Area Disposal, Inc.

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Area Disposal, Inc. and Local 299, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, Ind. Cases 7-CA-8966 and 7-RC-10710 November 20, 1972 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On July 11, 1972, Administrative Law Judge' George J . Bott issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge2 and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent , Area Disposal, Inc., Taylor, Michigan, its officers , agents, successors, and assigns , shall take the action set forth in the Administrative Law Judge's recommended Order. IT IS FURTHER ORDERED that the election conducted on August 27, 1971, in Case 7-RC-10710 be set aside, that the petition filed therein be dismissed, and that the proceeding in Case 7-RC-10710 be vacated. I The title of "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2 Respondent's request for oral argument is denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. 3 While Chairman Miller agrees that a bargaining order is appropriate herein , he would, for the reasons stated in his separate concurrence in United Packing Company of Iowa, Inc., 187 NLRB No. 132, predicate this remedy solely upon the extensive 8(a)(I) violations found herein. TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE GEORGE J. BoTT , Trial Examiner : The hearing in these consolidated cases was held before me in Detroit, Michi- gan, on April 10 and 11 , 1972. The unfair labor practice cases began with a charge filed by Local 299 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind. (herein Union) on September 17, 1971, on which the Regional Director issued a complaint against Area Disposal, Inc. (herein Respondent) alleging that it had violated Section 8(a)(1) of the National Labor Relations Act, as amended, herein called the Act. On December 15, 1971, the Regional Director amended the complaint to add an allegation that Respondent had refused to bargain with the Union in violation of Section 8(a)(5) of the Act.' Case 7-RC-10710 began with a Petition for Certification of Representatives filed by the Union on July 26, 1971. Pursuant to a Stipulation for Certification Upon Consent Election, a consent election among Respondent's truckdri- vers and helpers was held on August 27 , 1971. The Union lost the election, but on September 1, 1971, it filed objections to its conduct . The Regional Director investigat- ed the objections and issued a Report on Objections in which he concluded that the objections raised substantial and material issues of fact which could be best resolved by a hearing. Having also concluded that the issues raised by the objections parallel those raised by the allegations of the complaint in Case 7-CA-8966, which issued simultaneous- ly with his Report on Objections, he consolidated the cases for hearing. All parties were represented at the consolidated hearing. Subsequent to the hearing, Respondent and General Counsel filed briefs which have been carefully considered. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent, a Michigan corporation , has its principal place of business in Taylor , Michigan, where it is engaged in providing the services of collection and disposal of rubbish and refuse for industrial , commercial, and private customers. During the calendar year ending December 31, 1970, a representative period, Respondent derived gross revenue in excess of $500,000 from the performance of its services, of which services valued in excess of $50,000 were performed 1 The Regional Director had previously refused to proceed on the Sec. 8(a)(5) aspects of the Union's charge and issued a partial dismissal letter. The Charging Party filed a request for review with the General Counsel on October 25, 1971, and the General Counsel acknowledged the appeal by letter of October 28, 1971 . On November 24, 1971, the parties were notified by the General Counsel that the matter had been remanded to the Regional Director for further investigation. Subsequently, while the appeal was still pending, the Regional Director, having concluded that a complaint should issue alleging a violation of Section 8(a)(5), rescinded his partial dismissal and issued the amended complaint on December 15, 1971. On January 6, 1972, the General Counsel advised the parties that the Union 's appeal was moot in view of the action of the Regional Director in rescinding his dismissal. On February 9, 1972, prior to the hearing in this case, Respondent filed a motion to dismiss the 8(a)(5) portions of the complaint on the ground that the Regional Director had exceeded his authority by amending the complaint in the circumstances described . General Counsel filed an opposition , and the matter having been referred to her for ruling, Trial Examiner Nancy Sherman, on February 24, 1972, issued an order denying the Respondent's motion . Respondent renewed its motion at the hearing before me at the close of the General Counsel's case, and I denied it. Sam Main and Sons, 127 NLRB 776. 200 NLRB No. 54 AREA DISPOSAL for various enterprises located in Michigan, each of which, during the same calendar year, purchased and caused to be transported to their places of business within Michigan goods valued in excess of $50,000, which were transported directly from points located outside the State of Michigan. Respondent concedes, and I find that it is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Independent Violations of Section 8(a)(1) of the Act Paul Dyl, then employed by Respondent, arranged to have union representatives meet with employees at his home on July 20, 1971, to talk with them about organizing a union. Some employees executed union authorization cards at the meeting and others returned cards, which Dyl had previously given them, already signed. On Sunday morning, July 25, Norman Baker, Respon- dent's president called Dyl to his office by telephone and offered him a promotion to foreman , with an increase in salary, on condition that he try to persuade his fellow employees not to join the Union. Baker noted that Dyl was popular with employees. When Dyl refused to commit himself, Baker pointed out the advantages of his offer and he also clearly suggested to Dyl that if the Union were successful in its efforts to organize the employees , some of them might lose their jobs because of certain individual handicaps or other personal problems. He mentioned in that connection Dyl's artificial limb, Brooks' lack of a chauffeur's license, and Rich's illiteracy.2 Respondent held a meeting of employees on its premises on Sunday afternoon, July 25, 1971, to discuss the Union with them. Irving Hunter, business representative of the Union, having been informed by an employee that the meeting was planned, went to Baker's office and demand- ed that Respondent recognize the Union as the bargaining representative of Respondent's employees. Baker turned down the request, and, on July 26, the Union filed its petition for an election with the Board. Former employee Burbo assisted Dyl in soliciting employees for the Union . He testified credibly and without contradiction that Foreman Walker came to his home on Sunday, July 25, and told him to be present at a meeting of all employees that afternoon. Burbo attended, as did 25 or 30 other employees . Baker addressed the employees, and Hunter, who had just demanded recognition, also said a few words . When Burbo spoke out in favor of a union, Baker asked him who had chosen him to represent the employees, and then adjourned ,the meeting. On the following day Baker approached Burbo at the Respondent's garage and attempted to dissuade him from supporting the Union. Baker argued that he could not afford to pay union wages and he also contended that the 2 Dyl's testimony, upon which the above findings are based, is undemed. 3 Either Burbo was obviously in error or the transcript is inaccurate 351 Union would not obtain any benefits for employees. Baker also told Burbo, as he had Dyl, that he was influential with the men and promised to make him foreman Walker's assistant, with a substantial increase in salary, if he would talk the employees out of the Union. During his conversation with Burbo, Baker advised him that, as of that day, he was granting all employees a $10- per-week increase . Shortly thereafter, Burbo passed this information on to employee Reames who was not inclined to believe it until Foreman Walker confirmed it. Records in evidence show, and it was also stipulated that Respondent granted all employees a wage increase of $10- per-week on July 26, effective as of July 23, the beginning of the payroll period. I find and conclude on the basis of Dyl's and Burbo's testimony that by promising them promotions upon the condition that they attempt to turn their fellow employees away from the Union, Respondent violated Section 8(a)(1) of the Act. I also find that Respondent violated Section 8(a)(1) of the Act by threatening employees with discharge in the event the Union became their bargaining representative, as testified to by employee Dyl. Respondent also violated Section 8 (a)(1) of the Act by granting and announcing a general $10 wage increase to all employees on July 26, effective as of July 23 3 Ernest Labato, an officer of Respondent, testified that it is Respondent's practice to grant employees raises during the summer season when Respondent's major contracts are renewed on a 3-year basis. He said that the subject of a raise for all employees was discussed with Baker in July, 1971, but that final decision was delayed because Baker was on vacation. I do not find support in the record or in his testimony for the suggestion that the $ 10 raise announced on July 26 was motivated by ordinary business considerations and not by an intention ' to thwart the Union's organizing efforts. Baker did not testify, and no records showing Respondent's past practices were prod- uced, and it appears that the 1971 raise was twice as much as the one given in 1968. Labato also said he had no recollection of what had been done in 1965 . It also appears that Respondent's three major contracts were entered into in February, March, and early July 1971 , respectively, and there is no adequate explanation for R'espondent's post- ponement of the increase until late July. Finally, the context in which the raise was announced as well as its timing is especially significant . Baker told Burbo about the general increase in the same conversation in which he tried to get him to work against the Union by offering him a promotion, and the increase was publicized the day after the Union asked for recognition and the very day it petitioned the Board for an election because recognition had been denied it. B. Alleged Refusal To Bargain in Violation of Section 8(a)(5) of the Act 1. The appropriate unit The complaint alleges, the answer admits, and I find that where he is recorded as saying that he learned about the increase on July 22. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all truckdrivers and helpers employed by Respondent at its Taylor, Michigan, establishment, but excluding all office clerical employees, guards, and supervisors as defined in the Act, and all other employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The demand and the refusal On July 25, 1971, Hunter, a business representative of the Union, visited Respondent's place of business and requested Baker, Respondent's president, to recognize the Union as the statutory representative of Respondent's employees in the appropriate unit, but Respondent denied the request. On July 26, 1971, Hunter sent a telegram to Respondent in which he claimed that a majority of the employees in the appropriate unit had designated the Union as their bargaining representative and demanded that Respondent recognize and bargain with the Union as the exclusive representative of such employees. In the telegram, Hunter also stated that the Union was willing to have a neutral person check the Union's authorization cards to verify the Union's majority claim. The Union's telegraphic demand for recognition was received by Respondent on July 27, and, according to Hunter's uncontradieted testimony, it was ignored by Respondent until a week or 10 days later when Respondent's counsel telephoned him and indicated that Respondent would prefer to have the matter handled by the Board. As pointed out earlier,'the Union did file a petition for an election with the Board on July 26, and an election, based upon a consent agreement, was held on August 27, with a large majority of the employees voting against the Union. 3. The Union's majority status There were 39 employees employed in the appropriate unit during the payroll period ending July 29, 1971, as appears from the Respondent's payroll for that period. The Union obtained a maximum of 21 signed authorization cards during the payroll week ending on July 29, but only 20 of the cards are in evidence.4 Respondent contests the validity of the cards on a number of grounds. Respondent attacks the authorization cards of Marshall Reames and Donald Bates on the ground that the Union had not received them when it made its demands for recognition on July 25 and 26.5 Bates signed his card and gave it to Hunter at a meeting on July 26, which took place after 5 p.m. 4 General Counsel offered the authorization card of James V. Rich and requested the Trial Examiner to compare the signature on the card with the signature of the employee on Michigan and Federal tax withholding exemption certificates produced from Respondent's files. I felt unqualified to make an expert comparison and I also thought that a sufficient foundation for the use of such a technique in this type of case had not been established. In asking that I reverse my ruling rejecting the card and the handwriting specimens and refusing to make the comparison, General Counsel cites Aero Corporation, 149 NLRB 1283, 1287-88, and Heck's, Inc, 166 NLRB 186, but I think the cases are distinguishable. In Aero Corporation, the comparison of the signature on the card with genuine signatures on the tax forms was made by a handwriting expert, called as a witness by General Counsel, who testified that the signatures matched. It also appeared that the signers were no longer employed by the employer and not available to testify at the hearing. In Heck's, Inc., the parties Reames' card is dated July 20, but he mailed it to the Union sometime after that, but exactly when he could not say. Reames first said he signed the card on the date it bore, but he quickly questioned his own testimony, for he was positive that he had not signed the card on the day he mailed it, and he thought it was postmarked "July 20."6 Later he said he thought he received the card at a union meeting and had mailed it to the Union on July 28, but he also conceded that he could have signed the card before July 26 since he had union cards in his possession before then. Because Reames was uncertain about the date of execution and mailing, I cannot find that the Union had his card in its possession on July 26, but Hunter delivered the card to the Board's office no later than 1:30 p.m., July 29, for it is so time-stamped, and I credit his testimony that he had to have received the card at his office in the regular course of business no later than July 28 in order to be able to deliver it to the Board at the time indicated by the time stamp. Although the Union had not received Bates' and Reames' cards when Hunter dispatched his second demand by telegraph on July 26, I find that the Union had Bates' card on July 26 and Reames' no later than July 28. I also find that the Union's demand for recognition was a continuing one and that it would have been futile for the Union to have made another demand for recognition on July 28 or later, when it did have these cards, because Respondent had ignored the Union's written demand and had attempted to impede the Union's efforts to become the bargaining representative of the employees by the commis- sion of serious unfair labor practices. I conclude, therefore, that Bates' and Reames' cards may be counted in computing the total number of cards the Union possessed during the payroll week ending July 29, if they are otherwise valid.? Respondent contends that former employee Geilenski's card is not a valid designation of the Union because neither he nor Business Representative Hunter authenticat- ed his signature. Geilenski testified that while he was working for Respondent in July, 1971, he was asked to sign a union application at a union meeting. Shown the card bearing his signature, he said he signed it after receiving it from Hunter„ Geilenski has a little difficulty in speaking English, and he also said at different times that he could not read what was on the card "very good" or "at all." Later, however in answer to the Trial Examiner's inquiries, he stated that he could "read pretty good." Geilenski also testified that Hunter told him when he gave him the card stipulated that the signer was unavailable , his whereabouts being unknown. In the instant case, Rich is still employed by Respondent, and so is not unavailable, even though I accept General Counsel's representations that he has been unable to reach the employee After due consideration , my ruling remains the same, for in these circumstances, in my opinion, it is the General Counsel's or the Union's burden to produce either the signer, or someone who saw him execute the document, or to use expert testimony, and it is not incumbent on Respondent to call the employee for examination at the hearing, as General Counsel suggests. s Respondent also claims that these cards and those of other employees are not valid designations of the Union because employees were told before they signed them that they would be used for no other purpose than to get an election This issue will be treated separately. 6 The postmark is illegible, and never was clarified. 7 Hardy-Herpolsheimer Division of Allied Stores, 173 NLRB 1109, 1121. AREA DISPOSAL 353 that it "was for the union," but he also added that he was told it was "to vote for the union." Apart from the question of alleged misrepresentations cancelling the language of the card, to which contention we turn next, Geilenski recognized his signature and knew that the card shown him was the card he signed. I find that the card is not invalid because of lack of authentication. I also find, based on his testimony and my close observation of him, that Geilenski, an alert and intelligent individual, is sufficiently at home in English to have understood the language on the card he signed. The card used by the Union in its organizing campaign is a single-purpose authorization card stating clearly and unambiguously on its face that, "I hereby designate the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America , through its authorized agents, as my representative for collective bargaining." At the top of the card appears the Union's name in large print, and below that, in even larger type, the card is described as an application for membership. Despite the clear statements on the card , Respondent contends that the totality of circumstances surrounding the card solicitation was such, as to add up to an assurance to the signer that his card would be used for no purpose other than to secure a Board election, and this argument requires, therefore, a review and evaluation of the testimony of the signers and, solicitors about statements made at the time the cards were solicited and executed. As set forth above, former employee Geilenski, said he was told that the purpose of the card was to "vote for the union," but he also stated that he was told that the card was "for the Union." Employee Bates testified that he signed a card for the Union at a union meeting, but he said he was told that "it was for an election only" and that no other purpose was stated to him by Business Representatives Hunter and Oulette, who were present when he signed the card. He was not sure, but he thought that Oulette explained the purpose of the card to him. It also appears that Bates gave an affidavit to a representative of the Board in which he stated that he signed the card and returned it to Oulette because he "vented to be a member of the union, and . . . wanted it to 'represent (him) in dealing with Area Disposal." Employee Gary Asciutto, called as a witness by Respondent, signed his card at a meeting at employee Dyl's home on 'July 20. He said that when a union representative handed hire an authorization card he asked him and the other employees if they were serious about trying to "get a union in the company," and when the employees indicated that they were, the union representa- tive advised them that they must sign the cards in order to have a , vote to determine whether or not the employees wanted a union. He said he recalled no other reason given by anyone for signing cards. On cross-examination, however, Asciutto also remembered that the person who spoke to employees on the Union's behalf also stated that the Union wanted to secure more than a majority of signatuies if it could, for in that case the Union could ask the Respondent for recognition and go on strike if necessary. The speaker also referred to other matters in connection with soliciting the cards, such as governmental protection of employees' right to join a union or sign a membership application card, the filing of unfair labor practice charges if those rights were interfered with, and the election of a union steward to represent the men. Employee Donald Allen, called by Respondent, testified that he signed an authorization card for employee Burbo. Burbo filled in all other material on the card except his signature, because Allen cannot write, although he can print his name. Allen cannot read either, and he said that Burbo and former employee Dyl, who solicited him, told him that "we need a union," that employees would "prosper" with a union, and that they could "get a union in here if you will sign" the card. Asked, however, what the card he signed was, he answered that it was a "card to get an election for the union." Allen gave his signed card to Business Representative Hunter at a meeting at Dyl's home. He said Hunter asked to see his driver's license in order to compare the printed signature on Allen's card with the one on the license. He recalled Hunter comment- ing that he doubted that a printed signature would be approved, and he also said that Hunter stated that if enough cards were obtained, the employees could "get an election for a vote for a union." On cross-examination Allen admitted that he had given an affidavit to the Board in which he had stated that he had given his card to the Union because he "wanted to join the union and have it represent (him) in dealing with Area Disposal, Inc." At another point in his testimony, he indicated that Hunter had said other things, for he also recalled that Hunter expressed doubts that the employees would "get the union," because not enough signed cards were being returned. When Hunter made that remark, Allen handed him his card, he said, stating "there's mine." Employee Walter Sharp, called by Respondent, signed a card at Dyl's home at a meeting attended by Union representatives Hunter and Oulette. He said both repre- sentatives stated that if enough cards were signed, a vote would be taken to determine whether the employees wanted a union or not. He also testified that Oulette said the cards were "not worth a damn" and did not mean anything until a vote was taken. He also stated that Oulette told him that signing a card did not make him a member of the union, but permitted the union to get an election. On cross-examination, he said that when Dyl invited him to the meeting at his home, he told him that "we are getting a union in over there," and employees had to attend the meeting and sign cards "if we were going to join the union." He also recalled something about Hunter mention- ing arranging a meeting with the Respondent, but he connected this with the holding of an election. Sharp at first suggested that he had not read the card before he signed it, but when it was called to his attention that he had filled in all the spaces on the card, giving the information called for, he conceded that he must have read the card. Gandolf Asciutto, Gary's father, did not sign a card and did not go to the meeting at Dyl's home, although he was invited. He testified that Dyl solicited hitn a number of times and each time told him he wanted his signature so that "an election for the union" could be held. He also described the substance of Dyl's remarks as the signing of 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards so that employees could have an "election to get the union in." Marshall Reames, called by General Counsel, testified that Hunter told the employees at the meeting he attended that the Union already had enough signatures to secure a Board election, but he also said that Hunter also told them that the card was "to get recognition." " He also recalled, after being shown an affidavit he had given the Board during the investigation of this case, that Hunter had said that "the purpose of the card was for the Union to get recognition from Area Disposal Corporation." Hunter testified that he attended a number of meetings with employees and discussed unionism with them. He recalled being at meetings at Dyl's home in July when the Sharps (father and son) Geilenski, Gary Asciutto, Don Allen, and others were present. Hunter was also present at a meeting which took place at the Veterans of Foreign Wars hall on July 26 where other employees signed or returned signed cards to the Union. According to Hunter, at the meetings at Dyl's home, he and Union Representa- tive Oulette answered employees' questions. He said he told employees, as he customarily did in these situations, that if they decided that they wanted to have the Teamsters represent them they would have to sign an application card, and that if a majority of employees signed cards, the Union could petition the Board for an election. He also said that he explained to the persons present what the Union had to offer in regard to "job rights and seniority and representation," but that he warned them that although the Board would accept cards from 30 percent of the employees as a basis for holding an election, that was only a minimum number, and if the employees were seriously interested in the Union, he wanted them to show their desire for representation by a large number of them signing union cards. Hunter also testified that he told the employees at the meeting at Dyl's that if a great number of cards were signed, the Union could demand recognition and could strike to get it if it were refused, but he also said that he advised the employees that although that was an "avenue" the Union could, take if a majority of employees signed cards, the Union preferred to have a Board election. He said some of the employees were interested in a strike for recognition, but he discouraged it and told them that if "we have a certain number of cards we will petition for an election and go to the NLRB, and no one is losing any work." Union Representative Oulette was also involved in organizing Respondent's employees and he attended a meeting at employee Dyl's home on July 20. He testified that he did considerable talking at the meeting, most of which concerned asking employees to sign application cards and explaining to them what the union could do for them. He said that he mentioned "job security and representation" as two items the Union had to offer. He also said that both he and Hunter explained the impor- tance of the application card as a "show(ing) of interest for the NLRB to get them to sponsor our election for us." Oulette indicated that he told employees what he usually did in other cases, that is, that the Union needed to have "at least thirty percent of signed cards, voluntarily signed cards to file with the NLRB for an election , but we don't like to move generally with less than fifty, sixty or seventy percent." Oulette testified that under questioning by employees he explained that "we can call in a third party" if the Company did not believe the Union had a majority, but he also thought, oddly enough, that the purpose of having "a disinterested person like a clergyman" check the Union's cards was "to have an election . . . with the NLRB." On the other hand, asked what else he told the employees, he replied that since the subject was usually beyond the employees' prior experience, "you explain the purpose of the card, it is strictly an application card and it signifies the Teamsters union as the sole bargaining agent for them." According to Oulette, the subject of strikes was men- tioned, but he and Hunter tried to soft-pedal that issue, but he said the employees were informed that if a large majority of them signed cards, the Union could strike for recognition. He also said that he and Hunter told the employees that there was another way of seeking recogni- tion by demanding it from an employer and offering to have the Union's cards checked by a third person if the employer disputed the Union's majority status. Oulette denied that he had told any employee that signing a card did not mean a "damn thing," as employee Sharp had testified, but he said that he believed he had stated, as he had on other occasions, that signing a union card was not like signing a mortgage, and if the employee changed his mind at any time, he would tear his card up, if he still had it. He also said that he told the assembled employees that the cards would be held in the "strictest confidence" and would be shown to no one but the Board. I credit Hunter and Oulette. Neither appeared to be embellishing his testimony and both were particularly frank in stating what they told employees about the use of authorization cards in obtaining Board elections. Although Oulette appeared slightly confused with respect to the cross-check technique for obtaining recognition,8 his testimony was otherwise logical and sounded plausible. Hunter, on the other hand, appeared more experienced in these matters than Oulette, and his testimony is clearer and easier to follow, although he, like Oulette, spoke like a union business agent, not a lawyer, in describing what he tells persons who call upon the Union to help them organize. I also find that their testimony in this area is very much like that of some of the employees called by General Counsel and Respondent, and this is an additional reason for crediting them. Gary Ascuitto, for example, called by Respondent, who said he asked Hunter what the card was for before he signed it and was told that the Union had to have a certain number before it could have a vote, also recalled later that Hunter talked about obtaining recogni- tion of the Union from the Respondent on the basis of a majority of signed authorization cards. I find, therefore, that Hunter and Oulette told the employees they spoke with at union meetings that they were soliciting their signatures to union authorization cards 8 He said he had not experienced obtaining recognition of the Union on the basis of a check of union authorization cards by a neutral person. AREA DISPOSAL for use in filing a petition for an election with the National Labor Relations Board but that they also told them that the Union would demand recognition from the Respon- dent as the employees' representative, that the cards could be used in obtaining recognition , that a strike for recognition was a possible route to recognition , but one which the Union intended to avoid by filing a petition for an election if recognition were denied it. I also find that the employees were told that the card was an application for membership in the Union and that the Union would represent the employees if they signed cards. Specifically, in regard to the testimony of particular employees, I find that Oulette did not tell Sharp that the card did not "mean anything" and was not "worth a damn." In addition to the fact that Sharp recalled more on cross-examination about what Hunter and Oulette said when they presented the cards than he did on direct, he also impressed me generally as an employee who was having second thoughts about why he signed the card in the first place. I do not credit Bates' testimony that he was told that the card was for an election "only." He was not sure which business agent told him that , and he previously signed an affidavit for the Board stating that he signed a card because he wanted to join the Union and be represented by it. I also find that Donald Allen was told more by Hunter than he said he was in his testimony. In addition to stating that employee Burbo solicited him for the Union and had said that the employees would "prosper" under a union, he brought his card to a union meeting already signed and gave it to Hunter, even though Hunter questioned his signature, and he, too, had given the Board an affidavit in which he had sworn that he wanted to join the Union and have it represent him in dealing with the Respondent. The issue facing us here of whether the authorization cards are not valid designations of the Union because they were obtained by misrepresentation is controlled by the Board's Cumberland Shoe9 doctrine which the Supreme Court in N.L.R. B. v. Gissel Packing Co., 395 U.S. 575, 584, expressly approved and described as follows: ... Under the Cumberland Shoe doctrine, if the card is unambiguous (i.e., states on its face that the signer authorizes the union to represent the employee for collective bargaining purposes and not to seek an election), it will be counted unless it is proved that the employee was told that the card was to be used solely for the purpose of obtaining an election.... [Empha- sis in original.] The Supreme Court then stated at pp. 606-607: In resolving the conflict among the circuits in favor of approving the Board's Cumberland rule, we think it sufficient to point out that employees should be bound by the clear language of what they sign unless that language is deliberately and clearly canceled by a 9 Cumberland Shoe Corp, 144 NLRB 1268 10 In Lew Strauss, the Board, in explaining and reaffirming the Cumberland doctrine, added, in fn. 7, that it did not mean to "imply that a finding of misrepresentation is confined to situations where employees are expressly told in haec verba that the `sole' or `only' purpose of the cards is to obtain an election." The Board went on to make it clear that "it is not the use or nonuse of certain key or `magic' words that is controlling, but 355 union adherent with words calculated to direct the signer to disregard and forget the language above his signature. There is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will probably be used first to get an election... . The Court also noted its agreement with the Board's own warnings in Levi Strauss & Co., 172 NLRB No. 57, that in hearing testimony concerning card challenges, trial exam- iners should not neglect their obligation to ensure employee free choice by a too easy mechanical application of the Cumberland rule,10 but it also commented that it accepted the "observation that employees are more likely than not, many months after a card drive and in response to questions by company counsel, to give testimony damaging to the union, particularly where company officials have previously threatened reprisals for union activity in violation of Section 8(a)(1)." The Court went on to reject any rule that requires a probe of employees' subjective motivations, but it cautioned the Board to guard against any approach any more rigid than used in General Steel.ii Having examined the totality of circumstances surround- ing the card solicitation in some detail, I find that they do not add up to an assurance by the solicitors to the signer that the cards would be used only for an election. Although my reading of Hunter's and Oulette's testimony, as well as that of the card signers, convinces me that it was made clear to the employees that a Board election was contem- plated and that the cards would be used for that purpose, I have also found that employees were also told that the cards could be used to obtain recognition from Respon- dent. It seems to me that the Union felt that voluntary recognition was unlikely, and it is clear that it advised the employees that no strike would occur if the Respondent declined to recognize the Union, but that the Union would instead petition the Board for an election. In that context, the employees might easily understand that an election was to be expected and that the cards were being signed to that end. I cannot, however, in the light of the teachings of the cases, find that the clear language of what the employees signed was "deliberately and clearly cancelled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature." An election, in the solicitors' view, was "probable," "likely" and even an odds on bet if enough employees signed cards, and this, without a doubt, was what they meant their words to mean, but this does not negate their reference to voluntary recognition on the basis of the employees' signatures or cancel the clear language of the card, and we have not yet been told that an authorization card, otherwise valid, is invalidated if employees are told that its principal purpose is to get an election. I find, therefore, for the reasons stated, that none of the whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election" 11 395 U.S. at pp 608-609. General Steel Products, Inc., 157 NLRB 636, enfd. in part, 398 F.2d 339 (C.A. 4), was one of the four cases, including Gissel, before the Court on the card question 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards is invalidated because the signer was told that his card would be used only to get an election.12 I find further that the Union represented a majority of the 39 employees on Respondent's payroll during the payroll week ending July 29, based on the 20 valid authorization cards of the following employees, authenti- cated as indicated: Ronald Bates, Marshall Reames, Stanley Geilenski (Gileski), Raymond Burbo, Paul Dyl, Gary Asciutto, Walter Sharp, and Donald Allen authenticated their own cards. Virgil Sharp and William Hartley filled out cards on July 20, at a small meeting at Dyl's home, and handed them to Hunter, according to Hunter's credited testimony. Paul Dyl obtained the cards of the following employees who either signed in his presence or returned the card to him already signed, according to his credited testimony: Lawrence E. Dyl (his brother), John Von Linsowe, George Hollis, Thomas Allen, J. Ptak, Bud Miracle, William Papp, Leo Nowcekowski, Eunice Carroll, and Dana Curry. 4. Whether a bargaining order is an appropriate remedy under the circumstances herein The existence of the Union's majority status does not by itself, however, establish a refusal to bargain in violation of the Act or justify the imposition of a bargaining order. In Gissel Packing Company, supra, the Court sustained the Board's remedial authority to issue a bargaining order, in cases like this one, where an employer rejects a valid card majority and commits unfair labor practices "that interfere with the election process and tend to preclude the holding of a fair election." 13 While the Court approved the imposition of a bargaining order in "exceptional" cases where there was no 8(a)(5) violation but the unfair labor practices were so "outrageous" and "pervasive" that "their coercive effects cannot be eliminated by the application of traditional remedies," 14 it also held that a bargaining order is appropriate "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election processes." In regard to the issuance of a bargaining order in these less severe cases which interfere with the election processes, the Court set forth the following standards: In ' fashioning a remedy in the exercise of its discretion, the Board can properly take into consideration the extensiveness of an employer's unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is a slight and that employee sentiments once expressed 12 General Steel Products, Inc., supra, fn. 11 13 395 U.S. 575, 594- 14 395 U.S at 613-614 15 Gissel Packing Co., quoted above in the text. 16 General Stencils, Inc., 195 NLRB No. 173 (79 LRRM 1608) and cases cited therein in the dissenting opinion of Chairman Miller 17 The Union's fourth objection, objection 3, seems to duplicate objection 2. 18 As such conduct occurred on July 26, the date the petition was filed, through cards would, on balance, be better protected by a bargaining order, then such an order should issue. (395 U.S., at 614-615) I have found that contemporaneously with the Union's demand for recognition and bargaining, Respondent granted its employees a wage increase to thwart the Union. When it learned that two of its employees were playing an active role in organizing, it offered them promotions on condition that they use their leadership talents to turn the employees away from the Union, and it threatened one of these persons with reprisals if the Union were successful in its efforts, suggesting to him that he and his fellow employees would suffer under the Union and that some of them might lose their jobs. Board members sometimes disagree as to the kind and extent of unfair labor practices which will call forth a bargaining order in these cases, but, as I read its recent decisions, the Board would unanimously hold that the- grant of a general increase, with or without the promises of benefits and the threats found above, would have such an impact on employees that the "possibility of erasing" its effects and "of ensuring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order ...." 15 On the basis of those cases, I find that Respondent's conduct in this case amounted to an unlawful refusal to bargain in violation of Section 8(a)(1) and (5) of the Act, and I further find that the remedy of a bargaining order is appropriate either for a Section 8(a)(5) or a Section 8(a)(1) violation.i6 IV. THE REPRESENTATION CASE In the election held on August 27, 1971, the employees voted 25 to 7 against union representation. On September 1, 1971, the Union filed timely objections to the election. One of the Union's objections relates to the general wage increase Respondent announced on July 26, effective as of July 23 , and another relates to a "promise of a wage increase and other things of value ." A third objection states that Respondent called employees into the office and coercively attempted to induce them to vote against the Union.17 Having found that Respondent engaged in serious violations of Section 8(a)(1) of the Act on July 26, 1971, the day the representation petition was filed,18 by announcing a general wage increase and by offering an employee a promotion on condition that he dissuade employees from supporting the Union, it follows that such conduct interfered with the employees' free choice of a collective- bargaining representative and that the results of the election must be set aside.19 In view of my recommendation, hereinafter set forth, and before the election held on August 27, it falls within what the Board regards as the critical period West Texas Equipment Company, 142 NLRB 1358. 19 Leas & McVrtty, Incorporated, 155 NLRB 389. Geilenski 's testimony that President Baker had him and other employees in his office before the election and talked about pay raises and the union is not as clear as it might be, but it is undenied, and I find it sufficient to support a finding to sustain Union's objection 3. AREA DISPOSAL that Respondent be required to recognize and bargain with the Union, I shall recommend that the petition in Case 7-RC-10710 be dismissed, and that proceedings in connection therewith be vacated. Irving Air Chute, Inc., 149 NLRB 627. V. THE REMEDY Having found that Respondent violated Section 8(a)(1) and (5) of the Act, I shall recommend that Respondent cease and desist from engaging in such unfair labor practices and from like or related unfair labor practices and to take certain affirmative actions which I find will effectuate the policies of the Act. I shall also recommend that Respondent bargain collectively, upon request, with the Union as the exclusive bargaining representative of the employees in the unit found appropriate herein, and to embody any understanding reached in a signed agreement. Upon the basis of the foregoing findings of fact and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. By announcing and granting wage increases to influence employees' choice of a bargaining representative and to induce them to reject and refrain from activities in support of the Union, Respondent violated Section 8(a)(1) of the Act. 4. By promising employees wage increases and promo- tions on condition that they attempt to dissuade other employees from supporting the Union, Respondent violat- ed Section 8(a)(1) of the Act. 5. By threatening employees with discharge or other reprisals in the event that the Union became their bargaining representative, Respondent violated Section 8(a)(1) of the Act. 6. By refusing to bargain with the Union as the exclusive bargaining representative of employees in the unit found appropriate, Respondent violated Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following: ORDER20 Respondent, Area Disposal, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Announcing or granting wage increases to influence employees' choice of a bargaining representative or to induce them to reject and refrain from activities in support of Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Ind., or any other labor organization. (b) Promising employees wage increases and promotions 357 upon condition that they attempt to dissuade other employees from supporting said Union. (c) Threatening employees with discharge or other reprisals because of their union activities. (d) Refusing to bargain with the Union as the exclusive bargaining representative of its employees in the unit found appropriate herein. (e) In any like or related manner interfering with, restraining, or coercing its employees in their exercise of the rights guaranteed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive representative of the employees in the unit found appropriate, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Taylor, Michigan, place of business, copies of the attached notice marked "Appendix."21 Copies of said notice, on forms provided by the Regional Director for Region 7, shall, after being duly signed by Respondent, be posted immediately upon receipt thereof, in conspicu- ous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 7, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith 22 I FURTHER RECOMMEND that the election conducted in Case 7-RC-10710 on August 27, 1971, be set aside and that proceeding be vacated and the petition dismissed. 20 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, recommendations, 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. 21 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." 22 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 7, in writing, within 20 days from the date of this Order, what steps 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 announce, promise, or grant wage increases to our employees to discourage them from voting for, joining or supporting Local 299, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Ind., or any other labor organization. WE WILL NOT promise employees promotions in 358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order to try to persuade them to turn other employees away from the above Union or any other labor organization. WE WILL NOT threaten employees with discharge or other reprisals because of their union activities. WE WELL NOT m any like or related manner interfere with our employees in the exercise of their organiza- tional rights guaranteed under the National Labor Relations Act. WE WILL, upon request, bargain collectively in good faith with the Union as the bargaining representative of all employees in the bargaining unit described below with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is: All truck drivers and helpers, excluding supervi- sors as defined in the National Labor Relations Act, as amended. Dated By AREA DISPOSAL, INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, Tele- phone 313-226-3200.