Sullivan Electric Co.

SULLIVAN ELECTRIC COMPANY Sullivan Electric Company and Local 1701 , Interna- tional Brotherhood of Electrical Workers, AFL- CIO. Case 9-CA-5887 October 18, 1972 DECISION AND ORDER On April 14, 1971, Trial Examiner Thomas S. Wilson issued the attached Decision in this proceed- ing. Thereafter, the Respondent filed exceptions and a supporting brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order as modified below. Like the Trial Examiner, we find that the Re- spondent violated Section 8(a)(5) of the Act by refus- ing to recognize and bargain with the Union. We do so, however, on grounds different from those relied upon by the Trial Examiner.' The facts upon which we base our findings are summarized below. The Respondent operates as an electricial sub- contractor in the building and construction industry, with its principal office and place of business in Nash- ville, Tennessee. It employs approximately 16 electri- cians at its Madisonville, Kentucky, jobsite, the only jobsite involved in the instant case, under contract with Hardaway Construction Company. Union organization of the Respondent's Mad- isonville employees began early in October 1970, after an employee delegation approached Dewey Van Win- kle, business agent of Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, here- inafter called the Union. Acting upon Van Winkle's advice, 13 of the 16 Madisonville employees signed authorization cards designating the Union as their representative for the purposes of collective bargain- ing. On October 8, Van Winkle visited the Madison- 1 The Trial Examiner, citing this Board's Decision in Arthur F. Derse, Sr, President, and Wilder Mfg. Co, Inc, 185 NLRB No. 76, reversed on remand 198 NLRB No 123, found that the Respondent knew that a majority of its employees in an appropriate unit had authorized the Union to represent them for the purposes of collective bargaining and accordingly had violated Sec 8(aX5) of the Act by refusing to bargain with the Union when requested to do so. We have since had occasion to reexamine the principles underlying our Wilder decision. As a result, we held, in Linden Lumber Division, Summer & Co, 190 NLRB No 116, that an employer does not run afoul of the Act solely by refusing to accept evidence of majority status other than the results of a Board election , unless the parties had previously agreed upon a mutually acceptable and legally permissible alternative means of ascertaining such status Member Fanning dissented in Linden Lumber He concurs in the decision in this case on the basis of the principles set forth in his dissenting opinions in that case, and in Wilder Mfg. Co., Inc, 198 NLRB No 123, and on the basis of the Nation-Wide Plastics decision, infra 809 ville jobsite and met with William Davis, the Respondent's superintendent. Van Winkle informed Davis that the Union represented a majority of the Respondent's Madisonville employees and demanded recognition as their bargaining agent. Davis voiced surprise and doubt as to the claimed majority status because he "hadn't heard anything about any union activity on the job whatsoever." Van Winkle repeated the demand, showed Davis the authorization cards, and offered to have the signatures checked by a third party. Davis rejected the offer and informed Van Winkle that he would have to take the matter up with Jimmy Sullivan, a partner in the Respondent's Nash- ville office. Van Winkle replied, "they will have to come to see us, we won't go to them," and threatened to strike the next morning if he did not hear from the Respondent later in the day. After Van Winkle left, Davis telephoned Sullivan and informed him of the meeting with Van Winkle. Sullivan suggested that they "wait until morning and see what happens." Meanwhile, on the afternoon of October 8, Davis distributed paychecks to the jobsite employees. As he did so, he asked a number of them, constituting a majority of the Madisonville employees, whether or not they had signed cards designating the Union as their collective-bargaining representative. In each case he received an affirmative answer.' The following morning, October 9, all but 3 of the Respondent's 16 employees went out on strike in support of the Union's demand for recognition. Davis advised Sullivan of these events. Later that same day, the Respondent sent a letter to each of the striking employees directing them to report to work by Octo- ber 13, or be replaced. On October 27, the Union made an unconditional application for reinstatement on behalf of the 13 striking employees. The Respon- dent rejected the Union's offer on the grounds that it had hired permanent replacements. None of the strik- ing employees were subsequently rehired. Based on the foregoing, we find that the Respon- dent violated Section 8(a)(5) of the Act by refusing to recognize and bargain with the Union. Concededly, an employer is not required by the Act to recognize and bargain with a union wholly upon the strength of its assertion that it represents a majority of the employees involved, notwithstanding that the union predicates its assertion upon an adequate showing of signed authorization cards' In 2 Davis admitted that he made seven such inquiries and received seven affirmative answers. The Trial Examiner credited additional testimony that Davis had asked four other employees and had been given affirmative an- swers Thus, by the close of work on October 8, the Trial Examiner concluded that the Respondent knew that at least I i of its 16 employees on the job had signed cards authorizing the Union to represent them for the purposes of collective bargaining 3 Linden Lumber Division, supra 199 NLRB No. 97 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this respect, we have held that an employer may, in the face of a union demand for recognition, insist that a question concerning representation be resolved by means of a Board-conducted election , absent agree- ment between the parties on an alternative means for resolving the question or misconduct on the part of an employer which is of such a character as to have a lingering and distorting effect on any future election. However, where, as in this case, the Respondent rejects the foregoing alternatives and unilaterally un- dertakes to determine the Union's majority or minori- ty status by means of a poll, under conditions of his own choosing, the Respondent cannot thereafter dis- claim the results simply because it finds them distaste- fu14 Here the Respondent interrogated 11 out of 16 unit employees, asking each employee if he had signed an authorization card designating the Union as his collective-bargaining agent. In each case, the Respon- dent received an affirmative reply. There can be no doubt concerning the employees' preference thus ex- pressed under circumstances much less favorable than those prevailing in a Board-conducted election. We have long held that where an employer undertakes a determination which he could have insisted be made by the Board, he may not thereafter repudiate the route that he himself had selected.' In sum, it is abundantly clear that the Respondent's employees voluntarily and freely desig- nated the Union as their representative for the pur- poses of collective bargaining; that the Union made a clear and proper demand for recognition, a demand which was communicated to and considered by re- sponsible officials of the Respondent; and that the Respondent assured itself through interrogation of its employees that a substantial majority of them had designated the Union as their representative. These circumstances give rise to a bargaining obligation. Accordingly, we find that the Respondent violated the Act by refusing to recognize and bargain with the Union and we shall adopt the Trial Examiner's rec- ommended 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 Trial Examiner as modified below and hereby orders that the Respondent, Sullivan Electric Company, Nashville, Tennessee, its officers, agents, 4 Nation-Wide Plastics Co, Inc, 197 NLRB No 136 5 Fred Snow, Harold Snow and Tom Snow d/b/a Snow & Sons, 134 NLRB 709. 6A fortiori, employees who were replaced after striking in support of the Union's demand for recognition and bargaining were unfair labor practice strikers and are entitled to reinstatement to their former jobs successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order, as mod- ified.' 1. Substitute the following for paragraph 1(c): "(c) In any other manner interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act." 2. Insert the following as paragraph 2(d) and re- letter the subsequent paragraphs accordingly: "(d) Notify immediately the above-named indi- viduals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act." 3. Substitute the attached notice for the Trial Examiner's notice. MEMBER KENNEDY , dissenting: Contrary to my colleagues, I would dismiss the complaint herein in its entirety. The Respondent denied allegations of the com- plaint with respect to the unit claimed to be appropri- ate. I find insufficient evidence in the record in this case to establish the appropriateness of the unit alleg- ed. So far as I am aware, the Board has not promulgat- ed any general guidelines with respect to unit determinations in the building and construction in- dustry.8 Generally, collective bargaining in the con- struction industry has not been conducted on an individual project basis. The record establishes that Respondent averages 100 employees on its various projects in Georgia, Tennessee, and Kentucky. It'has a regular work force of full-time individuals whom it employs "pretty much the year around" and it also employs "as much as possible" men from the local areas where its projects are located. Except for this sketchy, limited information, I can find no evidence herein which would provide assistance to us in de- termining whether the bargaining unit should encom- pass a single project, a geographic area, or all nonsupervisory employees of Respondent.' I find 7 Among other things, we shall provide for a broad remedial order, as recommended by the Trial Examiner and inadvertently omitted by him 9 The unique problems of the construction industry prompted Congress to enact special provisions with respect to it in 1959. Sec. 8(f) of the Act legalizes bargaining agreements in the construction industry without the union's ma- jority status having been established. It also permits union shop provisions to take effect within 7 days of hiring v The Trial Examiner noted that Superintendent Davis voiced no objection to the project unit on October 8 The failure of Davis to object is of no consequence in my judgment, however, since Davis advised the union repre- sentatives that they would have to talk to either "Mr Hall Hardaway or Mr. Sullivan in Nashville to do any bargaining" Much of the Trial Examiner's discussion under "The appropriate unit" heading relates to his finding that Foreman Hudson was not a supervisor. I disagree Hudson interviewed some of the applicants for employment and he gave his opinions to the superintendent since he knew a lot of the applicants He granted time off to employees when the superintendent was not around Foreman Hudson testified that he had "independent authority" to direct the men as far as what they were to do and how they were to do it It is clear that Superintendent Davis conferred with Hudson in the construction trailer SULLIVAN ELECTRIC COMPANY 811 merit in the Respondent's contention that there is a "failure of proof" as to the alleged appropriate unit. Accordingly, the refusal-to-bargain allegation should be dismissed and the strike for recognition held not to be an unfair labor practice strike. In my view, Snow & Sons, 134 NLRB 709, cited by the majority, is not relevant to the instant case since the Respondent and the Union never agreed upon a means for resolving the issue of majority sta- tus. As the Trial Examiner correctly found, Respon- dent rejected the Union's offer to have the cards checked by a third party. Linden Lumber Division, Summer & Co., 190 NLRB No. 116, controls our deci- sion here, in my judgment, and requires dismissal of the complaint herein. My colleagues make no findings of independent 8(a)(1) violations of the Act. Absent findings of unfair labor practices which cannot be erased by the use of traditional remedies, I do not believe bargaining orders are appropriate. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575. as to the progress of the job and what work was to be done that day but he left up to Hudson the details of getting the work done . Hudson was more than a mere conduit for transmitting Davis' instructions to employees . I would find him to be a supervisor gether with interest thereon at 6 percent per an- num. These striking employees are: Phillip Dillingham Donald G. Ramsey Peter Froehle Ronald G. Reynolds Robert P. Gordon Jerome Riggs Elivs Holt Terry B. Stevens Ollie A. Hudson Bobby G. Thomason Jack W. King Robert D. McKensie Lloyd Tompkins WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization of their choice, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to re- frain from any such activities. Dated By APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, recognize and bar- gain collectively in good faith with Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of the employees in the appropriate unit set forth below with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment and, if an agreement is reached, WE WILL embody the same in a written, signed agree- ment. The appropriate unit is as follows: All employees of Respondent, employed at the General Electric Construction site at Madisonville, Kentucky, exclusive of office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL offer to each of the 13 unfair labor practice strikers named below his former job or, if that job no longer exists , a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges , and WE WILL pay each of them for any loss of pay he may have suffered by reason of our discrimination against him to- SULLIVAN ELECTRIC COMPANY (Employer) (Representative) (Title) We will notify immediately the above-named individ- uals, if. presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to' the Board's Office, Room 2407, Federal Office Building, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS S. WILsoN, Trial Examiner: Upon a charge duly filed on October 15, 1970, and amended on November 2, 1970, by Local 1701, International Brotherhood of Elec- trical Workers, AFL-CIO, hereinafter called the Union or the Charging Party, the General Counsel of the National Labor Relations Board, herein referred to as the General Counsel I and the Board, respectively, by the Regional Di- 1 This term specifically includes the attorney appearing for the General Counsel at the hearing 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rector for Region 9, Cincinnati, Ohio, issued its complaint dated December 4, 1970, against Sullivan Electric Compa- ny, herein referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Labor-Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain alle- gations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held before me in Madisonville, Kentucky, on February 10, 1971. All parties appeared at the hearing, were represented by counsel or representative, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to in- troduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from General Counsel and Respondent on March 3, 1971. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted, and I therefore find: Sullivan Electric Company, a partnership with offices located in Nashville, Tennessee, is engaged in the business of electrical contracting. During the past 12 months, which is a representative period, Respondent performed services for customers outside the State of Tennessee valued in ex- cess of $50,000 and performed services for all customers exceeding $500,000. Sullivan Electric Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE UNION INVOLVED Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III THE UNFAIR LABOR PRACTICES A. The Facts Sullivan Electric Company, a partnership, has a num- ber of electrical subcontracts on construction projects in Tennessee and neighboring States, including the project in Madisonville, Kentucky, which is the only such project in- volved here. Respondent has, in the words of one partner, Jimmy Sullivan, "never had an agreement with IBEW of any sort," never "knowingly to me" employed any men from IBEW, nor, "run a so called union fob." The project involved here in which Respondent was the electrical subcontractor was the General Electnc Company Ballast Manufacturing Plant at Madisonville, Kentucky, where the general contractor, Hardaway Construction Company, Inc., was also a nonunion contractor. At the time material here, October 1970, Respondent employed 17 nonunion electricians on this Madisonville project. Due to some gripes like low wages, lack of water, poor toilet facilities, etc., the electricians sent a delegation to see Dewey Van Winkle, business agent of Local 1701, who gave them authorization cards to get signed. Prior to October 8, 1970, 13 of Respondent's employees had signed such unam- biguous authorization cards which had been returned to Van Winkle.2 On October 8 Van Winkle, accompanied by IBEW International Representative Charles Goidel, drive to the jobsite. They located William Davis, Respondent's superin- tendent on the job, where, after introducing themselves, Van Winkle informed Davis that he represented a majority of Respondent's employees and requested recognition and bargaining.3 Davis expressed surprise and doubt about the majority on the ground that he, Davis, had seen no union activity. At Davis' suggestion the men then repaired to the con- struction trailer of the Hardaway Company where Davis had a desk. After Van Winkle and Goidel had been intro- duced to Winston Butrey, superintendent for the general contractor, who was in the trailer, Van Winkle reiterated that he had a majority of Respondent's employees signed up and requested Respondent to recognize IBEW and bargain with it. Davis reiterated his doubt of a majority because, "I didn't believe it because I hadn't heard anything about any union activity on the job whatsoever." Van Winkle thereup- on took the signed cards out of his pocket and offered to have some third person in Madisonville check the signatures thereon against W-2 forms in order to prove his claim of majority. This offer Davis rejected. Butrey spoke up and told Van Winkle that they "would have to go to Nashville to see Mr. Hall Hardaway or Mr. Sullivan in Nashville to do any bargaining," a statement which Davis apparently repeated. Van Winkle answered, "Well, they will have to come see us, we won't go to them" and threatened a strike the next morning. Van Winkle stated that he would return to his headquarters in Owensboro and would expect a call from Respondent or he would have the men on strike the next morning.4 This conference ended up with Davis telling Van Winkle that the Union could only get recognition and bargaining from the Sullivans at their headquarters in Nash- ville and Van Winkle repeating that he did not like the way 2 These employees personally authenticated their signatures on these cards at the hearing 3 Davis testified that Van Winkle told him that "a certain amount of my men" had signed cards but admitted he requested recognition and bargamn- inn There was a dispute in the evidence as to whether Davis told Van Winkle that he, Davis, had no authority to recognize or bargain with the Union or whether, as Van Winkle claimed, Davis said that he had authority to hire and fire and to sign contracts Under the circumstances of this case this dispute is unimportant and need not be resolved here, although it was admitted that Davis did have authority to hire and fire and to sign contracts, albeit limited in dollar amounts SULLIVAN ELECTRIC COMPANY 813 Sullivan did anything he "damned pleased" in Kentucky and that Sullivan would have to come to him with the state- ment that "you will either negotiate with us or we will strike you in the morning." Butrey stated that he was not afraid of a strike.5 Van Winkle and Goidel then left the office and started for their automobile. Butrey and Davis both shouted warn- ings that they were not to go back into the plant. Then, just to be "aggravating" and "shake them up," Van Winkle drove around the jobsite for a time and departed only for fear that the police had been called. A few minutes after the union representatives departed, Davis telephoned Jimmy Sullivan, a partner, in Nashville and reported the visit of the union representatives, their mission, and their threat to strike the job the next morning. According to the testimony of both Sullivan and Davis, there was no discussion in that telephone call regarding the Union's claim of majority. Sullivan suggested that they "wait until in the morning and see what happens." That afternoon about 3 p.m. Davis passed out the pay- checks to the employees at their work stations in the plant. As he did so he asked each employee as to whether he had signed a union card and in each case received an affirmative answer.6 Before work on the morning of October 9 Respondent's employees held a meeting in the parking lot located about 200 feet from the construction trailer, heard a report from Van Winkle that Respondent had refused to recognize them, and decided to strike. Only 3 of Respondent's 16 employees reported and went to work on October 9. This fact was duly communicated by Davis to Sullivan in Nash- ville. Pickets carrying the following signs have picketed the jobsite from that day at least until the date of the hearing, February 10, 1971: LOCAL UNION 1701 IBEW AFL-CIO ON STRIKE AGAINST Sullivan Electric Co. This is an information picket All this was duly reported to Jimmy Sullivan in Nash- ville by Davis in conversations over the telephone in which, according to each of the witnesses, nothing ever was said about the Union's majority except that Davis did report that two of the strikers had picked up their tools and said they wanted nothing to do with the Union. The men, however, did not go back to work. On October 9 Respondent sent each of the striking employees the following letter: Gentlemen: This morning, prior to the time that you were scheduled 5 Butrey had little to fear There was on the project only one craft union and that one with only two employees. 6 Davis admitted during his testimony that he made seven such inquiries and received seven affirmative answers but testified that he was not sure that he asked anyone else There was undisputed testimony at the hearing from four other employees that Davis had, in fact, inquired of each of them as to whether he had signed a union card and again received an affirmative re- sponse in each instance . Hence, by the close of the working day on October 8, Respondent knew that at least II of its 16 employees on the job had authorized the Union to represent them. to begin work on the General Electric Company's Bal- last Manufacturing Plant being constructed by Sulli- van Electric Company in Madisonville, Kentucky, you were seen in the presence of a group of your fellow workers of the parking lot at the job site engaged in some type of discussion.7 When the scheduled hour for the commencement of work arrived, you and your fel- low workers failed, neglected, or refused to begin work as scheduled and, instead, left the job site and did not report for work further during the day. Although the National Labor Relations Act affords you the right to engage in concerted activities, includ- ing strikes, it also allows Sullivan Electric Company to continue to operate its business and to complete this project. Sullivan Electric Company intends to do this as expeditiously as possible. You are hereby instructed to return to work at 7:00 A.M. on Tuesday, October 13, 1970. If you have not returned to work by 7:00 A.M. on Tuesday October 13, Sullivan Electric Company will endeavor to hire other employees to replace you to complete this project. If and when another employee is hired to replace you on this project, you will be notified. Jimmy H. Sullivan, Partner On Saturday, October 9, Hardaway's project manager in Nashville delivered the following letter to Respondent: In accordance with Article 7, Section 1, of Subcontract Agreement dated April 6, 1970 for the above project, we hereby notify your firm that unless sufficient work- men are on the project by 8:00 A.M. Tuesday, October 13, 1970 and continue to work until project is complete, we will be forced to terminate this subcontract. If the project is not continually manned until completion, the subcontract will automatically be terminated. Please acknowledge receipt of this letter by return mail. On October 13, Respondent transferred five of its elec- tricians from other projects to work on the Madisonville project and continued such transfers of electricians from other projects until the complement of 16 or 17 electricians at Madisonville was filled. By telegram dated October 27 the Union made uncon- ditional application for reinstatement for the 13 striking employees of Respondent. On October 15 the Union filed its original charge in this case. By letter dated October 29, over the signature of Respondent's counsel, Respondent answered the aforemen- tioned unconditional application for reinstatement as fol- lows: I am counsel for Sullivan Electric Company of Nashville, Tennessee which has received your telegram of October 27, 1970 in which you asked for uncondi- tional reinstatement for thirteen employees. As you know, all of these employees were advised by letter to report for work on or before 7:00 a.m. on Tuesday, October 13, 1970. If these employees failed to report by the date and time specified, Sullivan Electric Company notified them that it intended to seek re- placements. None of the thirteen named individuals 7 In his testimony Davis claimed to have been unable to distinguish which employees were in the parking lot due to the distance and bad weather 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reported for work at the appointed hour, and Sullivan Electric Company , in accordance with the communica- tion addressed to the employees , has hired permanent replacements for them . As of this date , all of the posi- tions formerly held by the thirteen employees specified in your telegram have been filled with permanent re- placements. For these reasons, there are no positions to be filled at this time. Sullivan Electric Company , however, does have other openings available at other construction sites and would be pleased to discuss these job opportunities with any of the thirteen individuals mentioned in your telegram if they will contact the Company office in Nashville on or before Friday, November 6, 1970. Respondent was still engaged in operations at the Mad- isonville project as of February 10, 1971, although with a reduced complement of employees. It reinstated none of the strikers. authenticated by the signers in person at the hearing. On neither of these points does Respondent make any conten- tion to the contrary. Accordingly, I find the majority to have been well established in the evidence. c. The demand There is, and can be here, no question but that on October 8 the Union in the person of Dewey Van Winkle and Charles Goidel at the Madisonville jobsite demanded recognition from and collective bargaining with the Re- spondent from Respondent's superintendent on the job, Davis. Respondent's answer admits the making of this request but in its brief contends that its superintendent , Davis, had no authority in the premises . That will be discussed infra. B. Conclusions 1. Refusal to bargain a. The appropriate unit The facts here show that Respondent had a comple- ment of 16 employees , exclusive of Superintendent William Davis, working at its General Electric project at Madison- ville on October 8. These 16 employees were performing electrical work throughout the project under the orders of Superintendent Davis who sometimes used employee Ollie Hudson as a conduit to transmit instructions to the other employees . Davis, as superintendent , admittedly had the authority to hire and fire and to sign contracts on behalf of Respondent, although his authority in this last respect was, according to the Respondent's testimony, restricted. Hud- son had no authority to hire or fire and when transferring men around the project was merely acting as the conduit for Davis' orders. Under these circumstances it is found that Davis is a supervisor within the meaning of the Act but that Hudson was not. Accordingly, I hereby find that all Respondent's em- ployees, excepting Superintendent William Davis , working at the jobsite at Madisonville constituted an appropriate unit for the purposes of collective bargaining. On October 8 Respondent's superintendent indicated no objection to the appropriateness of the above-found unit. Respondent's answer denied the appropriateness of the unit on "lack of knowledge." But Respondent's brief claims that there is a "failure of proof" because General Counsel failed to prove the appropriateness of the unit . This last conten- tion is without merit. b. Majority There is, and can be here, no question as to the majori- ty representation of the Union because 13 employees out of a complement of 16 (Superintendent William Davis being the 17 man on the payroll) had on or before October 8 designated the Union as their representative for collective bargaining with Respondent by signing unambiguous desig- nations. The signatures on these authorization cards were d. The refusal Respondent's answer admits that Respondent refused to recognize and bargain with the Union as the exclusive bargaining representative of Respondent 's employees. This refusal is also conclusively proved by the testimony ad- duced here. e. Respondent's defenses Respondent defends against the above-found prima facie case of a violation of Section 8(a)(5) on two grounds: (1) its job superintendent had no authority in the premises; and (2) the Company had no proof of the Union's majority representation. Respondent's answer admits that the Union made a demand for recognition and bargaining on October 8 but in its brief Respondent claims that William Davis, its job su- perintendent, to whom the demand was made , was in fact without authority in the premises. The fact, however, is that Davis was Respondent's one and only responsible representative at the jobsite. He was the Respondent at the job in question . There was no one else. He had the apparent authority at least. Any limitations on that authority were secret. There is a dispute in the testimony as to exactly what authority Davis stated he had at the time the demand was made upon him. Assuming for the purposes of this case that Davis had been given no authority to bargain on behalf of Respondent, still, when the Union made its demand upon the Respondent's sole responsible representative at the project, it became his responsibility , in the absence of au- thority to handle the demand himself, to promptly notify the proper official of Respondent having the requisite au- thority of the Union's demand so that that demand could be acted upon promptly. But Respondent's brief indicates that it believes that, the Union having made a demand for recognition and bar- gaining upon a company representative with no authority to handle collective bargaining, the demand so made became a nullity and void as though never made at all. This cannot be the law . If it is, then an employer could SULLIVAN ELECTRIC COMPANY 815 secretly limit the authority of all its officials so as to omit the authority to bargain collectively from their responsibili- ties and thus thwart the statutory duty to bargain entirely. Or it could accomplish the same result by appointing some obscure individual living in Timbuktu as its sole authorized agent for collective bargaining and then defy the Union to locate him so as to create the necessity for collective bar- gaining. Absurd though it seems, this appears to be Respondent's argument. Under the circumstances existing here it was not incumbent upon the Union to search out the Employer's representative having authority to bargain col- lectively in order to make its demand for collective bargain- ing. However once the demand was made on Davis, Respondent's sole responsible official on the project, it be- came incumbent upon him to notify an authorized official of the demand and for that official to answer the Union's request. Hence, if Davis had done nothing further beyond in- forming the Union that he had no authority therein and that they would have to go to company headquarters in Nash- ville to start collective bargaining, that would have consti- tuted a refusal to bargain. However Davis did more. Thirty or forty minutes after the Union had departed the jobsite after making its de- mand, Davis admittedly telephoned Jimmy Sullivan, one of Respondent's owners and thus a representative with author- ity, and reported to him not only the Union's demand for recognition and bargaining, but also the threat made of a strike the following morning unless that demand was grant- ed. Hence the Union's demand for bargaining was in fact communicated within 30-40 minutes to an individual au- thorized to conduct collective bargaining on behalf of Re- spondent. Hence, even under Respondent's theory, the authorized representative of Respondent was in fact noti- fied of the Union's demand for recognition and bargaining, albeit 30-40 minutes after that demand had been made. Sullivan failed to communicate with the Union or to other- wise respond to the Union's request. This amounts to a refusal to bargain. According to the only testimony available, that of Da- vis and Sullivan, Sullivan's only answer in the above tele- phone call was, "Let's wait and see what happens in the morning." So Respondent waited for the morning. In the morning 13 of Respondent's 16 employees went on strike protesting Respondent's refusal to negotiate. Thereafter Sullivan did nothing but transfer employees from other projects to "replace" the striking employees. Sullivan made no effort to get in touch with the Union. His answer to Davis combined with his actions related here constitutes a refusal of the Union's demand. In its brief, however, Respondent contends that Gener- al Counsel failed to establish that Respondent "knew that a majority of its employees [had] selected the Union to represent them." It is quite true that at the time when the Union first made its demand for recognition and bargaining, Davis told the union representatives that he did not believe them be- cause he had not seen any union activity among the union employees. This "disbelief" is based on a very tenuous foot- ing. But it is the only footing Respondent has here. Van Winkle at that time of the demand pulled the signed authorization cards from his pocket and offered to submit them to a neutral third party, a minister, preacher, or rabbi, for authentication against the-signed W-2 forms in Respondent's possession so as to "count the votes." This Davis refused-with or without authority.8 According to the only witnesses available, Davis and Sullivan, there was no discussion during their telephone call 30 or 40 minutes after the departure of the union representa- tives about the question of the Union's claim of majority representation. This testimony is so contrary to the proba- bilities of the situation as to be unbelievable. This is particu- larly so as Davis and Sullivan also testified that on the following day during the strike Davis did report to Sullivan that two of the employees had come in to pick up their tools but had said that they wanted nothing to do with the Union. This report together with the fact that 13 of the 16 employ- ees had refused to report for work would go far to convince any reasonable man that the Union did represent a tfiajority of the employees. Nor, according to Davis and Sullivan, did Davis ever report to Sullivan the results of the poll of the employees he took while distributing the paychecks to them on October 8 subsequent to his first telephone conversation with Sulli- van on the matter. Davis' admission of having polled seven employees, combined with the undenied, and credited, testi- mony of four other employees that they not only were polled on the question of whether they had signed union cards but also that their affirmative responses were recorded- on paper by Davis, proves that Davis, and hence Respon- dent, knew that at least 11 out of Respondent's 16 employ- ees had signed union cards. The result of the above-cited facts is that Respondent (1) refused the Union's offer to permit a third party to check the authenticity of the signatures on the union authorization cards and to "count the votes"; (2) had polled its employees on October 8 as to whether they had in fact authorized the Union to act as their bargaining representative and learned beyond preadventure of a doubt that a large majority of the employees had in fact so authorized the Union; and (3) received hard corroborative evidence as to that majority on October 9 when 13 out of 16 employees remained away from work in support of the Union's demand for recogni- tion and bargaining. These cold, hard facts removed the tenuous grounds of Respondent's alleged "disbelief" based on not having seen any union activity on the project. This is particularly so as Respondent never took the legal course open to it to dispel any and all doubts on the subject of majority; to wit, file an employer's petition with the Board. As a matter of fact under the facts cited above Respon- dent could not even make a serious contention that it had any doubt that the Union enjoyed majority representation among Respondent's employees on the Madisonville project. Nor could Respondent even legitimately claim to have deliberately closed its eyes to the proof of majority because, through Davis, it intentionally and deliberately polled its own employees and conclusively proved to itself by its own 8 Davis testified that Van Winkle brought out of his pocket one blank card, which Davis refused to look at. However, Davis did acknowledge that Van Winkle offered to have the signed authorization cards checked for authentici- ty against Respondent's W-2 forms and admitted that he rejected the idea On this conflict, if any, I must credit Van Winkle 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activities that there was no doubt but that the Union had majority representation. As to this last fact Respondent could only make its contention of lack of knowledge if Davis' knowledge re- garding the poll he took could not be imputed to Respon- dent and if Davis did not communicate those findings to Sullivan. Strangely enough that is just what the testimony of both Davis and Sullivan proved to be. Even Respondent's attorney by a question sought to bring himself under that same protective umbrella. Such lack of commu- nication by and between Respondent's officials could only be intentional or untrue. I am inclined to believe the latter because the testimony of Davis and Sullivan stretches cre- dulity beyond the breaking point. If, perchance, such igno- rance was a fact, it could only be intentional and hence no defense here either. A man cannot intentionally shut his eyes, ears, and mouth and then defend on the grounds of lack of knowledge. In recent case of N.L.R.B. v. Regal Aluminum, Inc.,9 the Eight Circuit Court of Appeals speaking through Judge Lay succinctly put Respondent's argument here to rest as fol- lows: First, the company urges that it had no knowledge of the bargaining demand of IAM claiming to represent the majority of the employees. The basis of this asser- tion is that the company returned unopened the de- mand letters of the union. We find this argument to be specious. The surrounding facts and circumstances strongly suggest that the company president was fully aware that IAM was prepared to make a demand to bargain as the employees' representative. Prior to refus- ing the letter Richardson was well aware of the distn- bution of the cards and had previously discussed a collective bargaining relationship with union officials. Moreover, the company cannot hide behind its own self- constructed wall of obstinance and thereby use its igno- rance as a shield. The National Labor Relations Act only contemplates that the union make a demand to be recognized. The duty created is to use reasonable means to make the demand known to the company. Under a statute requiring cooperative attitudes to achieve industrial peace, common sense dictates that artificial devices created by the company to avoid knowledge of that demand cannot succeed. Upon its refusal to accept the union's letters the company acted at its own peril as to the contents of the letters. As Mr. Justice Clifford early observed: "[I]t is well-settled law that a party to a trans- action, where his rights are liable to be injuriously affected by notice, cannot wilfully shut his eyes to the means of knowledge which he knows are at hand, and thereby escape the consequences which would flow from the notice if it had actually been received ...." The Lulu. 10 Wall. 192, 201, 77 U.S. 192, 201, 19 L.Ed. 906 (1869). [Emphasis supplied.] On a number of other matters Davis clearly testified in utter disregard for the truth. Sullivan's testimony proved that he was not much better. In short I cannot credit the testimony of either. 9 436 F.2d 525. The facts prove, and I therefore find, that Respondent knew without question on and after October 8, 1970, that the large majority of its employees in the appropriate unit had authorized the Union to represent them in collective bargaining with Respondent. In the almost identical case of Arthur Derse, Sr., Presi- dent, Wilder Mfg. Co., Inc., 185 NLRB No. 76, the Board not only decided all Respondent's arguments made and referred to -here adversely to Respondent but also the 8(b)(7)(C) argument Respondent raises here obviously forgetting in its argument that in this case, like Wilder, the Union filed a meritorious 8(a)(5) charge within a reasonable time. Accordingly, I therefore find that on and at all times after October 8, 1970, Respondent refused to bargain collec- tively with the Union as the exclusive representative of its employees in the appropriate unit at the Madisonville project in violation of Section 8(a)(1) and (5) of the Act.10 As the 13 employees went out on strike to protest Respondent's refusal to bargain, this strike was an unfair labor practice strike. Consequently, as unfair labor practice strikers, the striking employees were entitled to rein- statement to their former positions upon their uncondition- al request for reinstatement made on October 27, 1970. As unfair labor practice strikers Respondent was not entitled to "permanently replace" them and refuse them rein- statement after their unconditional request therefor. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- mg and obstructing commerce and the free flow of com- merce. V THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that Respondent cease and desist therefrom and that it take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain on October 8, 1970, and thereafter in good faith with the Union as the exclusive representative of Respondent's em- ployees in violation of Section 8(a)(5) and (1) of the Act, I will recommend that, upon request, Respondent bargain collectively in good faith with the Union as such exclusive representative of all its employees in the appropriate unit with respect to rates of pay, hours, wages, and other terms and conditions of employment and, if agreement is reached, embody such understanding in a signed agreement. Having also found that Respondent discriminated in 10 There can be no doubt but that the union officials made the requisite demand upon Respondent. But in all candor they did little more especially with a telephone available for a call to Respondent's Nashville office. Unfor- tunately Van Winkle 's presumptions remark that thereafter Respondent "would have to come to" him plus his drive around the site to "aggravate" and "shake them up" leads to the unhappy conclusion that he was busier inflating his own ego than in helping the employees This stoke perhaps might have been avoided Although considering Respondent's attitude throughout, this hardly seems likely SULLIVAN ELECTRIC COMPANY 817 regard to the hire and tenure of employment of the 13 unfair labor practice strikers named below by failing and refusing to reinstate these 13 strikers upon their unconditional appli- cation therefor on October 27, 1970, I will recommend that Respondent offer each of them immediate and full rein- statement to his former position or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make each whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of his reinstatement, less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum. These 13 unfair labor prac- tice strikers were: Phillip Dillingham Donald G. Ramsey Peter Froehle Ronald G. Reynolds Robert P. Gordon Jerome Riggs Elvis Holt Terry B. Stevens Ollie A. Hudson Bobby G. Thomason Jack W. King Robert D. McKensie Lloyd Tompkins Because of the variety of the unfair labor practices engaged in by Respondent, I sense an opposition by Re- spondent to the policies of the Act in general and I deem it necessary to order Respondent to cease and desist from in any manner infringing upon the rights guaranteed its employees in Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record, I make the following: CONCLUSIONS OF LAW 1. Respondent, Sullivan Electric Company, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing on and after October 8, 1970, to bargain in good faith with Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive bargaining representative of the employees in the appropriate unit found below, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. The appropriate unit is: All employees of Respondent, employed at the General Electric Construction site at Madisonville, Kentucky, exclusive of office-clerical employees, pro- fessional employees, guards, and supervisors as defined in the Act. 4. By discriminating in regard to the hire and tenure of employment of the 13 unfair labor practice strikers named above by failing and refusing to reinstate them upon their unconditional application therefor on October 27, 1970, be- cause of their activities on behalf of the Union and in order to discourage such union membership and activities, Re- spondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 5. By such actions Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act and in viola- tion of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER " Respondent, Sullivan Electric Company, Nashville, Tennessee, and Madisonville, Kentucky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain in good faith with the Union as the exclusive representative of Respondent's employees in the appropriate unit found above. (b) Refusing to reinstate to their former or substantially equivalent jobs or otherwise discriminating in regard to the hire and tenure of employment or of any term or condition of employment of its striking employees because of their membership in and activities on behalf of the Union herein or any other labor organization of their choice. (c) In any other like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with Local 1701, International Brotherhood of Electrical Workers, AFL-CIO, as the exclusive representative of Respondent's employees in the appropriate unit found above with respect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment and, if an understanding is reached , embody same in a written, signed agreement. (b) Offer to each of the 13 unfair labor practice strikers above-named immediate and full reinstatement to his for- mer job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges and make each whole for any loss of pay he may have suffered by reason of the discrimination against him in the manner set forth in the section of this Decision entitled "The Remedy," with interest thereon at 6 percent per annum. (c) 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. 11 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and order, and all objections thereto shall be deemed waived for all purposes. y_k 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at the Madisonville, Kentucky, jobsite and in its office in Nashville, Tennessee, copies of the attached notice marked "Appendix."12 Copies of said notice, on forms provided by the Regional Director for Region 9, 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 notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. 13 IT IS FURTHER RECOMMENDED that, unless the Respondent notify said Regional Director within 20 days from the re- ceipt hereof that it will take the action here recommended, the Board issue an order directing Respondent to take the action here recommended. 12 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 13 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 9, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith "