Donahue Beverages, Inc.

DONAHUE BEVERAGES Donahue Beverages, Inc. and Chauffeurs, Teamsters and Helpers Union Local 633, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Cases 1-CA-8069 and 1-RC-11923 October 10, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On August 8, 1972, Administrative Law Judge 1 Fannie M. Boyls issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief supporting the Administrative Law Judge's Decision. 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,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. 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, Donahue Beverages, Inc., Keene, New Hampshire, its officers, agents, succes- sors, and assigns, shall take the action set forth in the said recommended Order. 1 The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 The Respondent has excepted to certain findings made by the Adminis- trative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing her findings . We also find no merit in Respondent's contention that the Administrative Law Judge was biased and prejudiced. In agreeing with the Administrative Law Judge that Respondent viola- ted Section 8(a)(5) and (1) of the Act, we do not rely on the rationale of the cases cited in In. 13 of the Administrative Law Judge's Decision. Instead, we believe that the extensive 8(a)(1) and (3) conduct-that outlined in the sec- ond paragraph of sec . F of the Decision as well as the discriminatory treat- ment of employee Neil Begley, not specifically mentioned therein-when viewed in light of Respondent's refusal to bargain warrants the 8(a)(5) and (1) finding. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 581 FANNIE M. BoyLs, Trial Examiner: Case l-CA-8069 was initiated by a charge and amended charge filed re- spectively on January 25 and March 30, 1972. As the result of objections to conduct affecting results of the election filed in Case 1-RC-11923 on March 8, 1972, which included issues similar to those alleged as unfair labor practices in the complaint case, the two cases were consolidated and a com- plaint was issued on April 28, 1972. The issues raised in the consolidated cases are whether Respondent discriminatori- ly laid off an employee, Neil Begley, constructively dis- charged another, Edward Fannie, Jr., and engaged in various acts of interrogation and threats prior to the repre- sentation election, which the Union lost, in order to defeat the Union and discourage membership in the Union in violation of Section 8(a)(1) and (3) of the Act, and whether Respondent unlawfully refused to recognize and bargain with the Union on the basis of union cards signed by a majority of its employees prior to the alleged unfair labor practices, in violation of Section 8(a)(5) and (1) of the Act. Respondent's answer denies that it engaged in any of the unfair labor practices alleged. A hearing in these consolidat- ed cases was held before me at Keene, New Hampshire, on June 7, 1972. Subsequent to the hearing counsel for the General Counsel and for Respondent filed helpful briefs. Upon the entire record in these proceedings, upon my observation of the demeanor of the witnesses who testified, and after a careful consideration of the briefs, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Respondent, a New Hampshire corporation, maintains its principal office and place of business in Keene, New Hampshire, where it is engaged in the sale and distribution of beer, ale, and related products. During the course and conduct of its business it annually purchases products val- ued in excess of $50,000 from points outside the State of New Hampshire. Its gross annual volume of business ex- ceeds $500,000. Upon the basis of these admitted facts, I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Chauffeurs, Teamsters and Helpers Union Local 633, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 199 NLRB No. 84 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE UNFAIR LABOR PRACTICES A. Background.. Respondent Grants Wage Increases and Other Benefits in July 1971 in Return for Employees' Agreement to Abandon Union Activities In July 1971 after Respondent's three truckdrivers, Parker LaPoint, Neil Begley and Edward Fannie, discussed the advisability of joining the Union in order to better their working conditions, Fannie told General Manager Jack Friel and Warehouse Manager Ralph Symonds that the employees were thinking of joining the Union. Friel asked that the employees wait until he had an opportunity to talk to Respondent's officials in Manchester about the matter before making any final decision. A few days later, Friel called Fannie into his office and asked him what the em- ployees wanted. Fannie said that they wanted a raise in pay, some kind of insurance policy, and ramps for their trucks. Friel stated that he would grant the employees a $10 a week raise, would see about an insurance policy and would try to get ramps for the trucks. Friel also told Begley that he would give the employees a $10 a week raise if they forgot about the Union and Begley agreed to do so. Friel did thereafter grant the employees the promised raise and provided ramps for their trucks. On the same or the following day, Warehouse Manager Symonds told Fannie that the Manchester office had been "excited" about the possibility of Fannie starting a union again and told Fannie that if he did so again, he would probably lose his job.t B. Majority in Unit Join Union in January 1972; Respondent Refuses to Bargain On January 17, 1972, pursuant to an appointment made by employee Fannie with Union Representative Pip- er, the three employees above mentioned-who constituted all of the employees in the appropriate bargaining unit who were then working-went to the union headquarters and signed cards designating the Union as their bargaining rep- resentative? These three cards, all dated January 17, 1972, were received in evidence. On the following day, January 18, Union Representa- tive Piper telephoned Respondent's offices, identified him- self, and asked to speak to General Manager Friel. Friel was not in his office at the moment and Piper left word that he would telephone or come to the plant later that morning. Friel received this message shortly thereafter and imme- diately sought out Fannie to inquire whether the latter knew 1 The above findings are based upon the mutually corroborated and unde- med testimony of Fannie , Begley and Friel. Z It is undisputed that the appropriate bargaining unit consists of: All truckdnvers,'helpers and warehousemen employed by the Employer at its Keene, New Hampshire location, excluding office clerical employ- ees, professional employees, guards, working foremen and other supervi- sors as defined in the Act. In addition to the three truckdnvers , there was one other employee in the unit-Berme Richmond, a helper, who had been on layoff status and work- mg elsewhere since January 1, 1972. the meaning of the call. After he told Fannie about the call, Fannie informed Friel that he and the other two drivers, LaPoint and'Begley, had signed union cards on the preced- ing night. Friel left the plant that day, as he testified, to avoid talking to the union representative but it is conceded that, either on that day or the next, he received a letter from the Union in which a request for bargaining was made. It is also conceded that on or about January 18 and at all times thereafter Respondent has refused to bargain with the Un- ion.3 C. Sequence of Events Following Notice to Respondent that its Drivers had Joined the Union On the afternoon of January 18 Warehouse Manager Symonds told drivers LaPoint and Fannie, "We've got to lay Neil [Begley] off. He makes too much money. More than Bernie [Richmond] does and we've got to lay him off." Richmond at that time was on layoff status with Respon- dent and working at another job. Begley was out on a route, delivering beer. When Begley returned at about 2:30 p.m. he first learned from Fannie of Symonds' intention to lay him off. Shortly thereafter Symonds told him, "I've got to lay you off, although it's not my idea, because you make more money than Bernie, and it's got to be done." Symonds stated that he would be laid off on Friday, January 21. This layoff, alleged to have been discriminatorily motivated, will be treated in more detail, infra. On the following day, Wednesday, January 19, Fannie, in the presence of LaPoint, mentioned to Symonds that he had told General Manager Friel on the preceding day about. the drivers having signed union cards on Monday night. Symonds asked the men why they had signed the cards and Fannie explained why. According to Fannie's credited testi- mony, Symonds replied, "You know it won't do any good. They'lljust close the office down and work out of Manches- ter." He added, "You know, they're going to get rid of you for this, because you have done this before, and I told you before." On the same morning, after Fannie had finished load- ing trucks, Symonds instructed Fannie to go with LaPoint to Hanover (a long trip which was not a part of Fannie's normal work) and stated that Begley would unload a trailer expected during the afternoon-work which Fannie would normally have done. This was the first of a series of assign- ments made to Fannie, which the General Counsel contends constituted more arduous or less agreeable work, culminat- ing on March 1 in what is alleged to be a constructive discharge of Fannie. This issue will be treated infra. On Friday, January 21, the last day on which Begley worked, Symonds told Begley and LaPoint that he could not understand why they wanted to join the Union and that under the Union they would not have set starting times or the starting times might be changed. Begley responded that Symonds was "presupposing a contract that doesn't exist" 3 Following a series of unfair labor practices hereinafter described, a repre- sentation election pursuant to an agreement for consent election was con- ducted on March 1, 1972. The Union lost this election and thereafter filed timely objections, alleging as grounds for setting aside the results of the election substantially the same matters alleged in the complaint. DONAHUE BEVERAGES and Symonds acknowledged that Begley might be right. He stated, however: "What if management should close this plant and deliver the beer from Manchester?"4 On the following Tuesday, January 25, as Symonds was on a forklift unloading a trailer of beer from Silver Brothers, the driver of the trailer, in Fannie's presence, started taunt- ing Symonds with statements about how the employees would be better off with the Union and would have more bargaining power and job security. Symonds became very angry and said, "I'll get even with that son-of-a-bitch for going over my head. I'll get even with him one way or another." This threat, I find, was directed against Fannie who was primarily responsible for the employees joining the Union. Symonds instructed Fannie to finish unloading the trailer and Fannie did so .5 The conduct of Warehouse Manager Symonds in inter- rogating employees as to why they had signed union cards, in threatening that Respondent would close the office down and operate out of Manchester, and in threatening that Respondent would get rid of Fannie for bringing the Union in and that he, Symonds, would get even with Fannie for going over his head to bring the Union in, clearly consti- tuted interference, restraint, and coercion of the employees in the exercise of their Section 7 rights and was in violation of Section 8(a)(1) of the Act. Respondent's contention that Symonds was acting contrary to instructions from Friel to refrain from discussing the Union with employees does not absolve Respondent from responsibility for Symonds' coer- cive acts. Symonds was a responsible management repre- sentative, in full charge of the warehouse, out of which all the employees in the unit worked and his was the voice of authority for those working under him. Apparently because the complaint alleged that Friel, on or about January 18, had interrogated employees as to their union membership, activities, and desires, Respondent's counsel at the hearing questioned Friel as to whether he had interrogated any of the employees about their union activities. In response to that question, Friel testified that after receiving a copy of a charge filed by the Union (which would be about January 26), he was "quite incensed" and called each employee into his office and asked each: "Have I ever been unfair to you men? Have 'I ever talked to you against the Union? Have I ever tried to coerce you against the Union?" and that when each replied in the negative, he asked, "Why was I named in this com- plaint?" Each employee replied that he guessed it was be- cause Friel was general manager of Respondent. The General Counsel in his brief asks that I find a violation of Section 8(a)(1) of the Act based upon Friel's testimony. However, in view of the fact that this incident was not alleged in the complaint as an unfair labor practice and because, in any event, the scope of my recommended Order herein would be unaffected by any finding in this respect, I shall not decide whether Friel's conduct infringed upon 4 It was Symonds who testified regarding the latter statement . Manchester is the headquarters of Respondent's parent corporation, Silver Brothers Symonds explained at the hearing that he had a wife and two children to support and was apprehensive about the affect of unionization on his own job. S The above findings are based upon the credited and undenied testimony of Fannie. the employees' statutory rights. 583 D. Begley's Layoff It is undisputed that Respondent suffers a business slump each year during the months of January, February, and March. In late 1971 Respondent had in its employ, in addition to the three drivers, a helper, Bernie Richmond. General Manager Friel and Warehouse Manager Symonds decided in late December 1971 that in view of the expected decrease in the sale of beer which would start in January, one of the four employees should be temporary laid off, effective as of January 1, 1972. They discussed whether they should lay off Begley, who had been hired by Respondent in May 1971 and whom Symonds described as a "very good worker" who could drive the trucks as well as do warehouse work, or Richmond, who had worked for Respondent for several years but who was unable to drive. Richmond had been the only employee laid off before in slump seasons. Moreover, he had been laid off every once in a while, ac- cording to Symonds, because he was not in good health and would have relapses during the heat of the summer. Sy- monds understood his situation and would give him time off every 2 or 3 weeks. In addition, Richmond always had another job, as bartender in a local club, which he could perform when he wanted it. In these circumstances, particu- larly the fact that Richmond had another job to go to and it would not be a hardship for him, it was decided to lay off Richmond rather than Begley.6 Richmond was accordingly given the customary week's notice and laid off as of January 1, 1972. Within about 2 weeks after the layoff of Richmond, according to Friel, he noticed that Respondent's gross vol- ume of sales was "very, very low" and that a comparison of sales figures with prior years showed that the business slump "was more drastic than usual." He testified, "The figures will bear us out on that "7 Friel further testified that on January 14 he went over these figures with Symonds and told him in the late afternoon on their way home from work that he "wanted to tighten the reins a little further to save more money." Symonds asked how that could be done and Friel suggested that Begley be laid off and that Richmond be rehired. Since Begley's salary was $30 a week more than Richmond's had been, Respondent would save $30 a week under that plan. According to Friel, he instructed Symonds to lay Begley off as of January 21 and assumed that he notified Begley on Monday, January 17. Symonds, while at first confirming Friel's testimony that Friel had shown him the records on January 14 which indicated that business was poor and suggested laying Beg- ley off and recalling Richmond, he later testified that this discussion with Friel was at the Pub in Keene and that "he didn't show me no records, it's none of my business on the records." He further testified that no discussion about lay- ing off Begley occurred prior to the meeting in the Pub. Symonds concededly did not give Begley a week's notice of 6 Begley, as he informed Respondent at the time of being hired, was work- ing 20 hours a week at the Post Office, hoping some day to become a full-time employee there, but these hopes had not materalized at the time of the hearing in this case. 7 The sales figures, according to Friel, are kept in Respondent's office in Keene and are computed on a weekly as well as a monthly basis. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the layoff, as was customary. According to Symonds, he did not call Begley and notify him over the weekend because he "had no reason to"; he did not notify Begley during the day on Monday because he was too busy; he did not notify Begley on Monday night when he allegedly called Rich- mond to return to work although he then remembered that he had not informed Begley; and he did not notify Begley on Tuesday morning, January 18, because "it slipped my mind."s It was not until Tuesday afternoon, after Begley returned from his delivery route, that Symonds told him that he was being laid off at the end of the week because he was making more money than Richmond had been mak- ing.9 The other employees, too, were not told of this decision until Tuesday afternoon, just before Begley was told about it. Although, as already noted, Friel had been informed by Fannie on Tuesday morning, January 18, that all the drivers had signed union cards, Symonds testified that he did not know about it until Wednesday morning, January 19, when Fannie told him. Both Symonds and Friel testified that they did not even see each other on Tuesday. The General Counsel asks me not to credit the testimo- ny of Friel and Symonds as to the circumstances under which Begley was laid off. He contends that no decision to lay off Begley was made until after Friel learned at about 10:45 a.m. on January 18 that all the drivers had signed union cards. There is testimony by Fannie that when he drove out to lunch on January 18, he saw the cars of'both Friel and Symonds parked on the parking lot behind "the Legion" but that he did not see Friel or Symonds. This testimony does not, of course, constitute evidence that Friel and Symonds were together but it does suggest that they could have seen each other that day in Keene. There is also testimony by Friel that after he left the plant to avoid talking with Union Representative Piper, he went, among other places, to Hins- dale to make calls on clubs and stores and testimony by Symonds that he, too, went to Hinsdale among other places. It is, of course, possible that they could have seen each other there. It is also possible that Friel knew the stores and clubs in Hinsdale and other places which Symonds would likely visit and communicated with him by phone. Indeed, it seems only natural that Friel, feeling so strongly about the unionization of the employees that he wanted to leave town to avoid talking to the union representative, would commu- nicate as soon as possible with his warehouse manager about that event. I am convinced that Friel did communi- cate with Symonds on January 18 prior to Symonds' an- nouncement of Begley's layoff. Exactly when and how is unimportant. This conclusion is fortified by Fannie's testi- mony that several times during the afternoon of January 18, Symonds asked "Where's Jack [Friel]" and laughed as he asked it-in such a way as to lead Fannie to believe that Symonds knew where he was. I am also convinced that Respondent did not decide to lay off Begley until after Friel learned about 10:45 a.m. on s Begley saw Symonds at about 7 a .m. and Friel at about 7 .30 a.m. that dal and spoke to each. Symonds did not tell him whether his layoff would be permanent or temporary. Richmond, on the other hand, was told at the time of his layoff that it would be only temporary. the morning of January 18 that the drivers had joined the Union. Aside from the fact urged by the General Counsel that it is questionable whether a company whose gross an- nual volume of business exceeds $500,000 would lay off an admittedly "very good worker" who could both drive and do warehouse work and rehire a helper whose qualifications were very limited in order to save $30 a week for a few months, there are other deficiencies in Respondent's ac- count which persuade me that Respondent's asserted reason was not the true reason for its action. Respondent intro- duced no records in support of Friel's testimony that sales during the first period in previous years were substantially lower. The only records introduced were brought in by Respondent's treasurer, Meyer Friedman, from Manchester and were based upon information received by him in March or later. They showed only the sales and expenses for the 2-month period of January and February, for the month of March and for the 3-month period of January through March, 1972. Not even the records showing Respondent's sales during the first 2 weeks in January-on the basis of which Friel purported to act-were produced. No records at all for comparable periods in 1971 or prior years were introduced although the Trial Examiner pointed out that those records would be necessary in order to substantiate the oral testimony of Friel and Friedman that business was worse during the first 2 weeks of January 1972 than during comparable periods in prior years. I can only conclude from Respondent's failure to produce those pertinent records that the records, if produced, would not have supported Friel's testimony regarding the comparably worse drop in sales during the first 2 weeks of January. In addition to the factors above pointed out, I have considered the inconsistent and contradictory testimony of Symonds and Friel regarding Symonds' having been shown the records by Friel on January 14, Symonds' failure to give Begley the customary 1-week's notice before laying him off, Respondent's antiunion background and Friel's admitted attempt to avoid talking to the union representative after learning that his drivers had joined the Union, in conclud- ing that Respondent did not decide to lay Begley off until after learning on January 18 that he had joined the Union and that Respondent was motivated by antiunion consider- ations in making its decision. I therefore find that Respondent's layoff of Begley was in violation of Section 8(a)(3) and (1) of the Act. E. Fannie's Constructive Discharge Fannie was hired by Respondent in December 1968 as a truckdriver, his duties consisting of loading trucks in the warehouse in the mornings, then delivering presold beer and other products to various stores. He worked on a salaried basis and no specified number of hours of work were re- quired of him. In 1970 after the ownership of Respondent's business changed and Friel became its general manager and Symonds was promoted to warehouse foreman, Fannie was told that sooner or later, he would "move up." About May 1970 when one of the salesmen was injured, Symonds took over some selling duties and Fannie was assigned to more of the warehouse work which Symonds had been perform- ing, including the unloading of trailers and freight cars with DONAHUE BEVERAGES 585 the use of a forklift. Symonds acknowledged that Fannie was a good worker and could do the work of two men. Fannie was the spokesman for the other employees in connection with their union activities. It was he who went to see General Manager Friel in July 1971 and told the latter that the employees were thinking about joining the Union and it was he to whom Friel turned to ascertain what the employees were wanting as the price of refraining from union representation. It was also Fannie whom Friel ap- proached on January 18, 1972, to ascertain the meaning of the telephone call from the union representative. Symonds, whom Friel had placed in sole charge of the warehouse, was very outspoken in his opposition to the Union. As already related, it is undisputed that he told Fannie in July 1971 after Respondent had granted the em- ployee demands for improved wages and other working conditions, that Respondent's headquarters in Manchester had been "excited" about the possibility of Fannie again starting a union movement and that if he did so again, he would probably lose his job. It is also undisputed that when Fannie informed Symonds on January 19 that the employ- ees had joined the Union, Symonds again warned Fannie, "You know, they're going to get rid of you for this, because you have done this before, and I told you before." Shortly thereafter Symonds threatened to get even with Fannie "one way or the other" for bringing the Union in. It is the General Counsel's contention that Symonds, instead of discharging Fannie outright because of his union activities, started getting even with him by making his work more arduous and less agreeable in an attempt to cause him to leave its employ and that Symonds succeeded in that attempt on March 1, 1972, thereby constructively dis- charging him. The evidence bearing upon this contention is described below. On Wednesday, January 19, the first day after Respon- dent learned from Fannie that he and the other two drivers had joined the Union, Symonds instructed Fannie to ac- company LaPoint on the long regular Wednesday trip to Hanover, which LaPoint usually made with another driver or helper, and assigned Begley to perform work in the ware- house which Fannie would normally have done on Wednes- days. Fannie, as Symonds admittedly knew, had a regular engagement to bowl every Wednesday evening and it would be difficult and sometimes even impossible for Fannie to return from the Hanover trip in time to meet his bowling commitment at 6:30 p.m. At the time he was hired 3 or 4 years prior thereto Fannie had an understanding with Re- spondent that he would not be required to take the Hanover route because of his regular Wednesday engagement.1° Sy- monds offered no explanation for requiring Fannie to make the Hanover trip on January 19 and I am persuaded that the assignment was in retaliation against Fannie for his promi- 10 Symonds denied that he had ever agreed that Fannie would never be called upon to take the Hanover route and stated that Fannie had in fact taken the route on four or five other occasions during his employment with Respondent. Although there may have been no express agreement between Fannie and management representatives that Fannie would not be required to take the Hanover route, I am satisfied that there was an implicit under- standing to this effect The few occasions in the past on which Fannie had in fact taken the route occurred , as Fannie explained, when by reason of holidays resulting in a short week, all the employees rearranged their sched- ules to meet the delivery requirements. nent role in the union movement. Fannie did get back in town on that occasion in time to bowl but after the warehouse was closed. Since he had turned in his warehouse keys to Symonds that morning and could not drive his truck into the warehouse, he called Sy- monds' home and left word that the truck was parked out- side the warehouse . About an hour later Symonds, from the warehouse, telephoned Fannie at the bowling alley and told him to come to the warehouse and unload a trailer which had just arrived. There was an angry exchange after which Fannie agreed to do so but only after he had finished bowl- ing. Although Symonds did not inform Fannie that he would unload the trailer, he in fact did the unloading be- cause, as he explained, it was a cold night and he did not want to take a chance on the beer freezing . It was not unusual for Fannie to return to the plant at night or at any other time to unload trailers as they came in, but on this occasion Fannie obviously felt that he was being purposely harassed in being called from his bowling to do the job. His conclusion in this regard does not appear unreasonable. Fannie had been suffering from a cold for some time and on the following day he called in sick and did not report to work. When he returned on Friday, January 21, he was again sent on a long trip, the Andover route, which he had driven only about six times during the entire course of his employ- ment. This apparently would not have been an objectiona- ble assignment except for the fact that it took him away from most of his regular warehouse duties which he consid- ered more important. On Monday morning, January 24, when Richmond returned from his layoff status , Symonds called both Fannie and Richmond into the warehouse and told them that since Richmond had the most seniority, he was being made "the boss" of the warehouse . As already noted, Richmond was only a driver-helper. Apparently because of a physical disa- bility, he could not perform all of the warehouse duties- such as using the forklift to unload trailers-which Fannie had been performing. During Richmond's previous tenure with Respondent prior to his layoff on January 1, it was Fannie, not Richmond, who had been performing the more important warehouse work. Symonds' action in placing Fannie, who was making $ 130 a week and had been assured in 1970 that he would "move up" with the Company, in a subordinate position to that of Richmond , who was making only $90 a week but had not signed a union card , was clearly an attempt to humiliate Fannie and retaliate against him because of his role in bringing the Union into the plant. As the election date drew near, Symonds, it would appear, renewed his attempts to make work unpleasant for Fannie. After requiring him to return to the warehouse at 7 p.m. on Thursday night, February 24, and again at 5 a.m. the next morning to unload trailers, Symonds, contrary to the usual practice, assigned LaPoint and-Richmond to take the short runs and assigned Fannie, working alone, to take the longer routes carrying a load of cases almost as heavy as the combined number handled by LaPoint and Rich- mond. At the hearing, Symonds explained that the extra heavy workload assigned Fannie on this occasion was due to the fact that the extra cases of beer could be delivered by Fannie without his going out of his way, whereas the drivers 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the other truck would have had to travel an extra 20 miles to make the delivery. The assignment of these extra loads to deliver might not have been considered by Fannie to be unreasonable had it not been for the fact that he had been required to work the night before and had to start working again at 5 a.m. that morning. The assignment may also have been considered unduly arduous, too, because Fannie still had a cold and Symonds was aware that he was not feeling up to par. I am persuaded that there was justification for Fannie's belief that Symonds was assigning him more ardu- ous work because of his role in the Union. On the following Monday, Fannie reported that he was ill and did not work. When he returned on Tuesday, February 29, he was directed to add Charlestown to his regular Claremonte route. This meant that about one-half of the cases LaPoint had for his whole route were put on Fannie's truck. Fannie asked why he was being given this added work and Sy- monds replied that Richmond was going with him and that Fannie could handle it. Fannie then performed the extra work. The next day, March 1, was the date of the representa- tion election and also Fannie's bowling engagement. As Fannie started loading LaPoint's truck for the long Hanover trip which LaPoint normally took, Symonds stated that Fannie was taking the Hanover route that day. Fannie asked why and Symonds replied, "Because you are." Fannie protested that it was not "fair" and that he had taken half of LaPoint's route on the day before. Symonds then stated that LaPoint had "to go somewhere."" Fannie did not be- lieve Symonds because LaPoint had already told him that he would be at work that day. In anger, Fannie dropped a steel plate which was standing on the floor and one end of which he held in his hands, and left the warehouse. Fannie testified: "I had had it with him, all that I could take. I just wasn't going to take any more, I didn't see any reason to." After Fannie walked out, Symonds took the Hanover route. Fannie has not worked for Respondent since walking out. I am satisfied on the basis of all the evidence that Symonds did, as the General Counsel contends, discrim- inate against Fannie by making his work more arduous and unpleasant because of his role in bringing the Union into the plant and that he did this in order to discourage union membership and activities of the employees. Symonds' re- peated retaliatory treatment of Fannie caused the latter to walk off his job on March 1 and constituted a constructive discharge of Fannie, in violation of Section 8(a)(3) and (1) of the Act. I do not regard it as significant whether Respondent, as it asserts, held Fannie's job open until after starting time on March 2 before replacing him and that Fannie had been told by employee LaPoint on the afternoon of March 1, when he appeared at the plant to vote, that he still had his " Symonds' explanation at the hearing for assigning Fannie the Hanover route on Wednesday was that Fannie had taken sick leave on Monday and Symonds was attempting to see that Fannie made up for the time he had lost. But for Symonds' hostility toward Fannie because of his role in the Union, however, I do not believe that he would have saddled Fannie with the additional heavy schedules , knowing he was still suffering from his cold. Compare Symonds' sympathetic treatment of Richmond, mentioned supra, in giving Richmond time off every 2 or 3 weeks during the summers because Richmond suffered from the heat. job.'2 Fannie had walked off the job because of Symonds' discriminatory treatment of him and had no reason to be- lieve that Symonds would discontinue making his work more arduous and unpleasant . In the absence of some assur- ance from Respondent that this discrimination against him would cease, he was warranted in refusing to return. F. Respondent's Violation of Section 8(a)(5) and (1) of the Act; Disposition of Case 1-RC-11923 As already noted, all employees in the appropriate bar- gaining unit except Richmond, who was on layoff status and working elsewhere, designated the Union to represent them on January 17 and Respondent' s general manager, Friel, was informed of this fact by Fannie on the following morning. Respondent never expressed any doubt and it is manifest that Respondent had no doubt as to the Union's majority status on January 18. It concedes that the Union requested it to bargain on or about that date and that it did then and has continued since that date to refuse to bargain with the Union. I am convinced that Respondent had no doubt as to the Union's majority status on January 18, 1972, and that its refusal to bargain was motivated by a rejection of the collective-bargaining principle and its desire to gain time in which to dissipate the Union's majority status. Its refusal to bargain was therefore in violation of Section 8(a)(5) and (1) of the Act.13 Nevertheless, the Union on January 19, 1972 filed a representation petition and proceeded to an election, which it lost. Whether or not a bargaining order is appropriate is therefore controlled by the principles set forth in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 614-615. There the Court stated that where the Union is shown to have had a majority at one point but has lost that majority following employer unfair labor practices which "have the tendency to undermine majority strength and impede the election processes," and those unfair labor practices are of such a nature as to make it unlikely that a rerun election could fairly reflect the employees' sentiments regarding union rep- resentation, a bargaining order is appropriate. The flagrant unfair labor practices engaged in by Respondent subse- quent to the filing of the representation petition-including threats to close the Keene plant and operate out of Man- chester to avoid dealing with the Union, threats to get rid of and to get even with Fannie for bringing the Union in, and its discriminatory treatment of Fannie which finally resulted in his walking off the job-not only constitute grounds for setting aside the results of the March 1 election but are of such a nature as to make slight the possibility that a rerun election could reflect the free and uncoerced senti- ments of the employees. The Gissell tests have clearly been met in this case. The union cards signed by the three drivers 12I note, however, from Begley's undenied and credited testimony, that Symonds sought on the afternoon of March I 'to replace Fannie by offering to put Begley back to work the next morning. Begley stated, however, that he could not leave his current job without giving some notice. Symonds replied that he would have to hire someone else. 3 Arthur F Derse, Sr, President and Wilder Mfg Co, Inc., 185 NLRB No. 76, Snow & Sons, 134 NLRB 709, enfd. 308 F.2d 687 (C.A. 9); Joy Silk Mills, Inc, 85 NLRB 1263, enfd. 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. -914. DONAHUE BEVERAGES 587 on January 17 when they voluntarily went to the Union's office for assistance must be regarded as a more reliable expression of their free choice than the election following Respondent's extensive unfair labor practices. A bargaining order is necessary, not only to remedy the unlawful refusal to bargain, but also to remedy the extensive unfair labor practices occurring between the date the representation pe- tition was filed and the election was conducted. It will accordingly be recommended that the results of the election in Case 1-RC-11923 be set aside and that Re- spondent be ordered to bargain with the Union, upon re- quest. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 607-608; Ace Foods, Inc., 192 NLRB No. 180; Colonial Lincoln Mercury Sales, Inc., 197 NLRB No. 3; Garland Knit- ting Mills of Beaufort, S.C., Inc., 178 NLRB 396. CONCLUSIONS OF LAW 1. By coercively interrogating employees as to their reasons for signing union cards, by threatening to close down local operations and operate in another city to avoid dealing with the Union, and by threatening to get rid of and get even with the leading union spokesman because of his part in bringing the Union into the plant, Respondent has interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights in violation of Section 8(a)(1) of the Act. 2. By laying off employee Neil Begley and constructive- ly discharging employee Edward Fannie, Jr., because of their union membership and activities, Respondent has dis- criminated against them in violation of Section 8(a)(3) and (1) of the Act. 3. All truckdrivers, helpers and warehousemen em- ployed by Respondent at its Keene, New Hampshire loca- tion, excluding office clerical employees, professional employees, guards, working foremen and other supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, as amended. 4. At all times since January 17, 1972, the Union has been, and now is, the exclusive representative of the em- ployees in the above appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain with the Union on and after January 18, 1972, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices, my recommended Order will require that it cease and desist therefrom and take certain affirma- tive action necessary to effectuate the policies of the Act. In order to remedy Respondent's unlawful refusal to bargain, my recommended Order will require that it bargain with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and that any understanding reached shall be embodied in a signed agreement . Because Respon- dent is being directed to bargain collectively with the Union despite the fact that no designation of representative was made pursuant to the election procedures of Section 9 of the Act, it will further be recommended that the notice herein contain language advising the employees of their right to a decertification election . See N.L.R.B. v. Priced-Less Dis- count Foods, Inc., 405 F.2d 67, and 407 F.2d 1325 (C.A. 6); Ace Foods, Inc., 192 NLRB No. 180. To remedy Respondent's discriminatory layoff of Neil Begley and its discriminatory constructive discharge of Ed- ward Fannie, Jr., Respondent will be required to offer each immediate and full reinstatement to his former job, or if the job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privi- leges, and make each of them whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would normally have earned from the dis- criminatory termination of his employment to the date of Respondent's offer of reinstatement, less his net earnings during such period . The backpay provided for herein shall be computed on the basis of calendar quarters in the man- ner prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent as provided in Isis Plumbing & Heating Co., 138 NLRB 716. In the event these employees, or either of them, is working elsewhere at the time Respondent offers him reinstatement , such offer of reinstatement shall be subject to the right of the employee to give his new employer reasonable notice before returning to work for Respondent . Block-Southland Sportswear, Inc., 170 NLRB 936, 982, 984, enf. 420 F.2d 1296 (C.A.D.C.). The request made by Symonds on March 1 to Begley to return to work on the following morning cannot be regarded as a valid offer of reinstatement because , as Begley in- formed Symonds, he could not leave his current employer without giving some notice. For the reasons set forth in Consolidated Industries, Inc., 108 NLRB 60, 61, fn. 3, and cases cited therein, my recommended Order will also contain a broad cease-and- desist provision. 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: ORDER14 Respondent, Donahue Beverages, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their reasons for joining Chauffeurs, Teamsters and Helpers Union Local 633, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. 14 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. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Threatening to close down local operations and Insofar as the complaint alleges violations of the stat- operate in another city to avoid dealing with the Union. ute not specifically found herein, it is hereby dismissed. (c) Threatening to get rid of or to get even with any It is further ordered that the election in Case I-RC- employee because of his role in the union movement. 11923 be, and it hereby is, set aside and that proceeding is (d) Discouraging membership in the Union by laying herewith dismissed. off, discharging, or otherwise discriminating against any employee in regard to his hire, tenure of employment, or any term or condition of his employment. (e) Refusing to bargain upon request with the Union as the exclusive collective-bargaining representative of the em- ployees in the following appropriate unit: All truckdrivers, helpers and warehousemen employed by Respondent at its Keene, New Hampshire location, excluding office clerical employees, professional em- ployees, guards, working foremen and other supervi- sors as defined in the Act. (f) In any other manner interfering with, restraining or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit described above, and if an understanding is reached, upon request, embody such understanding in a signed agreement. (b) Offer to Neil Begley and Edward Fannie, Jr., imme- diate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and make them whole for any loss of earnings they may have suffered by reason of the unlawful discrim- ination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify immediately the above-named individuals, if presently serving in the Armed Forces of the United States, of their 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. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its premises in Keene, New Hampshire, copies of the attached notice marked "Appendix."15 Copies of said notice on forms provided by the Regional Director for Region 1, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith.16 15 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." 16 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 1, 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 coercively interrogate our employees concerning their reasons for joining Chauffeurs, Team- sters and Helpers Union Local 633, a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. WE WILL NOT threaten to close down our local oper- ation and operate out of another city to avoid dealing with the Union. WE WILL NOT threaten to get rid of or get even with any employee because of his role in the union move- ment. WE WILL NOT lay off, discharge or in any other way discriminate in regard to the hire or tenure of employ- ment or any terms or conditions of employment of any employee to discourage his union membership or activ- ities. WE WILL NOT in any other way interfere with, re- strain or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National La- bor Relations Act. WE WILL offer reinstatement,with backpay plus 6 percent interest, to Neil Begley and Edward Fannie, Jr. WE WILL notify immediately the above-named em- ployees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act. WE WILL, upon request, bargain collectively with the Union as the exclusive representative of our em- ployees in the following appropriate unit: All truckdrivers, helpers and warehousemen em- ployed by us at our Keene, New Hampshire location, excluding office clerical employees, professional em- ployees, guards, working foremen and other supervi- sors as defined in the National Labor Relations Act. WE WILL also, upon request, embody any understanding reached in a signed agreement. DONAHUE BEVERAGES 589 DONAHUE BEVERAGES, INC. can only be done as the voluntary act and choice of the (Employer) employees and on their own initiative, without encour- agement or assistance from any representative of manage- ment. Dated By This is an official notice and must not be defaced by (Representative) (Title) anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, Employees, pursuant to Section 9(c)(1) of the National or covered by any other material. Any questions concerning Labor Relations Act, may, at an appropriate time, petition this notice or compliance with its provisions may be direct- the National Labor Relations Board at the office set forth ed to the Board's Office, Seventh Floor, Bulfinch Building, below for an election to decertify the Union as their collec- 15 New Chardon Street, Boston, Massachusetts 02114, tive-bargaining representative. The filing of such a petition Telephone 617-223-3300.