Quintree Distributors, Inc.

390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Quintree Distributors, Inc. and Technical Industrial Service Agency Employees and Allied Workers Union, Local 840, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America Quintree Distributors, Inc. and Brewery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Cases 29-CA-2230, 29-CA-2302, 29-CA-2386, and 29-CA-2408 2. Substitute the attached Appendix for the Trial Examiner's Appendix. 1 The Respondent has also requested that the case be set for oral argument before the Board. Since we believe that the record and the briefs adequately present the contentions of the parties, we deny the request. 2 In affirmatively ordering that the Respondent bargain with Local 46, we shall construe the initial period of certification to begin on the date Respondent commences to bargain in good faith with Local 46 , IBT, rather than on March 29, 1971 , when the Regional Director certified Local 46 as bargaining representative. Cascade Corporation, 192 NLRB No. 74. APPENDIX July 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 25, 1972, Trial Examiner Harry H. Kuskin issued the attached Decision in this proceed- ing. Thereafter, the Respondent and Brewery Deliv- ery Employees, Local 46, IBT, 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 Trial Examiner's Decision in light of the exceptions and briefs i and has decided to affirm the Trial Examin- er's rulings, findings, and conclusions, and to adopt his recommended Order, as modified below.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Quintree Distributors, Inc., Sayville, New York, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as modified herein: 1. Renumber paragraphs 2(h) and 2(i) of the recommended Order as paragraphs 2(i) and 2(j), respectively. Insert as a new paragraph 2(h) the following: "(h) Upon request, bargain collectively with Brew- ery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive representative of all employees in the unit found appropriate herein with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement." 198 NLRB No. 69 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, by (1) interrogating them concerning the union attitudes and desires of their fellow employ- ees and as to how they are going to vote in an upcoming Board election; (2) threatening them with economic reprisals should Brewery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 46, be selected as their exclusive bargaining agent; (3) promising them economic benefits should Local 46 not be selected by them as their exclusive bargaining agent in an up- coming election; (4) urging them to reject the labor organiza- tion which is seeking to represent them for collective-bargaining purposes and, instead, to form a committee of their own to represent them in collective bargaining with us; (5) soliciting any of them to take the leading role in forming a committee to represent them in collective bargaining with us; (6) telling them, in the context of a pending Board election, that we will withhold their usual Christmas bonus and/or actually withholding that bonus; or (7) dealing separately with them, notwith- standing that Local 46 is their exclusive bargaining agent, and attempting to induce them to abandon Local 46 and enter into individual contractual relationships with us. WE WILL NOT discharge or refuse to reinstate our employees or lay them off, or fail to pay them wages for the first week of their disablement due to a job-connected injury for antiunion reasons. WE WILL NOT refuse to bargain collectively in QUINTREE DISTRIBUTORS, INC. good faith concerning rates of pay, wages, hours, or other conditions of employment with Local 46 as our employees' exclusive representative. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WE WILL offer Thomas Kleinklaus immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole foi any loss of pay suffered as a result of his discriminato- ry discharge; in addition, WE WILL make him whole for any loss of pay suffered by him as a result of his earlier discriminatory layoff. WE WILL make whole Nathan Granger, Joseph Marousek, Thomas Farrell, Joseph Dobrie, Rob- ert Carlton, Stewart Greene, Robert Tripptree, and Andrew Drier for any loss of pay suffered by each of them as a result of his discriminatory layoff. WE WILL make whole Robert Carlton for his loss of a week's pay as a result of our discrimina- tory failure to pay him for the first week of his disablement because of a job-connected injury. WE WILL make all our employees whole by paying them the 1970 Christmas bonus which we unlawfully withheld from them. WE WILL, upon application, offer immediate and full reinstatement to all our employees who joined in the unfair labor strike of May 28, 1971, and are still on strike to their former jobs or, if any of these jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, dismiss- ing, if necessary, persons hired by us on or after May 28, 1971. Further, if we should refuse to reinstate any of these employees, WE WILL make such employee or employees whole for any loss of pay suffered as the result of such refusal from a date beginning 5 days after application was made for employment and for so long as such refusal continues. WE WILL, upon request, bargain collectively with Brewery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an 391 understanding is reached, embody such under- standing in a signed agreement. The unit appro- priate for such bargaining is: All drivers, helpers, and warehousemen, exclusive of salesmen, office clerical employ- ees, and guards and supervisors as defined in the Act. QUINTREE DISTRIBUTORS, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, 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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brooklyn, New York 11201, Telephone 212-596-3535. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HARRY H. KUSKJN, Trial Examiner : This consolidated proceeding was heard at Brooklyn, New York, on October 4, 5, 6, and 7, 1971. A complaint issued herein in Case 29-CA-2230, on February 22, 1971, based on a charge filed on January 12, 1971, against Quintree Distributors, Inc., herein called Quintree or Respondent , by Technical Industrial Service Agency Employees and Allied Workers Union, Local 840, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, herein called Local 840. Thereafter, a charge was filed on March 5 , 1971, against Quintree in Case 29-CA-2302 by Brewery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, herein called Local 46, and a consolidated amended complaint issued in Cases 29-CA-2230 and 29-CA-2302 on April 26, 1971. Subse- quent thereto, another charge was filed on May 10, 1971, against Quintree in Case 29-CA-2386 by Local 46, and a complaint issued thereon on June 8, 1971. Following this, still another charge was filed on May 27, 1971, against Quintree in Case 29-CA-2408 by Local 46, and a complaint issued thereon on July 30, 1971. And lastly, a charge was filed on June 17, 1971, against Local 46 in Case 29-CB-989 by Quintree, and a complaint issued thereon 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on July 15, 1971. All the above cases were thereafter consolidated on September 24, 1971; and on September 30, 1971, an order consolidating cases, consolidated amended complaint and notice of hearing issued herein. During the course of the instant hearing, i.e., after the General Counsel had rested in the CA and CB cases, and Respondent had rested in the CA cases, but before Local 46 had presented any evidence on its own behalf in the CB case, the General Counsel and Local 46 moved, over the objection of Respondent, that the CB case be severed because they had entered into a stipulation of formal settlement. The stipulation waived further proceedings herein (counsel for Local 46 stated orally that he did not wish to present any defense), including Trial Examiners' Decisions, the filing of exceptions and briefs, oral argu- ment before the Board, the making of findings of fact or conclusions of law by the Board, and all further and other proceedings to which the parties may be entitled under the Act or the Board's Rules and Regulations; it provided further (1) for the entry of a Board order requiring Local 46 to cease and desist from engaging in the conduct which had been alleged in the complaint against Local 461 and from in any other manner restraining or coercing the employees of Respondent in their Section 7 rights; (2) for the posting of appropriate notices; and (3) for the entry of a judgment enforcing the Board's order by a United States Court of Appeals for any appropriate circuit upon application by the Board and for the waiver by Local 46 of all defenses to the entry of the Judgment. In view of all the foregoing, and particularly since the proposed settlement achieved all that further proceedings before me ',could have achieved, I granted the motion so that the settlement agreement could be submitted to the Board by the General Counsel for approval. However, as it appeared that the evidence adduced by the General Counsel in the CB case was being relied on by Respondent in support of its contention that Local 46 had demonstrated by the aforesaid conduct that it was not fit to serve as a bargaining agent of its employees, I ruled further that, by granting this motion, I was not precluding consideration of the evidence adduced by the General Counsel in the CB case in assessing Respondent's above contention. Neither Local 46 nor the General Counsel voiced any opposition thereto. Insofar as Quintree is concerned, the last-mentioned consolidated amended complaint alleges that it has interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act by (1) urging and encouraging its sales employees to form their own bargaining committee to bargain with it in lieu of selecting Local 840 as their bargaining representative, and similarly urging its drivers and warehouse employees to form their own bargaining committee to bargain with it in lieu of selecting Local 46 as their bargaining representative; (2) informing its sales employees in December 1970 that it was going to withhold, and thereafter withholding, the Christ- mas bonus given in prior years to them, because of the activities of Local 840 and the pending election scheduled to be held on January 15, 1971, in a unit of sales employees pursuant to an agreement for consent election between Local 840 and it in Case 29-RC-1478; and engaging in similar conduct in December 1970 vis a vis its drivers and warehouse employees because of the activities of Local 46 and the pending election scheduled in a unit of drivers, helpers, and warehousemen to be held pursuant to an agreement for consent election between Local 46 and it in Case 29-RC-1538; (3) interrogating its employees concern- ing their membership in, activities on behalf of, and sympathy for Local 46, and concerning how they were going to vote in the pending election; (4) threatening its employees with reprisals if they became or remained members of Local 46, and if they gave any assistance or support to Local 46, and if they voted for Local 46 in the pending election; and (5) promising benefits to its employees before this pending election in order to induce them to vote against Local 46 therein, and also promising benefits to them both before and after that election in order to induce them to refrain from becoming or remaining members of Local 46, and to refrain from assisting or supporting Local 46. In addition, this consoli- dated amended complaint alleges that Respondent Compa- ny has violated Section 8(a)(3) of the Act by (1) laying off employees Nathan Granger, Joseph Marousek, Thomas Farrell, and Joseph Dobne on or about February 8, 1971; (2) laying off employees Robert Carlton, Stewart Greene, Robert Tripptree, Thomas Kleinklaus, and Andrew Drier on or about February 22, 1971; (3) discharging Kleinklaus on or about March 2, 1971; (4) refusing to pay Carlton for time lost from work as a result of an on-the-job injury incurred by him, notwithstanding past company practice to the contrary; and (5) discharging Carlton on or about May 14, 1971. The consolidated amended complaint of Septem- ber 30, 1971, alleges further with respect to Respondent that it has violated Section 8(a)(5) of the Act by refusing since on or about April 1, 1971, to recognize and bargain collectively with Local 46 in an appropriate unit of its drivers, helpers, and warehousemen, for which unit Local 46 is the certified bargaining agent as the result of having won the aforesaid election held on January 15, 1971. Additionally, there are allegations that the employees in the aforesaid unit went out on strike on May 28, 1971, and have continued to strike since that date, and that the strike was an unfair labor practice strike from its inception, having been caused and prolonged by the unfair labor practices of Respondent as alleged above. Respondent's answers, as amended at the hearing, to the allegations in the CA cases herein deny that it has violated the Act in any respect alleged herein. By way of special defense to the allegations in Case 29-CA-2386 of viola- tions of Section 8(a)(5) of the Act, Respondent contends that it refused to recognize Local 46 as the exclusive representative of its drivers, helpers, and warehousemen for the reasons (I) that the agreement for consent election and the resulting certification of Local 46 were invalid; (2) I The allegations were, in substance, that Local 46 had violated Sec minor daughters of an employee of Respondent, by threatening to inflict, 8(b)(l)(A) of the Act, during the hereinafter mentioned strike, by interfering and inflicting, damage to Respondent's trucks, by engaging in mass with the movement of Respondent's trucks out of its plant and along the picketing at Respondent's premises, and by attempting to prevent, and highways, by threatening to inflict, and inflicting, bodily injury on preventing, employees of Respondent from making a delivery to one of the employees of Respondent, by threatening to inflict personal injury on the customers of Respondent QUINTREE DISTRIBUTORS, INC. that the election held pursuant to that agreement should have been set aside because of activities engaged in by Local 46 before and during the election; and (3) since May 28, 1971, Local 46 has engaged in serious violations of Section 8(b)(1)(A) and (4) of the Act. Upon the entire record, including my observation of the witnesses, including their demeanor while on the witness stand, and after due consideration of the brief of the General Counsel,2 I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The amended consolidated complaint dated September 30, 1971, alleges, and Respondent admits, that it is a New York corporation with its principal office and place of business in Sayville, New York, where it is engaged in the sale and distribution of beer and related products; and that during the 12 months preceding this amended consolidated complaint it purchased and caused to be transported and delivered to its Sayville plant beer, soda, and other goods and materials, of which in excess of $50,000 worth came to it directly from outside the State. I find, upon the foregoing, that Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The aforesaid consolidated amended complaint alleges, and Respondent does not deny, and I find, that (1) Technical, Industrial Service Agency Employees and Allied Workers Union, Local 840, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and (2) Brewery Delivery Employees, Local 46, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America are labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Some Background Facts, the Chronology of Events, and the Questions Presented Herein This consolidated proceeding had its genesis in the efforts of Local 840 and of Local 46 to become the exclusive bargaining representatives, respectively, of the salesmen and of the drivers, helpers, and warehousemen of Quintree. Local 840 filed a petition in Case 29-RC-1478 with respect to Quintree' s salesmen on June 5, 1970, and entered into an agreement for consent election with Quintree on November 23, 1970, which the Regional Director for Region 29 approved on November 27, 1970. In addition, Local 46 filed a petition in Case 29-RC-1538 on August 13, 1970, and entered into an agreement for consent election with Quintree, with the Regional Direc- tor's approval, on the same dates. Elections were thereafter held in the aforesaid units of salesmen and of drivers, helpers, and warehousemen on January 15, 1971. The 393 count of the ballots, which was delayed until February 4 by reason of their being impounded, showed that Local 840 lost the election among the salesmen by a vote of 5 to 8; and that Local 46 won the election among the drivers, helpers, and warehousemen by a vote of 12 to 5. In the interval between the elections and the counting of the ballots, i.e., on January 22, Quintree filed timely objections to the election in the latter unit. On March 29, 1971, the aforesaid Regional Director issued his Report on Objec- tions, in these cases, in which he found Quintree's objections to be without merit and issued a Certification of Representative to Local 46 in Case 29-RC-1538; and also a Certification of Results of Election in Case 29-RC-1478. Quintree then filed a "Request for Review" with the Board in Case 29-RC-1538, which the Board construed as an appeal from the action of the Regional Director in that case and refused to entertain . In a letter from its associate executive secretary to counsel for Quintree, the Board stated its reasons therefor , as follows: It is the firm policy of the Board that where parties have entered into a consent election agreement, it will not intervene when any of the parties indicate disap- proval of the judgment exercised by the Regional Director. This policy is based on the Board's Rules and Regulations, Series 8, Section 102.62 and Section 101.19(a) of the Statement of Procedures , and the provisions of the Agreement for Consent Election. . .. the determination of the Regional Director shall be final and binding upon any question .. . raised by any party hereto relating in any manner to the election... . The method of investigation of objections and challenges, including the question whether a hearing should be held in connection therewith, 'shall be determined by the Regional Director, whose decision shall be final and binding. Thus, the Board will not entertain an appeal from, the Regional Director's action in this matter. Following its certification, Local 46 sought to bargain collectively with Respondent but to no avail. On May 28, 1971, Local 46 struck Respondent's Sayville plant, and some of the pickets carried signs with the legend that Respondent refuses to bargain with Local 46. As already noted, it is contended by Respondent that, during the course of the strike, Local 46 engaged in acts of misconduct, including threats, mass picketing , and destruc- tion of property of such a nature as to affect the remedy herein, should a violation of Section 8(a)(5) be found. Following the elections and prior to the aforementioned strike, Respondent took the following personnel action: (1) On February 8, 1971, it laid off employees Joseph Dobrie, Thomas Farrell, Nathan Granger, and Joseph Marousek; (2) on February 22, 1971, it laid off employees Robert Carlton, Andrew Drier, Stewart Greene, Thomas Kleink- laus, and Robert Tripptree; (3) on March 2, 1971, Respondent discharged Kleinklaus; (4) on March 22, 1971, Respondent failed to pay Carlton wages for the first week of time lost from work as the result of an on-the-job injury 2 Neither Respondent nor Local 46 filed a brief herein 394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD incurred by him on or about March 1, 1971; and (5) on or about May 14, 1971, Respondent discharged Carlton. The questions presented are (1) whether Respondent engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act during the period between August 1970 and January 15, 1971, the time of the holding of the elections described above , as well as during the strike; (2) whether Respondent discriminated with respect to the hire and tenure of its employees by the above- described personnel actions in violation of Section 8(a)(3) and (1) of the Act; (3) whether Respondent refused to bargain with Local 46 in violation of Section 8(a)(5) and (1) of the Act ; (4) whether the employees on strike were unfair labor practice strikers and, if so, the consequences that flow therefrom with respect to their employment status; and (5) whether, assuming that Respondent has violated Section 8(a)(5) of the Act, the conduct of Local 46 and its adherents precludes an order herein requiring Respondent to bargain collectively with Local 46. B. The Specific Allegations of the September 30, 1971, Consolidated Complaint and Conclusions Thereon 1. The 8(a)(1) issues In the interest of an orderly presentation of the 8(a)(1) issues herein, I shall group the relevant evidence, wherever feasible, according to the representative or agent of management, all of whom are admittedly supervisors within the meaning of Section 2(11) of the Act. a. Salvador Gianquinto Sometime in August and again in November 1970, employee Thomas Kleinklaus was told by J. D. May, the traffic manager of Respondent, that Gianquinto, the president of Respondent, wished to talk to him in Gianquinto's office. According to Kleinklaus, while in the office on one of these occasions, Gianquinto told him, in substance, that he was low on the seniority list and that, if Local 46 was to become the bargaining representative of the drivers, he would become a casual employee; and that, on the first occasion, Gianquinto asked him what the men wanted and how the men felt about the Union. Gianquinto did not testify as to either of these episodes, but denied generally that he had ever made any promises to employees that they would have permanent employment and would not be casuals. In this state of the record, including the absence of a specific denial by Gianquinto'of Kleinklaus' above attributions to him, and as Kleinklaus' testimony had the ring of truth, I credit Kleinklaus and find that Gianquinto not only interrogated him concerning the union attitudes and desires of his coworkers but also threatened him that he would become a casual employee if the Union was to become the bargaining representative of the drivers. In December 1970, Kleinklaus had an accident while at work which caused him to be absent from work for a week. According to Kleinklaus, upon his return to work, he was called into Gianquinto's office and the following occurred: Gianquinto handed him a check to cover the week he had lost from work, saying that he did not have to do this because workmen's compensation insurance does not pay for the first week of lost working time due to injury, but that he, Gianquinto, was going to do so. Gianquinto then added that if Local 46 was in, he (Kleinklaus) would not be getting paid for this lost week from work; nor would he be working now, because things were slow. About this point, he asked Gianquinto why, during the layoffs during the summer of 1970, a good number of those laid off were given work in Gianquinto's garden and paid therefor, but he was not invited to do such work . Gianquinto's answer thereto was that he, Gianquinto, thought that he, Kleink- laus, "was one of the enemy, that [he] was for 46." And lastly, Gianqumto spoke of the upcoming election and said, "You can have a union, if you want a union, you know, form a union but you don't want 46." Kleinklaus testified to still another conversation with Gianquinto in the downstairs office of the plant a couple of weeks before the election on January 15, 1971. At that time, he was in that office picking up his run. According to Kleinklaus, Gianqumto then asked him, "how are you going to vote in the election?" and when he answered that he did not think this was any of Gianquinto's business, Gianquinto replied, "I feel you're being very curt with me, and you better get out of here before I lose my temper." As to the two last mentioned conversations , there is the general denial by Gianquinto referred to in connection with my findings as to the two earlier conversations, and his further denial that he ever interrogated any of his employees, but there is no specific denial by him of the above attributions by Kleinklaus. Accordingly, here too, I find that Klemklaus testified credibly, and I find further that Gianquinto took the occasion of paying Kleinklaus for his lost week of work to say, in effect, that working conditions are better now than they would be if there were a union in the plant, and to urge him, if there was to be a union in the plant, not to have Local 46; and further that, during the conversation a couple of weeks before the January 15, 1971, election, Gianquinto interrogated him as to how he was going to vote in the upcoming election and became irritated with him when he answered that this was not Gianquinto's business. While in the store of one of Respondent's customers making a delivery sometime in October 1970, employee Thomas Farrell left the doors of his truck open, the invoices on the seat, and the key in the dashboard. Gianquinto came along and observed this. He criticized Farrell when Farrell returned to the truck, and indicated to Farrell that he wanted to talk to him when he returned to the plant. Thereafter, Gianquinto and Farrell had a second conversation when Farrell returned to the plant. Farrell and Gianquinto both testified that Farrell was then told that he could be fired for the dereliction that day, but that this was not going to happen. Also, according to Farrell, there was further conversation between them with respect to union matters, during which Gianquinto said, in substance, that if Local 46 lost the election, he would be guaranteed a year-round job and there would be benefits, but, if Local 46 won, he "most likely would be" a casual worker and would lose his medical benefits . Here, too, I find the detailed testimony of Farrell more convincing QUINTREE DISTRIBUTORS, INC. than the testimony of Gianquinto which made no reference to this episode and consisted only of the above-mentioned general denials.3 Accordingly, I credit Farrell, and find, that Gianquinto promised him benefits if Local 46 lost the election, and implfedly threatened that he would become a casual worker if Local 46 won. Farrell also testified concerning two different conversa- tions with Gianquinto in November 1970 in Gianquinto's office. At the first one only Gianquinto and he were present; at the second one Matthew Hanley, the sales manager of Respondent, and Daniel Newman, the presi- dential assistant to Gianquinto, and employee Richie Blackmore4 were also present. In each instance, he was summoned to Gianquinto's office. During the first of these conversations, according to Farrell, Gianquinto had a list on his desk of the names of Respondent's employees, and alongside some of these names was the letter "x." Gianquinto explained that the "x's" stood for employees who, he thought, were members of Local 46. In addition, Gianquinto said that, if the drivers voted for Quintree, they would have work all year round, whether it be driving, warehouse work, or other work, and would get their benefits and a raise. At the same time, Gianquinto urged him to use his head as a family man when he votes, pointing out that, if Local 46 did not win the election, he would have year-round work but, if Local 46 won the election, he would "possibly not work at all or as a casual worker." Although Gianquinto denied that there was a list of employees on his desk during this conversation, he did not testify in detail about this episode. Accordingly, absent any specific denial of Farrell's attributions to Gianquinto, I find unconvincing Gianqumto's general denials mentioned heretofore. Instead, I credit Farrell, and find, that Gianquinto promised him economic benefits if Local 46 lost the upcoming election and threatened him with economic disadvantage if Local 46 won the election. During the second conversation, also according to Farrell, the topic of vandalism of company property was first discussed, with Gianquinto attributing the vandalism to Local 46 and with him denying it. Thereupon, Gianquinto said that he wanted one happy barn, that he, Farrell, was a family man and should use his good knowledge and judgment when he went to vote, and that he would be a casual if Local 46 won the election. As I have heretofore found Farrell to be a more reliable witness than Gianquin- to, and as the attribution to Gianquinto by Farrell was not specifically denied by Gianquinto or by either Hanley or Newman, who were present, I find, in accordance with Farrell's testimony, that Gianquinto urged him to vote against Local 46 and implfedly threatened that he would become a casual if Local 46 won the election and would be economically disadvantaged thereby. A composite of the credible testimony of drivers Nathan 3 I am cognizant, in this connection, that Respondent attacks Farrell's credibility by pointing to an incident in April 1971, during which Farrell at first denied, and then admitted, to Gianquinto that four traffic tickets, which he had obtained from a police officer charging Respondent with operating a truck on the highway with mechanical defects, were solicited by him However, I am persuaded that Farrell's shifting position on what had actually happened during this episode derived more from his embarrass- ment over what he had done than from a penchant for lying Accordingly, I find that this episode does not militate against my crediting him in this and 395 Granger, Kleinklaus, Farrell, and Carlton and of salesmen Harold Conklin and Kenneth Tallamy establishes that during December 1970, about a month before the elections herein, Gianquinto convened the salesmen and the drivers at the plant in separate groups and spoke to them concerning the upcoming elections, and further that each group was told that Respondent opposed the union which sought to represent them; and that they "should consider forming their own union, getting a committee together to come in and speak to him." Gianquinto's testimony with respect to the foregoing was that he had told the employees at two different times that they could have any union they wanted but that he preferred not to do business with Local 46. During cross-examination, Gianquinto denied that he said anything about a committee, conceding only that he may have said that, if they elected not to have a union, they could form their own group. However, upon being shown his prehearing statement in this proceeding, given by him to a Board agent, he changed his testimony to say, "I evidently used the word committee instead of a group"; in addition, he acknowledged saying in that statement that he told the employees that he prefers to deal with them as a committee.5 In all these circumstances, I conclude, and find, that about a month before the upcoming elections among the salesmen and among the drivers, helpers, and warehousemen, Gianquinto urged upon each of these groups of employees at separate meetings that they reject the labor organization seeking to represent them and form a committee of their own to bargain collectively with Respondent. In addition, I find that Gianquinto ap- proached Granger individually thereafter on this matter of forming a committee. Thus, Granger gave uncontradicted testimony, which I credit, that Gianquinto told him on the same day as the December meeting but subsequent thereto, i.e., after he had returned from his run, that he, Gianquin- to, was "going to fight [Local 46] right down to the wire. He won't give up on it"; and that Gianquinto also spoke about the formation of a committee, urging him, Granger, to "get ahold of Richie Blackmore, John St Lawrence, a couple of others, and talk over forming a union, send in a committee, we talk over our differences and try to straighten them out." According to the uncontradicted testimony of Carlton, which I credit, Gianquinto spoke to the drivers as a group one morning about 2 weeks or so before the election on the prospects for work prior to the election and thereafter. His testimony establishes that Gianquinto then said that "it was pretty busy and we still had deals going on and we hoped the deals keep up and that everybody would stay working right now until after the election," and that "he don't know what would occur after the election." I infer, and find, from the above and the entire record, that Gianquinto intimated thereby that the outcome of the other respects herein I note particularly , in this instance, that the remark concerning becoming a casual employee , which Farrell attributed to Gianquinto, was similar to that which , I have found, Gianquinto made to Kleinklaus 4 Blackmore was present at Farrell's request 5 It would appear that Hanley and Newman were present at the meeting for the salesmen and one of them also urged upon the salesmen the formation of a committee. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election would determine the prospects of the drivers for work thereafter. It is admitted by Gianquinto that, about 2 weeks before Christmas in 1970, he spoke to his employees about a Christmas bonus, speaking to the drivers, helpers, and warehousemen at one meeting, and to the salesmen at another meeting. Gianquinto testified that he told each group that he was not going to give them a bonus this year because of the pending elections as he "thought it might be an infringement, or an infraction, or something wrong, or at least considered that way by the National Labor Board for [him] to give them a bonus at that particular time," and that, instead, he would give each of them a turkey. The employees thereafter did not get the bonus but received a turkey instead. Gianquinto also testified that a turkey was worth about one-half of what the bonus would have been; that, but for the pendency of the election and his worries about unfair labor practices, he would have given a bonus to his employees in 1970; and that it was his consistent policy to give them bonuses.6 It is thus apparent, and I find, that by reason of consistent past practice of giving the employees a bonus at Christmas time, the Christmas bonus had become a condition of employment. And I also find, as Gianquinto admitted, that this economic benefit was denied to its employees by Respondent solely because of the pendency of the elections. It follows therefrom, and I find further, that by telling its employees, in the context of pending elections, that it was withholding their usual Christmas bonus, and/or by thereafter witholding that bonus, Respondent interfered with their free choice in those elections.? In addition to the foregoing incidents, all of which antedated the elections herein, the record reveals the following incident subsequent to the heretofore mentioned strike which began on May 28, 1971, and was accompanied by picketing. A composite of the credible and uncontro- verted testimony of Carlton, Farrell, and Granger estab- lishes that, about 3 weeks or so after the strike began, Gianquinto approached a group of picketers, which included them and employees Marousek, Blackmore, Tripptree, and Scudaro, among others, and made a proposal to them to the following effect: That he wanted to get out of the trucking business and had an offer to make and wanted to offer it to them first; that the employees could lease their trucks from Hertz U-Drive and enter into separate contracts with him to deliver his beer at so much a case, which, figuring deliveries of about 200 cases a day, would make for them up to $25,000 a year, less expenses such as insurance, rentals, etc; and that, if he did not get their answer soon, he was going to meet shortly with an individual who had 20 or 30 trucks and would probably arrange to have him truck the beer. It is apparent from the foregoing, and I find, that Respondent sought to under- mine Local 46 by dealing separately with the drivers represented by Local 46 and by attempting to induce them 6 Employee Tallamy testified credibly that he had received a Christmas bonus from Respondent during each of the 5 years preceding 1970 r See N L R B v. Dothan Eagle, Inc, 434 F 2d 93 (C.A 5), enfd 174 NLRB No 120 8 Accord: Dan Dee West Virginia Corporation, 180 NLRB 534, Carnation Company, 172 NLRB No 215 to abandon Local 46 and enter into individual contractual relationships with it.8 b. Matthew Hanley During the month of December 1970 and in January 1971, before the election, Respondent had Matthew Hanley, its sales manager, and Daniel Newman, the presidential assistant to Gianquinto, go out with some of its drivers on their routes, allegedly because Respondent had reports from some of its salesmen that customers were complaining concerning the service rendered them by the drivers. Hanley spent a day each with employees Kleink- laus, Farrell, Dobne, Andrew Drier, and Joseph Marousek on their respective routes. And Newman spent a day each with Marousek and Carlton. There is testimony concernig what occurred during these episodes by all these employ- ees, except Drier,9 and by Hanley and Newman. Accord- ing to the four drivers who testified with respect to Hanley, Hanley introduced the subject of the upcoming election somewhere along the route and spoke of the pros and cons of having Local 46 in the plant. In this connection, Kleinklaus, Farrell, and Marousek each testified, in substance, that Hanley told them that if they voted for Respondent they would have work year round and would get a raise, but if they voted for Local 46 they would not have year-round work. And Dobrie testified that Hanley asked him how he was going to vote, and, when he answered that this was a personal matter, Hanley said, "Well, if you are smart, I think you'd be better to stay with [Gianquinto]." In regard to the foregoing, Hanley testified that the subject of unionism did come up during these trips and that "just general things" about Local 46 and the routine of the upcoming election were discussed; he denied that he discussed with them whether Local 46 would be good or bad for the drivers, adding that he did indicate that it was their decision to make. He specifically denied that he discussed layoffs with the drivers, but entered no such denial with respect to the above attribution to him concerning the prospects of a raise if Local 46 lost, nor did he deny Dobrie's testimony that he, Hanley, asked him how he was going to vote in the upcoming election. c. Daniel Newman Newman spent a day with employee Marousek on his route during December 1970, before Hanley did.10 Accord- ing to Marousek, during their stop for lunch along the route, Newman pointed out to him that he was at the bottom of the seniority list, and then added that, if he voted for Respondent in the upcoming election, he would stay on the job and get more money. Also according to Marousek, Newman followed this by asking him how he was going to vote in the upcoming election, but he replied that he would decide that at poll time. According to Carlton, during his episode with Newman, he mentioned to Newman, while they were having coffee in 9 Drier did not testify in this proceeding 10 The record shows that the episode between Marousek and Newman occurred during December 1970, whereas the episode between Marousek and Hanley, discussed above, occurred in January 1971, about a week before the election QUINTREE DISTRIBUTORS, INC. the truck, that he wished the union business were straightened out, and this led to the following: Newman said that, "if we didn't have no union, we voted no union immediately, we would get a raise and everybody would work all year round." He, in turn, agreed with Newman. Thereupon, Newman asked him how he was going to vote in the upcoming election and he replied that he would vote for Gianquinto. Thereafter, at the conclusion of the run, Newman inquired whether he, Newman, could tell Gian- quinto that Gianquinto could count on his vote and he replied in the affirmative. With respect to the foregoing, Newman denied that he had any conversation with Carlton about Local 46 and specifically denied the above attrib- utions to him by Carlton; he was not asked about, nor did he testify with respect to, Marousek's above attributions to him. It is noteworthy here that Hanley testified that these trips, in which he accompanied drivers on their routes, were a first for him, that there had been no complaints about specific drivers from customers, and that the drivers whom he accompanied were selected at random. And while it is Newman's testimony that he had a customer complaint on Carlton at the time, he made no mention of any complaint as to Marousek; and, so far as appears from Newman's testimony, December was not the usual month for him to go out with drivers on their routes. In all these circumstances, including the fact that, so far as appears, Gianquinto had not, at any of his meetings prior thereto with the drivers (which meetings generally occurred one or more times a month on paydays), or at any other time before these episodes, told the drivers that complaints from customers about the service rendered them by drivers had reached a point where something had to be done to remedy the situation, I infer, and find, that these trips by Hanley and Newman were timed by Respondent to coincide with the period shortly before the upcoming elections, and would not have taken place but for the upcoming elections. Furthermore, since I find that Kleinklaus, Farrell, Dobne, Marousek, and Carlton were more reliable witnesses than were Hanley or Newman, I credit them and find that, during the course of these episodes, Hanley interrogated Dobrie, and Newman interrogated Carlton and Marousek, as to how they were going to vote in the upcoming election; that Hanley promised higher wages and year- round employment to Kleinklaus, Farrell, and Marousek if they voted for Respondent rather than Local 46 in the upcoming election, and, at the same time, threatened them with employment uncertainty if they did vote for Local 46; and that Newman also promised Carlton higher wages and year-round employment if he voted against Local 46 in the upcoming election. With special reference to Newman there is uncontradict- ed testimony by Kleinklaus that, about a week after Hanley rode with him on his route, he had the following conversation with Newman at a diner where he had stopped for lunch, Newman having arrived after he was 11 All dates hereinafter are in 1971, unless otherwise indicated 12 The drivers of Respondent generally did not work on Saturdays and Sundays 13 As will appear hereinafter, although Kleinklaus returned in order to go to work, he did not work at any time thereafter And as already noted, his discharge,-on March 2, is alleged herein as a violation of Sec 8(a)(3) of 397 there for awhile: Newman told him that Gianquinto wants to give him a raise now but cannot do so because it would be an unfair labor practice; that, if the drivers vote for Respondent in their upcoming election , they would get a substantial raise and there would be no layoffs; that, if they voted for Local 46, Gianquinto might discontinue the deliveries in Nassau county, leaving Kleinklaus without a job because of his low semority; and that it would be in his interests as a family man to vote for Respondent , inquiring, at the same time, how he would vote in that election. I credit this undenied testimony, and find that Newman made the remarks attributed to him by Kleinklaus and that Respondent thereby made promises of economic benefit as well as threats of economic loss to Kleinklaus and also interrogated him. 2. The 8(a)(3) issues a. The February layoffs As already found, two elections were held among the employees of Respondent on January 15, 1971.11 The ballots in these elections were impounded and not counted, however, until February 4, due to the unfair labor practice charge filed against Respondent by Local 840 on January 12; the count revealed that Local 46 had won the election among the drivers, helpers, and warehousemen, while Local 840 had lost the election among the salesmen. On February 5, a Friday, Respondent laid off four of its drivers, namely, Granger, Marousek, Farrell, and Dobrie to take effect the following Monday, February 8,12 and told them that they should call each evening beginning the evening of February 8 to find out if there was work for them to do the next day. It was stipulated that they did not work Monday, Tuesday, Wednesday, or Thursday of that week (February 8, 9, 10, and 11); that the following Friday and Monday (February 12 and 15) were holidays; that they did not work on Tuesday and Wednesday thereafter (February 16 and 17); that they did work on Thursday and Friday of that second week (February 18 and 19); and that they did not work the following week at all (February 22-26, inclusive). Another group of employees, namely, Carlton, Kleinklaus, Drier, Stewart Greene, and Robert Tnpptree, were laid off as of Monday, February 22, and were given the same instructions by Respondent to call each evening thereafter to see about whether they could work the next day. These five employees also did not work during the week starting February 22. Thereafter, on March 1, all these laid-off drivers returned to work.i3 As indicated above, Carlton was in the second group of employees who were laid off. He testified credibly that he worked during the week of February 8 and that the workload was heavier than usual; that warehousemen, who do not drive trucks generally,14 drove trucks and made deliveries every day that week; and that, despite the usual practice followed by May, the traffic manager, of assigning the Act i4 A composite of the credible testimony of Carlton, Granger, and Dobrie establishes that warehousemen were, as a rule, used as drivers only when there was a shortage of drivers, such as is occasioned by the absence from work of a driver I 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a helper to a driver who carries a load of over 300 cases on his truck, he was unable to get a helper from May for such load during that week, although he requested one. In addition, there is credible testimony (1) by Kleinklaus that on March 1, when the layoffs ended and the drivers returned to work, the truck that he was to drive had 439 cases on it, although the usual load was around 250 cases, "sometimes pushing 300"; (2) by Tripptree that, during the week of March 1, the loads on the trucks, which had averaged about 300 cases prior to his layoff, went up to about 450 or 460 cases on average; and (3) by Dobrie that, during the first few days or week after his return to work in March, the workloads for drivers were heavier than usual and went up to around 400 cases. In regard to the need for the layoffs, Gianquinto testified that business starts falling off in the middle of October each year and declines gradually; that the slowest months of the year are January, February, and March, with February being the slowest; that March is not so slow as either January or February and that it gets busy again in April. He testified further that business was worse in January 1971 than in January 1970 and Respondent was "becoming somewhat alarmed" over the trend of business and the number of cases being sold each day, and began to think that it may have to lay some men off. While admitting that there had been no layoffs in February during the 25 years during which Respondent has been in this business, Gianquinto attributed the disparity to the fact that Respondent had a "double team" of employees when these layoffs occurred.15 Yet, the record shows that Respondent also had a double team of employees on its payroll during the winter of 1969-70; and that the complement of employees, which consisted of 20 men in February 1970 and of 17 men from September 1970 through 1971, was as large again in March 1971; and that the complement at the time of the hearing in early October 1971 was 16 employees, consisting of 12 employees who had been hired since Local 46 went on strike in May 1971, and four employees who did not go on strike.16 This would tend to establish, and I find, that Respondent's normal complement is no longer 8 men but has grown to 16 or 17 men, witness, particularly, the fact that Respondent maintains a complement of 16 during the current strike; and I find further that the "double team" contention in support of the February layoffs was not the real reason therefor. Rather does it appear that the reason is to be found in Respondent's disenchantment with the results of the election in the unit of drivers, helpers, and warehousemen. Thus, when asked during cross-examination why he kept a double team so long, Gianquinto explained that he did not 15 The record shows, in this connection, that Respondent's employees engaged in a recognition strike in 1969, that Respondent hired replacements for these strikers, that , after the stnke , although the strikers were returned to work, Respondent retained their replacements , and that, as a result, the normal complement which had consisted of eight men , doubled 16 I e, Richard Raupp, Jr, Edward Beintema, Alfred Van Emnck, and Kenneth Zegel IT The parties stipulated that Respondent's drivers delivered 54,481 cases during 21 working days in January 1970, in contrast to 36,241 cases during 20 working days in January 1971 1s Thus, it was stipulated that Respondent had a complement of 17 drivers in February 1971 as against a complement of 20 drivers in February really need them and that he had sacrificed to keep them on until such time "as they backfired on [him]." Thereafter in clarification of what he meant by the above, he testified, "I remember what I think I meant by saying double crossed. There were . . . the strikers those that, rather the replacements for the first strike, which was in 1969, they came in, of course they were considered scabs and breaking the strike. They, in turn, on the second election, or a group of them, I don't know who voted and who didn't vote, but a group of them must have joined the group that was out the first time. That is what I meant by double crossing." In sum, therefore, in view of the lack of merit in Respondent's defense based on the "double team" argu- ment, including Gianqumto's adnussion that, even though the workload was down considerably in January 1971 from January 1970,17 he did not have anybody call in about work the next day; in view of Respondent's consistent past practice of not laying off employees during February, the slowest business month of the year, and as I am not persuaded on this record that the workload in February 1971 was materially worse than it had been in February 1970,18 1 conclude, and find, that Respondent's defense on economic grounds is lacking in merit. Further, in view of my findings that Newman and Hanley, in effect, threat- ened certain drivers with employment uncertainty if Local 46 won the election among the drivers, helpers, and warehousemen, and that Gianquinto, as well as Newman, threatened drivers that if Local 46 won that election they would be casual rather than year-round workers; and in view of the fact that the first wave of layoffs followed immediately after the results were out that Local 46 had won the election, I infer, and find, that these layoffs were triggered by the election results and were motivated by Respondent's animus toward Local 46 and by its belief that the employees affected were adherents of Local 46. I therefore conclude, and find, that by laying off Granger, Marousek, Farrell, Dobne, Carlton, Greene, Drier, Kleink- laus, and Tripptree, as found above, Respondent violated Section 8(a)(3) and (1) of the Act. b. The discharge of Kleinklaus on March 2 The critical events herein occurred on March I and 2. However, they occurred against the following backdrop: Kleinklaus began to work for Respondent as a driver in August 1969. In October 1970, he suffered a back injury unconnected with his work which required the services of a doctor and kept him from working for 2 days. In December 1970, he slipped on some ice on the running board of the company truck he was driving and hurt his 1970 Also the credited testimony establishes that (1) during the first week of the February layoffs, those who were retained had heavier loads than usual for this time of year, and Respondent enlisted its warehousemen as drivers, contrary to its usual practice of having them drive only when there was a shortage of drivers , and (2) when all the laid-off drivers returned on March 1, the loads for that week were also heavier than usual for that time of the year In addition, I have found that Gianquinto told a group of drivers about 2 weeks before the election of January 15 that "it was pretty busy" and "we still had deals going on and that everybody would stay working right now until after the election," adding that he did not know what would occur after the election QUINTREE DISTRIBUTORS, INC. back. He was disabled for a week and was treated by the same doctor, receiving heat treatments for his back over a period of time, and he kept seeing the doctor after he went back to work in January 1971. His back was still bothering him in January, but he "was getting by with it," that is, he "was running small loads" and was going out as a helper "a lot." 19 On March 1 , his first day back after his February layoff, Kleinklaus was assigned an unusually heavy load of 439 cases of beer to deliver that day. Upon learning of his assignment, he approached May, the traffic manager, about the matter. According to the testimony of Kleink- laus, which was corroborated , in substantial part, by the testimony of Granger, Tripptree , and Stewart Greene who were present during much of the discussion that ensued, the following then occurred : He asked May who his helper was, and May answered that he, Kleinklaus, did not have a helper. At this, he pointed out that his back was hurting and he could not take out a load of that size without a helper, and asked again whether he could get a helper or be a helper on another truck . May's reply was, "Are you refusing to pull a load?" He answered in the negative, adding that he could not handle the load assigned to him without a helper. May asked again, "Are you refusing to pull a load?" His reply was again in the negative and he referred a second time to the fact that his back was bothering him. Thereupon, May left him and went into his office . He waited until May returned . Upon returning, May repeated the same question and got the same denial from him, plus a plea for consideration on the grounds that he needed the day's pay and, if he took the assigned load out, he would be unable to work for a week . May's answer was "no." To.this, he responded , in turn, that he was going to go home sick, and May said "Go home." He then left the plant. May's version of the above episode , which was corroborated to a considerable extent by employees Edward Beintema and Kenneth Zegel, differed from that of Kleinklaus in several respects. While he admitted telling Kleinklaus, when asked about a ' helper, that he had no helper available, he testified further that Kleinklaus' response was that he was not going to take his truck out and did not mention any back injury ; that when he accused Kleinklaus of refusing to take the truck out, Kleinklaus did not answer and walked away; and that it was only when Kleinklaus returned 5 minutes later that Kleinklaus mentioned that he had a back injury and could not take the truck out without a helper . In regard to the latter, May's direct testimony was that his response thereto was to repeat that he did not have a helper and to add, "I can't use you if you can 't work. I mean I can't use you. You make the decision , not I ." However, on cross- examination, he testified that he told Kleinklaus that if he was not able to work , he would have to go home. It is noteworthy that May admitted being aware of Kleinklaus' prior back injury and when asked by the trial examiner whether he disbelieved Kleinklaus when Kleink- laus claimed on March 1 that he was being troubled by that back injury, he answered, "From the way the things happened that morning, you couldn't say that you 399 disbelieved, you couldn't say that you believed." It is therefore apparent, and I find, that May did not have any reasonable basis for concluding that Kleinklaus was malingering in clainung that his back was bothering him and that he could not handle the load on his truck without a helper. It is noteworthy, too, that May's testimony that he did not then have an available helper does not withstand scrutiny. Thus, Greene gave undenied testimony that he was to be a helper on March 1 , as he did not have a load for that day, and that, after Kleinklaus left the plant, he was assigned to Kleinklaus' truck and made the deliveries by himself. Kleinklaus was discharged the following day. According to May, he had consulted with Gianquinto during the intervening period concerning the March 1 episode and it was decided to discharge Kleinklaus for refusing to take the truck out. The record shows that when Kleinklaus reported for work on March 2 , May told him that he, Kleinklaus, had refused to pull a load the day before and they would have to discharge him. Also, according to the undenied testimony of Kleinklaus, he then protested, to no avail, that he had had a bad back and went home sick and that other drivers, and he named Granger and Carlton in that connection, have gone home sick without being discharged. I note, too, that Gianquinto authorized the discharge without interviewing Kleinklaus and getting his side of the story. In light of the above, and as I am satisfied, and find, that Greene's uncontradicted and credited testimony that he was available as a helper at the time Kleinklaus inquired about a helper impugns May's testimony that no helpers were then available , and as Kleinklaus impressed me as a more reliable witness than May, Beintema , or Zegel, I credit Kleinklaus' version of the March I episode. Accordingly, I conclude, and find, on the basis of all the foregoing and the entire record (1) that Kleinklaus had a bad back on March 1 and so informed May, adding that he was willing to drive the truck assigned to him providing he had the assistance of a helper ; (2) that the assigned load was unusually heavy, particularly for Kleinklaus, as it is undisputed that, since his back injury on the job in December 1970, he had been assigned either small loads or had gone out on a truck as a helper; (3) that May had no reason to believe that Kleinklaus was malingering about his back trouble ; (4) that, although a helper was then available, May chose not to assign that helper to Kleinklaus ; and (5) that, although Kleinklaus then went home "sick" with May's approval , he was discharged the next day on the ground that he had refused to go to work. When the above is considered in the light of my findings heretofore (1) that Gianquinto threatened Kleinklaus that he, Kleinklaus, would become a casual employee if Local 46 was successful in the election among the drivers, helpers, and warehousemen ; (2) that Gianquinto interro- gated Kleinklaus a couple of weeks before the election as to how he was going to vote and became irritated with Kleinklaus because he was told to mind his own business; and (3) that the layoffs in February , which included the layoff of Kleinklaus, were triggered by the results of the 19 The foregoing is based on the uncontroverted and credited testimony of Kleinklaus 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election and were motivated by Respondent's animus toward Local 46, the inference is warranted, and I find, that Respondent seized upon this March 1 episode involving Kleinklaus as a pretext for retaliating further against him because of its animus toward Local 46 and its belief that he was an adherent of Local 46. And I conclude further, and find, that Respondent violated Section 8(a)(3) and (1) of the Act thereby. c. The failure to pay Carlton for the first week of a 2-week period (commencing March 2) of lost time from work due to a job-connected injury,- also the discharge of Carlton on or about May 14 Before discussing the aforesaid allegations of discrimina- tion, it would be helpful to bear in mind the following background facts relating to Carlton: Carlton had been a shop steward of Respondent's employees for about 6 months during the period when Quintree Brotherhood Local 88, an independent union, was their bargaining representative. Thereafter, in early 1970, Quintree Brother- hood Local 88 was disestablished as the result of an overall settlement of charges filed with the Board by Local 46 against Qumtree. Sometime during the summer of 1970, on a Friday, according to the uncontradicted testimony of Carlton, the following episode occurred: He was called into Gianquinto's office and was there told, in the presence of Newman,20 that he was being discharged because of a complaint from Topper Rental Corp., that he, Carlton, had maliciously damaged trucks rented from that company by Respondent and driven by him, adding that "if he, [Carlton], didn't betray Local 88 and sign a 46 card [he] would be on a different side of the fence and that they had ways of taking care of this thing." He was then told to go down and show Farrell the run that he, Carlton, was scheduled to make. However, after talking to Farrell, he was called back to the office and told by Gianquinto that "[he] wasn't really discharged," that "he [Gianquinto] can't tell [him ] how to vote but if [he ] voted no union, [he] would still have a job." As he indicated that he was undecided, Gianquinto gave him until the following Monday at 9 a.m., to make up his mind. He was given the rest of the day off with pay. When he returned on Monday and told Gianquinto that he would vote no union, Gianqutnto replied that it was up to him to persuade the other fellows to vote no union, and that "if [he] voted no union and if [Local 46] got in, then [he would] still be out of a job." He was given the rest of that day off with pay and was also told that he would be driving Respondent's own trucks on his runs thereafter. With respect to the first of the two allegations referred to in the caption above, the record shows the following, based on the uncontroverted testimony of Carlton: He returned on March 1 from his layoff in February 1971. On that day, he pulled a muscle in his back while on the job. At the end of his run, he called this to May's attention and was told, "make sure you are in tomorrow." The following day, he reported to May and asked whether he could go out as a helper on light duty. May refused his request. Thereupon, 20 Neither Gianquinto nor Newman testified with respect to this episode 21 I infer, and find, that Gianquinto was thereby indirectly accusing Carlton of being among those who had not kept their word to him on how he said that he would like to make a compensation claim, but May refused to take his claim, saying that he would have to wait until Gianquinto arrived. Upon Gianquinto's arrival, he told Gianquinto about his back problem, caused by his falling with thejack on the truck, and May's refusal to allow him to file a claim. At this, Gianquinto called May, who denied having refused permission to file the claim. Whereupon, Gianquinto said that he does not believe that May lies as other people lie in the plant, that everybody would say they were voting for him and it turned out that Local 46 won the election.21 Thereafter, Gianquinto allowed him to file a claim for compensation. Carlton was disabled for 2 weeks as a result of the above injury. He received compensation for the second week from the insurance carrier. However, unlike Farrell and Kleinklaus, who were out as a result of job-connected injuries in April and December 1970, respectively, and were paid wages by Respondent for their first week of disablement, for which there is no insurance coverage, he received no wages for the first week of his disablement from Respondent. It is significant, in this respect, that Farrell's and Kleinklaus' disablement antedated the election of January 15, 1971, while Carlton's disablement postdated that election. In addition, there is uncontradict- ed testimony by Kleinklaus that, when Gianquinto told him that he was to be paid his wages for the first week of his disablement, Gianquinto added, "I don't have to pay you for this because compensation doesn't pay for the first week, but I'm going to pay for it"; and "if the union was in you wouldn't be getting paid for this." In view of all the foregoing I am satisfied, and find, that but for Gianquinto's manifest disappointment with the election results, and his belief that Carlton, whom he had personally solicited to vote against Local 46 and to get other employees to do the same, had lied to him when Carlton said he was going to vote against Local 46, Carlton would have, as occurred in the cases of Farrell and Kleinklaus before the election, been paid his wages for the first week of his disablement in March. I therefore conclude, and find, that by failing to pay Carlton wages for the first week of disablement, Respondent discriminated against him for antiunion reasons, in violation of Section 8(a)(3) and (1) of the Act. The remaining allegation under the caption herein refers to the discharge of Carlton on or about May 14. Respondent asserts that it discharged him for incompe- tence as a driver. The parties stipulated that Carlton had accidents while driving for Respondent on February 16, July 16 and in August 1970,22 and on March 17, 1971, and in May 1971, the latter being the one which precipitated the discharge. The record shows that, after the third accident, Carlton was told by Gianquinto that he was to be discharged therefor but, as already found, no discharge eventuated; instead, the episode was used by Gianquinto to elicit Carlton's support in the election among the drivers, helpers, and warehousemen. The fourth accident resulted in a warning letter from Respondent to Carlton that another accident within the same time pattern would they were going to vote 22 As already found, Carlton was driving a truck at that time which Respondent had rented from Topper Rental Corp QUINTREE DISTRIBUTORS, INC. indicate incompetency and make him eligible for dis- charge. The full text of the letter was as follows: It has come to our attention through our Insurance Broker, that you have a record of accidents with our trucks dated as below: Feb. 16, 1970 Jul. 16, 1970 Mar. 17, 1971 The above frequency of accidents is cause for us to warn you that another accident, (within the same time pattern), would indicate "Incompetency." As you are aware, this would make you eligible for discharge. Please be exceptionally careful in your driving, as we have assured our Insurance Carrier that we would exert every effort to correct this problem. The fifth accident, less than 2 months later,23 resulted in Carlton's discharge. The evidence discloses that Respon- dent's insurance agent, the Walter P. Geoghan Agency, wrote a letter to Respondent, under date of May 13, 1971, in which it referred to the fact that Carlton had been involved in a number of automobile accidents and asked that he be relieved by Respondent of his duties as a driver in order for it to avoid being subjected to higher insurance rates for less coverages; and that this was followed by (1) a discussion between Gianquinto and Carlton, resulting in Carlton's discharge, and (2) a letter under date of May 14, 1971, to that effect from Respondent to Carlton, with an enclosure of a copy of the above-mentioned letter to it from the insurance agent.24 The May 13, 1971, letter to Respondent from the insurance agent was to the following effect: Reference is made to a copy of a letter received by us from our insurance agent dated May 13, 1971, (Enclosed). Reference is also made to a letter sent to you on March 22, 1971 from our office Your recent accident of May 12, 1971 has placed us in a precarious position with our insurance carrier. We felt our warning to you was sufficient to put you on your best behavior. Unfortunately, you had an accident within two months of your last one. It leaves us no other alternative but to discharge you. Please accept our regrets and wish you luck in some other venture. Carlton testified credibly that the following occurred during the discharge interview; Gianquinto told him that he was sorry that he had to do this but this was what the insurance company wanted, adding that there was no other job available for him at the time, that he would be reemployed if one became available, and that efforts would be made to straighten the matter out with the insurance company; and further that, as Gianquinto and he were walking out of the door, Gianquinto said again that he was sorry about this development, and also commented that "there are a few other guys who have no interest in this job and eventually they will mess up too." Gianquinto did not deny making the last mentioned remark to Carlton or seek to explain it. However, I draw no inference adverse to 23 Although the date thereof is not clearly fixed in the record, it would appear, and I find, that this accident occurred on May 12 24 Carlton testified that the letter was hand delivered to him at the time 401 Respondent therefrom, because this remark is equally compatible with a finding that Gianquinto was saying only that he was being an opportunist in seizing upon a reason unrelated to union activity in effecting Carlton's discharge and that other drivers might afford him such opportunities in the future, as it is with an admission that he was utilizing this occasion as a pretext for effecting Carlton's discharge in retaliation against him for having joined with other drivers in selecting Local 46 as their bargaining agent. Carlton acknowledged that the company rules posted on the bulletin board listed incompetency as a justifiable ground for discharge. However, it is the General Counsel's position, in effect, that Respondent changed its manner of handling accident-prone drivers after the January 15, 1971, elections. In this connection, there is evidence that Farrell had three accidents in 1970 while driving for Respondent, with no adverse effects upon' him, and further evidence that one, Richter, a driver, had been involved in an accident with his truck in late 1969 or the spring of 1970; and that, although Respondent was then notified by its insurance company (1) that Richter's own insurance had been cancelled by his insurance carrier because of his driving record, and (2) that it was opposed to having Richter drive Respondent's trucks, Respondent only cautioned him and allowed him to continue as a driver. Nevertheless, I do not find these two instances to be controlling in the premises. In neither instance was Respondent faced with the present threat of losing the kind of insurance it then enjoyed, if it retained them as drivers. In addition, whereas Carlton had had five accidents while driving for Respondent when he was discharged, Richter had had only one accident driving for Respondent at the time in question, and Farrell had had three. Accordingly, weighing all the foregoing in the balance, and bearing in mind that, in discharging Carlton, Respondent was acting consistently both with the demand upon it by its insurance company to relieve Carlton of his duties as a driver, if it wished to continue enjoying the insurance coverage then in effect, and with its own prior warning of discharge in the event of another accident within the same time pattern, and as it does not appear that Respondent then had a vacancy in a nondriver's job for Carlton, I conclude, and find, that, while the matter is not free from doubt, the General Counsel has failed to establish by a preponder- ance of the evidence that Respondent discharged Carlton for antiunion reasons. Accordingly, I find further that the allegations of the consolidated complaint, as amended, dated September 30, 1971, that Respondent discriminatori- ly discharged Carlton in May 1971 have not been sustained by the Board. 3. The 8(a)(5) issue a. The certification of Local 46 in the appropriate unit Pursuant to an agreement for consent election in Case 29-RC-1538, executed on November 13, 1970, by and between Quintree and Local 46, and approved by the of his discharge, Gianquinto said that he sent the letter to Carlton after the discharge conversation However, I find it unnecessary to resolve this conflict in testimony 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Regional Director for Region 29 of the Board, an election was held in the agreed appropriate unit of all drivers, helpers, and warehousemen of Quintree, exclusive of salesmen, office clerical employees, guards and supervisors as defined in the Act, which Local 46 won, and which resulted in the issuance of a Certification of Representative to Local 46 on March 29, 1971. As already noted, after the certification of Local 46 by the above Regional Director, Respondent filed with the Board a "Request for Review" of the Regional Director's rulings on its objections to the election leading to that certification. This request was denied on the ground that where the parties have entered into a consent election agreement (the reference being to an agreement for consent election, as here,) the Board "will not intervene when any of the parties indicate disapproval of the judgment exercised by the Regional Director." So far as appears, it was not contended before the Board that the Regional Director's determinations were arbitrary or capricious. Nevertheless, Respondent now attacks the validity of the certification of Local 46 on the ground, namely, that it was not granted a review of the Regional Director's determinations of the objections to the election, and on the further ground that the Regional Director should not have proceeded with the above election, even though it had filed a request to proceed with the Regional Director, because its request to proceed was conditioned on both Local 46 and Local 840 filing identical requests to proceed. It appears that this latter contention was not raised before the Regional Director as an objection to the conduct of the election, and it is not urged that this contention is based on newly discovered or previously unavailable evidence. Further, there is no likelihood that the claimed failure of the Regional Director to obtain requests to proceed from Locals 46 and 840 could have affected the results of the instant election. It follows therefrom, and I find, that no basis exists for not giving finality to the Regional Director's determinations.25 Accordingly, I conclude, and find further, that Local 46 was at all times material herein the lawfully certified bargaining agent in an appropriate unit of all drivers, helpers, and warehousemen of Respondent, exclusive of salesmen, office clerical employees, guards and supervisors as defined in the Act. b. Local 46's requests of Respondent to bargain in the certified unit and Respondent's refusal Under date of April 20, 1971, Val Frank, as business agent of Local 46, wrote to Gianquinto, as president of Respondent, the following letter requesting, inter alia, negotiations looking toward a collective-bargaining agree- ment: In view of the fact that the National Labor Relations Board has now dismissed your "Request for Review" in re the above, and in further view of the fact that your attorney, Mr. Baratta advised our attorney, Mr. Weinmann, that you would bargain once the Board passed on your "appeal", we now again call upon you to meet with me on Thursday, April 29, 1971 at 10:00 A.M. at your office to commence negotiations. Unless I hear from you to the contrary, I will assume that you will meet with me on that day, time and place. We also demand immediate reinstatement of your improper laid off employees. At the time and date indicated in this letter, Frank appeared at Respondent's office, although no reply to this letter had been received from Respondent. Frank referred to the letter to Gianquinto as the reason for his visit. At this, Gianquinto expressed surprise that Frank had not gotten his letter in reply; and then, upon inquiring from his secretary, reported back that the letter was still in the office. Thereupon, Gianquinto hand delivered the answer- ing letter, dated April 27, 1971, to Frank. It read as follows: This is to acknowledge your letter of April 20, 1971. We have read its contents and wish to inform you that it contains erroneous statements. As you know there are still issues that must be resolved in this case. We shall contact you after a resolution is made, and all outstanding problems are finalized. The testimony is in conflict as to what conversation ensued. According to Frank, he said to Gianquinto, in substance, that he could not understand why Gianquinto would not respect the outstanding certification of Local 46 and sit down and bargain, and Gianquinto replied that he wanted his day in court and that "the NLRB isn't God." Whereupon, he left without a date being set for further discussions of the matter. In contrast to the above, Gianquinto testified that he did not say anything other than what was in the letter; and he specifically denied saying anything about going to the courts, but did not deny the other attribution by Frank to him. In all these circumstances, and as Frank's testimony impressed me as being more reliable, I credit him, and find, that Gianquinto made the remarks attributed to him by Frank. The next discussion between Respondent and Local 46 on the matter of whether Respondent would honor the certification and bargain occurred on the morning of May 28, when Local 46 began to picket Respondent's premises with signs saying that Quintree Distributors was refusing to bargain with Local 46. At the time, some of Respondent's employees were outside the plant serving as pickets, and also present were Neil Borra, the president of Local 46, and four union delegates. Gianquinto approached the group, and Borra and he then had a conversation which was, in substance, as follows:26 Bona asked Gianquinto why Respondent did not "sign up" with Local 46 and "forget about it and be happy?" And Gianquinto replied that he was surprised to see the picketing, that he could not bargain as he did not feel that the certification was valid, and that the Board or the courts will decide whether the certification is valid, and, if it is found to be valid, Respondent would then bargain. So far as appears, there has been no discussion between the parties on this matter since this episode. Respondent admits that it has refused to bargain with 25 See Carlisle Paper Box Company, 398 F 2d I (C A 3), enfg 167 NLRB 26 Only Gianquinto testified with respect to this episode 144 QUINTREE DISTRIBUTORS, INC. Local 46, but denies that it has violated the Act thereby, relying in that connection on the claimed invalidity of the certification of Local 46. And it contends further that, insofar as it has refused to bargain after May 28, such refusal was justified because Local 46 has engaged in violations of Section 8(b)(1)(A) and (4) since that date. As to the latter contention, I construe it as raising the issue of the propriety of entering a bargaining order herein, should Respondent's refusal to bargain be found to have violated the Act. As to the former contention, it is well established that an employer must honor a certification of representa- tives for a period of a year, absent unusual circum- stances.27 In view of the absence of any showing here of unusual circumstances, and as I have found that no reason appears for not giving finality to the Regional Director's certification of Local 46, I conclude, and find, that Respondent refused to bargain with Local 46 on and after April 29, 1971, in violation of Section 8(a)(5) of the Act. 4. The nature of the strike It is apparent from the foregoing, including the legend on the picket signs carried by the strikers, that the strike action on May 28 and thereafter was caused by Respon- dent's refusal to bargain. In view of my finding above that such refusal to bargain was an unfair labor practice in violation of Section 8(a)(5), it follows, and I find, that the strike was an unfair labor practice strike. 5. The misconduct during the strike The undisputed testimony shows that picketing began on May 28 and lasted until July 22; that until about June 22, the pickets consisted of Respondent's drivers who were adherents of Local 46; that commencing on June 28 and until July 22, the number of pickets was supplemented with outside drivers, i.e., drivers for Schaeffer beer and drivers for Rheingold beer; and that picket line misconduct was more intense during the latter period, with the participants therein being, for the most part, these outside drivers, who were not named in the record, as a rule, and were identified only as Schaeffer drivers or Rheingold drivers. The record further shows that the forms that the misconduct took during the picketing period were, in substance, as follows: Interfering with the movement of Respondent's trucks out of its plant and along the highways, the latter being accomplished by outside drivers moving their trucks close to the path of Respondent's trucks; threatening to inflict, and inflicting, injury on employees; 28 putting the minor daughters of an employee in fear of personal injury by the appearance of four pickets in front of their house in the evening and creating a disturbance, at a time when their 27 See Ray Brooks v NLRB, 348 U S 93, see also The Diversey Corporation, 139 NLRB 572, affd 325 F 2d 489 (C A 7) 28 Such as (1) jumping on the running board of a truck and grabbing the arm of Respondent's driver and threatening "to kick [the driver's j ass" if ever caught by the picketer; (2) Ed Quinn, the shop steward for Respondent at a Schaeffer plant, threatening Gianquinto on June 28, shortly after the shooting of one Colombo, on that day, that he was "going to get the same thing as Colombo got", (3) throwing full cans of beer onto the windshields of Respondent's trucks and into the cabs of these trucks, sometimes striking the drivers, and (4) threats to beat up Respondent's drivers, and/or to run them off the road 29 Such as (1) putting pebbles in gas tanks of Respondent's trucks and 403 father was not a home; threatening to inflict, and inflicting, damage to Respondent's trucks and property; 29 engaging in mass picketing at Respondent's premises; attempting to prevent employees from making a delivery to one of the customers of Respondent; 30 and calling Respondent's employees scabs and hurling four-letter epithets at them. Upon the basis of the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), 2(6), and (7) of the Act. 2. Local 46 is a labor organization within the meaning of Section 2(5) of the Act. 3. By the following conduct which interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act: 31 (a) Interrogating employees concerning the union atti- tudes and desires of their fellow employees, and as to how they were going to vote in the upcoming Board elections. (b) Threatening employees with economic reprisals should Local 46 be selected as their bargaining agent in an upcoming election. (c) Promising employees economic benefits should Local 46 not be selected by them as their bargaining agent in an upcoming election. (d) Urging employees to reject the respective labor organizations which were seeking to represent them for collective-bargaining purposes and, instead, to form a committee of their own to do so. (e) Soliciting an employee to take the leading role in forming a committee to represent its employees in bargaining collectively with it. (f) Telling its employees , in the context of pending Board elections, that it would withhold their usual Christmas bonus, and/or actually withholding that bonus. (g) Dealing separately with its employee drivers , notwith- standing that Local 46 was then their collective-bargaining agent, and attempting to induce them to abandon Local 46 and enter into individual contractual relationships with it. 4. By the following conduct Respondent discriminated in regard to the hire and tenure of employment of its employees and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act: (a) Laying off employees Nathan Granger, John Marou- sek, Thomas Farrell , and John Dobrie, effective as' of February 8, 1971; and also laying off employees Robert removing gas caps , (2) Jumping onto the truck through the rear and throwing cases of beer from the truck to the ground, (3) spraying beer from open cans of beer on the windshields of Respondent 's trucks, letting air out of tires of Respondent 's trucks, (4) cutting the air lines on Respondent's trucks, and (5) thorwing stones on Respondent's premises, striking an employee on the elbow with one of them, and causing the employee to jerk the handle of a pallet and the cases of beer thereon to fall to the floor. 30 This consisted of kicking over a handtruck loaded with beer cases which were about to be delivered from the truck to the customer 's store, and causing breakage of bottles of veer, delivery was made only after police were summoned to the scene 31 See Haines Meats and Provisions, Inc, 170 N LRB 37. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carlton, Stewart Greene, Robert Tripptree, Thomas Kleinklaus, and Andrew Drier , effective as of February 22, 1971, because of its animus toward Local 46, which had recently won a Board election in their bargaining unit, and its belief that they were adherents of Local 46. (b) Discharging Thomas Kleinklaus on March 2, 1971, because of its animus toward Local 46, which had recently won a Board election in his bargaining unit, and its belief that he was an adherent of Local 46. (c) Failing to pay employee Robert Carlton the wages he had lost during the first week of his disablement, due to a job-connected injury, because of its animus toward Local 46, which had recently won a Board election in his bargaining unit , and also because of its belief that he had lied to Respondent when he said he was going to vote against Local 46 in that election. 5. By refusing on and after April 29, 1971, to bargain collectively with Local 46, the certified bargaining repre- sentative in the following appropriate unit , Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) of the Act and has interfered with , restrained, and coerced its employees in violation of Section 8(a)(1) of the Act: All drivers, helpers, and warehousemen of Respondent, exclusive of salesmen, office clerical employees , guards and supervisors as defined in the Act. 6. The strike by Local 46 against Respondent was an unfair labor practice strike from its inception on May 28, 1971, and continued to be such thereafter. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Respondent has not violated the Act by discharging Robert Carlton on or about May 14, 1971. REMEDY Having found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that a broad order issue that it cease and desist therefrom, and that it affirmatively take such action as will dissipate the effects of its unfair labor practices. In the latter connection, having found that Respondent violated Section 8(a)(3) and (1) of the Act by discharging Thomas Kleinklaus, I shall also recommend that Respondent offer him immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered during the period of this discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of such discrimination to the date of Respondent's offer of reinstatement, less his net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716. In addition, having found, in the case of Kleinklaus, that Respondent 32 Although there is evidence in the record of misconduct by some of these strikers while picketing during the strike, such misconduct has not been raised as a defense to their reinstatement As this is an affirmative defense, and Respondent has not urged it before me , I need not, and do not, violated Section 8(a)(3) and (1) of the Act by laying him off before the above discharge, and having found similar violations with respect to the layoffs of employees Nathan Granger, Joseph Marousek, Thomas Farrell, Joseph Dobrie, Robert Carlton, Stewart Greene, Robert Tripptree, and Andrew Drier; and having found further that these sections were also violated, in the case of Carlton, by failing to pay Carlton wages for his first week of disablement because of a job -connected injury, I shall recommend that they be made whole by Respondent for any loss of earnings each may have suffered during the period of this discrimination (i.e., with respect to the layoffs, for the days in February 1971, which were regular working days for drivers, and during which each did not work, less his net earnings during that period, together with interest to be computed; and, with respect to the disablement of Carlton, for the days which were regular working days during the first week of his disablement in March 1971, together with interest to be computed. Also, as I have found that Respondent violated Section 8(a)(1) of the Act in illegally withholding from its employees their Christmas bonus in 1970, I shall recommend that Respon- dent pay to them the amount thereof, together with interest to be computed. Further, as I have found that the strike which began on May 28, 1971 , has been an unfair labor practice strike from its inception , and as the strikers had not as of the time of the instant hearing abandoned the strike and applied for reinstatement, I shall recommend that Respondent reinstate such strikers upon application, dismissing, if necessary, persons hired by Respondent on or after May 28, 1971 ; 32 however, should Respondent refuse to reinstate them , Respondent shall then make whole each such employee for any loss of earnings suffered by him for so long as such refusal continues, beginning 5 days after he applies for reinstatement. Finally, as I have found that Respondent refused to bargain collectively with Local 46, the duly certified bargaining agent of its drivers, helpers , and warehousemen, in violation of Section 8(a)(5) and ( 1) of the Act, I shall also recommend affirmatively that Respondent bargain with Local 46, upon request. In so recommending, I have taken cognizance of Respondent 's contention, in sub- stance, during the hearing, that the Board's holding in the case of Herbert Bernstein, Alan Bernstein, Laura Bernstein d/b/a Laura Modes Company, 144 NLRB 1592, precludes the issuance of a bargaining order because of the evidence herein as to violations by Local 46 of Section 8(b)(1)(A) and 8(b)(4) of the Act.33 In the cited case, the union based its claim to majority status on employee authorization cards and the respondent refused to grant it voluntary recognition. Whereupon, the union evidenced a total disinterest in enforcing its representation rights through the peaceful legal process provided by the Act and engaged in unprovoked and irresponsible physical assaults upon officials of the respondent. In refusing to issue a bargaining order in that case, the Board said, "We conclude that, in the particular circumstances of this case, the policies of the reach that issue 33 No allegations of Sec 8(b)(4) of the Act appear in any of the complaints issued herein QUINTREE DISTRIBUTORS, INC. 405 Act and the legitimate interests of the public and the parties will best be served by denying to the Union the right to invoke our statutory processes in aid of a demand for recognition as bargaining representative of Respon- dent's employees unless and until it demonstrates its majority among those employees through Board election procedures" (emphasis supplied). The facts in the instant case are not opposite to those in the cited case. Here, Local 46 gained its right to bargain for the affected employees by resorting to the Board's processes under the Act, and by winning an election held pursuant to all consent election agreement; and Respondent thereafter resisted its peaceful efforts at bargaining for these employees as their certified bargaining agent. Also, in contrast to the cited case, the imsconduct, which occurred, took place in the heat of picket line tensions34 and against a background of its unlawful refusal to bargain and other extensive unfair labor practices, as found herein. It follows therefrom, and I find, that this case is not one in which an affirmative bargaining order should be refused.35 Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I hereby issue the following recommended: 36 ORDER Respondent, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act by (1) Intenrgating employees concerning the union atti- tudes and desires of their fellow employees, and as to how they were going to vote in the upcoming Board elections; (2) Threatening employees with economic reprisals should Local 46 be selected as their exclusive bargaining agent in an upcoming election; (3) Promising employees economic benefits should Local 46 not be selected by them as their exclusive bargaining agent in an upcoming election; (4) Urging employees to reject the respective labor organizations which were seeking to represent them for collective-bargaining purposes and, instead, to form a committee of their own to do so; (5) Soliciting an employee or employees to take the 34 As already found the picketing began on May 28 and ended on July 22, 1971 35 After, the close of the hearing, Respondent filed a motion herein to reopen the record to take additional evidence as to subsequent misconduct by Local 46, which allegedly contravened the Act Thereafter, I issued to Respondent a rule to show cause why the motion should be granted Respondent failed to respond to the rule to show cause within the time alloted therefor, and, instead, made a telegraphic request for additional time to respond I thereupon instructed Respondent to advise the parties of its request and the reason therefor, and to inform me thereof so thati could rule upon its request Not having heard from Respondent within 6 days thereafter, I denied Respondent's motion to reopen the record, but granted Respondent the opportunity to include in its brief an offer of proof as to what its witnesses would have testified had the motion to reopen been granted Respondent thereupon excepted, by telegram, to my ruling on its motion to reopen, and upon the request for additional time, it also indicated therein that it was not going to file a brief, when due, and requested me "to leading role in forming a committee to represent its employees in bargaining collectively with it; (6) Telling its employees, in the context of pending Board elections, that it would withhold their usual Christmas bonus, and/or actually withholding that bonus; (7) Dealing separately with its employees, notwithstand- ing that Local 46 is their exclusive bargaining agent, and attempting to induce them to abandon Local 46 and enter into individual contractual relationships with it. (b) Discharging or refusing to reinstate employees, or laying off employees, or failing to pay employees wages for the first week of their disablement due to a job-connected injury, for antiunion reasons. (c) Refusing to bargain collectively in good faith concerning rates of pay, wages, hours, or other conditions of employment with Local 46 as the exclusive representa- tive of its employees in the following appropriate unit: All drivers, helpers, and warehousemen of Respondent, exclusive of salesmen, office clerical employees, guards and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Thomas Kleinklaus immediate and full reins- tatement to his former job or, if thatjob no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he has suffered, in the manner set forth in the section hereof entitled "The Remedy." (b) Make whole, in the manner set forth in the Remedy section, Thomas Kleinklaus, Nathan Granger, Joseph Marousek, Thomas Farrell, Joseph Dobrie, Robert Carl- ton, Stewart Greene, Robert Tripptree, and Andrew Drier for any loss of earnings by reason of their respective discriminatory layoffs in February 1971. (c) Make whole, in the manner set forth in the Remedy section, Robert Carlton for any loss of earnings due to the discriminatory failure to pay him wages for the first week of his disablement in March 1971 by reason of a job- connected injury. (d) Make all its employees whole by paying them the give serious consideration [to] application of [the Laura Modes case] to Quintree-Local 46 case " It is apparent from my findings above, however, that, irrespective of whether additional misconduct by Local 46 occurred after the instant hearing, the Laura Modes case does not preclude a bargaining order herein But, Respondent is not thereby precluded from hereafter moving before the Board to revoke Local 46's certification, should Local 46 fail to fulfill its statutory obligations as the exclusive bargaining representative of the employees in the certified unit See Alton Manufactur- ing Corporation, 136 NLRB 850, Hotel Properties, Inc, d/b/a The Landmark Hotel and Casino, 194 NLRB No 139 36 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 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1970 Christmas bonus which was illegally withheld from them, in the manner set forth in the Remedy section. (e) Upon application, offer immediate and full reinstate- ment to those of its employees whojoined the unfair labor practice strike and are still on stnke37 to their former jobs or, if any of such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, dismissing, if necessary, persons hired by it on or after May 28, 1971. And finally make whole any of such last-mentioned employees for any loss of earnings suffered, if it should refuse to reinstate him, for so long as the refusal continues, beginning 5 days after said employee applied for reinstatement, and computing the loss of earnings in the manner set forth in the section hereof entitled "The Remedy." (f) Preserve and, upon request, make available to the Board or its agent, for examination and copying, all payroll records, social security records, timecards, personnel records and reports, and all other records necessary or useful to determine or compute the amounts of backpay due, as herein provided. (g) Notify Thomas Kleinklaus and each of its unfair labor practice strikers, if presently serving in the Armed 31 As the record does not contain a complete list of those of its employees who engaged in the strike in question, this is to be determined at the compliance stage of this proceeding. as 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Forces of the United States, of their right to full reinstatement upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (h) Post at its plant in Sayville, New York, copies of the attached notice marked "Appendix "38 Copies of said notice, on forms provided by the Regional Director for Region 29, after being signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof and be maintained 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. (i) Notify the said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.39 IT IS FURTHER RECOMMENDED that the consolidated complaint, as amended, dated September 30, 1971, be dismissed insofar as it alleges violations of the Act by Respondent not found herein. Enforcing an Order of the National Labor Relations Board " 39 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 said Regional Director, for Region 29, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith."