Pilgrim Foods, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pilgrim Foods, Inc. and Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca. Cases I-CA-11448 and 1-RC-14181 January 9, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On June 6, 1977, Administrative Law Judge Benja- min K. Blackburn issued the attached Decision in this proceeding. Thereafter, General Counsel and Respondent filed exceptions and supporting briefs. 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 attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge to the extent consistent herewith. 1. We agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by creating an impression of surveillance, soliciting and dealing with employee grievances, promising benefits, and threatening reprisals, all in order to discourage union activity, and withholding a prom- ised wage increase because an employee had voted in a Board-conducted election. 2. For the reasons set forth below, we do not adopt the Administrative Law Judge's conclusions that Respondent did not violate Section 8(a)(3) and (1) of the Act by discharging employee Sidney Basha. The pertinent facts are fully set forth in the attached Decision. Briefly, Sidney Basha was hired as a full-time truckdriver for Respondent's Green- ville facility in the spring of 1975. At that time Plant Manager Edwin West and Assistant Plant Manager Robert Hinchee told Basha that Greenville was nonunion and they wanted to keep it nonunion. In the fall of 1975, on occasion, some merchandise would be missing so that the amount of goods Respondent's drivers actually delivered did not always equal the amount indicated on the bill of lading. Consequently, Respondent's customers were billed for goods they had not received. On November 18, 1975, Respondent placed a rule on the drivers' clipboards requiring them to report any missing merchandise to Hinchee before they left a customer's place of business. Since truckdriver Basha was laid off on that day prior to reading his clipboard, he did not learn of the new rule. Basha was recalled to work as an extra driver on an on-call basis during the first week of December 1975. Thereafter, he attended a union meeting on Decem- ber 7 and hosted a union meeting on December 14. He also solicited five authorization cards. On De- cember 15, 1975, after a majority of the employees in the unit had signed authorization cards, the Union demanded that Respondent recognize and bargain with it, and Respondent refused. Subsequently, the Union filed its petition in Case l-RC-14181 seeking a Board-conducted election, and a hearing was scheduled for January 26, 1976. On January 16, 1976,1 Basha was to deliver 1,000 cases of mustard. The load was two cases short, and Basha noted the shortage on the bill of lading but did not telephone Hinchee to advise him of the short- ages, as required by the November 18, 1975, rule. Respondent's executive vice president, Santich, no- ticed the bill of lading on Friday, January 23, and telephoned Hinchee, who stated that he did not have any knowledge of the matter. Hinchee then called Basha, who said he was pretty sure the load had been two cases short. Hinchee subsequently telephoned Santich, and they agreed to defer the question of Basha's failure to report the shortages until Monday, January 26, when they were scheduled to meet at the Board hearing. On January 26, prior to the hearing, Hinchee and Santich discussed the union situation and concluded that all the petitioned-for employees were prounion. They also decided to discharge Basha. On January 27, Hinchee discharged Basha, allegedly for failing to call about the shortages on January 16. Either at this time or a few days later, Basha told Hinchee that he had no knowledge of the rule, but Hinchee refused to reconsider the decision to discharge him. As the Administrative Law Judge found and the record establishes, Basha was a leading force in the Union's efforts; thus, he attended a union meeting, held a meeting at his house, and solicited authoriza- tion cards. Also Respondent knew or believed that Basha favored the Union. Furthermore, Respondent opposed the Union and engaged in violations of Section 8(a)(1). Nevertheless, the Administrative Law Judge con- cluded that Respondent discharged Basha for violat- ing the rule about reporting shortages and not because he engaged in union activity. In so conclud- ing, the Administrative Law Judge reasoned that discharging Basha would not have served an antiun- ion purpose, because Respondent thought that all the employees in the unit were prounion, and hence I All dates hereinafter are 1976, unless otherwise indicated. 234 NLRB No. 23 136 PILGRIM FOODS, INC. eliminating one potential "yes" vote would not have affected the results of the election. 2 Contrary to the Administrative Law Judge, we conclude that the asserted reason for Basha's dis- charge was pretextual, since the reasons proffered by Respondent in support of its defense of Basha's termination do not withstand scrutiny. First, Basha's failure to call in the fact that he was 2 cases short out of a delivery of 1,000 cases is a technical violation in that he did fail to telephone Hinchee before leaving the customer's place of business, but Hinchee admitted on cross-examina- tion that "As long as a driver had it [the shortages] on the bill of lading then it would not foul anything up." Second, Basha's discharge for the minor transgres- sion is disparately harsh in comparison with Respon- dent's discipline of other employees. The only other discharge of a truckdriver, in the 4 years Hinchee worked for Respondent, was for carrying his girl- friend in the truck with him after Respondent had promulgated a rule forbidding such conduct in response to the driver's past misconduct.3 In addition Basha's conduct is different from that of the previ- ously discharged driver in that the other driver knowingly violated a rule created because of his own past conduct, whereas Basha had not previously been made aware of the call-in rule and, although Basha had told Hinchee that he (Basha) did not know of the rule, Hinchee did not reconsider his decision to discharge him. Basha's discharge is also severe in comparison to Respondent's mere written reprimand and 1-week suspension of a driver who left 72 cases at the premises of the wrong customer, which Hinchee conceded resulted in a great loss of time and money. Third, if Hinchee had been concerned about the rule infraction, he would have mentioned it to Basha on January 23, instead of merely asking him if the delivery had been two cases short. 2 We do not adopt the Administrative Law Judge's reasoning. Respon- dent's discharge of a leading union adherent 2 weeks pnor to the election had a discouraging impact on the employees' organizing efforts. Thus, the discharge of Basha had a greater effect on the election than merely eliminating his potential "yes" vote. 3 The Administrative Law Judge erroneously stated that Respondent promulgated the rule at the same time it discharged the driver. 4Federal-Mogul Corporation, 224 NLRB 325. 338 (1976). s An election was conducted on February 12, 1976, pursuant to a Stipulation for Certification Upon Consent Election. The tally was four for, and four against, the Petitioner; there were four challenged ballots. Basha and three other employees not on the Norris-Thermador list executed by Respondent and the Union cast challenged ballots. The Administrative Law Judge found the list to be binding and sustained the challenges. However, he recommended that, in the event the Board did not adopt his conclusion that Respondent's discharge of Basha did not violate Sec. 8(a)(3) and (1) of the Act, Basha's ballot be opened and counted as it falls within the exception of Norris-Thermador Corporation, 119 NLRB 1301 Fourth, Hinchee acknowledged that Basha had never been engaged in any other improper conduct, had never received any warnings concerning his work, and had been in all other respects a "pretty good employee." On the basis of the facts set forth above, especially Respondent's demonstrated animus, the fact that Basha's prior performance had been acceptable to Respondent, the minor nature of his misfeasance, and Respondent's disparate treatment of Basha, we find that the reason assigned for Basha's discharge was pretextual.4 Further, as the Administrative Law Judge found, the timing of Basha's discharge imme- diately following Hinchee's and Santich's discussion of the Union buttresses the conclusion that he was unlawfully discharged. Accordingly, we find that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Basha for being active in the Union's organizational effort. 3. We further find, contrary to the Administrative Law Judge, that Respondent violated Section 8(aX5) and (1) of the Act by refusing to bargain with the Union.5 It is clear, as set forth above, that the Union had been designated by a majority of the employees in an appropriate unit at the time it requested recognition and bargaining. We are persuaded that a bargaining order is required in light of our conclu- sions that Respondent, upon receiving the Union's demand, embarked on a course of serious unfair labor practices of discharging an employee for his union activity; creating an impression of surveillance of its employees' union activities; soliciting and dealing with grievances in order to discourage union activities; promising benefits if its employees would refrain from union activity; threatening reprisals if its employees did not refrain from union activity; and withholding a promised wage increase because an employee had voted in a Board-conducted election. The unfair labor practices involved all employees in the unit8 and, taken together, undermined the (1958), that the list is contrary to the Act or Board policy. Although we do not adopt the Administrative Law Judge's dismissal of the 8(aX3) and (1) allegation with respect to Basha's discharge, we nonetheless conclude that the challenge to his ballot should be sustained. Basha was excluded from the list on the basis that he was a temporary fill-in employee and had been discharged. Subsequent to the execution of the list, the Union objected to Basha's exclusion on the basis that he was a regular part-time employee. Since the question of Basha's eligibility based on whether he was a regular or casual part-time employee does not involve a statutory exclusion, but rather a determination of his community of interests with other employees in the unit, no circumstances are presented warranting departure from the Board's practice of honoring the Norris-Thermador list. Prior Aviation Service, Inc., 220 NLRB 460, 461 (1975). Accordingly, we find the Norris- Thermador list binding on the parties as to the ineligibility of Basha. 6 The appropriate unit consists of eight employees, and Respondent solicited grievances from and promised benefits to all of them. Respondent's threats of reprisals were made to the leading union adherent, and it can be inferred that these threats were communicated to all the unit employees. 137 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union's majority status. 7 We find that they were so pervasive and widespread that their coercive effects cannot be eliminated by traditional remedies, and the possibility of conducting a fair election is improbable. Accordingly, we shall issue a bargaining order. THE REMEDY Having found that Respondent has engaged in unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(3) and (1) of the Act by discriminatorily dis- charging Basha, we shall order that the Respondent offer to fully and immediately reinstate him to his former job or, if that job no longer exists, to a substantially equivalent job. We shall also order that Respondent make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment of a sum of money equal to that which he would have earned from the date of his unlawful discharge, less his net earnings, if any, during such period, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950). Interest on the backpay shall be comput- ed as set forth in our Decision in Florida Steel Corporation, 231 NLRB 651 (1977).8 Having found that the Respondent violated Sec- tion 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union, we shall order it to recognize and bargain with the Union from January 13, 1976, the first known date Respondent's unfair labor practices commenced, after the Union's demand on December 15. 9 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Pilgrim Foods, Inc., Greenville, New Hampshire, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Creating the impression of surveillance of its employees' union activities. (b) Soliciting and dealing with grievances in order to discourage union activities. (c) Promising benefits if its employees refrain from union activities. (d) Threatening reprisals if its employees do not refrain from union activities. I The Kroger Co., 228 NLRB 149(1977). s Interest shall be computed according to the "adjusted pnme rate" used by the U.S. Internal Revenue Service for interest on tax payments. See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (e) Withholding promised wage increases because employees have voted in a National Labor Relations Board election. (f) Discharging or otherwise discriminating against employees for supporting or engaging in activities on behalf of Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization. (g) Refusing to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following appropriate unit: All full and regular part-time truckdrivers, ship- pers and receivers and truck mechanics at the Respondent's Greenville plant, exclusive of all other employees, guards, professional employees and all supervisors as defined in the Act. (k) In any other manner interfering with or attempting to restrain or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. 2. Take the following action necessary to effectu- ate the policies of the Act: (a) Offer Sidney Basha full and immediate rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, with full seniority, privileges, and benefits, and make him whole for any losses he may have suffered because of the discrimination practiced against him, in accor- dance with the provisions set forth in the section of this Decision entitled "The Remedy." (b) Recognize and bargain collectively from Janu- ary 13, 1976, with Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit herein found appropriate with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. M Trading Port, Inc., 219 NLRB 298 (1975), and The Kroger Co., 228 NLRB 149 (1977). Chairman Fanning would find that the bargaining obligation arose on December 15, 1975, the date the Union requested Respondent to recognize and bargain with it and was refused. 138 PILGRIM FOODS, INC. (c) Post as its plant in Greenville, New Hampshire, copies of the attached notice marked "Appendix."10 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's authorized representative, shall be posted by 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 Respondent to insure that said notices are not altered, defaced, or covered by any other material. (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 necessary to determine the amount of backpay due under the terms of this Order. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of the Order, what steps Respondent has taken to comply here- with. MEMBER MURPHY, dissenting in part: I agree with my colleagues and the Administrative Law Judge that Respondent violated Section 8(aX1) of the Act by creating an impression of surveillance, soliciting and dealing with grievances, promising benefits, threatening reprisals, and withholding a promised wage increase to an employee who had voted in a Board-conducted election, and Section 8(a)(5) by refusing to bargain with the Union. However, contrary to my colleagues, I would adopt the Administrative Law Judge's finding that Respon- dent's discharge of employee Basha did not violate Section 8(a)(3) and (1) of the Act. The majority opinion recites nothing not consid- ered by the Administrative Law Judge, upon which he concluded that Basha was discharged for failing to report missing cases as required by Respondent's rule. The rule requiring Respondent's truckdrivers to report missing merchandise before leaving a custom- er's place of business was posted on November 18, 1975, to cure Respondent's recurring problem of shortages and the failure to report them. Clearly, on January 16, Basha's delivery was two cases short, but, instead of calling the Respondent's plant manag- er as required, he merely noted the shortages on the bill of lading. Immediately upon learning of Basha's transgression of the November 18 rule, Respondent discharged him. Nor does the majority opinion justify a conclusion contrary to that reached by the Administrative Law Judge. First, the majority may not substitute its judgment for management's by finding that Basha's rule infraction was so minor as not to warrant discharge. Second, the circumstances relied upon to show that Basha was disparately treated are in fact inapposite. Respondent's discharge of Basha was consistent with its practice of promulgating a written rule concerning drivers' conduct when a problem became serious, and discharging any employee who violated the rule. Thus, where a driver had carried a passenger in Respondent's truck, Respondent adopt- ed a rule against that practice and the employee was later discharged for violating that rule and, when a driver delivered the wrong goods to a customer, a transgression not covered by any existing rule, Respondent suspended the driver and issued a rule requiring drivers to call in after completing a delivery. Lastly, I am not persuaded by the General Coun- sel's contention that the timing of the discharge further buttresses the conclusion that Basha was unlawfully discharged. Even though the decision to discharge Basha was made on the same day that the election agreement and the Norris-Thermador list were executed, it is unrefuted that the timing of Basha's discharge also coincided with Respondent's discovery of Basha's violation of the rule. Respon- dent learned of Basha's infraction of the call-in rule on Friday, January 23, 1976, and decided to dis- charge him early the following Monday, January 26. For all the above reasons, I find that the General Counsel has failed to establish by a preponderance of the evidence that the Respondent's reason for the discharge of Basha was pretextual. Accordingly, I would dismiss that allegation of the complaint. to In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees the right: To engage in self-organization To form, join, or help unions To bargain collectively through a repre- sentative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things. WE WILL NOT create the impression of surveil- lance of your union activities. 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT solicit and deal with your grievances in order to discourage union activities among you. WE WILL NOT promise you benefits if you refrain from union activities. WE WILL NOT threaten you with reprisals if you do not refrain from union activities. WE WILL NOT withhold promised wage in- creases because you have voted in a National Labor Relations Board election. WE WILL NOT discharge or otherwise discrimi- nate against employees for supporting or engag- ing in activities on behalf of Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization. WE WILL NOT refuse to recognize and bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT in any other manner interfere with or attempt to restrain or coerce you in the exercise of your Section 7 rights. WE WILL offer Sidney Basha full and immedi- ate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, and WE WILL make him whole for his loss of earnings because of our discrimination against him, plus interest. WE WILL recognize and bargain collectively with Local Union No. 633 of New Hampshire (Chauffeurs, Teamsters and Helpers) a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of North America as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment. The bargaining unit is: All full and regular part-time truckdrivers, shippers and receivers and truck mechanics at the Respondent's Greenville plant, exclu- sive of all other employees, guards, profes- sional employees and all supervisors as defined in the Act. PILGRIM FOODS, INC. DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Administrative Law Judge: The petition in Case l-RC-14181 was filed on December 17, 1975.1 A Stipulation for Certification Upon Consent Election was executed on January 26 and approved on January 27, 1976. The election was held on February 12. It resulted in a four-four tie with four challenged ballots being determinative. The Union filed objections on Febru- ary 19. The charge in Case I-CA-I 11448 was filed on February 17, amended on March 8, and amended again on March 26. The Acting Regional Director issued a Consolidated Report on Objections and Challenged Ballots in Case 1- RC-14181 on March 31. He noted that issues raised by objections and challenges were identical with those in Case I-CA-11448 and stated that the two cases would be consolidated for hearing. The Regional Director consoli- dated them and issued a complaint in Case I-CA-I 1448 on April 16. The hearing was held before Administrative Law Judge Wellington A. Gillis in Nashua, New Hampshire, on October 12, 13, and 14, 1976. At the conclusion of the hearing, the General Counsel and Respondent argued orally, and the parties were given leave to file briefs which were received from the General Counsel and Respondent. Following the hearing, Judge Gillis died before he was able to write his Decision. Upon notification of Judge Gillis' death, all parties consented to the issuance of a Decision by another Administrative Law Judge based on the record made before Judge Gillis, pursuant to Section 102.36 of the Board's Rules and Regulations, Series 8, as amended. On April 1, 1977, the Chief Administrative Law Judge desig- nated me to prepare and issue a Decision on the basis of said record. Upon consideration of the entire record in this proceed- ing, I make the following: FINDINGS OF FACT 1. JURISDICTION Respondent, a New Hampshire corporation, is engaged at Greenville, New Hampshire, in the business of packag- ing and distributing certain food products. During calen- dar 1975 it shipped products valued in excess of $50,000 directly to customers located outside the State of New Hampshire. II. THE UNFAIR LABOR PRACTICES A. The Discharge of Sidney Basha 1. Facts Respondent's basic operation is located in Brooklyn, New York. Paul Santich, its executive vice president, has his office there. Truckdrivers who work for Respondent out of its Brooklyn facility are unionized. The Greenville, New I Dates (other than those on which the hearing was held) are late 1975 or early 1976 as the case may be. 140 PILGRIM FOODS, INC. Hampshire, plant is nonunion. It is supervised by Plant Manager Edwin West and his assistant, Robert Hinchee. Sidney Basha was hired as a truckdriver in Greenville in the spring of 1975. His most recent employer just before he went to work for Respondent was a trucking firm whose drivers are represented by the Union. Basha did not reveal that fact when he was hired. When West and Hinchee interviewed Basha before hiring him, they pointed out to him that the Greenville part of Respondent's operation was nonunion while the Brooklyn part was union. They said they wanted to keep Greenville nonunion. In the fall of 1975 Respondent was plagued by discrepan- cies between the amounts of goods actually delivered to customers and the amounts which the bills of lading turned in by truckdrivers indicated had been delivered. Putting the uncorrected data into the computer caused customers to be billed for goods they had not actually received, with predictable results. Consequently, Santich instructed Hin- chee to order his drivers to check with Greenville when they were on the road and a situation arose where the amount of product on the truck did not match the figure on the bill of lading. On November 18 Hinchee promulgated the following rule by placing a copy on the dispatch clipboard of each driver: If there is any merchandise missing on your truck, and it has not been marked off on your bill of lading [i.e., by entry of a figure in the column headed "Quantity Shipped if Different" which differed from the figure entered in the column headed "Quantity Ordered and Shipped" on the bill of lading], you are to call me before you leave the customer's place of business. There has been to [sic] much missing goods that do not correspond with the shipping orders. Basha's last trip for Respondent as a regular truckdriver was made on November 18. Hinchee decided on that day to lay off Basha and one other driver for economic reasons. He left a notice on a master schedule next to the drivers' clipboards for Basha and the other man to report to him when they returned to the plant. When Basha came in, he looked only at the master schedule before reporting to Hinchee to be laid off. He, therefore, did not learn of the new rule either at that time or thereafter. Hinchee recalled Basha sometime during the first week in December with the understanding that Basha would act as an extra driver on a when-needed basis. Basha first worked in this capacity on December 5. In the meantime, Robert Martin, one of Respondent's regular drivers, had contacted the Union and arranged for an organizer to meet with some of the drivers on Sunday, December 7. Martin was involved in an accident on December 6 and hospital- ized. Consequently, Martin was not present when Thomas Piper, business agent for the Union, met with three of Respondent's four regular drivers, its one mechanic (Ron- ald Jones), and Basha on Respondent's parking lot. The plant was closed, and there were no supervisors around to observe this meeting. 2 Events triggered by Piper's call to West which are not directly related to the issue of Basha's discharge are taken up in the section below entitled "*'Independent 8(aX ) Allegations." When Piper had finished his explanation of union representation to the drivers, he gave Basha a blank authorization card for each man present. (The men did not sign up immediately because they wanted an opportunity to discuss the matter among themselves before doing so.) All five of the men who met with Piper on the parking lot subsequently signed cards and dated them December 7. Basha collected them and turned them in to Piper at a meeting held at Basha's house on December 14. Basha and Piper went from the parking lot to the hospital. Martin signed an authorization card and gave it to Piper. He dated it December 3 as evidence that his union activity had preceded his incapacitating accident. Piper telephoned West on December 15 and demanded recognition as the representative of Respondent's truck- drivers, shippers, receivers, and mechanic. (Piper followed up his telephone call with a demand letter dated December 15.) When West declined, the Union turned to the Board's election machinery.2 Case l-RC-14181 was eventually noticed for hearing on January 26. After the notice of hearing was issued and before January 26, Basha unwit- tingly fell afoul of the November 18 rule relating to shortages at time of delivery. On January 16 Basha delivered 1,000 cases of German- style mustard to a customer in Roxbury, Massachusetts. When the load proved to be two cases short, Basha did not call Hinchee from Roxbury. Instead he merely entered the number 998 in the "Quantity Shipped if Different" column of the bill of lading, wrote "2 short Sid" under it, and turned in the bill of lading in a routine manner when he returned to Greenville. The bill of lading was routinely forwarded to Brooklyn, where it came to Santich's atten- tion on Friday, January 23. Santich immediately telephoned Hinchee. Hinchee told Santich he knew nothing about the matter but would contact Basha and call Santich back. Hinchee telephoned Basha. Basha, unaware that he had violated a standing rule, told Hinchee he was pretty sure the load had, in fact, been two cases short. Hinchee telephoned Santich and reported what Basha had said. Santich and Hinchee agreed to defer until the following Monday, January 26, when they were scheduled to get together in Boston for the hearing in Case l-RC-14181, the question of what to do about Basha's failure to call Hinchee on January 16 before delivering the mustard. Hinchee met Santich at Logan Airport in Boston on the morning of January 26. As they rode from the airport to the Regional Office with Respondent's lawyer, they dis- cussed both Basha and Respondent's position in the upcoming hearing. With respect to the latter, they dis- cussed Respondent's chances of avoiding unionization of its employees. They concluded that all of the employees petitioned for, Basha included, were prounion. With respect to the former, Santich decided that Basha would be discharged for violating the November 18 rule on January 16. In the course of talking about that decision, Santich and Hinchee assumed without discussion that Basha had been aware of the rule. 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the Regional Office, the Board agent handling Case l-RC-14181 explored the possibility of a consent election before opening the hearing. As matters developed, the hearing never opened for the parties were finally able to agree not only on all the details required to execute a Stipulation for Certification Upon Consent Election, in- cluding the unit description, but also on the individuals included in that unit and entitled to vote in the election. They named those employees in writing and executed a signed stipulation which provided that they and no others would be permitted to vote in the election the parties had agreed to hold on February 12, thereby producing what is known in Board jargon as a Norris-Thermador list (Norris- Thermador Corporation, 119 NLRB 1301 (1958)). In the discussions which led up to the execution of these two documents, Respondent took the position Basha was not properly includable in a unit of truckdrivers because he was a temporary employee rather than a regular part-timer. It also argued the question was moot in any event because it had already decided to discharge him for violation of the rule about reporting shortages. In the course of that stage of the discussion, Santich said something about pilferage and Hinchee cautioned him not to make such a charge because Respondent had no proof Basha was to blame for the missing mustard. The Union wanted to include Respondent's mechanic in the unit. Respondent took the position he should not be in. Finally, agreement was reached on the basis of the Union giving up on Basha and Respondent giving up on the mechanic. In reaching this compromise, Piper, the Union's representative at the conference, was guided by the advice of the Board agent. As a result, the unit agreed to was "all full and regular part-time truck drivers, shippers and receivers and truck mechanic" with the usual exclusions. The Norris-Thermador list named Respondent's four regu- lar truckdrivers, three shippers and/or receivers, and one mechanic. At a break in the conference, Hinchee called his office in Greenville and ordered that Basha not be permitted to leave on a trip he was scheduled to begin that afternoon. When Basha came to work, he was told to report to Hinchee next morning. When Piper telephoned Basha on the evening of January 26 and told him what had been agreed at the conference in the Regional Office, Basha got the impression he was going to be discharged for stealing the missing mustard. Basha saw Hinchee on January 27. Hinchee discharged Basha for violating the rule about reporting shortages on January 16. Either at this time or a few days later when Basha returned to the plant to ask Hinchee for a letter stating why he had been discharged (the record is not clear), Basha protested that he had no knowledge of the November 18 rule. Hinchee permitted the discharge to stand nonetheless. Sometime shortly after talking to Basha on the evening of January 26, Piper informed the Board agent who was handling Case l-RC-14181 that the Union did not consid- er itself bound by the Norris-Thermador list with respect to Basha. The Board agent did not relay this oral message to Respondent. Piper first indicated the Union's position in writing in a letter to the Regional Director dated February 4. He tendered proof Basha was a regular part-timer rather than a temporary employee and noted that an unfair labor practice charge would be filed contesting Basha's dis- charge. He did not send a copy of this letter to Respondent. Respondent first learned the Union was attempting to withdraw from the Norris-Thermador agreement on Febru- ary 10 when Piper sent it the following mailgram: Regarding stipulation agreement in Case Number I- RC-14181 it is the opinion of the Union in the case of Sidney Basha that he is eligible to vote. Despite our stipulation of agreement the Union will not abide by said agreement. On March 26, Roland Caron, one of Respondent's regular truckdrivers, was reprimanded in writing, suspend- ed for I week, and warned that a recurrence would lead to his discharge for leaving 72 cases of salad-style mustard at the premises of a customer to whom they were not consigned. This incident resulted in Hinchee promulgating the following rule on April 2 under the heading of "Deliveries": Effective April 5, 1976 all drivers will call Bob Hinchee or Ed West when they have completed a delivery at a customers [sic] place of business. This is to include all deliveries made by Pilgrim Food drivers. At the time of this call any descrepancy [sic] must be reported. In the 4 years Hinchee has worked for Respondent, the only other driver discharged was let go for carrying his girl friend with him in the truck. Hinchee promulgated a rule forbidding such conduct at that time as a result of the incident which led up to the discharge. 2. Analysis and conclusions In his brief, the General Counsel argues as follows that Basha was discharged because of his union activities and not because he violated the November 18 rule: The record leaves no doubt that Basha was dis- charged in violation of the Act. Indeed, under all the circumstances of this case, any other conclusion would be totally absurd. The evidence in support of this conclusion may be summarized as follows .... Five sections follow. There can be no serious quarrel with the points the General Counsel makes in the first four. They are that "1. Basha, in fact, was a leading force in the Union's efforts. . . . 2. Respondent knew or believed that Basha favored the Union.... 3. The timing of Basha's discharge further buttresses the fact that he was unlawfully discharged .... 4. The record plainly reveals strong evidence to support a finding that Respondent was bitterly opposed to unionization and was willing, able, and, in fact, did engage in numerous instances of unlawful conduct" (the last phrase in point 4 being a reference to the events discussed in the section of this Decision which follows this one). However, at point 5-"The reason alleged for the discharge of Basha is false"-the argument breaks down. 142 PILGRIM FOODS, INC. In summary, the General Counsel contends Respondent seized on rule violation as a pretext to mask its real motive of getting rid of a known "yes" vote in order to affect the outcome of the election, thus bringing about the situation which now exists, i.e., four "yes" votes and four "no" votes by the eight persons on the Norris-Thermador list agreed to by Respondent. While the timing of the decision on January 26 to discharge Basha does "further [buttress] the fact that [Basha] was unlawfully discharged" in that it came on the very day the election agreement and Norris- Thermador list were worked out, it is not dispositive, for it is equally consonant with the unrefuted facts surrounding the timing of Respondent's discovery Basha had violated the rule and the process it went though thereafter in arriving at the decision to discharge him. The same is true of the General Counsel's union activity, company knowl- edge, and animus arguments. None of them alone is dispositive. Even linked to timing and to each other they are inconclusive, absent a finding that the General Counsel is right as to the pretextual nature of Respondent's stated reason. The record considered as a whole will not sustain such a finding. The key question is exactly what Respondent faced and what it knew as it dickered on January 26 over the terms and conditions of the election held on February 12. There is nothing in the record to suggest Respondent knew on January 26 that four persons, including Basha, would attempt to vote on February 12 and wind up casting challenged ballots. (All four challenges are considered below in the section entitled "The Representation Case.") What it did know-or, more precisely, what it thought it knew-is contained in this portion of the testimony of Hinchee as he was interrogated by the General Counsel: Q. And isn't it true that the company suspected that Sidney Basha was a potential vote, yes, for the union? A. I don't know. Q. You have no idea? A. When you say, company, I know how I felt, but as far as the company, no, I don't. Q. Well, I'll rephrase myself, I might have phrased the question wrong. Isn't it true that the company suspected, did you? A. Pardon me? Q. Isn't it true that you suspected that Sidney Basha might very well vote for the union? A. I guess so, asfar as I was concerned all ten [a slip of the tongue for "nine"] were going to vote. [Emphasis supplied.] An inference that Respondent took a blind shot at Basha on January 26 in hope the elimination of one sure "yes" vote would tip the election in its favor is illogical given the situation that existed.3 The Union had in its possession authorization cards signed by six persons in a unit of, at most, nine employees, five cards in a unit of eight 3 I do not understand the General Counsel to be contending Basha was discharged because Respondent thought he was the instigator or leader of the union movement among its employees and/or because it sought to frighten other employees into ceasing their support of the Union by making an example of Basha. In any event, Basha was not the instigator or leader of employees if Basha is eliminated. There is nothing in the record to indicate that one of the other five supporters of the Union had changed his mind prior to January 26 or that, if he had, Respondent was aware of the fact. The only evidence of this is the fact that on election day only four employees in the unit of eight Voted for the Union. Thus, an inference Respondent knew, as of January 26, that eliminating Basha would create a four-four deadlock on election day turns on a finding it thought the nine-man unit was divided five to four in favor of the Union. There is the beginning of a basis for such a finding in the fact that the nine-man unit consisted of five truckdrivers, Basha includ- ed, and four nontruckdrivers. However, the record will not permit the inference required to sustain this approach because the facts detailed in the next section establish beyond a doubt Respondent was aware that Jones, the mechanic, was prounion. Finally, if an inference is drawn, despite Hinchee's quoted testimony, that Respondent knew or suspected the truth-that the Union had signed up six employees in a nine-man unit-eliminating one known union supporter from the unit would not have served Respondent's purpose. Discharging Basha to get rid of a "yes" vote still left it in a situation where the Union was likely to win the election. Therefore, I cannot draw any inference which would cause me to find Respondent's stated reason for discharging Basha is a pretext. The only facts I can find on this record are that, on the day Respondent decided to discharge Basha, it thought all its employees in the unit involved in Case l-RC-14181 were prounion and, therefore, discharging Basha would not have served an antiunion purpose. Since the General Counsel has not established by a preponderance of the evidence on the record considered as a whole that Respondent's stated reason for getting rid of Sidney Basha was a pretext, it follows Respondent did not violate Section 8(aX3) and (1) of the National Labor Relations Act, as amended, when it discharged him on January 27, 1976. B. Independent 8(a)() Allegations I. Attributed to Robert Hinchee When Edwin West, the plant manager, hung up the telephone after talking to Thomas Piper on December 15, he told his assistant, Robert Hinchee, that the Union was claiming to represent the Greenville drivers, shippers, receivers, and mechanic. Hinchee went to the garage and spoke to Ronald Jones, the mechanic. He asked Jones if the call which West had just received was legitimate. Jones said he did not know. He added that the men wanted more money and more hours. This brief exchange underlies an allegation in the complaint that Respondent, in the person of Hinchee, interrogated "its employees concerning their Union activities" on December 15. There was nothing coercive about the question Hinchee put to Jones on this occasion. I find, therefore, it did not violate Section 8(aX I) of the Act. Numerous other independent 8(aXl) allegations union activity (Martin was the instigator, Jones, the leader), and there is no evidence Respondent mistakenly thought Basha played either role. Whether this approach is considered to be one theory or two, it fails for the same reason as the one analyzed above. It requires an inference which I am unwilling to draw in the face of Hinchee's quoted testimony. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grow out of two other series of events in which Hinchee became involved. a. The abortive bargaining Shortly after the first of the year, Hinchee talked to Jones again about the union situation. This conversation set in motion a train of events which culminated before January 26, the day the conference was held in Case I-RC-14181 in the Regional Office. Jones said the whole situation could have been avoided if Hinchee had just given the men a 25- cent-an-hour raise when he had cut back on their hours in December. Hinchee said he knew Jones was the spokesman for the men. He asked Jones to get together a list of what the men wanted and bring it to him. Jones promised to do so. Around the same time, Hinchee visited the home of Sheldon Stokes, one of Respondent's truckdrivers. He told Stokes substantially the same thing he had told Jones. He said that he could not guarantee anything but, if the men would get together and give him a list of what they wanted, he would forward the list to the home office in the hope that something could be worked out. Jones got the men together and they prepared a list. It contained such items as a wage of $6 an hour, overtime, and the like. Jones gave the list to Hinchee. Jones indicated there were other items the men wanted which were not on the list. Hinchee drew up an expanded list which included all the points raised by Jones either in writing or orally. He duplicated this piece of paper and gave Jones a copy for each employee. He told Jones he would get back to him after checking with Paul Santich, Respondent's executive vice president. He said any decisions about what the men wanted were up to Santich. Jones reported to Piper that Respondent was trying to get out of the hearing scheduled for January 26 by satisfying the men's demands directly. Piper told Jones that, if the men were able to get everything they were asking for, they would be as well off without the Union as with it. Hinchee conferred with Santich. Santich told Hinchee Respondent could not afford many of the things the men wanted. He also said Respondent could not bargain with the men directly in any event. Thereafter, Hinchee met again with Jones. This time Stokes and another truckdriver, Roland Caron, were also present. Hinchee went down the expanded list item by item saying no as to each on the ground that it would cost too much. He also said Respondent could not bargain with the men directly until the Union was out of the picture. In the course of discussing the cost of what the men wanted, Hinchee said Respondent had checked with another trucking company and learned the other company could do Respondent's work cheaper than Respondent could do it with its own employees if the men got everything on the list. Sometime after January 26 but before the election, Hinchee told Jones that if the Union won the election he would have to cut hours or hire more drivers to reduce costs. It is obvious Hinchee's purpose in acting as he did was to try to head off unionization, hopefully before the Union's petition even got to the hearing stage, by satisfying the demands which had caused Respondent's employees to turn to the Union in the first place. Only Santich's better understanding of Respondent's legal obligations in the situation which existed kept Hinchee from actually carry- ing direct bargaining with the men to the haggling stage. Why Hinchee did what he did is of no consequence, of course, as to the question of whether he interfered with, restrained, or coerced employees in the exercise of their statutory rights. That the things Hinchee said and did in trying to head off unionization in this manner were serious enough and pervasive enough to rise to the level of illegal interference, restraint, and coercion is as obvious as his motive. I find, therefore, that Respondent, in the person of Robert Hinchee, violated Section 8(a)(X1) of the Act by creating an impression of surveillance of its employees' union activities, soliciting and dealing with grievances in order to discourage union activities, impliedly promising benefits if its employees would refrain from union activi- ties, and threatening reprisals if they did not. b. George Huszar's raise On February 5 George Huszar, a forklift operator in the Greenville plant, told Hinchee he was quitting to take a job that paid 30 cents more per hour. Hinchee said he would give Huszar a 30-cent raise in order to keep him. Hinchee asked Huszar if he was in the unit that was to vote on February 12. Huszar said no. Hinchee said he would give the raise on February 19 because he did not want to give it before the election but would make it retroactive to February 5. On February 12 Huszar took it into his head to try to vote and cast a challenged ballot. On February 13 Hinchee told Huszar the raise was canceled because it was illegal for him to give a raise to an employee who had voted in the election. Huszar quit. The 8 (aXI) violation here is as obvious as those Hinchee committed when he tried to head off the January 26 hearing by bargaining directly with the employees in the unit. He gave Huszar a raise which was legal because it was given under circumstances having nothing to do with the pending election. Huszar thereafter, for reasons not reveal- ed in the record, decided to participate in the election. Even though he was mistaken as to his eligibility to vote (see "The Representation Case" below), he had a statutory right to do what he did. Because he did it, Hinchee took his raise away from him, thereby penalizing him for doing that which he had a right to do. While the complaint is incorrect in characterizing the question which Hinchee put to Huszar on February 5 as a coercive interrogation or Hinchee's stated reason for wanting to make the raise retroactive as a notice to employees that "the grant of wage increases to them was conditioned upon the outcome of [the] represen- tation election," there can be no doubt that Hinchee did indeed withhold a wage increase on February 13 which had been promised to an employee because he had voted in the election. I find Respondent violated Section 8(aX1) by interfering with an employee's Section 7 rights in that manner at that time. 144 PILGRIM FOODS, INC. 2. Attributed to Paul Santich Sometime around January 26 Ronald Jones, Respon- dent's mechanic, bumped into Paul Santich, Respondent's executive vice president, as Jones was leaving and Santich was entering the Red Brick Inn in Greenville. Santich asked Jones, "What about the Union?" Jones said he did not really know how matters stood. Santich said he understood Jones was the spokesman for the men. Jones said he was. Santich said if Respondent had to go union the whole town would go union. The complaint alleges interrogation and impression of surveillance violations based on this conversation. I dis- agree. There was nothing coercive in this brief exchange. The "spokesman" comment differs from the same remark made to Jones by Hinchee which I have already found constituted an impression of surveillance violation. There, Respondent revealed for the first time it was enough aware of union activity among its employees to know who was their leader, thus giving reason for employees to believe Respondent was keeping an eye on what they were up to. Here, Santich merely indicated he was aware of what had gone on between Jones and Hinchee when Hinchee tried to bargain directly with the men. C. Gissel Regardless of whether Sidney Basha was in the unit on December 15 as a regular part-time truckdriver or out of it as a temporary employee, the Union represented a majority of employees in a unit appropriate for the purposes of collective bargaining when it demanded recognition. The only issue posed by the 8(a)(5) allegations of the complaint is whether the unfair labor practices Respondent commit- ted thereafter have created a situation in which the authorization cards the Union obtained from employees on December 7 and 14 are a better indication of their desires to be represented by the Union than a Board election under the principle enunciated by the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). I do not think so. The fact that the 8(a)(1) violations which Hinchee did commit prior to the election all arose in the context of a misguided attempt to bargain directly with the men which was quickly aborted once Hinchee's activities came to the attention of higher management prevents them from being so persuasive that their effect on the employees, if any, cannot be eradicated by the application of tradition- al Board remedies. I find, therefore, Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union on and after December 15, 1975, as the collective-bargaining represen- tative of its employees. 111. THE REPRESENTATION CASE The unfair labor practices which Robert Hinchee com- mitted in the course of his efforts to head off the Union by bargaining directly with unit employees are the objections which have been referred to me in Case I-RC-14181. On the basis of those findings, I recommend that, if the Board does not reverse me on the Gissel issue, it set aside the election held in that case on February 12, 1976, and direct that a second election be held at such time and under such circumstances as the Regional Director deems appropriate, provided that a reversal on the issue of Sidney Basha's discharge does not lead to an amended tally of ballots which results in certification of the Union on the basis of the election held on February 12. The four challenged ballots from the February 12 election which have been referred to me were cast by Sidney Basha, George Huszar, Phillip Belanger, and Jean LaBonte. None of their names appears on the Norris- Thermador list. In Norris-Thermador Corporation, 119 NLRB 1301, the Board said: The Board is also of the opinion, however, that parties to a representation proceeding should be per- mitted to definitively resolve as between themselves issues of eligibility prior to the election if they clearly evidence their intention to do so in writing. According- ly, the Board has concluded that hereafter, where the parties enter into a written and signed agreement which expressly provides that issues of eligibility resolved therein shall be final and binding upon the parties, the Board will consider such an agreement, and only such an agreement, a final determination of the eligibility issues treated therein unless it is, in part or in whole, contrary to the Act or established Board policy. [Footnote omitted.] Since that landmark decision, the Board has applied the "contrary to the Act or established Board policy" excep- tion in cases involving probationary employees (Westlake Plastics Company and Crystal-X Corporation, 119 NLRB 1434 (1958)), and supervisors (Lake Huron Broadcasting Corporation, 130 NLRB 908 (1961); Fisher-New Center Company, 184 NLRB 809 (1970); Laymon Candy Company, 199 NLRB 547 (1972); but cf. Prior Aviation Service, Inc., 220 NLRB 460 (1975)). It has failed to honor a Norris- Thermador list agreement in a situation where, apparently, it would have otherwise done so when an employee was inadvertently omitted from the list and there was no dispute as to his eligibility (Southampton Marine Corpora- tion, 217 NLRB 649 (1975), distinguishing Pyper Construc- tion Company, 177 NLRB 707 (1969), where the Board held a Norris-Thermador list binding on the parties even though the name of the employee at issue had not come up during the negotiations which led to their stipulation.) In the event the Board reverses me on the issue of Sidney Basha's discharge, I recommend that it order his challenged ballot be opened and counted on the ground that an employee who has been left off a Norris-Thermador list because of the employer's discrimination against him falls within the exception language of the Norris-Thermador decision, where, as developed below, the employee would otherwise have been in the unit at the time the parties prepared and stipulated to the list. In the event I am sustained on the issue of Basha's discharge, I recommend the challenges to all four ballots be sustained on the ground the Norris- Thermador list is binding on the parties. In the event I am reversed on the issue of the binding nature of the stipulation which the parties entered into 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when they drew up a Norris-Thermador list, I recommend the challenges be disposed of on the following basis: Sidney Basha: In the period from his recall in December on a when-needed basis to his discharge in January, Basha worked the following numbers of hours: Week ending December 10 - 30; 17 - 57.25; 24 - 0; 31 - 0; January 7 - 12; 14-- 21.5; 21 - 50.25; 28 - 47. On the basis of this data I find he was, as of January 26, 1976, a regular part-time truckdriver rather than a tempo- rary employee. Since that status places him within the express inclusion in the unit agreed to by the parties of "all . . .regular part-time truck drivers," I recommend that the challenge to his ballot be overruled. George Huszar: George Huszar operated a forklift in the plant. His job was to lift pallets bearing products and carry them to the warehouse. Occasionally, rather than deposit the loaded pallet in the warehouse he drove it directly into a truck being loaded. Since his duties were not those of a shipper, he did not fall within the unit agreed to by the parties. I recommend, therefore, that the challenge to his ballot be sustained. Phillip Belanger and Jean LaBonte: Phillip Belanger operates the label machine in the plant; Jean LaBonte, the filler. During the busy season, which runs from September to December, they work at their machines on Saturday, as well as during the week. During the remainder of the year, they come in on Saturdays to clean their machines. Occasionally, when they are in the plant on Saturday and not operating their machines, they help regular ship- per/receivers unload trucks. Since their duties are not those of a receiver, they do not fall within the unit agreed to by the parties. I recommend, therefore, that the challenges to their ballots be sustained. Upon the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Pilgrim Foods, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Union No. 633 of New Hampshire (Chauf- feurs, Teamsters and Helpers) a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By creating an impression of surveillance of its employees' union activities, by soliciting and dealing with grievances in order to discourage union activities, by promising benefits if its employees would refrain from union activity, by threatening reprisals if they did not, and by withholding a promised wage increase because an employee had voted in a National labor Relations Board election, Respondent has violated Section 8(aX)(I) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 5. The allegations of the complaint that Respondent violated Section 8(aX I) of the Act by interrogating employ- ees concerning their union activities and by conditioning a wage increase on the outcome of a Board election have not been sustained. 6. The allegations of the complaint that Respondent violated Section 8(a)(3) and Section 8(a)(5) of the Act have not been sustained. 7. All full and regular part-time truckdrivers, shippers and receivers, and truck mechanic employed at Respon- dent's Greenville, New Hampshire, plant, excluding all other employees, guards, professional employees, 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. [Recommended Order omitted from publication.] 146