Justus Co., Inc.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Justus Company, Inc. and Warehouse and Produce IT IS FURTHER ORDERED that the election held on Workers Local Union No. 599 , International Broth- June 17, 1971, in Case 19-RC-5896, is hereby set erhood of Teamsters, Chauffeurs, Warehousemen & aside and that the petition filed in that case is hereby Helpers of America and Wesley Barr, Alfred Barr dismissed. and Larry Tour, acting as Employees Committee of Justus Company, Inc., Party in Interest. Cases 19- CA-5345 and 19-RC-5896 September 29, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On May 10, 1972, Administrative Law Judge' Herman Corenman issued the Attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed cross-exceptions to the Decision and a support- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions ' of the Administrative Law Judge and to adopt his recommended Order, as herein modified. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Justus Company, Inc., Tacoma, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Ad- ministrative Law Judge's recommended Order, with the following modifications: Substitute the following for paragraph 1(b): "(b) Coercively interrogating employees con- cerning union meetings and union activities; coercive- ly polling employees concerning their union sen- timents; making statements giving employees the impression that their union meetings were under sur- veillance; threatening employees that if they select the Union as their representative plant discipline would be tightened, previous privileges revoked, coffee- breaks shortened, employees discharged for minor rule violations and tardiness, and the plant closed or moved to distant locations; and promising insurance and other fringe benefit payments if the employees would abandon the Union." ' The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 While we find that Respondent's temporarily ,withholding of $25 for ficti- tious union dues and fees from each employee 's paycheck on May 14 inter- fered with the election, we find it unnecessary, in light of Respondent's flagrant 8(a)(1) violations herein, to pass on whether such conduct also violates Section 8(a)(1) of the Act. Yazoo Valley Electric Power Association, 163 NLRB 777, In 2. 3 We agree with the Administrative Law Judge that Respondent 's conduct preceding the election has undermined the Union 's majority and interfered with the election process. Respondent 's threats of discharge for minor work rule violations and threats of plant closure were made in the company lunch- room to all employees . The unlawful reference to a possible closedown was followed by attempts by several employees to revoke their union authoriza- tion cards In addition, Respondent interrogated employees , polled employ- ees concerning their union sentiment without safeguards of secrecy, made promises of benefits , and attempted to organize employees into a company- dommated union In our opinion, the effects of these broadly disseminated unfair labor practices are not likely to be redressed, through application of traditional Board remedies , in a fashion providing reasonable assurance that a fair election could be conducted NLRB v Gissel Packing Company, Inc., 395 U.S. 575, 615-616. For this reason, we believe that a remedial bargaining order, as requested by the complaint , is warranted in this case , even in the absence of an 8(a)(5) allegation Mallow Plating Works, Inc., 193 NLRB No. 96. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE HERMAN CORENMAN, Trial Examiner : A hearing in the above-entitled proceeding was held before the undersigned TrialrExaminer on January 4, 5, 6, and 7, 1972, at Tacoma, Washington, on 'a complaint of the General Counsel against Justus Company, Inc., herein called the Respondent. The complaint, issued October 29, 1971, pursuant to charges and amended charges filed by the Union July 1 and September 2, 1971, alleges violations of Section 8(a)(1), (2), and (3) of the Act and seeks a bargaining order despite the absence of an 8(a)(5) allegation. Under date of October 29, 1971, the Regional Director for Region 19 of the Board consolidated for hearing with the unfair labor practice case the issues presented by the Union's objections to conduct affecting the results of the election held on June 17, 1971, in Case 19-RC-5896. The aforesaid objections are in some respects similar to the alle- gations of violations contained in the complaint. All parties were afforded full opportunity to appear, to introduce evidence, to examine and cross-examine witness- es and to argue orally on the record. Briefs, which have been carefully considered, were filed by the General Counsel and the Respondent. Upon the entire record, and from my ob- servation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The pleadings establish, and I find, that the Respon- dent, Justus Company, Inc., is a Washington corporation 199 NLRB No. 51 JUSTUS COMPANY with an office and place of business at Tacoma, Washing- ton, where it is engaged in the manufacture and sale of precut cedar buildings. During the past year, which is repre- sentative of its annual operations, generally, Respondent, in the course and conduct of its business operations, pur- chased and caused to be transported and delivered to its Tacoma, Washington, place of business, directly from points outside the State of Washington, goods and materials valued in excess of $50,000, and during the same period received m excess of $50,000 from sales to customers locat- ed outside the State of Washington. I find that the Respon- dent at all times material herein has been, and is, an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The pleadings establish, and I find, that Warehouse and Produce Workers Local Union No. 599, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Union Organizational Drive The union began organizing the Respondent's employ- ees in the first week of May 1971 at the behest of Respondent's employee Charles Ted Gilmore. Robert Pa- volka, the Union's secretary, handed a supply of union au- thorization cards to Gilmore, who volunteered to solicit employee signatures. Pavolka conducted a union organiza- tional meeting at the umon hall in Tacoma on the evening of May 5, 1971, which was attended by a number of Respondent's employees. At this meeting, employee Charles Richardson volunteered to help in the Union's organiza- tional efforts and Pavolka gave him a supply of authoriza- tion cards to be signed by employees who wanted the Union to represent them. Gilmore and Richardson solicited au- thonzation card signatures in the Respondent's plant and by May 6, 13 employees had signed cards. B. The Respondent's May 6 Meeting In an effort to combat the union organizational drive which was not apparent to the Respondent's officials, Plant Foreman Wesley Barr I called a meeting of both the day and night shift employees for 3:15 p.m. on May 6 in the plant lunchroom. According to the credible testimony of Charles Richardson, Plant Foreman Barr started the meet- ing by directing his first remarks to Ted Gilmore, stating "Well, Ted, you're doing it again .... You've tried to get a union in here once and you know what happened. What do you think is going to happen this time?"2 Barr went on i I find that Wesley Barr at the time was a supervisor within the meaning of Sec 2(11) of the Act. He was the plant foreman supervising approximately 25 employees. He and Vice President Larry Lynott consulted one another and jointly acted in matters of hiring and discharging employees , and Barr effectively recommended such personnel action He likewise exercised gener- al supervision over all plant employees 423 to tell the assembled employees that the Respondent was not in a position to take on a union at this time because they could not afford to pay union wages and he said the Re- spondent was $50,000 in the hole. Richardson credibly quoted Barr as saying, "Anyway if we get the Union in, the company would close and move to Bellevue or Bellingham .... " There was a general discussion among the employees concerning the merits of the Union. Barr told the group he had been in a union for some 20 years and it never did anything for him and he then pointed to Ted Gilmore and said, "You're in the automobile union. You're not working now." Wesley Barr said, "Why don't we take a vote and see what the outcome would be," and he then tore up a quantity of paper to make ballots for distribution to the employees who were grouped around the dining room table, some sitting and some standing. The employees voted "yes" or "no" to indicate their preference for or against the Union and threw their ballots into a pile at the center of the table. Precautionary measures to insure the secrecy of the ballots were not taken and employees were able to observe how others voted. The vote was tallied by Wesley Barr and his father, Alfred Barr, and Larry Tour, an assistant foreman? The vote was against the Union by a sizable majority. I find that this nonsecret poll of employee sentiments violated Section 8(a)(1) of the Act. Struksnes Construction Co., 165 NLRB 1062. C. The May 7 Meetings Pavolka held a second organizational meeting in the Respondent's parking lot at 3:30 p.m. on May 7. At this meeting, Pavolka told the employees that his union repre- sented many employees in the wood industry and that their wage rates and benefits were substantially higher than Respondent's. He also told the employees concerning their rights to select their bargaining representative and of the right to file unfair labor practice charges. During the course of the meeting, Mr. Larry Lynott, vice president and plant manager of the Respondent, approached Pavolka and in- quired what he was doing there. Pavolka told Lynott he was attempting to organize the plant and that the Respondent should have received a letter advising it of that fact." Lynott ordered Pavolka to leave Respondent's proper- ty. Thereupon Pavolka moved the meeting over to the rail- road tracks. Lynott summoned some to the employees away from the union meeting and conversed with them in the Respondent's parking lot. According to the credible and uncontradicted testimony of employee Anthony G. Ward, Larry Lynott told the assembled group of employees that "he was working on a plan to set up something like that of his own-a union, benefits, and things of that nature-from what I gathered it was benefits like vacations, medical bene- fits and things like that . . . He [Larry Lynott] made a statement to the fact that he was going to do these things." I find that the aforesaid promise of benefits to employees to avoid unionism violated Section 8(a)(1) of the Act. 2 Barr's reference was to Gilmore's unsuccessful attempt to organize for the Mill Workers Union in April 1971 3 Alfred Barr had been the plant foreman previous to his son, Wesley Barr "The letter, in evidence as Resp. Exh. 1, is dated May 6 and was received by the Respondent May 7, 1971 The letter notifies the Respondent that the Union is in the process of organizing Respondent's employees and cautions the Respondent not to interfere with the employees' rights 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Union Files its Petition for Representation With the NLRB on May 10 On May 10, 1971, the Union filed its petition for repre- sentation of Respondent's production and maintenance em- ployees with Region 19 of the Board in Case 19-RC-5896. E. The Union Organizational Meeting of May 12 A third union organizational meeting was conducted by Pavolka at the union hall on May 12, and additional authorization cards were submitted to the Union by em- ployees. Larry Lynott concedes that on the following day he inquired of employees, including an employee named Sam Bush, what had transpired at the union meeting, "what he saw and what happened," what was "the general feeling." Lynott concedes that Bush told him who was present at the May 12 union meeting.5 F. The "Union Week" Meeting of May 14 Larry Lynott concedes that he took certain action to counter the Union's propaganda to the effect that employ- ees at the St. Regis Company, whom the Union represented, were receiving $4 an hour for similar work that Respondent was paying substantially less to its employees. Lynott testi- fied he wanted to show the employees "the other side of this rosy picture the union guy was painting for them." So, Ly- nott testifies in May, for 2 days "He showed up a couple of mornings at 7 o'clock when the men were supposed to punch in." Speaking of those employees who were showing up 15 or 20 minutes late, Lynott testified, "I just kind of started with hitting them up with what is your problem, why can't you make it on time?" Lynott testified he was likewise in this period enforcing the break time limit to 10 minutes instead of the usual 12, 13, or 14 minutes. After 2 days, namely on May 14, 1971, Larry Lynott assembled the entire workforce in the lunchroom about 3:30 p.m. to speak to them. Lynott testifies he told the employees that they had been getting a nice rosy story from the Union and he told them "I am just going to run it a little stricter like the union shop would be run." Lynott concedes he told the employees that he had a good idea who attended the May 12 union meeting, but he didn't care. Lynott testified he told the employees that instead of punching in at 7:15 and 7:20 that the Company expected them to be there on time, that he expected their breaks would be 10 minutes in duration. He conceded he had posted a notice to the em- ployees with regard to tardiness or continual punching in late,6 and that he had also posted a notice on a new policy limiting hair length and prohibiting beards. Lynott also tes- tified he told the employees that he thought they were stab- bing him in the back by not coming to him. He testified also that he told the employees that all the Union could do is talk to him and "why should they pay somebody else to come and talk to me about their problems." Lynott also admits s I find that Larry Lynott's interrogation of employees violated Sec. 8(a)(l) of the Act. 6 This notice next to the timeclock recited that employees who were late three successive times would be discharged. he told the employees he was going to review his policy of making loans to the employees. Lynott testified "what I really wanted to do is show the employees just what unions were really about as far as I was concerned, I wanted to maybe indicate to them what it would be like if they had a union." Edward Giesler, a witness called by the Respon- dent, recalls, and I find, that Larry Lynott "explained to us that we would have a union week which would last one week and it would show what it would be like if we were to go union-that if we're late three times consecutively, we would be discharged, the breaks which had always been 10 minutes and let them go into 15 or 20 minutes would be 10 minutes." Charles Richardson credibly testified, and I find, that Larry Lynott said, "You guys want to play Union, well, we're going to play union. You know I have been fair with you guys. I've tried to treat you as brothers. I've loaned you money. I've given you guys jobs that have been out of a job for a long time .... From now on, there will be no more loaning of money, no beers, your hair will be cut short, you will be here not a minute after 7, not 2 minutes after 7 but at 7 o'clock ... you can't be late more than three times unless you're going to be canned .... I'm just going to show you how it is to play union if you want to play union." Concerning the May 12 union meeting, Richardson credibly testified that Larry Lynott told the employees that he knew who had been at the union meeting and he said, "I'm not calling any names or anything but I know who was there." Richardson further testified credibly that Lynott told the employees "it was a possibility that the plant would close if the Union got in because he just couldn't afford to pay union scale-he was doing everything he can to get us in- surance, even the medical benefits and everything." I find that the foregoing remarks made by Larry Lynott at the "union week" meeting and the "union week" policies instituted by Lynott were intended to and did interfere with, coerce, and restrain the employees in their right to select the Union as their bargaining representative, in violation of Section 8(a)(1) of the Act. G. The $25 Shortage on the Friday, May 14 Paycheck On Friday evening, May 14, which was payday, the Respondent shorted each employee's paycheck in the amount of $25 to demonstrate to them what union dues and initiation fees would cost them, but 15 minutes later handed each a separate check for $25 to make up for the shortage in their paycheck. Larry Lynott's explanation as to his mo- tives for this action is as follows by his record testimony. So in conjunction with my union week , I thought O.K., I will show them just what dues are, how much is going to be out of their pockets and let them get the feeling of what it is doing to them instead of just all these rosy pictures. So Wesley and I, Wesley [Barr] called up the union hall one afternoon and was rapping with a guy about what the benefits were and stuff and getting his sales pitch a little bit and the guy indicated to him at that time that the dues were $9.00 a month and that the initiation fee ranged anywhere up to $75. Wesley kind of reflected this to me later and I asked him what his carpenter union dues were and he said JUSTUS COMPANY 425 they were $100 and they took it out over a nine-month period. I sat down and went through some figures. I thought this $9.00 a month for straight dues and so much over an extended period for this $75 or $100, I broke it down into a 12-month area. I added that up and said "ok, let's take it out of their checks." Lynott testified that when the checks minus the $25 were handed out, he "knew things were going to start flying-the guys were ready to tear the place down." Lynott testified he told the employees "hold it, don't worry about it ... I explained to them, `ok, now you're seeing what the Union is going to do to you if you vote for them, what it means to you to have these dues taken out and now you are feeling it.' " Referring to the union officials, Lynott testified he told the employees: You are paying the Teamstersjust this much mon- ey just so they can come and talk to me.... It has been great so far, you have been talking to me and I have been talking to you, why do you want to pay dues for Union Secretary Pavolka testified that the local initia- tion fee could be as much as $75 or as low as $23 and dues were $9 a month. He also testified that normally initiation fees are not deducted from the payroll, only dues are, and employees usually pay their initiation fees direct to the Un- ion. Inasmuch as the conduct of the Respondent in deduct- ing and then later returning the $25 was intended as dramat- ic representation that the Respondent would make such deductions from the employees' paychecks if a union came in, I find that it constituted a threat of reprisal in the event a union was selected by the employees. It is clear that the Respondent would not be legally obligated to make such payroll deductions if the employees selected a union. I find that this conduct by the Respondent violated Section 8(a)(1) of the Act. Yazoo Valley Electric Power Assn., 163 NLRB 777, 786, and fn. 37. H. The Employees Committee On June 15, 1971, Plant Foreman Wesley Barr called a meeting of both shifts of employees at 3:30 p.m. in the company lunchroom to consider forming a union consisting only of Respondent's employees to represent the employees in bargaining with the Respondent. Barr concedes he told the employees it would be a good idea to have their own union. A committee was elected to represent the employees in collective bargaining. The committee consisted of Wesley Barr, his father, Alfred Barr, and Larry Tour. Larry Tour in the presence of Wesley Barr drew up a document, iden- tified in the record as General Counsel's Exhibit 5, which was signed by 15 employees, including the three committee members, namely Wesley Barr, Alfred Barr and Larry Tour. The document reads as follows: We the undersigned wish to make it known that we are going to act as our own bargaining representative through our elected officers and do hereby reserve all rights to protection under the N.L.R.B. Act or Acts in law. June 15, 1971 We ask for a guaranteed date to bargain with the Owners of the Justus Solid Cedar Home Co. Inc. no later than 15 days from this date. If they agree they may place their signature on this document. Immediately after the completion of the document es- tablishing the employees committee, Wesley Barr, his fa- ther, Alfred Barr, and Larry Tour called upon Mr. Frank Lynott [Larry Lynott's father], the Respondent's president and controlling stockholder. The committee explained to Frank Lynott that they had been elected by the company employees to represent them to the Respondent. Mr. Lynott invited them into his office where they explained how they felt, that "we just wanted to represent ourselves." Mr. Ly- nott agreed it was a good idea but he could do nothing for the committee and could agree to nothing at that time .7 Although the Respondent has not formally recognized the employees committee as the collective-bargaining repre- sentative of its employees, it still functions in the plant. Larry Tour, who has held the position of assistant foreman since September 1971 and is one of the committeemen, called a meeting of the Respondent's employees on compa- ny time in the plant's lunchroom on December 30, 1971, to learn where the employees association stood. Tour asked the assembled employees whether they wanted to continue with the employees association or drop it. According to Tour's uncontradicted testimony, the great majority of the assembled employees indicated that they would prefer to continue with the employees association and bargain through it rather than join an organized labor union. I. Conclusionary Findings Re the Status of the Employees Committee I find that the Respondent has fostered , dominated, and interfered with the formation and administration of the employees committee and contributed support to it. The seeds for its formation were first implanted by Larry Lynott, who told the employees in the parking lot meeting on May 7 that he was thinking of setting up a rival union of his own with benefits "like vacations, medical benefits and things like that." The actual formation of the employees commit- tee was instigated by Plant Foreman Wesley Barr, who called the meeting on company time and property for that purpose and who, in addition, served as one of the officers of that committee. The Respondent's treatment of the employees commit- tee is noticeably benevolent when compared with the Respondent's treatment of the Union. Union Secretary Pa- volka, who was holding a union meeting on the Respondent's parking lot on May 6, was ordered off the premises by Larry Lynott and the employees were told by Larry Lynott that they were "stabbing him in the back" by bringing in this outside union. But the Respondent permits the employees committee to meet on company time and on company premises. Although the Respondent has not for- 7 Frank Lynott testified that he read the document (G.C. Exh. 5) that the committee handed to him The three people told him that they had no interest in an outside union coming in and requested him to sign the document "agreeing to make them a company union." Lynott refused to sign the document, stating "he couldn't even discuss it with them and they would have to quit talking about it and leave." 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mally recognized the employees committee , it nevertheless serves as an effective device to discourage the employees in the selection of an outside labor organization to represent them. As the Respondent has dominated, fostered, and inter- fered with the formation and administration of the employ- ees committee and contributed support to it, its continued existence interferes with, restrains, and coerces Respondent's employees in the exercise of their rights guar- anteed in Section 7 of the Act, and the Respondent, I find, thereby has violated Section 8(a)(1) and (2) of the Act. Pines of America, Inc., 178 NLRB 376, 384; Scott's Inc., 159 NLRB 1795, 1820-1822; Bev Cal Optical Co., 157 NLRB 1287, 1289-1292; Atco-Surgical Supports, 157 NLRB 551; Webb Manufacturing, Inc., 154 NLRB 827, 830-832. J. Should a Bargaining Order be Granted? Paragraph 25 of the General Counsel's complaint alleg- es that "Respondent has engaged in unfair labor practices of such an extensive and pervasive character as to require the issuance of a bargaining order even in the absence of an 8(a)(5) violation." - The Union filed its petition for representation with the Board's Regional Office at Seattle on May 10, 1971, in Case 19-RC-5896. The agreed-upon unit was described as: "All production and maintenance employees employed by the employer at its Tacoma, Washington place of business, ex- cluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees of the employer." When the petition for repre- sentation was filed on May 10, 1971, the Union had 13 signed authorization cards, and on May 12, 1971, the Union procured three more signed authorization cards, giving it a total of 16 signed cards.8 Notwithstanding its procurement of 16 signed authori- zation cards by May 12, 1971, the Union lost the June 17, 1971 Board-conducted election by a vote of 14 to 3. The Union filed timely objections to conduct affecting the elec- tion on June 24, 1971. The 16 signed authorization cards are in evidence as General Counsel's Exhibits 3(a) through 3(p). In determining the Union's majority status, I have con- sidered the names of the 25 employees shown in section I of the stipulation between the General Counsel and the Respondent which appears in the record as General Counsel's Exhibit No. 2. Section I of the stipulation con- tains the names of all full-time employees in the appropriate unit. I find that of the 25 employees in this group of full-time employees on May 12, 1971 (see section I of G.C. Exh. 2), 15 employees (see G.C. Exh. 3(a) through 3(p)) had signed cards authorizing the Union to represent them in collective bargaining with the Respondent. I have determined that on May 12, 1971, the Union had a majority based on 16 signed authorization cards out of a unit of 30 eligible employees. The eligible employees in the unit are composed of the 25 full-time employees listed on section I of General Counsel's 8 The authorization card reads as follows. "I (name of employee) an em- ployee of Justus Company do hereby appoint Teamsters Union Local 599 as my collective-bargaining agent, to represent me in negotiating with my em- ployer for wages, hours, and working conditions. Signature, address, date. Phone No." Exhibit No. 2 and 5 part-time employees listed on section II of General Counsel's Exhibit No. 2 whose names are: John Burnett, Roy Costi, David Hartwell, Gilbert Mc- Creery, and Richard Snowberger. I have excluded from the unit those eight employees named hereafter listed on section II of General Counsel's Exhibit No. 2 who, Vice President Lynott testified, were unscheduled, casual employees, not a part of the permanent workforce, namely Davis Erickson, Joe Bell, Dan Agnew, Al Humiston, Marc Canada, Mathis Middleton, Charles Forkes, and Murray Mustin . Based on this computation, I find that on May 12, 1971, the Union represented a majority of 16 out of 30 employees in the appropriate unit .9 Query: Should a Gissell type remedy be ordered not- withstanding the failure to allege an 8(a)(5) violation? Inas- much as I have found in this decision that the Respondent's discharges of Charles T. Gilmore on May 24, 1971, and Charles R. Richardson on May 27, 1971, did not violate the Act, it follows therefore that consideration must be given only to that conduct which I find violated Section 8(a)(1) and (2) of the Act in determining whether an 8(a)(5) remedy should be recommended. There is no need to repeat again all of the conduct of Respondent which I have already found violated Section 8(a)(1) and (2) of the Act. I again note that Vice President Larry Lynott interrogated employees concerning what tran- spired at the May 12 union meeting; and at the May 14 company-employee meeting pointed out to the employees that he knew the identity of employees who attended that union meeting. He also conveyed to the employees the "un- ion week" threats, namely that with the advent of the Union the Respondent would become a ruthless taskmaster, who would impose close surveillance on the employees' work, shorten break periods, limit hair length, and discharge those employees who were tardy three times. Especially reprehen- sible and sufficient in themselves to undermine the Union's majority status and preclude a fair election were threats to discharge employees for minor rule violations and to close the plant if the Union came in and to move it to Bellingham or Bellevue, Washington, cities respectively 118 and 30 miles removed from Tacoma.10 Such a move as threatened by Lynott and Barr would have served as a major obstacle in preventing employees from going to work and most likely would have resulted in job loss to most of them. It is reasonable to conclude that the Respondent's poll of employee sentiments on May 6 and the sponsorship of and formation of the employees committee on May 15, only 2 days before May 17, the date scheduled for the NLRB election, seriously undermined the Union's majority and interfered with a free and fair election. Additionally, Larry Lynott's promises, to a group of employees in the parking lot on the same day that the union representative was ordered off the premises, that he would set up his own union with vacation and medical benefits added fuel to the Respondent's coercive campaign to under- 9 There is evidence in the record that some card signers requested the return of their cards I have given no effect to these requests, because I find that they resulted from the Respondent's flagrant unfair labor practices herein found which eroded and undermined the Union's representative sta- tus Werstein Uniform Shirt Co, 157 NLRB 856, 859-60. 1° The Respondent subsequently did move the plant in November 1971, but to another location in Tacoma. JUSTUS COMPANY 427 mine the Union and prevent an untrammeled choice in an election. Additionally, the Respondent's conduct in deduct- ing $25 union dues from the employees' paychecks was calculated to frighten them into the belief that this would be company practice with the advent of the Union. In General Stencils, Inc., 195 NLRB No. 173, on re- mand, 472 F.2d 170 (C.A. 2), the Board adhered to its prior order requiring the employer to bargain with the union, since the employer committed numerous unfair labor prac- tices, including threats of plant closure and discharge if the union won the election, and these threats, the Board held, were of such gravity as to render a reliable election unlikely even if the employer were to discontinue its unlawful con- duct. In justification for issuing its bargaining order, the Board stated as follows: A direct threat of loss of employment whether through plant closure, discharge, or layoff, is one of the most flagrant means by which an employer can hope, to dis- suade employees from selecting a bargaining represent- ative. Such conduct is especially repugnant to the purposes of the Act because no legitimate justification can exist for threatening to close a plant or to impose more onerous and severe working conditions in the event of a union victory. Such threats can only have one purpose, to deprive employees of their right freely to select or reject a bargaining representative. I find that the unfair labor practices heretofore out- lined in this decision were so pervasive and serious as to render impossible a free and fair election. I find that the Union's objections to conduct affecting the election have been substantiated. Therefore, I have concluded that the election should be set aside. What the Board held in General Stencils, supra, is applicable here: "Where as here, the viola- tive conduct has destroyed the conditions under which an election can be relied on to indicate employee choice, the Act's sometimes divergent purposes to protect employee choice and prohibit unlawful conduct are equally well served by directing the Respondent to bargain with the Union. The Respondent's conduct is of such gravity as to render a reliable election unlikely, even if the Respondent were to discontinue his unlawful conduct." Accordingly, I will recommend issuance of a bargaining order, General Stencils, Inc., supra; N.L. R.B. v. Gissell Packing Company, 395 U.S. 575; United Packing Co., 187 NLRB No. 132; Pure Chem Corp., 192 NLRB No. 88; Yazoo Valley Electric Power Assn. 163 NLRB 777, 790; L. B. Foster Co., 168 NLRB No. 15; J. C. Penney Co. v. N.L.R.B., 384 F.2d 479 (C.A. 10); American Enterprises, Inc., 191 NLRB No. 118. K. The Discharge of Charles T. Gilmore Charles T. Gilmore was hired by the Respondent on March 12, 1971, largely on the recommendation of Plant Foreman Wesley Barr, who was a good friend of Gilmore. He worked as a log handler for 2 weeks and was then transferred to the shipping and receiving department where he remained more or less for the duration of his employ- ment until his discharge on May 20, 1971. Gilmore's starting pay was $2 per hour and after 2 or 3 weeks he was raised to $2.50 per hour. In April 1971, Gilmore contacted the Lumber and Saw Mill Workers Union where he procured a quantity of authorization cards. On that occasion, Gil- more frankly disclosed to his friend, Plant Foreman Wesley Barr, that he was organizing for Lumber and Saw Mill Workers Union. Quite innocently, Wesley Barr showed one of the authorization cards to Vice President Larry Lynott. Barr reported back to Gilmore that Larry Lynott was "pret- ty upset about it"; and in so many words said "he would like to fire the person who was behind it." Gilmore abandoned further organization for the Mill Workers Union, but in the first week of May 1971 he contacted Robert G. Pavolka, secretary of the Teamsters Union which is the Charging Party in these proceedings. Pavolka handed Gilmore a num- ber of blank union authorization cards, and Gilmore promptly procured employee signatures to a number of cards on May 5 and 6, 1971. About 1 week after he had begun organizing for the Teamsters Union, Gilmore told Wesley Barr about it. Barr told Gilmore to stop it and that he would do everything within his power to see that the Union did not get into the Justus Company, that the Com- pany was having a "tough time of it right now." Barr told Gilmore that Larry Lynott was working on an insurance plan for the employees. Gilmore was notified of his discharge by Leadman Ed Giesler on May 20, 1971. Giesler, according to Gilmore's testimony, told him they were cutting back on production. Gilmore immediately went in to talk to Wesley Barr. Gil- more was told by Barr that he had lost interest in his job and that he was not doing his job as he had when he first came there, and his discharge had nothing to do with his union activities. The Respondent concedes that it was aware that Gil- more was actively engaged in union organization. It asserts that, although it had good reason to discharge Gilmore, it refrained from such action on advice of counsel, rather than be faced with an unfair labor practice charge. Larry Lynott credibly testified that he began receiving reports that Gil- more was neglecting his work, so he began observing him and found him to be standing around not working on sever- al occasions. Lynott is corroborated in this respect by Wes- ley Barr, who received several complaints from other employees in the shipping and receiving department that Gilmore was not performing his share of the work but was sitting down while others worked. Barr credibly testifies he spoke to Gilmore about these complaints. When the com- plaints continued to come, Barr spoke to Larry Lynott about them, who suggested to Barr that he speak to Gilmore about the matter. Barr credibly testifies he spoke to Gil- more, but the complaints kept coming about Gilmore sitting on the forklift watching the other workers load. When Barr on two occasions mentioned the matter of his loafing to Gilmore, he promised to help with the work but, according to Barr's estimation of Gilmore, "he was just flat dogging it, he was just not doing anything. I think he wanted to get canned. I really do."" Barr credibly testified that Gilmore "was just lazy, he just would not work." On one occasion in May, Barr instructed Gilmore to load up a truck with trash and take it to the dump. Barr instructed Gilmore to cover the trash and board.it securely "Fellow employee Richard A. Speers adds substance to Ban' s surmise that Gilmore "wanted to get canned" by his credible and uncontradicted testimony that Gilmore on more than one occasion told him that he was hoping the Company would fire him. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to prevent it from flying out. Gilmore took the truck out and returned with it within an hour after much of the load had blown out. Gilmore returned in a huff, left the truck at the plant, and went home without permission. Later that night, Gilmore phoned Larry Lynott at his home and apologized for his action that day in walking off the job and asked to be returned to his job. Lynott credibly testified he told Gilmore, that he didn't know whether Gilmore still had a job or not, but to come in the next morning and talk to Wesley Barr. Lynott reported for work the next morning and Barr restored him to his job. On another occasion in late April, Larry Lynott had instructed Gilmore to take a load of material for a house in Sun River, Oregon. The trip was scheduled so that Gilmore would arrive at Sun River not later than 1 p.m. that day, and the dealer, having been so apprised, kept a crew of five men waiting to help unload and start working on the house. About 3:30 p.m. that same day, the dealer called to com- plain that Gilmore had not arrived, and he was disturbed that he had kept a crew of men awaiting delivery of the material. The dealer phoned again at 5 p.m. thoroughly upset by Gilmore's nonarrival. Lynott credibly testified that he phoned the dealer the next morning and was advised by the dealer that Gilmore finally arrived at 5:30 p.m. The dealer told Lynott that Gilmore had explained his delay with the excuse that "he had stopped and screwed around in Portland." Lynott awaited Gilmore's return to the plant all the following day, and he finally arrived at 3:30 p.m., quitting time. When Gilmore arrived, Lynott called him in and inquired what took him so long . Gilmore's excuse was that he had made the wrong turn in Portland and went down the wrong highway for about 15 or 20 minutes before he discovered his mistake and redirected himself on the correct course. Lynott took out a map and questioned Gil- more on the delay and told Gilmore that on the basis of his explanation, it appeared that between Portland and Bend, Oregon, he was averaging 3 miles an hour. Lynott, testifying further concerning this matter, said: And Gilmore did not really have a lot to say. He looked like I had caught him in something, and I said; Ted, we just can't have all day, two days for deliveries for something when we expect you to do it in one day. On about May 11, 1971, Gilmore delivered a load of material for a house to a dealer named Richard N. Owens at Anderson Island. On May 12, 1971, the Respondent re- ceived a complaint letter from Mr. Owens as follows: Dear Mr. Lynott: I want to register a complaint against your company for the manner in which delivery of Shakes and under- layment was made to my building site . These materials were literally dropped off the truck with no effort to stack it neatly. Several bundles of Shakes, and four sheets of underlayment were broken . A half hearted attempt to cover the underlayment resulted in it being exposed to the weather. Had a good rain occurred it would all have been ruined. It is beyond my comprehension how anyone could be so thoughtless and sloppy in their work. The shakes were dropped in two different locations so there are two disarranged piles . What really made me irate was, that one piece of underlayment which was broken so badly as to make it useless, was carried down a path and thrown on the next lot to mine . You can imagine' the personal embarrassment I would have experienced had my neighbor visited his lot before I corrected the situation. I am working hard to establish a favorable image for the Justus Company on Anderson Island. A few min- utes of carelessness, that I have described herein, has certainly damaged this image. I trust this situation will concern you as much as it does me, and that you will be able to take steps necessary to insure it does not reoccur in the future. Respondent's president, Mr. Frank Lynott, credibly testified that Mr. Owens himself later came into the office to complain about the delivery. Lynott testified credibly that Owens complained that Gilmore was late in arrival, that in unloading he broke a number of pieces of wood or insulation board, and instead of coming to him and talking about it, he threw it over a hill onto a neighbor's lot, trying to hide the thing. Owens further complained, according to Lynott, that "the shakes had been thrown off the truck and the bundles were all broke." Lynott further testified that this dealer told him he "didn't want this man delivering any more of our products to him." Larry Lynott testified credibly and without contra- diction that about mid-May he happened to be downtown and observed Gilmore driving the truck on a downtown Tacoma street, which necessarily slows down the truck's delivery because of downtown traffic and traffic lights. Ly- nott knew that Gilmore was bound for the Tacoma Narrows Lumber Company and should have taken the freeway where his passage would be uninterrupted and much faster. Lynott confronted Gilmore with his failure to take the free- way which was the shorter route. Lynott told Gilmore that he saw him downtown and knew that he didn't take the freeway as he should have. Lynott testified credibly that he told Gilmore "Ted, that probably takes three times as long as if you go on the freeway-that's really not trying to do your job as fast or as efficient as it can be." Concerning the decision to discharge Gilmore, Lynott credibly testified "what to me put the icing on the cake" is when employee Speers made this trip with the same truck and a similar load on May 18, to the same destination at Sun River, Oregon, that Gilmore had made 3 weeks earlier, with Speers making the round trip in about half the time it took Gilmore, and with considerable less expense for meals, no bills for lodging, and with the use of 37.8 gallons, whereas Gilmore used 57.5 gallons for the trip. Based on these obser- vations, Lynott testified "It just made no sense whatever to me, and I put a great deal of doubt in my mind as to what he [Gilmore] was actually doing in Portland." Lynott further testified that it was following Speers' trip of May 18 that "it really hit me that I can't put up with this any more. This guy [Gilmore] is trying to use me behind my back, and I talked with my dad again and he told me to take off, that he'd talk to our attorney. At that time it was Mr. Sandell, and he [Sandell] said `If you have any complete or good cause, I don't blame you, go ahead."' Accordingly on about May 20, Larry Lynott instructed Wesley Barr to JUSTUS COMPANY 429 discharge Gilmore, and he was discharged, as earlier set forth, on May 20, 1971. L. The Discharge of Gilmore-Conclusionary Findings Gilmore does not dispute the essential facts relating to the incidents described above which the Respondent as- serts, among other things, serve as a basis for his discharge. Additionally, I find that Gilmore was generally shirking his work as observed by Lynott and Barr. I further credit Barr's testimony that he was receiving complaints from fellow em- ployees of Gilmore that he was not carrying his share of the workload. In this connection, I credit the testimony of em- ployee Richard A. Speers who, in describing the manner in which Gilmore worked, testified, "He was not the ideal worker. He wouldn't do any more than he absolutely had to. If he didn't have to do it, or if he could get away without doing it, he wouldn't. The people would load trucks and he was supposed to be helping them, and he would take the load by the fork lift and just sit there and watch other people putting it on the truck. This was continuous all the time. Either that or he would just stand around smoking a ciga- rette." Although it is clear that the Respondent was fully aware that Gilmore was organizing for the Union and it is equally clear that the Respondent was hostile to union or- ganization I nevertheless find that Gilmore's discharge was "for cause"12 and not because of his union activity. I am persuaded that Gilmore had lost interest in his work and was carelessly neglecting it, and that he was in fact hoping that the Respondent would discharge him. An employee's union activity does not immunize him from discharge. I find that Gilmore's discharge did not violate the Act. M. The Discharge of Charles Richardson Richardson was hired by Larry Lynott in April 1971. He loaded and unloaded lumber for a week or two and he was then transferred to the dip tank. Richardson attended the first union meeting in early May at the union hall. He signed an authorization cards. Richardson, who is black, told Union Secretary Pavolka that he would contact all his brothers, namely the black employees, to try and get them to sign union cards. On the following day, Richardson solic- ited card signatures from his fellow black employees at the plant at lunch and break times. The Respondent denies any knowledge that Richard- son was organizing for the Union, and there is no direct evi- dence to establish such knowledge, but there is equivocal testimony from Wes Barr that it had come to his attention that Richardson had attended a union meeting in May 1971. Larry Lynott and Barr deny any knowledge that Richard- son was passing out union authorization cards. Larry Lynott testified "that Richardson made a big impression on him when he hired him-it seemed like he dust wanted to work." Lynott further testified that Richard- 12 Section 10(c) of the Act provides in pertinent part that "No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause." son told him, "I don't care what I get paid. I have to have a steady job. I have got a family and I have just got to have a steady income." Richardson was one of a group of blacks who came over to talk with Lynott in the first week of May at the time that Union Secretary Pavolka was holding a union organi- zational meeting at the railroad tracks, having previously been ordered off company property. Concerning his conver- sation with Richardson at this meeting, Lynott testified "at this meeting he [Richardson] kept kind of rapping, and I looked at him and I said, `Charles, you know all this talk and all these questions you are hitting me up with, don't think you should even think about that until you start working.' He would say, what do you mean man-we sort of got into a mind argument at that time and I told him there was hardly a guy working around him who said he was really working good. He obviously wanted to know who and I said `Fred Barr is right on the same locality,' and Fred constantly told me the guy would stand around. `Gill McCreery, the guy who is working right with you, says you don't work worth a shit, you just kind of step back.' He [Richardson] says, `I'm just trying to learn the stuff.' I said, `Yes, but before you learn everything else you have got to learn to do that one job. When you learn your basic job, then you can start picking up other stuff and go anyway you want.' That is kind of more or less the way it ended. We argued about 15 minutes on his work abilities and I dust let him know, 'I wouldn't worry about anything, Richardson, until you start working-"' Richardson was discharged on May 27, 1971. Richard- son testified that about noon Wes Barr approached him and told him that "Larry said I was just standing around." So Wes said "he was going to have to lay me off." Wes Barr testified he was familiar with the incidents leading to the discharge of Richardson. Barr testified credibly that some- time in April or May 1971, he had seen Richardson a few times wandering around the plant. On one occasion, Barr saw Richardson at the other end of the building talking to Gussie. Barr went over and asked Richardson, "What are you doing over here?" Richardson replied "I'm over here; I want to learn how to run the tending machine," to which Barr replied "Let's work on one thing at a time, Charles. Learn to scrape and putty and dip and fill all at once and then you'll just move around. You work your way up." On another occasion, Barr credibly testified and visually dem- onstrated that he observed Richardson with a paint scraper in his hand, standing up by a wall timber and rubbing it over the timber languidly with the opposite side of the scraper rather than with the cutting edge. Barr went over and asked Richardson what he was doing. Richardson flipped the scraper over and went to work. Barr further credibly testi- fied that on the night before Richardson was terminated he had discussed the matter with Larry Lynott and they agreed that Richardson should be terminated. Barr testified that on the following day, he was occupied with other matters when he observed Richardson carrying one small block of wood 13 at a time when he could easily have carried a large number at a time from a location in the plant to a place outside. Barr testified credibly that "Charles [Richardson] was taking one 13 The blocks of wood were 5 inches by 3-1/4 inches and each weighed 1-1/2 pounds. A photograph of the wooden block is shown as Resp. Exh. 9. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of these pieces of wood at a time, walking over outside the building over this big, long building, put the block of wood on the pile, take a drag on a cigarette, put the cigarette down; go back and get another piece, come back out and take another drag on the cigarette-he was in the middle of his third trip and I said Charles, I asked him what he was doing-he said I'm completing a wall-and I said one of those at a time, Charles . . . he said yes." Barr credibly testified further that he then told Richardson, "I'm going to have to let you go. I've told you I'm not going to fire you, Charles. I'm going to lay you off. We can't have that thing." 14 Barr testified credibly that he had talked to Richardson about four or five times before he was terminated about his standing around not working. Barr testified credibly that on one occasion employee Gilbert McCreery complained to him about Richardson not performing his share of the work. McCreery told Barr "If something's not done, I'm going to quit. I'm just tired doing his job." Following this complaint from McCreery, Barr talked to Richardson. Barr testified credibly he told Rich- ardson "he had to get in gear, and get it on get it off, one way or the other." Richardson replied, "Yes I'll get it on. I'll work." But Barr credibly testified, "it didn't happen." Employee Gilbert McCreery testified credibly that he complained to Wes Barr on two or three occasions during the months of April and May 1971 that Richardson was not keeping. up his end of the job. McCreery, who was Richardson's leadman, credibly testified that "Richardson did everything but what he was supposed to do, he did mostly nothing-he had his mind on everthing except work." McCreery credibly testified that on several occa- sions he observed Richardson carrying a small block of wood around, such as I've described Richardson was car- rying on the day of his termination. McCreery, corroborat- ing Barr's testimony, testified that on the day of his termination, "There was a car sitting right there that he could have put the thing on, but instead of doing that, he carried it a good 30 feet onto the dock." Barr's observation that Richardson was a poor worker also finds corroboration in the credible testimony of em- ployee Bari Phillips, who worked with Richardson on the dip tank in May 1971 and who testified that he completed 12 walls to Richardson's three, and when the two of them were doing a double cut house, in 1 hour's time, Phillips had completed twice as much work as Richardson. Phillips fur- ther testified credibly concerning Richardson's work as fol- lows: I would say, as far as his interest in the work, he had a tendency to drift off from what he was doing-Say he would start on this end of the board, and by the time he got to the middle, he would have completely forgot- ten what the hell he was doing and he would turn around and start talking to somebody about some- thing. Employee Charles W. Sloan also adds substance to the Respondent's contention that Richardson was a poor work- er. Sloan credibly testified that on one occasion in late April or early May, a group of people were directed to move a quantity of boards from his machine to the dip tank. Rich- ardson only helped carry one board over; then he just stood around doing nothing for 20 to 25 minutes while the other workers in the group carried the boards, two men to a board. Leadman Edward G. Giesler also adds substance to the conclusion that Richardson was a poor worker. Concerning Richardson's work, Giesler credibly testified "he was not a very good worker-if you could stand there and work with him, he would work, but if you turned your back, he would sit down and do nothing-he stood around more than he worked."I5 N. Conclusionary Findings Concerning the Termination of Charles Richardson Both Larry Lynott and Wes Barr, who joined in the decision to terminate Richardson, deny having knowledge that Richardson was active in organizing the Union, but Barr admitted he had given an affidavit that he was aware that Richardson had attended a union meeting in May. Whatever the extent of their knowledge concerning Richardson's union activity, it still remained the prerogative of the Respondent to require that its employees attend to their work. It is clear from the evidence, and I find, that Richardson had not been attending to his work during May, a fact which Barr and Lynott were made aware of by per- sonal observation as well as by complaints from other em- ployees. It is quite possible that the fact that Richardson was holding a nighttimejob working from 6 p.m. to 2 a.m. at the NCO Club so fatigued him as to make him incapable of performing properly from 7 a.m. to 3:30 p.m. with the Re- spondent, but this fact did not preclude the Respondent from expecting, and requiring, that Richardson perform better. The record is replete with evidence, and I find, that Richardson was spoken to several times about his inatten- tion to his work and about his wandering about or idly standing around. I find that Richardson was terminated for cause and not for union activity; therefore, his termination was not in violation of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices in violation of Section 8(a)(1) and (2) of the Act, I shall recommend that the Respondent cease 15 The teshmon of witnesses Ive Jordan A A [h U7. d an n ony r in support J ry 14 Richardson was offered reemployment by the Respondent 's letter dated of Richardson are lacking in sufficient detail and probative force to October 28 , 1971, if he could report for work by November 8, 1971, and he overcome the testimony of Respondent's witness concerning Richardson's declined the offer. shortcomings JUSTUS COMPANY 431 and desist therefrom and from in any other manner infring- ing upon its employees' Section 7 rights, and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent dominated and inter- fered with the formation and administration of the employees committee, a labor organization, and contributed support to it, it will be recommended that the Respondent withdraw all recognition from the employees committee and completely disestablish it. Having found that the Union was the majority designat- ed representative of Respondent's employees in an appropri- ate unit on May 12,197 1, and that the Respondent, by engag- ing in unfair labor practices aimed at destroying the Union's majority, discloses a disposition to evade its obligation to bargain, it is found that a simple cease and desist order would not prevent Respondent from profiting from its un- lawful conduct and that only a bargaining order can restore, as nearly as possible, the situation which would have ob- tained but for Respondent's unfair labor practices. Accord- ingly, it will be recommended that Respondent bargain with the Union as the collective-bargaining representative of its employees in the appropriate unit and, if an agreement is reached, embody such agreement in a signed contract. Having found that the Respondent, by its unfair labor practices, interfered with and made impossible the expres- sion by its employees of their free and untrammeled choice in the election held on June 17, 1971, it will be recom- mended that the election be set aside, and that, in view of the order to be recommended, all proceedings in Case 19- RC-5896 be vacated and the petition dismissed. In view of the nature and extent of the unfair labor practices found to have been engaged in by the Respondent, which indicate its determination to interfere aggressively with its employees' rights of self-organization and its inter- ference with the principle of collective bargaining, I shall recommend a broad cease-and-desist order herein. Upon the basis of the above findings of fact and upon the entire record in the case, I reach the following: CONCLUSIONS OF LAW 1. The Respondent, Justus Company, Inc., is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Warehouse and Produce Workers Local Union No. 599, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a la- bor organization within the meaning of Section 2(5) of the Act. 3. By dominating and interfering with the formation and administration of the employees committee, and contributing support thereto, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (2) of the Act. 4. By interrogating employees concerning union meet- ings and union activities; by making statements giving em- ployees the impression that their union meetings were under surveillance; by polling employees concerning their union sentiments ; by threatening employees that if they should select the Union as their representative, plant discipline would be tightened, previous privileges revoked, coffee breaks shortened, hair lengths regulated, employees would be discharged for minor tardiness, the plant would be closed or moved to Bellingham or Bellevue, Washington, and un- ion dues of $25 would be deducted from the employees' biweekly paychecks; and promising insurance and other fringe benefits if the employees would abandon the Union, the Respondent has interfered with, restrained and coerced employees in the exercise of rights guaranteed them in Sec- tion 7 of the Act and has thereby engaged in, and is engag- ing in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. On May 13, 1971, the union was the exclusive repre- sentative for collective-bargaining purposes of Re- spondent's employees in the unit described as follows: All production and maintenance employees employed by Respondent at its Tacoma, Washington, place of business, excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, and all other employees of the Respondent. The aforesaid unit was, and is, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act; and any subsequent loss of such status is the result of the Respondent's unfair labor practices heretofore found above. 7. The Respondent did not violate the Act by terminat- ing the employment of Charles T. Gilmore and Charles Richardson. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:16 ORDER Respondent, Justus Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Dominating or interfering with the formation or ad- ministration of the employees committee, or any other labor organization of its employees, or contributing financial or other support thereto, or recognizing the employees com- mittee or any successor thereto. (b) Coercively interrogating employees concerning un- ion meetings and union activities; coercively polling em- ployees concerning their union sentiments; making statements giving employees the impression that their union meetings were under surveillance; threatening employees that if they select the Union as their representative, plant discipline would be tightened, previous privileges revoked, coffee breaks shortened, employees discharged for minor rule violations and tardiness, the plant closed or moved to distant locations, and $25 union dues would be deducted from employee paychecks; and promising insurance and 16 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other fringe benefit payments if the employees would aban- don the Union. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Completely disestablish the employees committee as a representative of any of its employees for the purpose, in whole or in part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work. (b) Upon request, recognize, and bargain collectively with Warehouse and Produce Workers Local Union No. 599, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, as the exclusive representa- tive of the employees in the appropriate unit set forth in the Conclusions of Law above, and embody in a signed agreement any understanding reached. (c) Post at its plant at Tacoma, Washington, copies of the attached notice marked "Appendix."" Copies of said no- tice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced or covered by any other mate- rial. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply here- with.is 17 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 Enforcing an Order of the National Labor Relations Board." 18 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Warehouse and Produce Workers Local Union No. 599, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of our employees in the bargaining unit described below. WE WILL bargain collectively, upon request, with the aforesaid Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and,, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees em- ployed by Justus Company, Inc., at its Tacoma, Washington place of business, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees. WE WILL NOT coercively interrogate our employees concerning union meetings or other union activities. WE WILL NOT tell or indicate to our employees or give them the impression that their union meetings are under surveillance. WE WILL NOT coercively poll our employees con- cerning their union sentiments. WE WILL NOT threaten to close our plant or move it to distant locations if our employees select the aforesaid Union, or any other labor organization, to represent them. WE WILL NOT threaten our employees that if they select the aforesaid Union, or any other labor organiza- tion, to represent them that plant discipline will be tightened, previous privileges revoked, employees dis- charged for minor violations or tardiness, coffee breaks shortened, and hair lengths and beards restricted or forbidden. WE WILL NOT withhold any part of our employees' pay, even temporarily, and tell them that if a union should become their collective-bargaining representa- tive, similar amounts, or any amounts, will be withheld from their pay and given to the Union without their consent. WE WILL NOT promise insurance, vacation and oth- er fringe benefits to our employees if they abandon a union. WE WILL NOT dominate and interfere with the forma- tion and administration of the employees committee of Justus Company, Inc., or any other labor organization or contribute financial or other support to it, and WE WILL completely disestablish the employees committee of Jus- tus Company, Inc., as a representative of any of our em- ployees. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor or- ganization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. Dated By JUSTUS COMPANY, INC (Employer) (Representative) (Title) JUSTUS COMPANY 433 This is an official notice and must not be defaced by this notice or compliance with its provisions may be direct- anyone. ed to the Board's Office, 10th Floor, Republic Building, This notice must remain posted for 60 consecutive days 1511 Third Avenue, Seattle, Washington, 98101, Telephone from the date of posting and must not be altered, defaced, Number: 206-442-5692. or covered by any other material. Any questions concerning