Scott Gross Co., Inc.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scott Gross Company, Inc. and General Drivers, Warehousemen and Helpers Local 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Case 9-CA-6294 June 12, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 29, 1972, Trial Examiner Anne F. Schlezinger issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings,' findings, and conclusions2 and to adopt her recommended Order. 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 and hereby orders that Respondent, Scott Gross Company, Inc., Lex- ington, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i it is well settled that an alleged discrimmatee is entitled, as a matter of, right, to remain in the hearing room throughout the taking of testimony,' since he is regarded as a complainant , whether or not he is the charging party Sopps, Inc, 189 NLRB No 129, and cases cited therein at in 4 The Trial Examiner's ruling permitting a fifth employee witness to remain was within her discretion, which has not been shown to have been abused 2 We agree with the Trial Examiner that under the principles laid down in N L R B v Gissel Packing Company, Inc, 395 U S 575, a bargaining order is warranted in this case Respondent's onslaught of unlawful activity, fully set forth in Cie Trial Examiner's Decision, consisted almost entirely of conduct by Respondent 's president and sole stockholder and involved directly a majority of the nine unit employees Respondent 's agreement to reinstate the discnmmatees without loss of pay and unlawful promises of benefits were made while negotiating directly with its employees in order to induce them to abandon their union activity, thus interfering with their Sec 7 rights Thereafter, Respondent coerced employees into writing letters to the Union disavowing their desire for representation by threatening the employees that otherwise the unlawfully promised benefits would not be put into effect Contrary to the Respondent's contention, the reinstatement of discriminatorily discharged employees, its failure to put into effect the unlawfully promised benefits, and its expressed willingness to consent to an election do not, separately or collectively , persuade us that a bargaining order is not justified here We note, and consider significant because it reveals Respondent's union animus and adamant rejection of the bargaining concept, the record evidence that similar disavowal letters which appear to have been solicited by the Respondent followed the Union 's attempt in 1970 to become collective-bargaining representative for these employees. Accordingly, we find that Respondent's extensive unfair labor practices so diminished the possibility of ensuring a fair election that employee free choice is more effectively ascertained by the use of signed authorization cards than by an election Since on May 26, 1971, the Union had an unquestioned majority of validly signed authorization cards, an order to bargain is appropriate See NL RB v Gissel Packing Company, supra TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ANNE F. SCHLEZINGER, Trial Examiner : Upon a charge filed on June 3, 1971, by General Drivers, Warehousemen and Helpers Local 89, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, referred to herein as the Charging Party or the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 9 (Cincinnati, Ohio), issued a complaint dated August 6, 1971, against Scott Gross Company, Inc., herein called the Respondent . The complaint alleges that the Respondent has engaged in and is engaging in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended . In its answer, duly filed, the Respondent admits some of the factual allegations of the complaint but denies that it has committed the alleged unfair labor practices. Pursuant to due notice, a hearing was held before the Trial Examiner at Lexington, Kentucky, on November 3 and 4, 1971. All parties appeared at the hearing and were afforded full opportunity to be heard , to examine and cross-examine witnesses, and to introduce 'relevant ,evidegce.i Subsequent to the ' close of; the hearing, a brief was filed by the General Counsel on December 9, 1971. Although the time originally set for filing briefs was extended to December 9 at the request of counsel for the Respondent, counsel filed a notification on December 8, stating that the Respondent "hereby notifies the Trial Examiner of its decision not to file a brief at this stage of the proceedings herein and explicitly reserves the right to file Exceptions and/or briefs in timely manner at subsequent stages of the proceedings." Upon the entire record in this case and from my observation' of the "witnesses , I ' make ' the 'following: i Counsel for the Respondent objected at the hearing to examination of witnesses by the Charging Party in addition to the General Counsel, to examination of witnesses by a representative of the Charging Party who was not an attorney, and to failure to apply the sequestration rule to the four alleged discriminatees These objections were overruled . See N L.R B v. Plasterers' Local Union No 79 404 U.S. 116, in which the Supreme Court stated . "The Court has previously had occasion to construe the term 'party' in the National Labor Relations Act, and it has given it a broad and realistic definition . " The Court referred in this regard to "the common law rule that 'all persons materially interested in the result of a suit ought to be made parties so that the court may do complete justice ' " See also, as to the right of the charging party to participate in the proceeding , International Union, United Automobile, Aerospace & Agricultural Implement Workers of America v N L R B, 231 F.2d 237, 242 (C A. 7), cert denied 352 U S. 908; and, as to the Board rule that "alleged discnminatees are entitled to be present during the taking of all testimony because, in effect, they occupy the status of complainants...." Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294. 197 NLRB No. 75 SCOTT GROSS CO., INC. 421 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a Kentucky corporation engaged in the processing, supply, and sale of compressed and liquified gases from its Lexington, Kentucky, location, the only operation of the Respondent here involved. The Respondent annually purchases, from suppliers located outside the State of Kentucky, goods valued at over $50,000 which it causes to be shipped from points outside the State to its location in Lexington, Kentucky, and makes gross sales to customers valued at over $500,000. The complaint alleges, the Respondent's answer admits, and I find that the Respondent is, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED I find, as the complaint alleges and the Respondent's answer admits, that General Drivers, Warehousemen and Helpers Local 89, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that the Respondent, by President Scott and/or Manager Sparks, on specified dates, interro- gated employees about their activities on behalf of the Union; threatened employees with reprisals because of such activities; promised benefits if employees would give up their union activities; bargained directly with employees in order to coerce them into giving up their support for the Union; demanded that employees write letters to the Union disavowing their membership cards before they could receive promised wage increases and other employ- ment benefits; discriminatorily laid off employees Randy Wolber, Mack Currens, Richard Toney, and Charles Ritchey on or about May 28 and 29, 1971, and failed and refused to reinstate them until June 2, 1971; and refused to recognize or bargain with the Union, which a majority of employees in an appropriate unit had designated as their collective-bargaining representative and which had, by registered mail on or about May 27, requested the Respondent to recognize and bargain with it. The Respondent's answer denies the commission of the alleged unfair, labor practices: and' avers as follows: Respondent states that on Fnday, May 28, 1971, a registered letter addressed to Mr. Woodrow Scott, individually, with a return receipt requested, was presented to office personnel at the company offices and was, by reason of Mr. Scott's absence from the office, not accepted. Mr. Scott was, upon his return later that day, notified that the registered letter was at the post office and he did, on Wednesday, June 2, 1971, receive said letter, which letter was, in fact, that Union request for designation as bargaining agent referred to in . . . the Complaint. B. The Union's Letter The Union's letter dated May 27, 1971, asserting that it represented the Respondent's employees and requesting recognition or an opportunity to establish its card majority,2 was sent I by, registered mail addressed I to: Mr. Woodrow Scott Scott Gross Company, Inc. 664 Magnolia Avenue Lexington, Kentucky On the left side of the envelope appeared the Union's name and address, most of it in large and conspicuous print, as well as a union insignia about an inch in height. On Friday morning, May 28, the letter was delivered by a postman to Mrs. Rust, who has been employed as the Respondent's bookkeeper for 15 years. Her duties include receiving and opening the daily mail, placing the mail for Scott, president of the Respondent, on his desk, and dealing with registered mail. Mrs. Rust testified that the Respondent's policy for many years as to registered mail provides that she sign for and accept such mail if it is addressed to the Respondent but not if it is addressed to Scott personally, although she admitted that any registered mail she did accept would be given to Scott. She also testified that mail bearing Scott's name is considered to be for Scott personally even if not marked personal and even if addressed to Scott as president of the Respondent. Scott had been on a business trip for about a week but returned on Thursday night, May 27, and was at home on Fnday morning when the postman delivered the Union's letter to the office. Mrs. Rust testified that, pursuant to the Respondent's policy, she did not accept the letter, even though she noticed it was from the Union, and even though the address included the company name, because Scott's name appeared before the company name. She evidently had some doubt about the application of the policy in this instance, however, as she had the postman wait while she went to another office to get advice. She consulted Mrs. Gross, who is Scott' s sister, and who testified that she is the vice president of the Respondent and has been active in the business "off and on since 1949."3 Mrs. Rust testified that she did not mention to Mrs. Gross that the letter was from the Union, that she told Mrs. Gross only that there was a registered letter for Scott, that she "probably didn't" mention that the company name was included in the address, and that she asked if she should sign for it. According to Mrs. Gross, Mrs. Rust `just asked me if I wondered if she should sign and I said, well, I said, `No.' " She testified further that Mrs. Rust told her the letter was addressed to Scott but did not indicate who sent the letter and she did not ask. After 2 The Union had attempted to organize the Respondent's employees about a year earlier 3 Mrs Rust testified that Mrs Gross is the secretary of the corporation Scott testified that Mrs Gross is the secretary-treasurer and the only individual other than Scott authorized to sign checks The only corporate officer in addition to Scott and his sister is his wife Scott is the sole stockholder. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this conversation, Mrs. Rust testified, the letter was returned to the postman; the unsigned receipt, which she left on her desk when she went to see Mrs. Gross, was left on her desk by the postman; she put it in a cigar box on her desk and does not know what became of it. She never mentioned the registered letter to Scott, who was in the office that same day. Mrs. Gross testified that she called Scott at home that morning to enquire if he had returned from the business trip, that she mentioned the letter to him during their conversation, and that he did not ask who sent the letter. Scott, who testified that the policy is for others not to sign for registered mail "addressed to me personally," also testified that Mrs. Rust consulted Mrs. Gross because "these girls ... thought this might be an exception," that it is the usual practice for Mrs. Gross to let him know if he has a "personal registered letter," that when she called he asked who the letter was from, but she did not know, as the "only thing she saw was the slip that came in," and that Mrs. Gross told him she saw the letter was addressed to him personally. Lukins, a warehouse dispatcher, who was called as a witness by the Respondent, testified that he has been employed for 13 years; that his job does not include handling mail but, when a registered letter sent by the Union during the first campaign was delivered on a Saturday morning and he happened to be the only one "in the store," he signed for it and left the letter with the other mail; and that nothing was ever said to him about signing for a registered letter. This letter, which is in evidence, is dated January 16, 1970, is addressed to "Mr. Woodrow Scott, Manager, Scott Gross Co., Inc.," and requests recognition. Scott went to his office on Friday morning, May 28, to pick up the week's mail and some papers on which he was going to work at home. He returned to his office later that day to lay off some employees. He did not, while going to and from his office, which he testified was about 3 miles from the post office, pick up the registered letter. During the time he was at his office, neither Mrs. Rust nor Mrs. Gross, according to their testimony, mentioned the registered letter to him. Scott testified that the Respon- dent's business, which closes generally at noon on Saturday, was closed that Saturday, Sunday, and Monday for the Memorial Day weekend, that he had guests for the holiday weekend, and that he made no attempt to pick up the letter at the post office on Friday or Saturday prior to the holiday weekend, or on Tuesday or Wednesday after the holiday weekend, but picked it up on Thursday, June 3.4 In the interim, Scott laid off four unit employees and engaged in other conduct in issue herein. I found Scott a hesitant, evasive, and unpersuasive witness. In addition, his testimony contains numerous inconsistencies and self-contradictions and in general is of a nature that strains credulity. I also found Mrs. Rust and Mrs. Gross reluctant and unconvincing witnesses, and their 4 The Respondent's answer states that Scott received the letter on Wednesday, June 2, but his testimony as well as a stamp affixed to the envelope by the post office indicate that he did so on Thursday, June 3 5 See Bon Hennings Logging Co v N L R B, 308 F 2d 548, 554 (C A 9), N L R B v Melrose Processing Co, 351 F 2d 693, 698 (C A 8), Pasco Packing Company, 115 NLRB 437, Short Stop, Inc, 193 NLRB No 107, testimony, in all the circumstances of this case, does not have the ring of truth. I find, therefore, on the totality of the evidence, that Mrs. Rust, the Respondent's agent for the receipt of mail, who admittedly observed that the letter was from the Union, so advised Mrs. Gross, who in turn so advised Scott, and that Scott embarked on the course of conduct described below on the basis of his knowledge of the Union's letter.5 C. The Discriminatory Layoffs The parties stipulated at the hearing to the appropriate- ness of a unit of eight or nine employees .6 Almost immediately after the attempt to deliver the Union's letter, Scott terminated four unit employees, all of whom had been in a group of employees who went to the union hall on May 26 and signed membership cards. Scott testified that when he went to his office on Friday, May 28, to pick up the mail, he walked through the warehouse and was there "ten minutes probably"; that work had not been done which should have been and the warehouse "looked like a disaster area"; that he had seen comparable conditions in the warehouse at "different times, but never that bad"; that "I guess I was more or less, you know, up tight, you know, and I picked up the papers and went on back home." Although Scott testified that he decided while at the warehouse to discharge the employees responsible, he said nothing about it to anyone at the warehouse. He also made no mention of this when, after he returned home, he telephoned Sparks, the manager and an admitted supervisor, and asked Sparks to send Wolber out to do some work at the Scott home. Scott, who had been having construction work done at his home, wanted some bricks in the yard moved and testified that he called for Wolber because Wolber was the newest employee. Scott also testified that Wolber's job was to keep the warehouse clean and that part of the warehouse neglect was his responsibility. Sparks testified that Scott called him that morning and asked if Wolber were there and if he were busy; that he replied that Wolber was out making deliveries; and that Scott then "said, `Well, if he comes back in and hadn't got nothing to do, send him over to the house. I have some bricks I want to move over here out of the yard.' " Sparks testified further that when Wolber returned after this call, he had to go right out again two or three times, and was not available to go to Scott's home until about 4 o'clock in the afternoon, when Sparks told him Scott wanted some work done at the house. Scott, asked by counsel for the Respondent to describe what occurred after Wolber arrived, testified as follows: Well, he came to my house, he knocked on the door and I went out in the yar d and talked to him and told him what I wanted him to do, to remove these bricks Then I asked him why all these jobs were not done, why the warehouse was in such a mess this week. He United Electric Company, 194 NLRB No 105. 6 The parties stipulated that the unit included Blair and Childers, drivers, Wolber, Currens, and Charles Ritchey, driver-warehousemen, Carl Ritchey, a route man , Toney, a warehouseman, and Adrian Smits, referred to as a driver or warehouseman The status of Lukens, dispatcher and warehouseman, was in dispute SCOTT GROSS CO., INC. 423 went on to tell me, "Well, the boys became unhappy this week while you were gone and I think some of them had talked to the Union." Of course, I said, "Well, I will check on it." Of course, he went ahead and did his job and left and went on back. That was about the extent of the conversation other than the fact that I said, "Well, it's your responsibility on this warehouse and especially the trash and this isn't the first time you have been told so I am going to have to let you off." I didn't fire him. I said, "I am going to lay you off." After he laid off Wolber, Scott testified, he went back to the office "to lay off the rest of the people involved in what we talked about in regard to the warehouse and cylinders and the other three people involved was Currens and Toney and Charles Ritchey." Scott waited and laid off Currens and Toney as each returned from making deliveries. Charles Ritchey was not there that afternoon but, Scott testified, on the following day "I had a talk with him because it was his Saturday to work-no, I called him at home, I guess it was, and told him the same thing, that I would have to lay him off and he was laid off on Saturday morning." Scott testified that all four were told they were laid off rather than discharged because that would make it easier for them to find otherjobs, but he also testified that they were discharged as far as he was concerned. The employees involved gave a completely different description of what occurred. Wolber testified, as Sparks did, that it was about 4 p.m. when Sparks told him to go to Scott's house to do some work there. Wolber testified further that when he arrived, Scott said he had wanted Wolber to move some bricks, but his sons were home from school and were doing the work; that as Wolber walked back to his truck Scott said, "By the way, how do you feel about the Union?"; that when Wolber replied "I'm for it," Scott said, "Well, I'm- sorry to hear this," and asked Wolber's reasons; that after some discussion of these reasons, Scott said "he was really sorry to hear that I was for the Union because he wanted at a later date might put me into sales and I said, `I'm sorry, but that's where I stand for the Union.' " Wolber testified that he then got into his truck and drove back to work, and was at work when Scott called him into the office and "said that he had been checking his books and due to a shortage this month that he was going to have a layoff . . . that if I ever do get anotherjob that he would recommend me and everything." Wolber testified further that he had been given no notice of a layoff and that Scott did not criticize his work. Currens, who had been employed about 2 years, testified that, on May 28, Scott "told me he had went over his records that day and he had low overhead and he had to lay me off. He said my work was fine and if I went to look for another job, he would recommend me and as far as then, I could start looking for another job." Currens also testified that he had never previously been laid off, that he had been given no notice of this layoff, and that he did not observe any shortage of work. Toney, who had been employed over 1 1/2 years, testified that Scott called him to the office about 5 p.m. on -viay 28 and said he was just back from a vacation and "I got to looking at the books. I've got low overhead; it's awful short notice but I'm going to lay you off. There is nothing wrong with your work or anything like that. If you ever want a job some place else, I'll give you a good recommendation." Toney also testified that he had been given no notice of a layoff and that he had not observed any shortage of work. Charles Ritchey, who had been employed 5 or 6 years, testified that he was told by Sparks at about 8 a.m. on Saturday, May 29, to go to Scott's house right away, and that when he did so Scott "told me due to work shortage he would have to lay me off for a while." Ritchey, who had never been laid off before, testified that he had not noticed any shortage of work. All those laid off, except Wolber, accepted Scott's later offers of reinstatement and were employed by the Respondent at the time of the hearing. I found Wolber, Currens, Toney, and Charles Ritchey more candid and forthright witnesses than Scott . Moreover, Scott was the first witness at the hearing, called and examined by the General Counsel under rule 43(b) of the Federal Rules of Civil Procedure, and examined at this time by counsel for the Respondent also. Although present in the hearing room thereafter throughout the hearing, Scott was not recalled, and no other witness was presented by the Respondent to refute the testimony of the laid-off employees as to the circumstances of their layoffs. Accordingly, on the basis of the demeanor of the witnesses "along with the consistency and inherent probability of testimony," 7 I credit the testimony of the laid-off employees as to the circumstances of their layoffs. As to the cause of these layoffs, I find wholly unworthy of credence Scott's testimony that they were due to the condition in which he found the warehouse after his week's absence. He said nothing about it at the warehouse to anyone and he did not discuss the layoffs of about half the unit employees with Sparks, the manager of the operation.8 Asked by counsel for the Respondent about the condition of the warehouse on Friday, May 28, Sparks testified that, "Well, of course, at that time we had been cleaning, and a bunch of cylinders and things like that and where they had sanded those cylinders and ground them there was a bunch of dirt on the floor and tags off of decals where they had been decaling cylinders and trash cans full of trash," and that this condition "comes up occasionally." There is no indication that Sparks spoke to anyone about the condition of the warehouse that day. As to Scott's visit to the warehouse that day, Sparks testified that "I never seen him." I find equally unbelievable the reason Scott gave the laid-off employees-shortage of work. The employees had not observed any shortage of work, no evidence of a work shortage was presented, they were given no notice of a layoff, and all were offered reinstatement a few days later with no loss of pay, as described below. On examination by Respondent's counsel, Scott ex- plained his references to being "up tight" on May 28 as follows: "Well, there was a number of things; first, I had 7 Universal Camera Corporation v N L. R B, 340 U S 474 8 See Federal Copper & Aluminum Co, 193 NLRB No 113 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been out of town for a whole week and my own workload had piled up plus getting back on Friday morning and going to the office and seeing these things not being done that should have been done and then the picket line a couple of days later and all of these things kept piling on and I guess it was more than I wanted to handle without keeping my cool. It was kind of a-you are supposed to keep your cool and I didn't, I had blown my top, so to speak." Scott, who was admittedly "still up tight" at the time of the Wolber layoff, maintained that "I was not aware of the Union before the layoff . . . . I had no knowledge of it, no." Yet his own testimony shows that he discussed the Union with Wolber before he said Wolber was laid off and that this conversation preceded the other three layoffs. Furthermore, I have found above that Scott was told, before the Wolber layoff, about the letter from the Union, and I credit the testimony of Wolber that Scott initiated the conversation with him about the Union. I have considered all the circumstances relating to the layoffs, including particularly the resulting reduction of the unit complement by about half, the precipitate manner in which the layoffs were made, the failure to discuss them with the supervisor, the timing immediately after the attempt to deliver the Union's letter and Scott's conversa- tion with Wolber about the Union, the absence of any credible or probative evidence to support the Respondent's asserted reasons for the layoffs,9 the later offers of reinstatement with no loss of pay made to all those laid off, and Scott's admission, found below, that the layoffs occurred because "I heard the Union was coming in and I had to act fast." 10 It is apparent from the totality of the record, and I find, that the Respondent's asserted reasons for the layoffs were pretextual and that the Respondent laid off or discharged these employees because it "was plainly determined to rid itself immediately of the Union element within its work force. . . ... 11 In these circum- stances, it is immaterial whether the Respondent had knowledge of the union membership or activity of each individual in the group laid off.12 Accordingly, I conclude and find that the Respondent laid off Wolber, Currens, Toney, and Charles Ritchey in order to discourage membership in or activity on behalf of the Union, and that the Respondent thereby violated Section 8(a)(3) and (1) of the Act.13 I find further that Scott interrogated Wolber about his 9 See NLRB v Texas Bolt Co, 313 F 2d 761 (CA 5), NLRB v Melrose Processing Co, 351 F 2d 693, 698 (C A 8), Great Atlantic & Pacific Tea Co v N L R B, 354 F 2d 707 (C A 5), holding that "The Board is not compelled to accept the employer's statement [of the ground for discharge I when there is reasonable cause for believing that the ground put forward by the employer was not the true one, and that the real reason was the employer's dissatisfaction with the employee's union activity", Shattuck Denn Mining Corp v N L R B, 362 F 2d 466, 470 (C.A 9), holding Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving In such cases, the self-serving declaration is not conclusive, the trier of fact may infer motive from the total circumstances proved Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book Nor is the trier of fact-here the Trial Examiner-required to be any more nail than is a judge [Footnote omitted I If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive More than that, he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the union activities and threatened that Wolber's admitted proumon sentiments meant loss of an opportunity for promotion, and that the Respondent thereby interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.14 D. Interference, Restraint, and Coercion On Tuesday, June 1, the first workday after the holiday weekend, the Respondent operated with its employee complement reduced by the layoffs. On Wednesday morning, Sparks called Scott and told him there was a strike. Scott testified that he had intended to pick up the Union's letter on Wednesday 15 but came directly to his office after Sparks' call. He arrived between 8 and 9 a.m., noticed there was picketing with signs bearing the Union's name and, as he testified, "of course, by picketing I knew that they were involved with a Union." Scott came out of his office a little later and told some of the pickets, as he admitted, that what they were doing was illegal. Later that morning, Scott approached Childers and Blair, who were standing at one side of the Respondent's premises, in order, Scott testified, "to ask who their spokesman was and what the problem was." Childers agreed to discuss the matter with the others and report to Scott. Childers and Blair talked with Wolber, Toney, and Currens, who were picketing in front of the building. 16 The first two then went to see Scott and, when they came out, the other three went in. Scott testified that when the first two came in, Childers announced that "he had talked to the other boys and they decided they wanted to come back to work and that they didn't want the Union to represent them . . . . Well, then, of course, they went on to say that they would like to have benefits-four extra days sick leave they wanted and wanted the Company to pay half of the insurance and wanted increased pay." Scott testified that he made no promises as he knew from the picketing that the Union was involved and he had learned during the earlier umon campaign that he could not make promises in these circumstances. He admitted, however, that the matters were discussed and that he told these employees that any raises "when they did come they would be made on a merit basis rather than a blanket increase. . . ." According to Scott, when the other three came to the office, "they said surrounding facts tend to reinforce that inference 10 See N L R B v John Langenbacher, 398 F.2d 459, 463 (C A. 2), cert. denied, 398 U S 1049, The Von Solbrig Hospital, Inc, 189 NLRB No. 46 11 Waterways Harbor Investment Co, Inc, 179 NLRB 452 iz N L R B v Link-Belt Co, 311 U S 584, 602, Majestic Molded Products, Inc v N LR B, 330 F 2d 603 (C A 2); Rosen Sanitary Wiping Cloth Co Inc, 154 NLRB 1185, Webber American, Inc, 194 NLRB No 109 13 Filler Products, Inc v N.LR B, 376 F 2d 369 (C A 4); The Circle K Corp, 173 NLRB 713, Treasure Lake, Inc, 184 NLRB No 74; Cotton Lumber Company, 185 NLRB No 51, Union Camp Corporation, 194 NLRB No 160 14 See Conolon Corporation v N LR.B, 431 F 2d 324, 328 (C A 9), Spartus Corporation, 195 NLRB No 17 15 The Respondent's answer states that he obtained the letter on Wednesday. 16 Charles Ritchey, one of those laid off, did not picket. Carl Ritchey, who has been employed about 8 years, and was in the group that signed union cards on May 26, stayed away from work on the day of the strike but did not picket SCOTT GROSS CO., INC. they would like to have theirjobs back and they no longer was interested in the Union and, of course, there again, they brought up the subject of these benefits and they were told the same thing, that I could not do anything at this time, but they were willing to come back to work." He also told them, he testified, that raises would be on a merit basis. The employees involved testified that Scott promised to take back all the strikers as well as all those who had been laid off, to pay all of them for the time they lost, to give 2 more days of sick leave, to pay half the cost of the medical insurance, and to give some of them a raise within 30 days,17 although he said also that raises would not be general but based on merit. Scott stated in the conference with Childers and Blair, they testified, that his operation was too small for a union and, if there were a strike, other companies would take over most of the business. I credit this testimony, which was uncontradicted, as well as the credible and' uncontradicted testimony of Toney and Currens that, at the conclusion of the conference they attended, Currens asked Scott to tell them the real reason for the layoffs and Scott answered, "Well, I heard the Union was coming in and I had to act fast." It is undisputed that all the employees who went on strike and all who had been laid off were offered reinstatement. Charles Ritchey, who did not participate in the picketing or in the conferences with Scott, was offered reinstatement by Scott in a telephone call the following day. All except Wolber accepted Scott's reinstatement offers. Scott testified that he had approached Childers and Blair that morning because it was essential to make deliveries to hospitals and other customers after being closed all weekend, and the only men who remained at work, Smits and Lukins, would not make deliveries during the picketing. Scott admitted, however, that he did not speak to the strikers about this emergency situation as "things happened so fast and I was trying to get first things first and probably wasn't thinking too clear." On the contrary, as Scott also admitted, when the strikers asked if they should go right back to work, it was about noon, and Scott told them to take off the rest of the day, with no loss of pay, and report for work in the morning. In addition, the employees affected were paid in full for all the time they lost' as I a ' result of, the layoffs ,and the strike. There is testimony by the strikers that they-- struck because of the layoffs which they assumed were due to the union activities, that they feared they might be similarly terminated, and that they would not have gone back to work unless the laid-off employees were offered reinstate- ment. I find incredible, in all the circumstances of this case, Scott's testimony that both groups of employees came into his office and immediately declared their desire to return to work and to give up the Union, then happened to mention benefits they would like to have, to which he responded that he could make no promises and that raises would not be general but on a merit basis. I find more believable, on the entire record, and therefore credit the description by the employees as to what occurred in Scott's office. 17 Blair, Toney, and Childers testified credibly that Scott promised raises within 30 days 18 See N L R B v. Exchange Parts Co, 375 U S. 405, Texaco, Inc v 425 Accordingly, I find that Scott offered these employees, if they came back to work, reinstatement of all strikers and of all employees who had been laid off, with no loss of pay, 2 additional days of sick leave, payment of half the medical insurance costs, and raises for at least some of them within 30 days. Scott not only paid these employees for all time lost, but told them, when they offered to resume work about noon, to take the rest of the day off with pay, in spite of his testimony about the emergency situation caused by the lack of drivers to make urgent deliveries. I find, therefore, that Scott interrogated employees about their activities on behalf of the Union and promised benefits to employees and bargained directly with employees in order to coerce them into giving up their union activities, and that the Respondent thereby interfered with, restrained, and coerced employees in violation of Section 8(a)(1) & the Act.18 E. The Refusal to Bargain 1. The appropriate unit The parties agreed, and I find, that all the Respondent's truckdnvers, warehousemen, helpers, and warehouse clerks, excluding all professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The only individual whose unit placement was in dispute was Lukins. The General Counsel would exclude him as a supervisor while the Respondent denies that he is a supervisor within the meaning of the Act. Lukins testified that he has been employed "13 years; I have been there 3 times," and that "I'm in charge of deliveries and I work in the warehouse and make deliveries .... I tell the employees what deliveries to make and where to go." Lukins obtains the orders on which he dispatches the drivers from a hook on which they are placed by office personnel who receive the orders by telephone. He testified that he does not direct employees other than to schedule the deliveries, unless specifically directed to do so by Scott or Sparks. The employees testified regarding Lukins' authority that he is the dispatcher for city deliveries, that he gives the orders he takes off the hook to drivers to make city deliveries, that he does. not direct their work other than to dispatch these orders,' and' that] he' also works in the' warehouse. , The evidence does not show that the dispatching work performed by Lukins involves responsible direction that requires the use of independent judgment. It likewise does not show that Lukins hires or discharges, changes employee status, effectively recommends such action, or possesses or exercises any of the other statutory indicia of supervisory authority. Moreover, he performs duties that are the same as those performed by employees in the unit. I N LR B, 436 F 2d 520 (C A 7), Skaggs Transfer, Inc., 185 NLRB No. 91; Tri-State Stores, Inc, 185 NLRB No 117; Wisconsin Bearing Company, 193 NLRB No. 35. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that the record does not establish that Lukins is a supervisor within the meaning of the Act.19 He is therefore included in the unit. 2. The Union's representative status a. The membership cards The evidence shows that Wolber, Blair, Currens, Toney, Charles Ritchey, and Carl Ritchey signed union member- ship cards at the union hall on May 26, 1971, and that Childers, who was out of the city on May 26, signed a card on May 29. Wolber, who did not accept Scott's offer of reinstatement on June 2, was not replaced. The Umon, therefore, had six cards on May 26 and seven on May 29 in a unit of nine employees and, after Wolber rejected reinstatement and was not replaced, six cards in a unit of eight employees.20 b. The disavowal letters A few days after the return to work of the laid-off and striking employees, Sparks admittedly spoke to them about writing disavowal letters to the Umon. According to the employee testimony, when they delayed thereafter in writing the letters,, Sparks told them that they had to write such letters, that Scott wanted them to do so, and that the new benefits could not be put into effect until the letters had been written. Sparks testified, on examination by counsel for the Respondent, that he asked employees about writing these letters because he recalled such letters were written after the Union's earlier attempt to organize and "I figured it was customary or routine. Maybe the union required the boys to write to them if they was going to withdraw their cards." Sparks also testified that ? ie did not pressure or coerce any employees, that he did not think he told the employees Scott wanted them to write the letters, and that he did not tell them the letters had to be written before the benefits would go into effect. He explained: "Like I say, I wasn't in on any of the discussions with the boys or Mr. Scott and I just heard them talk about it among themselves . . . and I think I told them that Mr. Scott couldn't do anything for them at all under the conditions." When counsel for the Respondent then asked whether this statement had anything to do with the "insurance, the sick pay or raises, the ones that may have been discussed with Mr. Scott," he replied, "No, sir." Most of the letters were written in Sparks' office, on paper and with pencils supplied by Sparks. The union address was typewritten on the envelopes in which the letters were mailed. The employees who wrote these disavowal letters testified credibly that they could not type and did not see the letters again after leaving them on Sparks' desk. Sparks testified that he did not furnish the envelopes, did not know who typed the Union's address on them, did not know whether the letters were ever mailed, 19 See The Kirby Company, 194 NLRB No. 184 20 Employees discnmmatonly laid off do not lose their employee status as a result thereof Quick Shop Markets, Inc, 168 NLRB 180,186 21 Franks Bros v NLRB, 321 U S. 702, Texaco, Inc v NLRB, supra, McCready and Sons, Inc, 195 NLRB No 18 22 The Board recently in United Electric Company, 194 NLRB No 105, affirmed a Trial Examiner's holding that "To permit Respondent to prevail who mailed them, or when-although at a later point in his testimony he guessed it was about June 9 or 10. Mrs. Rust testified that she typed some envelopes addressed to the Union during working hours, that she did not know whether she discussed this with Scott, that she did not know what went into the envelopes, or if they were mailed. Scott testified that he never mentioned these letters to the employees, did not have a supervisor do so, and never discussed the letters with Sparks, but he also testified that he believed Sparks spoke to the employees about the matter, and that Sparks told him employees had written disavowal letters. I find the employees' testimony regarding these letters more credible than that of the Respondent's witnesses. Further, in view of the admissions as to the Respondent's role in the preparation of the letters, I infer and find, on the entire record, that someone in the Respondent's office also stamped and posted the letters, which the Union received in the mail. The employees who wrote disavowal letters testified that they took no other action to withdraw from the Union, that they continued to participate in union activity, and that they did not intend by these letters to terminate their designation of the Union as their bargain- ing representative. I find, therefore, that these letters, written at Sparks' urging, and after the Respondent's various unfair labor practices calculated to undermine the Union, did not constitute an effective repudiation of the Union as the employees' bargaining representative.21 Accordingly, I find that the Union was, on May 26, 1971, and at all times thereafter, the duly designated representa- tive of a majority of the employees in an appropriate unit. I find further that Sparks interrogated employees about writing disavowal letters, demanded that they write them, and threatened that the new benefits would not go into effect until they were written, and that the Respondent thereby interfered with, restrained, and coerced its employ- ees in violation of Section 8(a)(1) of the Act. 3. The refusal to bargain As set forth above, the Respondent on May 28, 1971, refused to accept the Union's registered letter, which requested recognition. I am convinced from all the evidence, and find, that Scott not only was told on May 28 that there was a registered 'letter from the Union, but also that he was aware that this letter contained a request for recognition. This is indicated by his receipt of a similar letter in the earlier union campaign and by his conduct immediately after the attempt to deliver the May 1971 letter.22 Moreover, even if it were assumed arguendo that Scott did not on May 28 know the contents of the letter,23 he admittedly did on June 3 when he obtained the letter from the post office. Nevertheless Scott admittedly never responded to the Union's letter. Asked if he ever knew that a majority of employees signed union cards, he replied in its argument that it did not reject the Union's demand because, not having opened the letter and read it, it was unaware that the Union was demanding recognition would turn the National Labor Relations Act into a game which the clever player could use to frustrate rather than implement the national policy of encouraging collective bargaining " 23 Cf Filler Products, Inc, v N L R B, 376 F.2d 369, 380 (C A 4) SCOTT GROSS CO., INC. 427 "No, not definitely. I didn't know for sure. I had no way of knowing." He testified at another point that he doubted the Union's representative status but made no effort to find out if a majority of the employees signed union cards because "There was not time. Things were happening too fast." The Respondent not only sought on May 28 to frustrate the Union's attempt to convey its claim to representative status by the customary means of registered mail,24 but it also proceeded to engage in discriminatory layoffs and other unlawful conduct designed to dissipate that repre- sentative status. When this conduct was followed by a strike on June 2 of practically all the unit employees with union picket signs, as a result of which Scott admittedly "knew that they were involved with a Union," he bargained with the employees directly and promised benefits to them if they discontinued the strike. Scott admittedly knew that the Union was seeking recognition when he obtained the registered letter on June 3, but he made no response to the letter. He was also aware after June 3 that the employees were continuing their adherence to the Union. The charge giving rise to this proceeding was filed on June 3 and was served on the Respondent by registered mail on June 4. Scott testified that after receiving the charge he called Minick, a union representative, "on the phone because there might be something we could do and, of course, he replied that the only thing we could do would be to recognize the Union and I think this was about the extent of the conversation on the phone" Further, Scott was asked by counsel for the Respondent: "[Y]ou have some awareness, do you not, that subsequent to the reinstatements, maybe even subsequent to the letters which you say you think were written to the Union by the men, that even after that some of the men have had continued communication with the Union?" Scott replied, "This comes to me secondhand, of course, but I understand that they have, yes." 25 Thus Scott knew on May 28 of the Union's attempt to communicate with him, knew on June 2 that a majority of employees were engaging in union activity, and knew on and after June 3, by the receipt of the registered letter, by his conversation with Minick, and by the employees' continuing union activity, that the Union was seeking to establish its representative status. Accordingly, I find that there was a continuing demand by the Union on and after May 28, 1971, for recognition by the Respondent. I find further that the Respondent, on May 28 "by its inexcusable refusal even to receive a letter from the Union its employees wanted to represent them ...." 26 and on and after June 3 by its failure to respond to the letter, refused to recognize or bargain with the Union, which was at all material times the duly designated representative of a majority of its employees in an appropriate unit, and thereby violated Section 8(a)(5) and (1) of the Act. I find further that the Respondent's unfair labor 24 Quick Shop Markets, Inc, 168 NLRB 180 25 Scott did not state the source of this understanding nor what other information about Union activity similarly came to him "secondhand " 26 United Electric Company, supra 27 As the Board stated recently, "Such a combined application of both illegal stick and illegal carrot is not likely to be forgotten by any employee in the unit "Almaden Volkswagen, 193 NLRB No 110 practices, including interrogating employees about union activities, threatening reprisals because of such activities, promising benefits to employees and bargaining directly with employees in order to coerce them into giving up their union activities,27 demanding that employees write letters to the Union disavowing their membership cards before they could receive promised benefits, laying off or discharging employees discriminatorily, and refusing to recognize and bargain with the Union as the duly designated representative of the employees in the unit, would not only have precluded the holding of a fair election, but were moreover sufficiently pervasive and extensive in character to have undermined the Union's majority designation. Accordingly, I find that it is appropriate in the circumstances of this case to determine the Union's representative status on the basis of the membership cards which the employees executed, and reaffirmed at the hearing, and, as these cards establish that the Union was designated by a majority of the unit employees, that a bargaining order on this basis is warranted.28 F. Respondent 's Employee Interviews After the charge was filed herein, employees were interviewed in the Respondent's office, during working hours, on July 19, 1971, and in some cases on two or three occasions. Both the attorneys who represented the Respon- dent herein as well as Scott were present during many or all of these interviews. After questioning an employee, counsel prepared a handwritten statement which the employee was told he could sign or not as he chose. The employee was not given a copy of the statement. Blair's signed statement asserts that he was "never put under any pressure" to write the disavowal letter. He explained in his testimony, however, that ". . . you can say things two or three different ways. Now, when it says, `Under pressure,' and stuff like that, he means violence and stuff, you know, different ways you say things." Toney testified that he signed statements for Respondent's counsel because "I was kind of scared." Carl Ritchey testified, on examination by counsel for the Respondent, that he called Childers after the strike and was told that "everybody was going back to work and that . .. [Scott] didn't make no promises or nothing, but he would think about giving us more money and two or three more sick days, but no promises were made." Childers, asked if he told counsel in an interview that Scott made no promises, replied: "I put it in a way that he didn't make a promise, but he told us we would get it within 30 days . . . but he didn't say, `Well, Bill, I will promise that I will give it to you .... He testified further that he did not recall making other remarks shown in the statement nor why apparent changes were made in the statement. Asked to read a particular sentence in the statement, he was unable 28 N LR B v Gissel Packing Co, 395 U.S 575, N L R B v Pembek Oil Corp, 433 F 2d 308 (C A 2, 1970), Texaco, Inc, v NLRB, supra, N L R B v Medley Distilling Co, Inc, 453 F.2d 374 (C.A. 6), Breezway Foods, Inc, 183 NLRB No 92; Gibson Products Co, 185 NLRB No 74, Colonial Knitting Corp, 187 NLRB No 134, Sitton Tank Company, 193 NLRB No 32; United Electric Company, supra 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to decipher the handwriting This statement, which is in evidence, is on paper lined vertically as well as horizontally and is difficult to read. Currens testified, on examination by counsel for the Respondent, that he signed one of these statements but could not recall particular assertions made therein; that he signed the statement "to get the Company off my back . . . because I had done been laid off once and it could happen again", that, while counsel told him he had a right to join the Union or not, counsel "wasn't the one to say fire me or not"; that he did say in his statement that no threats were made by the Respondent as "There wasn't no guns or anything"; and that, while he signed the statement, he did not read it, he was not under oath when he made it, and "the reason I was in the office was because Mr Scott asked me to talk to you." Additional statements were signed by employees which assert that "the layoffs didn't scare me away from the union . . . what happened last June would not cause me to be afraid to work for the union or to campaign even if Scott knew about it. I would not be afraid to vote for a union." These statements were typewritten, and were handed to employees by Sparks on the morning of the day they testified. Blair, who signed one, testified that Sparks told him he could sign or not as he chose but that "just about everybody else had signed it." Respondent's counsel attacked the credibility of some of the employee witnesses on the basis of inconsistent assertions in the statements signed on or about July 19, and relied on the statements signed on or about November 3 to urge that the employees were not intimidated by what had occurred but, as shown by their statements and testimony, felt they could engage in union activities if they chose and could vote free of intimidation if an election were held. The Board holds, however, that "it is well settled that statements of an employer need not have successfully intimidated or coerced employees in order to constitute violations of Section 8(a)(1)"29 and, therefore, that "testimony by employees as to whether they were actually coerced by the Respondent . . is irrelevant."30 In all the circumstances of this case, I find no merit in the Respondent's contentions based upon the statements obtained by Sparks or in the presence of Scott. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that the 29 Eastern Die Company, 142 NLRB 601 30 Bon-R Reproductions, Inc, 134 NLRB 429 31 N L R B v Express Publishing Company, 312 U S 416, 437, N L R B Respondent be ordered to cease and desist therefrom and from in any other manner infringing upon its employees' Section 7 rights,31 and that it take certain affirmative action designed to effectuate the policies of the Act. I shall also recommend that nothing contained in the recom- mended Order shall be construed as requiring the Respon- dent to revoke any wage increases or other employee benefits previously granted.32 While I have found that the Respondent laid off or discharged four employees in violation of Section 8(a)(3) and (1) of the Act, I shall not recommend the usual reinstatement and backpay provisions as all four affected employees were offered reinstatement with no loss in pay. Having also found that the Respondent unlawfully refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit, I shall recommend that it bargain collectively with the Union, upon request, concerning rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. Upon the basis of the foregoing findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Scott Gross Company, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Drivers, Warehousemen and Helpers Local 89, 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 interrogating employees about their union activi- ties, threatening reprisals because of such activities, promising benefits to employees or bargaining directly with employees in order to coerce them into giving up such activities, demanding that employees write letters to the above-named Umon disavowing their membership cards before they could receive promised benefits, and other conduct interfering with, restraining, and coercing its employees in the exercise of their Section 7 rights, 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 laying off or discharging Wolber, Currens, Toney, and Charles Ritchey, in order to discourage membership in and activity on behalf of the above-named Union, the Respondent has discriminated against employ- ees in regard to their hire or tenure of employment, and has thereby engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. All the truckdrivers, warehousemen, helpers, and warehouse clerks at the Respondent's Lexington, Kentucky, operation, excluding all professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining. 6. At all times since May 26, 1971, the above-named Union has represented a majority of the employees in the v Entwistle Mfg Co, 120 F 2d 532, 536, (C A 4) 32 Exchange Parts Co, 375 U S 405, Yale Rubber Manufacturing Company, 193 NLRB No. 24 SCOTT GROSS CO., INC. 429 aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 7. By refusing to bargain collectively with the above- named Union on May 28 and on June 3, 1971, and thereafter, 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. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section lb(c) of the Act,l I I hereby issue the' following recommended. 33 ORDER The Respondent, Scott Gross Company, Inc., Lexington, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or discharging Randy Wolber, Mack Currens, Richard Toney, Charles Ritchey, or any other employees, or otherwise discriminating against any em- ployees in regard to their hire or tenure of employment, in order to discourage membership in or activity on behalf of General Drivers, Warehousemen and Helpers Local 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (b) Refusing to bargain collectively with the above- named Union as the exclusive collective bargaining representative of its employees in the unit found appropri- ate. (c) Interrogating employees about their union activities, threatening reprisals because of such activities, promising benefits to employees or bargaining directly with employ- ees in order to coerce them into giving up such activities, demanding that employees write letters to the above- named Union disavowing their membership cards before they can receive promised benefits, or in any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except that nothing contained herein shall be construed as requiring the Respondent to revoke any wage increases or other employee benefits previously granted. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with General Drivers, Warehousemen and Helpers Local 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. The bargaining unit is: All the truckdrivers, warehousemen, helpers, and warehouse clerks at the Respondent's Lexington, Kentucky, operation, excluding all professional em- ployees, guards, and supervisors as defined in the National Labor Relations Act. (b) Post at its operation in Lexington, Kentucky, copies of the attached notice marked "Appendix."34 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being duly signed by the Respon- dent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the receipt of this Decision, what steps the'Respondent has, taken' to comply herewith 35 It is further recommended that the complaint be dismissed insofar as it alleges violations not specifically found herein. 33 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 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 34 In the event that the Board's 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 read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " 35 In the event that this recommended Order is adopted by the Board after exceptions have been filed , this provision shall be modified to read. "Notify the Regional Director for Region 9, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 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 with General Drivers, Warehousemen and Helpers Local 89, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL, upon request, bargain collectively with the above-named Union as the exclusive representative of our employees in an appropriate unit with respect to rates of pay, wages, hours of work, and other terms and conditions of employment and embody in a signed agreement any understanding reached. The bargaining unit is: All the truckdnvers, warehousemen, helpers, and warehouse clerks at our Lexington, Kentucky, operation, excluding all professional employees, guards, and supervisors as defined in the Nation- al Labor Relations Act. WE WILL NOT lay off or discharge Randy Wolber, Mack Currens, Richard Toney, Charles Ritchey, or any other employees, or otherwise discriminate against any employees in regard to their hire or tenure of employment, in order to discourage membership in or 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity on behalf of the above-named Union or any other labor organization. WE WILL NOT interrogate employees about their union activities , threaten reprisals because of such activities, promise benefits to employees or bargain directly with employees in order to coerce them into giving up such activities , demand that employees write letters to the above-named Union disavowing their membership cards before they can receive promised benefits, or in any other manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, except that nothing contained herein shall be construed as requiring us to revoke any wage increases or other employee benefits previously grant- ed. Dated By SCOTT GROSS COMPANY, INC. (Employer) (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 concern- ing this notice or compliance with its provisions may be directed to the Board 's Office, Federal Office Building, Room 2407, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.