Hendon & Co., Inc.

t I V I VV I HENDON & COMPANY, INC. 813 Hendon & Company Inc. and Service Employees International Union, Local 623, AFL-CIO. Case '10-CA-9097 June 21, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On February 15, 1972, Trial Examiner Robert Cohn issued the attached Decision in this proceed- ing. Thereafter, Respondent filed exceptions 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 i and has decided to affirm the Trial Examiner's rulings, findings,2 and conclusions3 and to adopt his recommended Order. ORDER before me at Birmingham, Alabama, on October 26-28, 1971,1 with all parties present and represented by counsel, involves a complaint issued 2 pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleging that Hendon & Company, Inc. (herein the Company or Respondent), interfered with, restrained, and coerced its employees in the exercise of rights guaranteed under Section 7 of the Act by engaging in certain conduct described more fully herein, including the discharge of employees in order to discourage membership in and activities on behalf of Service Employees International Union, Local 623, AFL-CIO (herein the Union or Charging Party), in violation of Section 8(a)(3) of the Act, and refused to bargain with the Union in violation of Section 8(a)(5) of the Act. Respondent's answer, as amended, admitted the jurisdictional allegations of the complaint, but denied the commission of any unfair labor practices. At the trial, full opportunity was afforded all parties to introduce relevant evidence, to examine and to cross- examine witnesses, to argue orally on the record, and to submit briefs. Oral argument was waived. Helpful briefs were submitted by counsel for the General Counsel and by counsel for the Respondent, which have been duly considered. On the pleadings, stipulations of counsel, the evidence, including my observation of the demeanor of the witnesses,3 and the entire record in the case, I make the following: 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, Hendon & Company Inc., Bir- mingham, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. i Respondent's request for oral argument is denied, as the record, including Respondent's exceptions and brief, adequately presents the positions of the parties 2 The Respondent has excepted to certain credibility findings made by the Trial Examiner it is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find no basis for reversing his findings 3 While Chairman Miller agrees that a bargaining order is appropriate herein, he would, for reasons stated in his separate concurrence in United Packing Company of Iowa, Inc, 187 NLRB No 132, predicate this remedy solely on the extensive 8(a)(I) and (3) violations found herein TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ROBERT COHN, Trial Examiner: This proceeding, tried i All dates hereinafter refer to the calendar year 1971, unless otherwise specified 2 Dated September 9, based upon a charge filed July 19 (subsequently FINDINGS OF FACT 1. COMMERCE Respondent, an Alabama corporation, is, and has been at all times material herein, engaged in the operation of parking lots and the leasing of parking facilities at Birmingham, Alabama. The sole owners of Respondent also own and operate Hendon's Parking and Service Stations, which, along with Respondent's operation, constitute a single employer for the purposes of junsdic- tion. Respondent and Hendon's Parking and Service Stations, during the past calendar year, which period is representa- tive of all times material herein, have gross revenues in excess of $500,000. Of these gross revenues received during the past calendar year, at least $20,000 was received from South Central Bell Telephone Company which is a public utility with its principal office and place of business located in Birmingham, Alabama, where it is engaged in the sale of telephone and other communication services. During the past calendar year, which is representative of all times material herein, South Central Bell Telephone Company purchased and received products valued in excess of $50,000 directly from points located outside the State of Alabama. Based on the foregoing allegations, which Respondent amended August 25 and September 3) 3 Cf Bishop and Malco, inc, d/b/a Walker's, 159 NLRB 1159, 1161. 197 NLRB No. 111 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD admitted at the hearing herein , I find, as Respondent admits, that it is, and has been at all times material, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Mr. Howard Breed Hendon and Company 209 1/2 21st North Birmingham, Alabama Dear Mr. Breed: July 15, 1971 It. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Commencement of the Union Campaign At the time of the events herein , Respondent operated approximately 38 attended parking lots in Birmingham, Alabama. Prior to July 1, none of the parking lot attendants had been represented for purposes of collective bargaining by a labor organization . On or about said date, Michael McKeown, a business agent of the Union, commenced an organizational campaign among Respon- dent's employees . On July 8, he met with several employees at the union hall in Birmingham and gave them authoriza- tion cards to be signed themselves and solicited among the other employees of Respondent . On July 14, there was another union meeting, attended by approximately 40 of the employees, at which McKeown distributed additional union literature and union buttons. The buttons were about the size of a United States silver dollar,4 and McKeown told the employees not to take a button unless they intended to wear them . He also told employee Clifford Sylvus on that evening to check the timecards the following morning to ascertain how many parking lot employees Respondent employed. The following morning, July 15, shortly after 7 a.m.,5 Sylvus telephoned McKeown and advised that he had counted 72 or 74 timecards At that time , according to McKeown's testimony , he had 46 signed authorization cards in his possession . Accordingly, at approximately 8 a.m. that day, McKeown telephoned Howard Breed, Respondent's city manager and advised him that he (McKeown) represented a majority of the employees. According to Breed's testimony, he told McKeown that he was not interested "in his damn union" and that he could "cram it." However, Breed refused McKeown's request that he put such statement in writing. Following this telephone conversation , McKeown, ap- parently lacking any secretarial service in Birmingham, telephoned his secretary in Atlanta , Georgia, and directed her to write a letter to the Company requesting recognition as the employees' collective-bargaining representative, and he dictated the letter over the telephone . The letter, which was mailed in Atlanta on July 15 by certified, special delivery mail, stated as follows- 4 See G C Exh 2 This is to advise you that a majority of your employees in an appropriate bargaining unit at the Hendon and Company, Inc., Birmingham, Alabama, have designated the Service Employees International Union Local 623, AFL-CIO, as the exclusive represent- ative of such employees , for the purpose of collective bargaining in respect to rates of pay, wages , hours, and other terms and conditions of employment, to become effective immediately . The bargaining unit consists of parking lot attendants in Birmingham, Alabama. We stand ready to prove our majority status by submitting signed authorization. cards to a mutually selected impartial person. The Union requests negotiation with you with respect to rates of pay, wages , hours, and other terms and conditions of employment. No other person or organization now represents a majority of such employees and you are hereby cautioned against entering into any contract, or any renewal of any of the provisions of any existing contract, or any collective bargaining or negotiating with any person or organization presuming to act as agent for, or in behalf of, any such employees. We would appreciate a prompt reply. Very truly yours Mike McKeown President S.E.I.U. Local 623 The aforesaid letter was delivered to Respondent's premises on July 16 and was refused by one of Respon- dent's agents without being opened . From that time forward, it is undisputed that Respondent has refused to acknowledge any obligation it may have to bargain or treat with the Union as the collective-bargaining representative of its parking lot employees. B. The Discharge of Employees and the Strike on July 15 On the morning of July 15, many employees of Respondent wore union buttons attached to their uni- forms. This fact was noticed by Supervisor Marvin Busby who made his usual round of the parking lots under his supervision shortly after 7 a.m. that day. At Car Park 31, which was just around the corner from the Respondent's main office, Busby inquired of Ronald Youngblood what kind of button he was wearing. The latter replied that it was a union button. Busby said that he had better take it off because they were going to fire him for wearing it. Busby then went into the office . A few minutes later, Youngblood was advised that City Manager Breed wanted 5 The workday of Respondent's parking lot employees commenced at 7 a m HENDON & COMPANY, INC. to see him, so Youngblood proceeded to the office where Breed, Busby, and Jim Vance, a management trainee, were present. Breed inquired of Youngblood the kind of button he was wearing6 to which the latter responded that it was a union button. Breed directed that he pull the button off or "hit the clock" because he (Breed) was preparing to fire everyone that was wearing them. Youngblood left, but did not remove his button; he testified that he considered himself fired because he did not want to pull off the button.? Following the conversation with Youngblood, and the telephone conversation with McKeown, hereinabove re- ferred to, Breed, Busby, and Supervisor O. D. Gaines proceeded in Breed's car to Car Park 9 where employee Robert Battle, assertedly wearing three union buttons, was at work. Breed asked Battle "how he felt about those buttons," but Battle made no reply. Breed directed him to take the buttons off, but Battle shook his head indicating no. Finally, Breed told him to take the buttons off or hit the timeclock. Battle left.8 Breed then drove his car across the street to Car Park 25 where employees Gerald Austin, Raymond Harris, Frazier Sailes, and Douglas Tarrant were standing. Austin, Harris, and Sailes each testified that they were wearing a union button on their uniform that morning (Tarrant did not testify), and that Breed asked them whether they thought they could eat those (obscenity) union badges. When the employees made no response, Breed stated that they could dust "hit the damn street because [he] will put parking meters on every damn lot."9 Breed, Busby, and Gaines then returned to Car Park 9 where employee Clifford Sylvus was standing, wearing his union button. Breed asked him to take off the button and when he refused to do so, Breed told him to clock out, too. Sylvus then walked across the street to a telephone booth, called Michael McKeown, and advised him that Hendon had fired several employees and that others were out on the street. McKeown advised Sylvus to secure some cardboard with which picket signs could be made and commence picketing the Company's premises. He also suggested that the following legend be placed upon the homemade picket signs: 6 The legend on the button states only "I'm for SEIU," without identifying what the letters SEIU stand for r Credited testimony of Youngblood I have considered the testimony of Breed and Busby (Vance did not testify) and discredit it to the extent that it varies from that of Youngblood, even though the record reflects that Youngblood was subsequently convicted in a state court for participating in an incident of violence on the picket line I have considered as particularly significant, in addition to demeanor considerations , that Breed and Busby admittedly did, in fact, subsequently proceed to discharge several employees because they wore union buttons , as described infra 8 The foregoing findings are based upon the testimony of Breed and Busby, which is not in substantial variance from that of Battle except that the latter claimed that he was only wearing one union button 9 Credited testimony of Raymond Harris, as corroborated by Austin and Sailes Breed testified that he told Austin that the latter was fired When Austin asked the reason , Breed replied , "stealing " Respondent maintained the defense at the hearing, however, for reasons set forth infra, I find that the evidence does not substantiate Respondent 's contention in this regard Additionally, based upon the foregoing findings, I conclude and find, as the 815 UNFAIR-LABOR-PRACTICE STRIKE CAR-PARK LOCAL - 623 SERVICE-EMPLOYEES-INT UNION AFL-CIO Picketing continued for several days thereafter. By letter dated July 21, McKeown made an offer of unconditional reinstatement on behalf of all striking employees, the circumstances of which will be considered more fully, infra. Analysis and Concluding Findings 1. The alleged refusal to bargain The complaint alleges and the Respondent 's answer, as amended, admits that the following unit of employees is appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All parking lot attendants employed at the Respon- dent's Birmingham, Alabama, parking lots, excluding office clerical employees, guards and supervisors as defined in the Act. As respects the Union's majority status on July 15, the record reflects that there were 71 employees at work at 8 a.m. that day.io Forty-two signed authorization cards were received in evidence in the record, which cards contained the following language above the employee's signature: I desire to be represented by the Service Employees International Union which is part of the AFL-CIO and I hereby designate the SEIU as my bargaining agent in matters of wages, hours and other conditions of employment. Of these 42 cards, at least 36 (a majority of 71) were signed prior to the telephone call of Michael McKeown to Howard Breed shortly after 8 a.m. that day.ti Respondent argues that McKeown made no proper request to bargain in the telephone conversation. Although McKeown testi- fied that he made an offer to Breed to have the card complaint alleges, that the Respondent coercively interrogated its employ- ees concerning their union membership and activities , in violation of Section 8(a)(1) of the Act io General Counsel contends that there should be only 70 employees counted since the list (Res Exh I ) includes the name of one Bill Moor who, General Counsel contends, is a supervisor within the meaning of the Act I find, hereinafter, that the General Counsel did not sustain his burden on this issue, however, this finding is essentially irrelevant on the issue of majority status since I find that the Union represented a majority of the employees at this point in time whether or not Moor is included or excluded from the unit ii This includes the cards of William Roscoe and John Tyer who signed their cards for employee Clifford Sylvus at approximately 7 a in on that date There are four additional cards dated July 15 which could have been signed after the said telephone conversation However, in view of my finding on this point, it is unnecessary to determine their legal efficacy But see, e g, Scobell Chemical Co v N L R B, 267 F 2d 922, 925 (C.A. 2), Local 152 v N L. R B (American Compressed Steel Corporation ), 343 F.2d 307 (CADC) 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checked by a third party, I deem it unnecessary to make this particular credibility resolution since Breed made it abundantly clear by his statement that McKeown could "cram his damn union" that such a request would have been a futile in any event. The tone of Breed's response reflected that here as in Local No. 152 v. N.L.R.B., supra, "The Company responded that it was not interested in talking to the union, but in no manner disputed the union's representative capacity." That McKeown intended to request recognition in the telephone conversation is confirmed by the special delivery, certified letter sent to the Respondent on July 15, which was refused by Respondent on July 16. While it is true, as Respondent argues, that there can be no breach of the statutory duty of the employer to bargain until the willingness of the employees is evidenced by their request (citing N.L.R.B. v. Columbian Enameling and Stamping Company, 306 U.S. 299), the Respondent surely may not escape such obligation by refusing to receive a communica- tion from the Union in the ordinary course of business. See M. J. Pirollt and Sons, Inc., 194 NLRB No. 37; Quick Shop Markets, Inc., 168 NLRB 180, 188.12 Accordingly, I find that on July 15 and 16 the Respondent refused to bargain with the Union as the exclusive representative of its employees in an appropriate unit, in violation of Section 8(a)(5) of the Act. 2. The alleged discriminatory discharge of employees on July 15 The complaint alleges that on or about July 15, Respondent discharged and thereafter failed and refused to reinstate the following named employees: Gerald Austin, Robert S. Battle, Raymond Harris, Frazier Sailes, Clifford Sylvus, and Ronald Edward Youngblood. It is further alleged that Respondent discharged the aforemen- tioned employees because of their membership in and activities on behalf of the Union, and because they engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection. In its answer, Respondent admits that it discharged Battle and Sylvus "for violation of uniformly enforced appearance codes," and discharged Austin for theft of company funds. It is denied that Sailes, Harris, and Youngblood were discharged on July 15. As respects Battle and Sylvus the evidence shows that Respondent requires its parking lot attendants to wear khaki uniforms while at work. Respondent assertedly had in force and effect a rule extending many years prior to the events in question which proscribed the wearing of any 12 The Board finding of an 8(a)(5) violation in the latter case was reversed by the Court of Appeals for the Seventh Circuit (416 F 2d 601, 606) on the ground that "the unopened registered letter containing a demand to bargain, which was validly refused pursuant to a company policy, was not sufficient to convey a clear demand to bargain " Here, as in the Pirollt case, it is undisputed that the Respondent's agent did not refuse the union letter pursuant to any general company policy but specifically because the envelope enclosing this particular letter reflected that it emanated from the Union 13 Donald G Lawson, Respondent's vice president, testified that he had directed certain employees not to wear political buttons during the election campaign of 1968 for the obvious reason of not wishing to show favoritism to any political party. 14 Under these circumstances, I do not reach the issue of whether such a ornamentation on the uniform such as buttons. Although City Manager Breed testified that this rule was printed, and that a copy of it would be furnished at the hearing, this was never done. Moreover, I note that in his conversations with the various employees on the morning of July 15, Breed never mentioned to them that there was a company rule against the wearing of buttons and that was the reason he was firing them. Furthermore, although Supervisor Busby noticed employees wearing the button on his early morning inspection of the parking lots on July 15, he made no mention to anyone of the asserted rule. Finally, there is record evidence that, in the past, employees have worn various types of buttons and other insignia on their uniform without resulting disciplinary action on the part of the Respondent.13 Under all circumstances, I find that the Respondent has not sustained its burden of proving the existence of a rule prohibiting the wearing of buttons. Moreover, even if it could be found that such a rule did exist, the preponder- ance of the evidence shows that it was not rigidly enforced until the advent of the union campaign and I therefore find that the Respondent discriminatorily enforced the rule against the wearers of union buttons.14 Contrary to Respondent's contentions, I find, based on the credited testimony of the employees involved, that Ronald Youngblood, Raymond Hams, and Frazier Sailes were unlawfully discharged by the Respondent when they were given the alternative of removing their union buttons or "hitting the clock (street)," and they lawfully refused to do So. 15 As respects Gerald Austin, I find that Respondent's contention that he was discharged for stealing company funds is not substantiated by competent and credible evidence. It is to be recalled that Austin was among the group of employees on the morning of July 15 who were given the choice by Breed of removing their union buttons or hitting the street. It is apparent from Breed's testimony that when he advised Austin that the latter was fired, Austin asked why and Breed told him it was for stealing. Thus, under this version of the event, it is conceded that Austin did not know on the morning of July 15 that the decision had been made by Respondent to fire him. Breed claimed that the decision was made on July 14 based on an audit of July 9 and July 13 where Austin had "come up short." However, this testimony is contradicted by Supervi- sor Marvin Busby who testified that he knew about the decision to discharge Austin "probably a week before," and that the final decision was made on Monday or Tuesday, July 12 or 13. Indeed, Busby testified that he had rule was lawful in any event since "the right of employees to wear union insignia at work has long been recognized as a protected activity " Republic Aviation Corporation v N LR B, 324 U S 793. 1 would not consider that the fact that the parking lot employees here come into contact with customers would constitute such "special circumstances" as to deprive them of their rights, under the Act, to wear union buttons at work Cf. Floridan Hotel of Tampa, Inc, 137 NLRB 1484, 1486. 15 In addition to the foregoing, I note , with respect to Ronald Youngblood, the uncontradicted and credited testimony of Clifford Sylvus who, in August, acted as spokesman for a group of employees, including Youngblood, who personally applied to Howard Breed for reinstatement. When the latter saw Youngblood in the group, he stated to Youngblood that he could not come back to work at all because he had been fired. HENDON & COMPANY, INC. helped Supervisor Fields hire a replacement (Tarrant) to replace Austin. This clearly impeaches Breed's testimony that the decision was made only the day before July 15. In my view, it seems highly unlikely that if the real reason for the discharge was stealing, Respondent would have allowed Austin to remain in its employ and handle company funds I day longer than it was necessary.16 Further evidence that the proffered reason was an afterthought as the fact that it was not until July 27 that Respondent finally got around to notifying Austin that the reason for his termination, which was effective July 13, 1971, "was due to several discrepancies on station audit." (G. C. Exh. 18). Finally, I note that the decision to terminate Austin was made and effectuated without giving him any opportunity to present his side of the story, which has been held to constitute an indicia of discriminatory intent.17 Based on all of the foregoing, I find and conclude that the reason proffered by Respondent for the discharge of Gerald Austin is pretextual, and that the real reason is as alleged in the complaint herein. Accordingly, I find and conclude that the discharge of Gerald Austin on July 15 was in violation of Section 8(a)(3) of the Act. C. The Offers of Reinstatement By letter dated July 21, the Union advised the Company that it was "applying for unconditional reinstatement" of some 43 employees on strike. By letter dated July 23, the Company responded to the Union as follows: Mr. Val Cox, Sr. July 23, 1971 International Representative Service Employees International Union 501 Pulliam Street, S.W. Atlanta, Georgia 30312 Dear Mr. Cox- We have received your letter of July 21, 1971. Your labor organization is not a certified collective bargaining agent for the Hendon employees in Bir- mingham, accordingly we do not understand that you are in position to apply for the unconditional reinstate- ment of the employees listed in your letter. As in the past, the employment status of any personnel of our employ will he determined on an individual basis. Sincerely /s/ H. D. Leake H. D. Leake On July 26, Respondent sent the following letter (herein sometimes referred to as the "polygraph letter") to 36 employees on strike: 18 16 The record further reflects that in some instances shortages in employee receipts are deducted from their pay 17 Rockingham Sleepwear, Inc, 188 NLRB No 110 See also United States Rubber Company v N L R B, 385 F 2d 660,662-663 (C A 5), where the court stated Perhaps most damning is the fact that both [employees l were Dear [employee ] 817 July 26, 1971 We have received a letter, dated July 21, 1971, from the Service Employees International Union purporting to apply for your unconditional reinstatement at Hendon & Company, Inc. However, since the Service Employees have not been certified as a collective bargaining representative, we do not believe that they are in an appropriate position to request your reinstate- ment. Indeed, some of the employees for whom they request reinstatement have not severed their employ- ment relationship with the Company. If you desire to apply for unconditional reinstate- ment, you may do so on the following basis. First, you must telephone Mr. Howard Breed and make ' an appointment to come to the Hendon offices at 209-1/2 North 21st Street (rear) and arrange to take a polygraph (lie detector) examination which will cover questions as to any shortages in receipts at your lot on July 15, 1971, incidents relating to improper retention of customer car keys, and any picket line misconduct in which you may have participated If your examination reveals that you have not participated in any improper conduct which would subject you to possible discipli- nary action (including discharge), we will accept your application for unconditional reinstatement, subject to our usual employment requirements to conduct our business. Very truly yours HENDON & COMPANY, INC. BY Howard D. Leake, Executive Vice President The record reflects that six or seven of the striking employees agreed to take the polygraph test which was administered by a third party security organization, based upon questions promulgated by the Company and its attorneys. All of the employees who took the test "passed" and were reinstated by the Company. Thereafter, in August, several employees orally applied for unconditional reinstatement "for the second time," without success.ts However, commencing on or about September 10, the Respondent made an unconditional offer of reinstatement, by mail, to some 28 employees without requiring that they summarily discharged after reports of their misconduct without being given any opportunity to explain or give their versions of the incidents 18 The employees sent the "polygraph letter" are named in G C Exh 56 19 See e g , testimony of Clifford Sylvus and Ronald Austin 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD take the polygraph test. The record reflects that approxi- mately 18 striking employees have accepted reinstate- ment.20 Analysis and Concluding Findings The undisputed evidence reflects that the strike of employees which commenced on July 15 was caused by the unlawful discharge of some of the employees for wearing union buttons. Therefore, I find and conclude that the strike was at all times an unfair labor practice strike. It follows that, upon an unconditional offer of reinstatement by the striking employees, the Respondent had a duty to offer them reinstatement to their same or substantially equivalent positions without prejudice to their seniority or other rights or privileges , even to the extent of removing any replacement hired in the interim period.21 It is equally well established that the employees are not required to make their unconditional application for reinstatement on an individual basis, but may do so through their designated collective-bargaining representation.22 This was done in this case by the union letter dated July 21; therefore, the Respondent was in error when, by its letter of July 23, it refused to recognize the Union's authority to make such application on behalf of the employees By such conduct, it violated Section 8(a)(1) and (3) of the Act.23 Respondent contends, however, that some of the striking employees engaged in misconduct following the inception of the strike, such as theft of company funds, failure to turn in office keys or customer keys, vandalism, etc. It contends that, as part of its investigation to determine the identity of the personnel who may have been guilty of engaging in such conduct, it had the right to require all striking employees to take a polygraph e:.amination concerning, and limited to, events occurring on July 15, as a condition to granting reinstatement. Whatever may be the law with respect to the use of a polygraph test as a permissible technique for the purposes of investigating alleged employee misconduct.24 I do not deem it necessary to determine as applied to the facts in this case for the reason that, as counsel for the General Counsel argues, a careful reading of Respondent's July 26 letter, hereinabove quoted, reveals that Respondent did not state in the letter that reinstatement would be granted if the employee took and "passed" the test. Rather, the letter only promised that, assuming the employee progressed that far, the Company would then accept his application for uncondi- tional reinstatement, "subject to our usual employment requirements to conduct our business." I therefore find and conclude that the sending of the July 26 letter to striking employees did not satisfy Respondent's obligation to offer reinstatement to such employees who were not shown to have committed or participated in such serious misconduct as to warrant denial of their right to reinstate- ment. As previously set forth, the record reveals that subsequently, Respondent did offer many striking employ- 20 See G C Exh 57 21 However, there is no contention or evidence that any of the strikers had been replaced 22 As the court stated in N L R B v I Posner, Inc, 304 F 2d 773 (C A 2), "Nothing in the Act precludes a minority union from acting as the employee's agent to request reinstatement " A fortiori, a majority ees unconditional reinstatement , and 18 employees are listed as having accepted reinstatement.25 D. The Alleged Picket Line Incident The complaint alleges that the Respondent, by its supervisor and agent, Bill Moor, on or about July 26, in the vicinity of one of the parking lots, "caused a customer of Respondent to assault a striking employee while said striking employee was engaged in peaceful picketing." I do not reach the merits of this allegation since , as previously noted, I find insufficient evidence on the record to support a finding that Moor was a supervisor of Respondent within the meaning of the Act or was otherwise an agent of Respondent for whose conduct it was responsible . Thus the evidence shows that Moor was a college student who worked part-time for Respondent in the summer. He was classified as a general utility employee who ran errands, substituted for regular employees when they were off duty, made station audits, operated parking lots, and delivered customers' cars from the body shop where they had been repaired . He was apparently in charge of the parking lot when the alleged incident occurred and was wearing a uniform normally worn by admittedly supervisory person- nel of Respondent. However, the evidence shows that it was not unknown for nonsupervisory personnel to wear a supervisor's uniform ; indeed, one of the employee witness- es for the General Counsel concedely wore such a umform at work, having received it while being a supervisor in the past. Nowhere does the evidence show that Moor had the authority to hire or fire employees , or effectively recom- mend those things, or otherwise to utilize independent judgment in directing employees at work . Indeed, there is no substantial evidence that he directed other employees in the course of their employment ; the most the evidence showed is that he performed station audits which could affect their pay. Under all circumstances, I find that the General Counsel did not sustain his burden of proving that Moor was a supervisor within the meaning of the Act, and will therefore recommend that this allegation of the complaint be dismissed. 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 thereof. V. THE REMEDY It having been found that Respondent committed certain representative could so act 23 NLRB v I Posner, Inc, supra 24 Cf American Oil Company, 189 NLRB No 20, Souihwire Company, 159 NLRB 394, Glazer's Wholesale Drug Company, Inc, 152 NLRB 467, and Falstaff Beer Distributors of Greater Miami, Inc, 152 NLRB 1570 25 See G C Exh 57 HENDON & COMPANY, INC. 819 unfair labor practices, it must be ordered to cease and desist from further engaging in such conduct and to take remedial action designed to effectuate the policies of the Act. The Respondent unlawfully refused to bargain with the Union on demand; accordingly, it must be ordered to bargain with that Union, in the unit found appropriate, upon demand, and in the event an agreement is reached to embody such understanding in a signed agreement.26 It having been found that Respondent unlawfully discriminated against its employees by discharging and/or refusing to reinstate them, it must be ordered to reinstate them (to the extent it has not already done so), and make them whole for any loss of earnings they may have suffered as a consequence of the unlawful discrimination in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716.27 As respects reinstatement of striking employees, the record reflects, as heretofore noted, Respondent's conten- tion that many striking employees engaged in misconduct on and off the picket line, sufficient to warrant refusal of reinstatement. However, evidence of specific misconduct attributable to any particular striking employee is decided- ly lacking in the instant record. The most that the record reflects is that three employees (Ronald Youngblood, Lorenzo Allen, and Charles Allen) were charged and convicted in a state court for assault and battery upon one Carter, presumably a nonstriking employee. However, the details of this one incident were not litigated in this record, nor were the circumstances of conviction shown. Under all circumstances, I am of the view that Respondent has not sustained its burden of proving that these three, or any other striking employees, should be deprived of their rights, under Section 7 of the Act, to reinstatement. 28 Respondent's unfair labor practices indicate a general attitude of opposition to the purposes of the Act. Accordingly, a broad cease-and-desist order is necessary and appropriate to effectuate the policies of the Act. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All parking lot attendants employed by Respondent at its Birmingham, Alabama, parking lots excluding office clerical 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. 26 The Respondent's flagrant unfair labor practices, as disclosed by the record, which included threats of discharge and actual discharge of employees for evidencing in a lawful manner their support of the Union, and its subsequent failure and refusal to reinstate them following a strike in protest against such unfair labor practices, clearly had the "tendency to undermine majority strength and impede the election processes" (N L R B v Gissel Packing Company, 395 U S 575) and warrants the imposition of a bargaining order whether premised upon an 8(a)(5) or 8(a)(1) violation See United Packing Company of Iowa, inc, 187 NLRB No 132, see also K Wm Beach Mfg Co. Inc, 192 NLRB No 47 at In 2 4. The Union was, on July 15, and at all times thereafter has been, the exclusive collective-bargaining representative of the Respondent's employees in the aforesaid appropriate unit. 5. By refusing, on July 15 and July 16, to bargain with the Union as a collective-bargaining representative of its employees in an 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. 6. By discriminating against Gerald Austin, Robert S. Battle, Raymond Harris, Frazier Sailes, Clifford Sylvus, and Ronald Edward Youngblood, the Respondent has engaged in conduct to discourage membership in the Union in violation of Section 8(a)(3) and (1) of the Act. 7. By refusing to reinstate, on July 23, the following named striking employees upon their unconditional appli- cation for reinstatement, the Respondent further engaged in conduct to discourage membership in the Union, in violation of ,Section 8(a)(3) and (1) of the Act. Lorenzo Allen Andre Moore Ronnie Austin Gene Morris Joel Austin Mike Nolen James Boskin Val Paige Westley Branton Leonard Pass George Brown Jimmy Peterson Joe Nathan Bryant, Jr. Jonathan Rutlidge Dennis L. Choles Carl Smith John B. Coats, Jr. Walter Still Theodore R. DisMuke Lee Andrew Stokes W. G. Fortune, Jr. Douglas Wayne Tarrant Willie Griswold Marvin Thomas Fennie C. Hood John Daniel Tyrus Daryl Hunter Cornelius Washington William J. Irwin Menthorn Williams John Kenniebrew Martin L. Wilson Donald Lee William Wyne Jerry Lett Larry Youngblood George Lyons, Jr. Will McCoy 8. By the foregoing conduct, and by threatening reprisals against employees for wearing umon buttons while at work, and by coercively interrogating employees concerning their union membership and activities, Respon- dent has interfered with, restrained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and therefore has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices effecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, 27 Backpay would commence to run for the employees found to have been unlawfully discharged from July 15, for employees unlawfully refused reinstatement, backpay would commence to run from July 23 until an unconditional offer of reinstatement was made 28 Although not condoning acts of violence on the picket line or elsewhere in the course of a strike , the Board has, in the past, found similar if not more reprehensible conduct not to be of such a character as to render employees unsuitable for reemployment See Kansas Milling Company, 86 NLRB 925, 927-928, enfd on this point, 185 F 2d 413, 420 (CA 10) 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended; 29 ORDER Hendon & Company, Inc., its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Service Employees International Union, Local 623, AFL-CIO, as the exclusive representative of its employees in the aforesaid appropriate unit. (b) Discharging or otherwise discriminating against its employees to discourage union membership and activities. (c) Threatening reprisals against employees for wearing union buttons while at work, or otherwise engaging in union activities , or coercively interrogating them concern- ing such activities, or in any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 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 representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment, and if an agreement is reached embody such understanding in a signed agreement. (b) Offer immediate, full, and unconditional reinstate- ment (to the extent it has not already done so) to the employees named below to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges , and make them whole for any loss of pay which they may have suffered as a result of the discrimination against them in the manner set forth in that portion of this Decision entitled "The Remedy." Gerald Austin Frazier Sailes Robert S . Battle Clifford Sylvus Raymond Harris Ronald Edward Youngblood Lorenzo Allen Andre Moore Ronnie Austin Gene Morris Joel Austin Mike Nolen James Boskin Val Paige Westley Branton Leonard Pass George Brown Jimmy Peterson Joe Nathan Bryant , Jr. Jonathan Rutledge Dennis L. Choles Carl Smith John B . Coates, Jr. Walter Still Theodore R. DisMuke Lee 'Andrew Stokes W. G. Fortune, Jr. Douglas Wayne Tarrant Willie Griswold Marvin Thomas Fennee C. Hood John Daniel Tyrus Daryl Hunter Cornelius Washington William J . Irwin Menthorn Williams John Kenniebrew Martin L. Wilson Donald Lee William Wyne Jerry Lett ' Larry Youngblood George Lyons, Jr. Will McCoy (c) Notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement (to the extent that Respondent has not already done so), upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) 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 relevant and necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its premises in Birmingham, Alabama, copies of the attached notice marked "Appendix."30 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing 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. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.31 It is further recommended that the allegations of the complaint be dismissed in all respects other than those found to have been sustained in the above findings and conclusions. 29 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 30 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." sl 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 10, 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 After a trial in which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions HENDON & COMPANY, INC. 821 To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL offer to the employees named below immediate and full reinstatement (to the extent that we have not already done so) to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for all losses they may have suffered by reason of our discrimination_ ag_ainst them. Gerald Austin Frazier Sailes Robert S. Battle Raymond Harris Lorenzo Allen Ronnie Austin Joel Austin James Boskin Westley Branton George Brown Joe Nathan Bryant, Jr. Dennis L. Choles John B. Coats, Jr. Theodore R. Dismuke W. G. Fortune, Jr. Willie Griswold Fennie C. Hood Daryl Hunter William J. Irwin John Kenniebrew Donald Lee Jerry Lett George Lyons, Jr. Clifford Sylvus Ronald Edward Youngblood Andre Moore Gene Morris Mike Nolen Val Paige Leonard Pass Jimmy Peterson Jonathan Rutlidge Carl Smith Walter Still Lee Andrew Stokes Douglas Wayne Tarrant Marvin Thomas John Daniel Tyrus Cornelius Washington Menthorn Williams Martin L. Wilson William Wyne Larry Youngblood Will McCoy WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. We will not interfere with our employees' protected activities by threatening them with discharge if they wear union buttons, or coercively interrogate them concerning union activities. WE WILL NOT discharge or otherwise discriminate against our employees for wearing union buttons for the Service Employees International Union, Local 623, AFL-CIO, or any other labor organization. Dated By HENDON & COMPANY, INC. (Employer) (Representative) (Title) We will notify the above-named employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement (to the extent that we have not already done so), upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. 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, Peachtree Building, Room 701, 730 Peachtree Street N.E., Atlanta, Georgia 30308, Telephone 404-526-5760.