for their personal use, and paying for such items by road you want to follow?" Hunt answered in the affirmative Coolbroth then asked Hunt when it was that Sansone had come out to the shop. Hunt answered that it was Tuesday, and Coolbroth then asked, "Did everybody know about it?" On or about January 13 Sansone went back to the Respondent's office and talked with Coolbroth, who told Sansone that his father was still out of town. When, in reply to Sansone's question, Coolbroth indicated that his father was expected back in a week or so, Sansone said he would give him another week. On January 14, when Yancy went to pick up his weekly paycheck" he found that $25 had been deducted that week. Yancy asked Coolbroth why he had hit his check so heavy that week when the week before he had deducted only $ 10. Coolbroth replied, "Well, Rose, you ain't with me and I got to get mine, got to clean this up . . . I guess you guys got what you all wanted." Later the same day, when Williams went to pick up his check after work, Coolbroth told him then he had to let him go. When Williams inquired as to whether this was a layoff or a discharge, Coolbroth replied that he could take it anyway he wanted to. On January 15, about 1.00 p.m., Coolbroth gave Harry his paycheck and said he did not need him any more. Harry asked Coolbroth when he was to come back, and Coolbroth said he did not know.12 On Monday, January 18, around 8:30 a.m, Coolbroth told Yancy, "Rose, I'm going to have to let you go. I tried to be nice to you guys." Yancy said "okay." Coolbroth told him that he could work the rest of the day if he wanted to, that he would not take anything out of his check. Unexplained is Yancy's reply to Coolbroth that "we made an agreement to take off at noon time." An hour later, about 9.30 a.m., as Hunt was changing his clothes, Coolbroth approached him and told him that the Company had lost two or three contracts and that he would have to let him go, that he could not afford it. Coolbroth told Hunt that he could work the rest of the day if he wished. Hunt worked a half day and left. On January 21, Sansone again visited the Respondent's operations where he talked this time with both Coolbroth, Jr., and Coolbroth, Sr. In reply to Sansone's question of what they intended to do, Coolbroth, Sr., who did most of the talking on this occasion, stated that, as far as he was concerned, the Company's business was bad and that "he would have to close the doors if he went union." When Sansone asked if he meant that the Company did not want to sit down and negotiate a contract with the Union, Coolbroth, Sr., indicated that that was correct. Sansone then inquired as to the status of the four people whom he understood had been discharged. Coolbroth, Sr., replied that the Company did not have any business and that they did not need these four individuals. When Sansone asked if weekly pay deductions 11 Although Friday, January 15, would have been the normal payday, the employees apparently were paid on Thursday, January 14, because of Martin Luther King's birthday 11 Harry's testimony as to Coolbroth's reply is that "he said he didn't know, i guess He didn't give an exact date" In his pretrial affidavit, Harry indicated that Coolbroth's reply was "Yes, I will recall you when we start up again " SITTON TANK CO they were "discharged or what," Coolbroth, Sr., made no answer. Sansone then asked if Coolbroth were taking the employees back, and, receiving a negative reply, stated to Coolbroth that he had no alternative but to file unfair labor practice charges with the National Labor Relations Board At that point, Coolbroth, Sr., stated that, as far as he was concerned, the Company did not come under the Board's ruling. Sansone said that he felt that it did, that he would find out by filing charges, and also that he would take economic recourse by setting up a picket line, to which Coolbroth, Sr, told him to do what he had to do. At some point during this discussion, Coolbroth stated that he could not understand why these people wanted to go union, that he had been fair with them and had loaned them money. Sansone made a reference to fringe benefits, to which Coolbroth, Sr., said that he thought the Company was going to talk about getting the employees some benefits such as health and welfare, pension, and insurance plans. Toward the end of the conversation, Sansone asked Coolbroth if he were sure that he did not want to sign the recognition agreement and bargain with the Union. Coolbroth replied that he did not, and, upon Sansone's again repeating his request to bargain and receiving a negative reply, he stated that Coolbroth left him no alternative but to take economic recourse That evening, January 21, Sansone contacted Hunt and asked that all four of the employees meet him at his office. Sansone apprised the men of the Company's refusal to recognize the Union as the bargaining representative. Sansone recommended that they go on strike, with which recommendation the employees agreed Unfair labor practice charges were filed the same day against the Respondent and, in an amendment filed on February 23, the Union charged a refusal to bargain since January 21 in a unit of "all production and maintenance employees of the employer's Overland, Missouri facility, including truckdri- vers, but excluding office clerical and professional employ- ees, guards and supervisors as defined in the Act." Thereafter, on February 4, a union picket line consisting of the four discriminatees was established at the Respon- dent's plant. The picketing continued until the first part of March when the Union learned that an unfair labor practice complaint was going to issue based upon the Union's charges against the Respondent. Thereafter, around the middle of March, all four employees were called back to work. 13 C Analysis and Conclusions The General Counsel contends that upon learning of the union activity of these four employees, the Respondent engaged in unlawful interrogation and threats, discrimina- torily discharged the four employees because of their union activity, and thereafter refused to bargain in good faith. The Respondent, in refuting the complaint allegations, asserts that the alleged Section 8(a)(1) conduct is isolated in nature, the four layoffs were economically necessitated by seasonal business decline, and, concerning the refusal to bargain, asserts, (1) that "they have not convinced the 213 Company that they represent a majority of employees in any appropriate unit," and (2) the Union never made a demand in "any" unit. That Coolbroth, within hours of having learned that four of his seven employees had signed up with the Union, engaged in unlawful interrogation of his employees is well established. Thus, on January 8, after Sansone left the Respondent's office, Coolbroth asked Hunt what he thought about the Union. Upon Hunt's reply that he thought it was a good idea, adverting to its benefits, Coolbroth countered with the statement that he was going to get some insurance and hospital benefits for the employees. Coolbroth followed this with the admonition that there would be no more auto parts for the employees, no more loans, and no more gas. Later, Coolbroth questioned Harry about the Union and as to whether this were the road he wanted to follow. Several days later, Coolbroth continued his antiunion expressions by telling Yancy, in reply to the latter's question as to why Coolbroth had deducted so much from his paycheck, that "You ain't with me . . . got to clear this up . . . I guess you guys got what you all wanted." These statements stand unrefuted in the record, for Coolbroth, who was present during the entire proceeding, was not called to testify. This conduct not only constitutes a violation of Section 8(a)(1), it also establishes union animus on the part of the Respondent, supplying in part the motivation for the subsequent termination of the four union adherents. I find, as alleged in the complaint, that Coolbroth's asking Hunt what he thought about the Union constitutes unlawful interrogation, that his statement to Hunt that he was going to get benefits for the employees constitutes a promise of benefits, that Coolbroth's warning that there would be no more auto parts, no more loans, and no more gas constitutes unlawful threats, that Coolbroth's question of Harry as to the Union and whether this were the road he wanted to follow is unlawful interrogation, and finally that Coolbroth's statement to Yancy that "You ain't with me . got to clear this up . . . I guess you guys got what you all wanted" is an unlawful threat, each of which constitutes interference, restraint, and coercion of employees in the exercise of their rights and, as such, a violation of Section 8(a)(1) of the Act. As to the alleged discriminatory discharges, I again have little trouble finding a violation. Williams had been employed since November 1970, Harry since July 1970, Yancy since early 1970, and Hunt off and on for 6 years. All four were terminated without prior notice of any kind and within 10 days of Coolbroth's learning of their union advocacy and their having signed union authorization cards and shortly after his engaging in unlawful interroga- tion and threats. While the evidence indicates that, at least in the case of Hunt, Coolbroth may have alluded to the economic necessity of a layoff when making the termina- tion, such statements are self serving and, by themselves, have no probative value. Apart from Coolbroth's having told Williams at the time of his hire, that there was a possibility that he "might get laid off after business got slower," and Coolbroth, Sr.'s assertion to Sansone on 13 The record is totally void of evidence revealing the circumstances under which the four employees were recalled by the Company 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD January 21 that business was bad and that he did not need these employees, there is no record evidence to support such assertion by Coolbroth or to affirm the Respondent's position that these layoffs were in fact economically necessitated by a seasonal business decline. The Respon- dent's true motives for these terminations may well be found in the coercive conduct alluded to above and, on January 21, in refusing Sansone's request to bargain, in Coolbroth, Sr.'s, expressed fear of having to "close the doors if he went Union," plus his lack of understanding as to why these employees wanted to go union when he had been so fair with them. I find, under these circumstances, that in terminating the employment of Willie Williams on January 14, Kirk Harry on January 16, Mathew Hunt on January 18, and Roosevelt Yancy on January 18, 1971, the Respondent did so because these employees had signed up with the Union. Accordingly, I find their discharges to be discriminatory and in violation of Section 8(a)(3) of the Act. With respect to the Section 8(a)(5) allegation, the facts also are quite simple. On January 8, Sansone apprised Coolbroth that he represented four of his seven employees, showed Coolbroth upon request the four union authoriza- tion cards which his employees had signed, and requested that the Respondent execute an agreement recognizing the Union as the collective-bargaining representative. As already noted herein, these cards clearly and without ambiguity state their purpose on their face, specifically authorizing the Union to represent the employee for the purpose of negotiating and concluding agreements as to hours, wages, and other conditions of employment. Without raising any question of any kind, Coolbroth merely begged off until his father returned from out of town. When refusing to recognize the Union and to negotiate a contract on January 21, Coolbroth, Sr., could only venture as a reason for such refusal that the Company's business was bad and that "he would have to close the doors if he went union." 14 Thus, at no time during the conversation with Sansone did Coolbroth, Sr., raise any doubt as to the validity of the cards, the union's representative status, the sufficiency of the demand for recognition, nor did he indicate a question existed as to the unit sought. The arguments as to majority and failure of the demand to state a unit were first raised by counsel at the hearing and in his brief. In view of all the circumstances, and the fact that these four employees constitute a majority of any unit, be it production and maintenance or an all- employee unit, as set forth in the Union's February 23 amended charge, I find such argument to be without merit. As recognized by the Board in its recent Nat Harrison Associates case,15 the important question concerning whether a union's demand sufficiently identifies the unit for which bargaining is sought, is whether the employer knows that he is being asked to bargain with the union as a representative of a certain group of employees. The Board there held that all the surrounding circumstances must be 14 Coolbroth, Sr 's, assertion on this occasion that, as far as he was concerned, the Company did not come under the Board's ruling, was not made in reply to the Union's request to bargain, but rather in answer to Sansone's expressed intent to file unfair labor practice charges as to the four alleged discriminatees 15 Nat Harrison Associates, Inc, 177 NLRB No 24 considered "as no magic words are needed in this field of law." Except for the office clerical, which category is normally not included with production employees, Respon- dent here employs but two categories of employees, two shop employees and five truckdrivers who also work as shop employees. Of the four union authorization cards, two were signed by truckdnvers and two by shop employees. Together they constitute a majonty of the Respondent's employees. Thus, Coolbroth could in no way have been misinformed or confused as to whom, or what unit, the Union was seeking to represent. I find, as alleged in the complaint, that "all employees of Respondent including truckdrivers employed at its Over- land, Missouri, plant, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act" constitutes a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. The record amply demonstrates, and I find, that on January 8, at which time the Union made its initial bargaining demand and request for recognition, the Union represented a majonty of the Respondent's employees in the above appropriate unit. I further find, for reasons above, that the Respondent, in refusing to bargain with the Union on January 8, did not have a good-faith doubt of majority but was seeking time to undermine the Union. Such conduct constitutes a refusal to bargain within the proscription of Section 8(a)(5) of the Act, and I so find. If there ever were a case warranting the issuance of a bargaining order as a remedy for a Section 8(a)(5) refusal to bargain, in my opinion this is one. And, as the Supreme Court has held, a bargaining order is appropriate where an employer rejects a union card majority while at the same time it is committing unfair labor practices that tend to undermine the Union's majonty and make a fair election an unlikely possibility. N.L.R.B. v. Gissel Packing Co., 395 U.S. 595. In view of the Respondent's interrogation, threats, discriminatory discharge of all four union adher- ents, and bad-faith refusal to bargain, I find that this case falls well within the purview of the Court's Gissel rationale.is Accordingly, as the Respondent's unfair labor practices are so coercive and pervasive as to destroy the conditions necessary for a free election and, as the employee sentiment as expressed through their union authorization cards is, in my opinion, a more reliable measure of employee desires on the issue of representation than an election in this case, I find that a bargaining order is warranted.17 Upon the basis of the foregoing findings of fact, and upon the record as a whole, I make the following: CONCLUSIONS OF LAW 1. Sitton Tank Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Construction, Building Material, Ice and Coal, 16 1 would recommend that a bargaining order issue in this case even if, contrary to the fact, the four layoffs herein had been nondiscriminatory Gibson Products Company of Washington Parish, LA, Inc, 185 NLRB No 74 17 Lou De Young's Market Basket, Inc., 181 NLRB No 10 SITTON TANK CO. 215 Laundry, Dry Cleaning, and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen And Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment of Willie Williams, Kirk Harry, Mathew Hunt, and Roosevelt Yancy, thereby discouraging membership in and activity on behalf of a labor union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All Respondent's employees employed at its Over- land, Missouri, plant, including truckdnvers, but excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. On January 8, 1971, and at all times thereafter, the Union was the exclusive selected and designated represent- ative of all employees in the above-described unit, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 7. By refusing on January 8, 1971, and at all times thereafter, to bargain collectively with the Union as the exclusive collective-bargaining representative of the em- ployees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act THE EFFECT UPON COMMERCE OF THE UNFAIR LABOR PRACTICES The activities of the Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, 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 of commerce THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices , it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been found that the Respondent discriminatori- ly discharged employee Willie Williams on January 14, 1971, Kirk Harry on January 15, 1971, and Mathew Hunt and Roosevelt Yancy on January 18, 1971, thereby violating Section 8(a)(1) and (3) of the Act, and taking cognizance of the fact that all four employees have since been reinstated to their former jobs, it is recommended that the Respondent make each of them whole for any loss of pay he may have suffered by reason of the discrimination against him, by making payment to each of a sum of money equal to the amount he would have earned from the earliest date of the discrimination to the date that he was reinstated, less net earnings during said period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and shall include the payment of interest at the rate of 6 percent to be computed in the manner set forth by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. In this regard, it is further recommended that the Respondent preserve and, upon request, make available to the Board or its agents for examination and copying, all payroll records and reports, timecards, and all other records necessary to compute the amount of backpay. Having found that the Respondent on January 8, 1971, and at all times thereafter has refused to bargain collectively with the Union as the duly designated representative of the employees in an appropriate unit, it is recommended that the Respondent, upon request, bargain collectively with the Union as the exclusive representative of said employees, and, if an agreement is reached, embody such understanding in a signed agreement. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 18 Respondent Sitton Tank Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees about the Union, unlawfully promising its employees benefits, unlawfully threatening its employees with the discontin- uance of its practice of permitting the purchase of auto parts and gasoline and the making of loans. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except in a manner permitted by the proviso to Section 8(a)(3) of the Act. (c) Discouraging membership in, and activity on behalf of, Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning, And Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen And Yardmen, And Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers Of America, or any other labor organization, by discharging any of its employees, or in any like manner discriminating in regard to the hire or tenure of employment or any term or condition of employment, in violation of Section 8(a)(3) and (1) of the Act. 18 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Refusing to bargain collectively with Construction, Building Material, Ice and Coal, Laundry, Dry Cleaning, and Industrial Laundry and Dry Cleaning Drivers, Helpers, Warehousemen and Yardmen, and Allied Workers, Local Union No. 682, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representa- tive of the employees in the above-described appropriate unit with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment in violation of Section 8(a)(5) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive collective-bargaining representative of all the employees in the above-described appropriate unit, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, and embody in a signed agreement any understanding reached. (b) Post in conspicuous places at its Overland , Missouri, plant, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 19 Copies of said notice, on forms provided by the Regional Director for Region 14, shall, after being duly signed by an authorized representative of the Respondent, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.20 19 In the event that the Board's Order is enforced by a Judgment of a 20 In the event that this recommended Order is adopted by the Board United States Court of Appeals, the words in the notice reading "Posted by after exceptions have been filed, this provision shall be modified to read. Order of the National Labor Relations Board" shall be changed to read "Notify the Regional Director for Region 14, in writing, within 20 days "Posted Pursuant to a Judgment of the United States Court of Appeals from the date of this Order, what steps the Respondent has taken to Enforcing an Order of the National Labor Relations Board " comply herewith "