Tri-City Paving, Inc.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tri-City Paving, Inc. and Minnesota State Area Heavy and Highway Construction Committee Tri-City Paving, Inc. and International Union of Oper- ating Engineers, Local No. 49; Laborers Internation- al Union of North America, Local No. 563; International Brotherhood of Teamsters , Local No. 358, Jointly, Joint Petitioners. Cases 18-CA-3254 and 18-RC-8701 August 1, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 4, 1972, Administrative Law Judge ' Alba B. Martin issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed excep- tions and a supporting brief, Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. On November 10, 1972, the Board remanded the proceedings to the Ad- ministrative Law Judge to make additional findings of fact in Case 18-RC-8701. On March 13, 1973, the Administrative Law Judge issued the attached Sup- plemental Decision. Thereafter, the Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in support of the Administrative Law Judge's Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as herein modified. The Supreme Court, in setting forth general princi- ples applicable to the issuance of bargaining orders, held that the Board has authority to issue such orders to remedy unfair labor practices "so coercive that, even in the absence of an 8(a)(5) violation, a bargain- ing order would have been necessary to repair the unlawful effect of those [unfair labor practices]." 2 It is our duty to judge whether in the instant case Respondent's numerous activities, which it engaged in in response to the Union's organizational effort, constitute violations of the Act so serious as to war- rant our issuance of a bargaining order. We believe that they do. Respondent refused to rehire Edward Fedor and i The title of "Trial Examiner" was changed to Administrative Law Judge" effective August 19, 1972 2 N L R B v Gissel Packing Co, 395 U S 575, 615 (1969) Joseph Gilson for work during the construction sea- son in 1971 because of their suspected union sympa- thy and activity. This refusal was in violation of Section 8(a)(3) and (1). Further, Respondent engaged in numerous activi- ties in violation of Section 8(a)(1), which included, inter alia, threatening employees that, if the Union won the election or got into the Company, Respon- dent would quit, sell out, fire some employees, lay off employees they thought voted for the Union, reduce operations, eliminate some crews, and not bid for more jobs. It also threatened that, if the Union won the election, employees would be able to work only in their own classifications, they would probably not work enough to qualify for unemployment during the winter, and they would probably lose time and pay because of a strike. Further, it threatened to fire those whose names were on a list of employees who signed for the Union; it took an illegal poll of the employees' union sympathies; it interrogated an employee as to his thoughts about the Union; and it suggested that the employees form their own union within the Com- pany. That the unfair labor practices of Respondent had an irreparably adverse effect on the Union' s organiza- tional effort seems clear. From March until June 22, 1971, the Union had been successful in gaining the signatures of 77 employees in the unit. Yet, when the election was conducted less than 2 months later, on August 17, the Union lost the election by a vote of 33 to 52 in a unit with approximately 104 eligible voters. It would indeed be naive for us to believe that the majority showing once enjoyed by the Union was not dissipated as a result of the numerous threats found to have been made by the Respondent, when many of those threats related directly to the employment status of the employees. It is equally obvious that threats of this nature are not easily erased from the minds of employees. These unfair labor practices of Respon- dent are so coercive and pervasive, we find that they not only undermined the majority strength enjoyed by the Union and precluded a fair election from being conducted in August 1971, but, because of them, also made the possibility of erasing the effects of these past practices and insuring a fair election in the near future by the use of traditional remedies appear slight. For these reasons, we conclude that employee sentiment, once expressed through cards, would, on balance, be better protected by the issuance of a bargaining order. We shall therefore issue such an order.3 In the "Remedy" section of his Decision, the Ad- a As we have found that Respondent's numerous unfair labor practices are sufficient to warrant an order to bargain collectively with the Union , we find it unnecessary to pass upon the finding of the Administrative Law Judge in his Supplemental Decision that Respondent also refused to bargain in viola- tion of Section 8(a)(5) of the Act 205 NLRB No. 32 TRI-CITY PAVING 175 ministrative Law Judge ordered backpay to Fedor from the date the first truckdriver started working for Respondent during the 1971 construction season to the date the last truckdriver stopped working that season. Inasmuch as it is not clear to us from the record that Fedor, under nondiscriminatory circum- stances, would have been the first truckdriver hired in the spring and the last laid off in the fall, we feel that the computation of his backpay should be left to the compliance stage of this proceeding. We will therefore issue the standard backpay order as to Fedor. THE REMEDY In order to effectuate the policies of the Act, we find that it is necessary that Respondent be ordered to cease and desist from the unfair labor practices found; to take certain affirmative action, including offering Edward Fedor and Joseph Gilson employ- ment for the 1973 construction season at the work they principally performed in the 1970 construction season or, if that work no longer exists, at substantial- ly equivalent work, without prejudice to their senority or other rights and privileges; to pay Fedor the amount of backpay it is determined is due him in the compliance stage of this proceeding; and to pay Gil- son backpay for the period worked by Ronnie Oines during the 1971 construction season. Backpay shall be computed on a quarterly basis, plus interest at 6 per- cent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. We will also order Respondent, upon request, to bargain with the Union in good faith and to post the appropriate notice. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Tri-City Paving, Inc., Little Falls, Minnesota, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily refusing to rehire employees because of their union and suspected union sympathy and activity. (b) Threatening employees that, if the Union wins an election or gets into the Company, Respondent will quit, sell out, fire the employees, lay off some employ- ees, lay off those it thinks voted for the Union, reduce operations, eliminate some crews, and just finish jobs on hand, and probably not bid for more jobs. (c) Threatening employees that if the Union wins an election employees will have work only in their own classification, will not work enough weeks during the construction season to qualify for unemployment benefits during the winter, and will probably lose time and pay because of a strike. (d) Threatening that everyone whose name ap- pears on a list of those who signed for the Union will be fired. (e) Unlawfully interrogating employees as to what they think of the Union. (f) Threatening prounion employees that they are cutting their own throat. (g) Suggesting that employees form their own union within the Company. 2. Take the following affirmative action, which we find will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the Minnesota State Area Heavy and Highway Construction Committee for the unit described herein 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 such understanding in a signed agreement. The bargaining unit is: All road crew employees employed by Tri-City Paving, Inc., including truck drivers, equipment operators, laborers and ready mix employees, but excluding office clerical employees, shop em- ployees, and guards and supervisors as defined in the Act. (b) Offer to Edward Fedor and Joseph Gilson im- mediate and full reinstatement to their former work or, if that work no longer exists, to substantially equiv- alent work, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them in the manner set forth in the section of this Decision enti- tled "The Remedy." (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, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its offices in Little Falls, Minnesota, and at all other places on all of its jobs where notices to employees are customarily posted, copies of the at- tached notice marked "Appendix." ° Copies of said notice, on forms provided by the Regional Director for Region 18, after being duly signed by In the event that this 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." 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's authorized representative, shall be post- ed by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. IT IS HEREBY FURTHER ORDERED that the election held on August 17, 1971, among the Respondent's employ- ees in the appropriate unit, be, and it hereby is, set aside and that the petition in Case 18-RC-8701 be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all em- ployees these rights: To engage in self-organization To form, loin, or help unions To bargain collectively through a represen- tative of their own choosing To act together for collective bargaining or other aid or protection To refrain from any or all of these things WE WILL offer to Edward Fedor and Joseph Gilson immediate and full reinstatement to their former work or, if that work no longer exists, to substantially equivalent work, without prejudice to their seniority and other rights and privileges previously enjoyed. WE WILL pay to Edward Fedor and Joseph Gil- son backpay for any loss of pay they may have suffered as a result of our discrimination against them. WE WILL NOT refuse to rehire or in any other way discriminate against any employee because of his union and suspected union sympathy and activity. WE WILL NOT threaten employees that, if the Union wins an election or gets into the Company, Respondent will quit, sell out, fire the employees, lay off some employees, lay off those it thinks voted for the Union, reduce operations, eliminate some crews, and just finish jobs on hand, and probably not bid for more jobs. WE WILL NOT threaten employees that if the Union wins an election employees will have work only in their classification, will not work enough weeks during the construction season to qualify for unemployment benefits during the winter, and will probably lose time and pay because of a strike. WE WILL NOT threaten that everyone whose name appears on a list of those who signed for the Union will be fired. WE WILL NOT unlawfully interrogate employees as to what they think of the Union. WE WILL NOT threaten prounion employees that they are cutting their own throat. WE WILL NOT suggest that employees form their own union within the Company. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Minnesota State Area Heavy and Highway Construction Committee or any of its affiliated unions, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activity. WE WILL, upon request, bargain with the Min- nesota State Area Heavy and Highway Construc- tion Committee as the exclusive bargaining representative of all employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agree- ment. The appropriate bargaining unit is: All road crew employees employed by Tri-City Paving, Inc., including truck drivers, equip- ment operators, laborers and ready mix em- ployees, but excluding office clerical employees, shop employees, and guards and supervisors as defined in the National Labor Relations Act, as amended. All our employees are free to become, or to refrain from becoming, members of any labor organization. TRI-CITY PAVING, INC (Employer) Dated By (Representative) (Title) TRI-CITY PAVING 177 This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. TRIAL EXAMINER'S DECISION engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED Minnesota State Area Heavy and Highway Construction Committee is a committee which engages in organizing em- ployees for the purpose of collective bargaining, and con- sists of various labor organizations including the three listed above in the caption to Case 18-RC-8701, all of which are labor organizations within the meaning of Section 2(5) of the Act. The Committee is referred to herein as the Union and the Committee. STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: This consolidated pro- ceeding was heard in Little Falls, Minnesota, on December 7 and 8, 1971, pursuant to a charge duly filed and served,I and a complaint issued on October 15, 1971, and later amended. The issues litigated were whether Respondent unlawfully refused to rehire two employees, made numer- ous unlawful threats including the threat to lay off all or most of the employees, conducted a poll among employees without the necessary safeguards, in violation of Section 8(a)(3) and (1) of the Act; and whether an election the Union lost should be set aside and the Union be given a bargaining order under Gissel.2 After the hearing the Gener- al Counsel and Respondent filed helpful briefs, which have been duly considered. Upon the entire record in the case and my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF RESPONDENT Respondent, Tri-City Paving, Inc., a Minnesota corpora- tion with its office and principal place of business in Little Falls, Minnesota, is engaged in the business of road con- struction. Dunng the year prior to the issuance of the com- plaint Respondent's total sales were approximately $1.6 million of which more than $132,000 was received for con- tracts performed under the Federal Aid to Secondary Roads Program. Dunng the same period Respondent (sometimes herein called the Company and sometimes the Employer) purchased bituminous oil valued in excess of $50,000 direct- ly from Murphy Oil Company in Superior, Wisconsin. The complaint alleged, the answer admitted, and I find that Respondent is, and at all times material herein has been, i The Union filed the charge on June 22, 1971 A return receipt in evidence shows that the charge was served upon Respondent and that Respondent received it on June 25 , 1971 Respondent challenged the sufficiency of the charge It alleged violations of Sec 8(a)(1) and (3) of the Act by refusal to employ the two employees "and other acts" which "interfered with, re- strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act " It is well established that such language in charge will support an 8(a)(I) complaint. Raymond Pearson, Inc, 243 F 2d 456 (C A 5, 1957), Reliance Steel Products, 322 F 2d 49 (C A 5, 1963), Texas Industries, Inc, supra, Lasko Metal Products, 363 F 2d 529 (C A 6, 1966), North Ameri- can Rockwell Corp, 389 F 2d 866 (C A 10, 1968) 2 N L R B v. Gissel Packing Company, 395 U S 575 (1969) III THE UNFAIR LABOR PRACTICES A. Background Respondent's principal work is the construction of black asphalt roads. A small portion of its business is the selling of "hot mix" and the black topping of local driveways, parking lots, etc. The business is seasonal. The busy, con- struction, season is from about May 15 through October 15, during which Respondent employes well over 100 employ- ees. Only a few work during the off-season. Respondent is owned in equal shares and operated by five Surma brothers and two others, each of whom has a function in the business. Del Surma is president and does most of the bidding of jobs. Stanley Surma is treasurer. Merritt 3 Surma is vice president and does the book work and general office work. Robert Surma is vice president and active in the management. Mark Surma is vice president and serves as one of the job superintendents during the construction season. Gilbert Kapsner is part owner, secretary, and ajob superintendent. The seventh owner is Lawrence O'Tremba. From early March until June 22, 1971,4 the Union signed up on authorization cards 77 employees in an appropriate unit. The parties stipulated that the appropriate unit consist- ed of all road crew employees employed by Respondent, including truckdrivers, equipment operators, laborers and ready-mix employees but excluding office clerical employ- ees, shop employees, guards and supervisors as defined in the Act. On May 18 the Union demanded recognition, which Re- spondent refused. Respondent has never recognized or bar- gained with the Union. The Union filed its petition with the Board (Case 18-RC-8701) on June 22. Pursuant to a con- sent election agreement executed July 22, an election was held on August 17, which the Union lost 33 to 52. There were approximately 104 eligible voters according to the tally of ballots. B. The Violations of Section 8(a)(1) 1. The Company's poll of employees During the Union's organizing campaign, in early May, Respondent conducted a poll among its employees to test 3In the record this first name is spelled "Meritt" 4 All events herein occurred in 1971 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their union sentiment.5 The superintendents and foremen passed out to each employee on the job a small piece of paper asking if he wished to be represented by a union in 1971, and with space for a yes or no answer and for the employee's signature. Some 59 workers, including 8 supervi- sors and 51 rank-and-file employees, voted yes or no and signed their names. An unknown number of employees, and possibly some supervisors, also voted but did not sign their names. The poll was conducted openly during working hours and possibly also during nonworking hours. Following are the Board's criteria for judging the validity of a poll: Absent unusual circumstances, the polling of employ- ees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are ob- served: (1) The purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by se- cret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmosphere.' Respondent's poll in 1971 met none of these standards. 1. President Del Surma testified that it was not taken to test the accuracy of any claim of a majority by the Union. 2. No such purpose was communicated to the employees. 3. No assurances against reprisal were given, and at least one su- perintendent, Joe O'Tremba, admitted that he probably told his employees when he passed out the ballots that if they signed up for or voted in favor of the Union he would fire them. That he said this is made likely by the fact that a few days before this O'Tremba told a group of employees, as credibly testified by employee Platz and not contradicted by O'Tremba, that "if anybody signed for the Union they would be done." 4. The poll was not by secret ballot. 5. As will be seen below, Respondent engaged in other unfair labor practices. As Respondent's poll in 1971 was conducted without the necessary safeguards I find, consistent with precedent,' that it interfered with, restrained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent thereby violating Section 8(a)(I). 2. Respondent's threats The record established that other supervisors than Joe O'Tremba, and some owners, threatened employees be- cause of their union activity and sympathy. 1. On May 18, according to the credited testimony of Edward Fedor, a credible witness, Mark Surma told Fedor, "I understand that you are pretty much of a union guy, so you will just have to find a job with someone who belongs to a union." Fedor was then seeking reemployment with Respondent for the summer. Mark Surma told him also that Robert Surma was then at a meeting 8 where he would get 5 Respondent had conducted several similar polls in previous years, but this one occurred after some 29 employees had signed up for the Union 6 Struksnes Construction Co, Inc, 165 NLRB 1062 a list of all those who signed up for the Union this spring and when they got the list everyone on it was going to be fired. Surma added that if we are forced into a union, we will quit completely and start again with about eight trucks and all new men. 2. About the middle of May, according to the credited and uncontradicted testimony of Joseph Gilson, a credible witness, President Del Surma told him that they were not going to hire anyone who had anything to do with the Union, that the Company was not going to accept the Union, and that if the employees voted to be represented by the Union, "they" would sell out. (President Del Surma denied telling any employee that the Company would close down.) Shortly before this Job Superintendent Willard Houle had told Gilson that "they just won't let me hire you because of the Union." 3. Several employees testified concerning threats made to employees by Job Superintendent Houle, and the latter ad- mitted some of them. Prior to the election there was consid- erable discussion between Houle and the employees concerning the Union. Employee Olson testified that Houle told the employees that if the Union won the election Re- spondent would lay off the whole crew and hire back just enough to finish up the season. Employee Oines testified that Houle said that if the Company "went union," there would be a big layoff and they would have smaller crews. Employee Lof said that Houle told employees that if it "went union," there would be a layoff and Respondent would lay off people it thought voted for the Union. Houle admitted telling employees during the preelection campaign that if the Union won the election Respondent would have to economize and slow down operations a little "because there wasn't that much work that we had on hand... . He admitted telling employees that they would reduce oper- ations of the hot mix plant, which Houle was in charge of. He admitted probably telling employees that if they "went union" Respondent probably wouldn't bid on more jobs because they would have to bid at higher wage rates since they had gone union. Upon the entire record I credit the testimony of Oines and Lof, as well as the admissions of Houle. 4. Employee McKinney, who by his demeanor impressed me as a credible witness, testified that Job Superintendent Elmer Engel came up to him and asked him what he thought of the Union. When McKinney replied in the affirmative Engel "turned around and threw up his hands and said I was cutting my own throat and they would have to make the best of [it] with their skeleton crews." On the witness stand Engel admitted "probably" telling his entire crew that if the Union got [in] they would be cut down to a skeleton crew and that they would then just finish the jobs they then had. On the entire record I credit McKinney's testimony and Engel's admission. 5. Employee Gerald Kostreba credibly testified that the day before the election President Del Surma came up to him and said, among other things, that if the Union got in they couldn't compete with other outfits; that he would like to bid on a certain job that was coming up but if the Company 7 See N L R B v Berggren & Sons, Inc, 406 F 2d 239 (C A 8, 1969). Union under state mediation auspices, at which the Union demanded recog- 8 On May 18 Robert Surma attended a meeting with representatives of the nition and Respondent refused TRI-CITY PAVING 179 went union the chances of getting the job were very slim because a certain other company, Starre, would underbid them. President Surma's witness-stand version of this con- versation (which he placed in early July) was that he told the employee that "if it didn't go union your pay would possibly be raised to a union scale, but if it did go the other way it would hamper our Company and our method of bidding, because 80 percent of our work is bid against nonunion contractors, and by just simple logic if we would have less work we would have to hire less employees. You don't hire employees in this type of business unless you have the work." Under all the circumstances I credit both versions of this conversation and find that Surma uttered the substance of both versions. I credit Kostreba's testimony that this conversation took place the day before the election. 3. The paycheck enclosure With the last paychecks sent to employeesjust before the election, Respondent enclosed an unsigned letter written by Vice President Robert Surma addressed to "Dear Sir," and reading as follows: As you know, on Tuesday an election will be held. We would like to give you a few facts that Don Shaver 9 isn't telling. Did you know that if you vote yes, you will be classi- fied as either a Laborer, Driver, or Operator. This means: if your classification is an Operator, and we don't have any work for your Loader, Dozer, Paver Etc., you cannot drive a truck or do any other kind of work to get your time in. If there is no work for your piece of equipment ;here will be no work for you, this includes Truck Drivers also. We have always, in the past, tried to keep you people working no matter what classification you are, and I'm sure thats what you want. If you vote no it will continue this way otherwise some of you may have a hard time to get in enough weeks to be eligible for unemployment checks in the winter. I'm sure you don't want this and neither do we. Also the Union Contract for the entire State of Min- nesota expires early next year. This means your initia- tion fee and monthly dues are only good for the couple of months work that are left this year. Most likely there will be a strike next spring. Do you want to lose more time then? Why have a man from St. Paul claim to represent you. Do you really think he cares ?? you are more intelligent than to believe all what he is saying. He may not think so, but we do otherwise we wouldn't ask so many of you to come back year after year. We need you, he doesn't we need you because, in order for us to compete in this area we cannot afford to belong to the Union. We have to bid against other contractors who are non-union and we cannot get enough work for the whole season that way. We would have to eliminate some of our smaller crews and possi- bly combine our larger crews in order to be more effi- 9 Shaver was the coordinator for the various unions comprising the Charg- ing Party-Petitioner cient. This means fewer people working. A No vote is a vote for your independence!!!! 4. Preelection speeches The election was held on Tuesday , August 17. On the Friday before the election, in St. Joseph, Minnesota, and on the Monday morning before the election, in Little Falls, Minnesota, President Del Surma talked to groups of about 20 and 25 employees. Three employees testified as to what was said at St. Jo- seph and four as to what was said at Little Falls. Concerning St. Joseph , Garry McKinney credibly testi- fied that President Surma said that if the Union got in the Company could not compete and that it would cut down and the employees would most likely lose their jobs; that they would have to work at least 18 weeks in order to draw unemployment benefits during the off-season; and he talked about the employees having an inside company union. Employee Kummit testified that President Surma stated that if the Union got in there would be a big layoff and the Company would just finish the jobs it had with four men and the employees they needed ; that probably most of the employees would not get in their 18 weeks in order to draw unemployment benefits ; that the Company probably would not even bid on a job coming up in Stearns County because it could not compete with nonunion contractors; that the employees should form their own union within the Company, and then they could keep their money and have a "jackpot" rather than sending it to the Union . Employee Imdieke, a credible witness, testified that President Del Sur- ma told the employees the Company could not compete with nonunion contractors; that if they went union the Company would lay off a percentage of the men , and that the men who worked would have work only in their own classifications . Vice President Robert Surma testified that at St. Joseph he told the employees that under a union contract they would be classified into jobs and the only work they could do would be work in their classifications. Concerning the meeting at Little Falls, President Surma expressed substantially the same ideas he had stated at St. Joseph, and added a thought about the wage freeze which had been announced by President Nixon in the meantime. He said, according to Oines and Olson, that the employees would not get their wage raise because of the wage freeze, so there was no point to their "going union ." He expressed the thought about not being able to compete in bidding against nonunion contractors, including the Stearns County job, and that therefore they would probably be short of work; that if the Union got in there would be a layoff and supervisors and a small crew would finish the season. Em- ployee Olson testified, "All we seemed to be hearing was if the vote went `yes' we would be laid off." Employee Lof, who impressed me as a very credible witness, stated that President Surma said that if they went union there would be jobs the Company could not bid on because of the high labor cost ; that if they had to pay the employees more they would have to bid the jobs higher ; that they would quit bidding on newjobs andjust finish up on the jobs they were then doing; that they would consolidate crews and have a layoff and finish the work with foremen and a few employ- 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ees; that in a union if there is no work in an employee's classification , he would be out of work. President Del Surma testified he gave the same talk to both groups. He admitted telling the employees at St. Jo- seph that if he had to bid for the Stearns County job at a union rate, his price would have to be higher and the Com- pany would probably not get thejob . He testified he told the employees that under a contract his former employer had with a union, employees got work only in their classifica- tions, and if there was no work in your classification you were told to go home. At the hearing President Surma al- lowed that he was referring to a contract he knew about some 7 years before. Surma testified that he told the em- ployees that the Company was "not entirely against union, the only thing we don 't like about the unions is the people ... that are running these unions like Meaney here that gets up and tells the President of the United States to go to hell." When the General Counsel oberved that he couldn't possibly have made that statement because "the controver- sy on the President occurred long after August 13," Surma resumed that he told the employees that unions were good at one time , "but at this date unions, as far as I am con- cerned, or like I just got through saying you have Hoffa in jail which I told them . Meaney was later, because this is reflected on the people. . . . He was a former member of the Teamsters, this is the point I am trying to get across That's why I did say, `If you want tojoin a union start your own union, don't give your money to people like this."' President Del Surma denied telling the employee groups at St. Joseph and Little Falls that the Company would stop bidding on jobs, that it would sell most of its equipment or any of it, that it would lay off most of them if they voted for the Union. 5. Conclusions as to violations of Section 8(a)(1) Upon the above testimony and the entire record consid- ered as a whole I conclude and find that during the organi- zational and preelection campaign, Respondent repeatedly threatened the employees with economic reprisals if the Union won the election , that President Del Surma promised Kostreba economic benefit if the Union lost the election, and that Job Superintendent Engel interrogated McKinney concerning his union affiliation and sympathy, all in viola- tion of Section 8(a)(1) of the Act. Thus, Superintendent Joe O'Tremba told employees that if they signed up with the Union he would discharge them, and he told a "union guy" Fedor, that he would have to find a job with a "union employer " Mark Surma told an em- ployee that when the Company got a list of those who signed for the Union that spring it would fire all of them; that if the Company was "forced into a union " it would quit com- pletely and start again with about eight trucks and all new men. Mark Surma did not deny most of this testimony and in any case he was an unconvincing and unbelievable wit- ness. Thus, President Del Surma told Gilson that the Company was not going to hire anyone who had anything to do with the Union, that if the Union won the Company would sell out. Thus, Job Superintendent Houle told Gilson that "they just won't let me hire you because of the Union." Houle threatened employees with a big layoff if the Union got in, that Respondent would lay off those it thought voted for the Union, and that Respondent probably would not bid for more jobs. Thus, Job Superintendent Engel interrogated McKinney as to what he thought of the Union and when he learned McKinney was for the Union Engel told him he was cutting his own throat; and Engel told his crew that if the Union got in the Company would cut down to a skeleton crew and it would just finish the jobs it then had. Thus, in its letter enclosed with the paychecks just before the election, Respondent told the employees that if they voted the Union in their working conditions would change in that they would receive work only in their classifications and that some of them would lose work and might not qualify for unemployment benefits the next winter. Its state- ment concerning eliminating some smaller crews and com- bining larger crews and that this meant fewer people working added up, under all the circumstances of this situa- tion, to a further threat of discharge of some employees if the Union won the election . Its introduction of the thought of a strike when, insofar as the record showed no strike was being discussed among the employees , was an additional, intentional threat that employees would lose time and pay if they voted the Union in.10 An additional violation was its threat, however spelled out and explained , that if the Union came in it would mean the layoff of some employees. Re- spondent was not immune from these violations because it overlooked or may not have known that bargaining inter- vened between certification and a contract. Similarly, President Del Surma's speeches just before the election contained many additional threats. These threats, if in good faith (which is doubtful in the light of the whole record), were grounded on the assumption that the several unions involved in the bargaining , if they won the election and were certified, would insist upon no work outside an employee's classification, and higher wages, to the point that Respondent could not compete with "non -union" em- ployers and would have to lay off employees. The unions named in the caption were all local unions , and it seems to me that they would feel sufficiently answerable to their employee-members not to cause them this hardship. In any case the record contained no suggestion or proof that the unions involved with the Minnesota State Area Heavy and Highway Construction Committee had any interest other than to bargain in the best interest of the members of the several unions. Also, there was no proof that President Sur- ma sought, by contacts with any of the unions or otherwise, to check the accuracy of his remarks and threats to the employees before making them . Under all the circumstanc- es I find they were threats and not mere predictions, and that they were further violations of Section 8(a)(1). 10 Cf Orkin Exterminating Company of Florida, Inc, 152 NLRB 83, 93, enfd 379 F 2d 972 (C A 5, 1967) TRI-CITY PAVING 181 C. The Refusals to Rehire 1. Joseph Gilson Joseph Gilson worked for Respondent during three sea- sons, the summers of 1968, 1969, and 1970. His main job was operating a steel roller, but he also worked at times as a flag man, truckdriver, shouldering machine operator, and the operator of a rubber roller. Gilson credibly testified that he was never reprimanded or criticized. In the summer of 1970 he worked on Job Superintendent Houle's hot-mix crew. That he was a valued employee was shown by the fact that in 1970 another superintendent or foreman tried to get him away from Houle and the latter would not let him go. In 1970 he worked late into October, until the end of the season. In a company poll in June 1970, when Part Owner, Secre- tary, and Job Superintendent Kapsner was polling Gilson, the latter marked the ballot "yes," that he wished to be represented by a union, and handed the ballot to Kapsner. Gilson signed an authorization card for one of the unions comprising the Committee on March 4, 1971. Houle admit- ted on the witness stand that in the spring of 1971 Gilson told him that he had signed up for the Union. Houle and Gilson were neighbors, and their families were friends. On Sunday, May 9, 1971, Gilson's 19-year-old son, Gerald, a college student, asked Houle for a summer job with Respondent. Houle replied he thought Gerald could get one. In the conversation Houle said that Gerald's father wasn't working "because he was working for the Union a little bit and his employers were kind of mad at him for this reason." Houle added that he "tried to get him on but it wasn't up to him." After the conversation Gerald repeated the conversation to his father. Gerald did not get the sum- mer job. Gerald's testimony was uncontradicted. A few days later, on about May 15, Joseph Gilson spoke to Houle about reemployment for the'71 season. Houle told him that he wasn't allowed to put him on because of the Union, that he would like to put him on, he hated to lose him, but that "they just won't let me hire you because of the Union." Houle suggested that Gilson talk with Owner Kapsner. As a witness Houle did not deny this conversation. Gilson then went to Respondent's office at Little Falls to see Kapsner, who was not there. Gilson met President Del Surma outside the office and asked him about a job. Ac- cording to Gilson's uncontradicted testimony President Surma said he would not give him a definite answer, that he would have to see Kapsner. Gilson asked Surma if he was blackballed because of the Union. Surma replied, according to Gilson's credible and credited testimony, that "they weren't going to hire anybody who had anything to do with the Union. If they did have to go union, they were going to have a sale and sell out. They weren't just going to accept the Union." Surma added that Gilson would have to see Kapsner for a definite answer. The following week Gilson talked with Kapsner outside the office at Little Falls, who definitely refused to hire him because of "the Union," according to Gilson's credited tes- timony. Kapsner had had a heart attack about a month before the hearing. In lieu of his testimony the parties stipu- lated that he would testify in conformity with his pretrial affidavit given the General Counsel. His affidavit said: Gilson did talk to me one time this spring. As I recall he talked to me early in the spring and I believe it was in the yard at Little Falls. He asked me if we had a job for him and Ijust told him no that his job was eliminat- ed. That was all that we talked about. He did not ask me about other work. He did say to me that he sup- posed if he was a nonunion man I would hire him. I just told him that that had nothing to do with it. That was all that was said about the Union... . In late June Job Superintendent Houle told employee Lof, according to the latter's credited testimony, that Kaps- ner wouldn't let Houle rehire Gilson in the spring "because he was for the Union." Houle did not deny this testimony. Respondent's defense was that in 1970 it used two steel roller operators and in 1971 it changed its operation for business reasons and used only one. Houle testified he and Kapsner selected Oines over Gilson because "we thought he was a little better operator." It was not shown in what respect he was a better operator. Gilson had worked for Respondent for three summers, and Oines for only one. Of note is that although Respondent hired a new truckdriver for the '71 season, and used a new man running a second rubber roller for a period on Houle's crew, it did not offer Gilson either of these jobs. Of further note is that Houle "referred" Gilson to someone outside the Company whom Houle knew. In view of Respondent's vigorous antiunion campaign in the spring of 1971 conducted by several owners and addi- tional job superintendents, as found above, I conclude and hold that Respondent refused Gilson reemployment in 1971 because it thought or suspected that he was an activist for the Union. Houle's statement to Gerald Gilson that his father was "working for the Union" tends to prove this. The record is conclusive that Respondent was dead set against having anything to do with the Union except to keep it out. One way to achieve this was to eliminate one it suspected of being an activist. Upon all the testimony concerning Gilson, and the entire record considered as a whole, I con- clude that by discriminatorily failing and refusing to rehire Gilson for the 1971 summer season Respondent violated Section 8(a)(3) and (1) of the Act. 2. Edward Fedor Edward Fedor worked for Respondent from 1959 until 1966 and from 1968 through the 1970 construction season. Through the years he performed several jobs, but most of the time he drove a truck. Respondent did not rehire him in 1971. By his demeanor Fedor impressed me as an honest and credible witness. As has been seen above, on May 18, 1971, Owner-Job Superintendent Mark Surma told Fedor that he would have to find a job with someone who "belongs" to the Union because "I understand you are pretty much a union guy." Upon request as to how Surma knew he had anything to do with the Union (Fedor signed a union card on March 10, 1971), Surma replied that "I have heard . . . that you are 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pretty much with the Union. . . . You went ahead with the union guys and talked to them" 'I The following day, according to the credited testimony of Fedor, he phoned Vice President Robert Surma, and asked him if Fedor would be reemployed and how soon. Surma replied, "You know what you were told yesterday and that goes." Robert Surma denied the above and testified that he told Fedor he was not being reemployed "because of his drinking problem." Surma testified Fedor replied that "he wasn't drinking any more." Fedor then phoned Owner-Treasurer Stanley Surma and asked him when Fedor would go to work. According to Fedor's credited testimony, Surma confirmed that Fedor wasn't going to work and that it was "because of the Union," and "there might be something else." Stanley Sur- ma testified he told Fedor it was "because of his drinking problem," and denied telling Fedor it was because of the Union. Respondent's alleged reason, and the alleged sole reason, for not rehiring Fedor in 1971 was his "drinking problem." President Del Surma testified "I have heard he had a drink- ing problem for the last 10 years," but Respondent rehired Fedor many of those years, as has been seen above. Fedor joined Alcoholics Anonymous in 1970 and continued as a member for half of 1971, according to his credited testimo- ny. Fedor credibly testified that in 1970 he did no drinking that affected his work. Co-owner Stanley Surma learned during the summer of 1971 that Fedor was going to meet- ings of Alcoholics Anonymous. Given ample opportunity no owner or supervisor testified to any evidence of or a problem concerning Fedor and drinking and hisjob in 1970, which fact is weighty evidence that Fedor was not drinking in 1970 and that Respondent knew it. They testified to some incidents, mostly away from the job during nonworking hours, of intoxication in 1969, but despite this Respondent rehired him in 1970 and he worked the whole season. Presi- dent Del Surma explained this with the remark, "We like to give a man a fair chance." Owner Stanley Surma testified to an incident in 1969 when Fedor worked in the crew Stanley was running; Stanley put him to work even though Fedor was intoxicated. Stanley explained that when Fedor was drinking he would be a lot better in a few hours. As there was no "drinking problem" in 1970, as Respon- dent employed Fedor during the 1970 construction season despite his drinking problem in 1969, and upon the entire record, I believe and hold that the "drinking problem" was but a pretext and not the real reason for not rehiring Fedor in 1971. Respondent introduced much testimony concerning a mi- nor accident Fedor had with a piece of heavy equipment late in the summer of 1970. There was no evidence that the accident was due in any way to drinking. Despite the acci- dent Fedor continued working for Respondent until the end of the season in 1970, and he was not reprimanded for the accident, even though Respondent allegedly has a policy of discharging employees involved in accidents. President Del " Mark Surma testified that Fedor was "half-intoxicated" on this occa- sion Del Surma testified that when Fedor asked him for ajob in 1971 Fedor was "somewhat incoherent " Upon all the evidence relating to Fedor, and my assessment of credibility, I do not credit this testimony Surma testified the accident was "not the reason why we didn't hire him back." Respondent contended further that Fedor was not re- hired because its insurance company frowned upon Respondent's employment of any driver with a drinking problem. All the testimony on this point was from President Del Surma, whose testimony was, at best, vague and confus- ing. Surma testified that the insurance company phoned him, "I think it was early in the spring." On cross-examina- tion President Surma didn't know whether Fedor's request of him for a job in 1971 (Fedor had not testified he contact- ed Del) was before the call from the insurance company. He added that he thought he first heard of the accident 2 days after it occurred. On redirect examination he testified he received calls from two representatives of the insurance company, and that one of them came 2 days after the acci- dent. In any case there was no proof that President Del ever told the other owners and superintendents who refused to rehire Fedor, of the calls from and sentiments of the insur- ance company. And in any case after hearing from the insurance company President Del Surma never undertook to learn if Fedor still had his drinking problem. Further, by his demeanor and testimony President Surma was not a convincing witness. All in all Respondent's defense to the Fedor matter was sometimes self-contradictory, sometimes confusing, and aways unconvincing. In view of Fedor's long service with Respondent, during which his drinking problem was condoned, as three Surma brothers, Mark, Robert, and Stanley, in effect told him he was not being reemployed in 1971 because of the Union, as neither Robert Surma nor the Company ever investigated the accuracy of Fedor's alleged remark to Robert Surma that Fedor was not drinking anymore, and as Fedor signed up for the Union in the spring of 1971 when Respondent was dead-set against the entrance of the Union into the Company, I find on the preponderance of the evidence in the entire record considered as a whole that Respondent discriminatorily refused to rehire Fedor in 1971 because it suspected him of prounion sympathy, and in order to dis- courage membership and activity in the Union, Respondent thereby further violating Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. Tri-City Paving, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Minnesota State Area Heavy and Highway Construc- tion Committee consists of various labor organizations in- cluding International Union of Operating Engineers, Local No. 49; Laborers International Union of North America, Local No. 563; and International Brotherhood of Team- sters, Local No. 358; all of which are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminatorily failing and refusing to rehire Ed- ward Fedor and Joseph Gilson for work during the 1971 construction season, because of their suspected union sym- pathy and activity, thereby discouraging membership and activity in the Union, Respondent has violated and is violat- ing Section 8(a)(3) and (1) of the Act. 4. By threatening prounion applicants for rehire that he would have to find a job with a union employer, that the TRI-CITY PAVING Company is not going to hire anyone having anything to do with the Union, and that the owners will not allow his reemployment because of the Union, Respondent has vio- lated and is violating Section 8(a)(1) of the Act. 5. By threatening employees that if the Union won the election or got into the Company Respondent would quit, sell out, fire the employees, lay off some employees, lay off those it thought voted for the Union, reduce operations, eliminate some crews and just finish jobs on hand, would probably not bid for more jobs, Respondent has violated and is violating Section 8(a)(1) of the Act. 6. By threatening employees that if the Union won the election employees would have work only in their own clas- sification, would not work enough weeks during the con- struction season to qualify for unemployment benefits during the winter, and would probably lose time and pay because of a strike, Respondent has violated and is violating Section 8(a)(1) of the Act. 7. By threatening that everyone would be fired whose name was on a list of those who signed for the Union in the spring of 1971, Respondent has violated and is violating Section 8(a)(1) of the Act. 8. By interrogating an employee as to what he thought of the Union, Respondent has violated and is violating Section 8(a)(1) of the Act. 9. By threatening a prounion employee that he is cutting his own throat Respondent has violated and is violating Section 8(a)(1) of the Act. 10. By suggesting that the employees form their own union within the Company, Respondent interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act, in further violation of Section 8(a)(1). 11. The aforesaid labor practices are unfair labor practic- es affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to effectuate the policies of the Act, I recom- mend the customary broad cease-and-desist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent' s unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. To remedy its discriminatory failure and refusal to rehire Edward Fedor and Joseph Gilson, Respondent will be re- quired to offer each of them, immediately, employment for the full 1972 construction season at the work they principal- ly performed in the 1970 construction season, or if that work no longer exists, to substantially equivalent work, without prejudice to his seniority or other rights and privileges; and to pay them backpay for the 1971 construction season (less net interim earnings) computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co, 138 NLRB 716, from the date the first truckdri- ver started working to the date the last truckdriver stopped working that season in the case of Fedor, and for the full penod Ronnie Oines worked that season in the case of Gilson. [Recommended Order omitted from publication.] 183 RECOMMENDATIONS IN THE REPRESENTATION CASE The Union filed timely objections to alleged conduct af- fecting the results of the election. In dispute in the evidence is whether Respondent served a copy of the objections upon Respondent. In his amended complaint, order consolidat- ing cases, and notice of hearing, issued November 23, 1971, setting the hearing for December 7, 1971, the General Coun- sel apprised Respondent of three allegations of the objec- tions, as follows: On August 20, 1971, the Joint Petitioners filed timely objections to conduct affecting the results of the elec- tion alleging in substance that among other acts the Employer kept people on the eligibility list although they had terminated their employment with the em- ployer, coerced and intimidated employees by threats and laid off employees prior to the date of election so that they would be ineligible to vote. According to a return receipt in evidence Respondent re- ceived the amended complaint, order consolidating cases, and notice of hearing on November 23, 1971, some 12 days before the hearing. On this evidence I conclude that Re- spondent received timely notice of the above objections set forth in the amended complaint and that resolution of the objections does not require resolution of the question as to whether the Union-Petitioner served a copy of the objec- tions upon the Company. The above findings and conclusions and conclusions of law establish that for weeks prior to the election Respon- dent did indeed coerce and intimidate employees by threats, and that it continued to do so right up to the election. It coerced and intimidated employees in the letter enclosed with the last paychecks sent to employees just before the election, in President Surma's remarks to Kostreba the day before the election with a promise of benefit and a threat of reprisal, and in President Surma's threats to groups of employees at St. Joseph and Little Falls just before the election. In addition the Union-Petitioner proved at the hearing through uncontradicted testimony that on August 17, elec- tion day, Respondent telephoned an employee who had quit Respondent's employ on August 3, and had him come down and vote, telling him how to vote. The payroll period agreed upon in the stipulation for certification upon consent elec- tion, to which Respondent was a party, was July 16, and that instrument provided that those who quit after the payroll penod were excluded from voting. The employee had gone to Respondent's office in Little Falls and told Vice Presi- dent Merrit Surma, who keeps the books, that he was quit- ting. Thereafter it was Respondent's responsibility to remove his name from the eligibility list. Its failure to re- move it, and its calling the employee to come down and vote and telling him how to vote were further actions designed to interfere with the results of the election. Respondent's attitude toward the election was further revealed by President Del Surma's misrepresentation at the preelection conference when the eligibility of voters was being discussed among the parties, that Elmer Engel was 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "like a regular worker and had a right to vote." Soon Engel drove up in a truck with "superintendent" printed on the sides, and the Board agent told Del and Robert Surma, who were present, that they should delete Engel's name because he was a superintendent. In view of Respondent's widespread threats to employees for weeks before the election, including threats of layoffs, reducing operations, and even quitting business 12 or selling out; followed by threats of reprisal in the payroll enclosure and speeches just before the election;13 in view of the other unfair labor practices shortly before the election, including the suggestion that employees form their own union, an interrogation and a promise of benefit; I believe and find, in the language of Gissel,14 that Respondent's unfair labor practices had "the tendency to undermine majority strength and impede the election process," that "the possibility of erasing the effects of [the] past practices and insuring a fair election . . . by the use of traditional remedies . . . is slight," and that "employer sentiment once expressed through cards would, on balance, be better protected by a bargaining order." I therefore recommend that the Board issue a bargaining order. I recommend that Respondent, upon request, bargain collectively with the Union as the exclusive representative of its employees in the unit set forth in the Trial Examiner's Decision concerning wages, hours, and other terms and condition of employment, and, if an understanding is reached, embody such understanding in a signed agreement.15 12 See Welles, The Obligation to Bargain on the Basis of a Card Majority, 3 Georgia Law Review 349, 358 (1969) 13 Respondent contended the disparity between the 77 who had signed up for the Union before the petition was filed and the 33 who voted for the Union at the election, was accounted for by the "Wage -Price Freeze" an- nounced two nights before the election Although the "Freeze" may have had some impact, the record does not permit a finding that it was the principal cause of the disparity 14 See In 2, supra 15 In view of this resolution of the representation case I hereby deny Respondent's motion made at the hearing to strike the Union's case on objections SUPPLEMENTAL DECISION FINDINGS AND CONCLUSIONS A. Whether the Union Served the Objections Upon Respondent ALBA B. MARTIN, Administrative Law Judge: On Novem- ber 10, 1972, the Board remanded this proceeding to me for further findings of fact as to whether the Union served upon Respondent a copy of its objections to conduct affecting the results of the election on August 17, 1971, in Case 18- RC-8701. This remand comes after the Trial Examiner's Decision and prior to any decision by the Board. At the hearing Robert McPherson, who by his demeanor as a witness impressed me as a credible witness, credibly testified that he was present when the objections to the election were written, when they were hand-delivered to the Board's Regional Director, and when a copy addressed to Respondent was deposited in the United States mail. McPherson was an organizer and a part of the organizing team comprising the Committee which filed the petition. He was present, along with the coordinator of the Committee, Donald R. Shaver, and another organizer, Louis Counter, when the objections were being typed by a secretary in Shaver's office on August 20, 1971. Then, Shaver and Mc- Pherson "proceed(ed)" to the Board's Regional Office and Shaver handed the objections to the Regional Director. Shaver had a duplicate copy with him in a stamped envelope addressed to Respondent at its office in Little Falls, Minne- sota. From the Regional Director's office they "took it down stairs" and deposited it in the mail in the "Federal Court Building" in Minneapolis. As the Regional Office was in the Federal Building in Minneapolis, and as they went "down stairs" and mailed the envelope addressed to Re- spondent, I find that they mailed it in the Federal Building and that "Federal Court Building" was a slip of the tongue by the witness. In any case the record is clear that they delivered the objections to the Regional Director and mailed them to Respondent on the day they were written and dated, August 20, 1971, 3 days after the election. This was timely. To be noted in this connection is that the objec- tions, in evidence as General Counsel's Exhibit 1-i, were stamped in the Regional Office on August 20, 1971. McPherson credibly testified that they decided not to send the objections to Respondent by registered or certified mail, and instead sent them in a plain white envelope with no identification of the sender, because both he and Shaver knew "through past experience . . . that registered mail can be refused"; "Because we have been refused service on other written material that has been sent out." The parties stipulated that if called as a witness Shaver's testimony would be substantially the same as McPherson's concerning the mailing of the objections. With questionable truthfulness two Surma brothers testi- fied that the objections were not received by Respondent. Under all the circumstances of these cases I do not credit their testimony. Vice President Merritt Surma, who by his demeanor and by his testimony did not appear to me to be a credible witness, testified that every day he picks up the mail sent to Respondent's main office in Little Falls, opens it, and reads it; that the objections, General Counsel's Exhibit 1-i, never came in the mail, and that he had never seen it before. His total cross-examination went as follows: Q. (By Mr. Shaver) You say you never seen the doc- ument before? A. No. Q. Never have at any time? A. No. Q. This was the first time you looked at it now? The lawyer never showed it to you at any time prior to talking to you here or at your office? A. No. MR SHAVER All right. On redirect examination Respondent's attorney attempt- ed to correct the witness' clear effort on cross-examination to convey the false impression that he had never seen the document before he was on the witness stand. On redirect he testified that Respondent's attorney had shown him the document "in the hall this morning," and that prior to that TRI-CITY PAVING he had never talked to Respondent's attorney about it. Of note in weighing Merritt Surma's credibility is that the eligibility list produced at the election by Respondent in- cluded the name of Job Superintendent Elmer Engel as an eligible voter, although supervisors were excluded as eligible voters in the consent election agreement. As the vice presi- dent who ran the office and kept the books, Merritt Surma was responsible for misrepresenting Engel's status by in- cluding him on the eligibility list. Casting further doubt on Respondent's denial that it re- ceived the objections was the self-contradiction of some of Respondent's testimony. Thus, President Del Surma testi- fied that Respondent's attorney showed him the objections on the Friday before the hearing herein opened the follow- ing Tuesday; whereupon Respondent's attorney testified that he first saw the objections at the hearing when opposing counsel showed it to him "prior to submission in these pro- ceedings." Upon all of the credited facts in these cases, and upon the entire record considered as a whole, I find and hold that the union agents filed timely objections with the Board's Re- gional Director, and timely mailed a copy of them properly addressed and stamped to Respondent at its office and principal place of business in Little Falls, Minnesota. As there was no credible or credited evidence to overcome the presumption that the document was received within a few days of its mailing, I find that it was received by Respondent in timely fashion within such few days. Cf. Sears Roebuck and Co., 117 NLRB 522, 523; S. Frederick Sansone Co., 127 NLRB 1301, 1302; Thiele Co., 128 NLRB 19. B. Whether the Board Should Grant a Bargaining Order In my judgment the Board should set aside the election and grant the Union a bargaining order. Of great signifi- cance is the fact that all of Respondent's violations of the Act found in the Trial Examiner's Decision dated April 4, 1972, occurred before the election, and that Respondent's threats contained in its payroll enclosure and in President Del Surma's speeches were expressly made to defeat the Union at the election. These threats, and Respondent's ac- tions on election day in having an ex-employee come down and vote, were an interference with the election process. Respondent's violations, found in the Trial Examiner's De- cision, precluded the possibility of a free and fair election among Respondent's employees then and now. Respondent's violations were serious and substantial; they interfered with the election process; they were of a character which employees would not forget and would remember if another election were held; and there is substantial likeli- hood that Respondent's threats and other violations would recur if another election were held. Upon the foregoing findings and conclusions and upon the findings and conclusions set forth in the Trial Examiner's Decision dated April 4, 1972, I reach the follow- ing: CONCLUSIONS OF LAW 1. Tri-City Paving Inc., is engaged in commerce within 185 the meaning of Section 2(6) and (7) of the Act. 2. Minnesota State Area Heavy and Highway Construc- tion Committee consists of various labor organizations in- cluding International Union of Operating Engineers, Local No. 49; Laborers International Union of North America, Local No. 563; and International Brotherhood of Team- sters, Local No. 358; all of which are labor organizations within the meaning of Section 2(5) of the Act. 3. By discriminatorily failing and refusing to rehire Ed- ward Fedor and Joseph Gilson for work during the 1971 construction season, because of their suspected union sym- pathy and activity, thereby discouraging membership and activity in the Union, Respondent has violated and is violat- ing Section 8(a)(3) and (1) of the Act. 4. By threatening a prounion applicant for rehire that he would have to find a fob with a union employer, that the Company is not going to hire anyone having anything to do with the Union, and that the owners will not allow his reemployment because of the Union, Respondent has vio- lated and is violating Section 8(a)(1) of the Act. 5. By threatening employees that if the Union won the election or got into the Company Respondent would quit, sell out, fire the employees, lay off some employees, lay off those it thought voted for the Union, reduce operations, eliminate some crews and just finish jobs on hand, would probably not bid for more jobs, Respondent has violated and is violating Section 8(a)(1) of the Act. 6. By threatening employees that if the Union won the election employees would have work only in their own clas- sification, would not work enough weeks during the con- struction season to qualify for unemployment benefits during the winter, and would probably lose time and pay because of a strike, Respondent has violated and is violating Section 8(a)(1) of the Act. 7. By threatening that everyone would be fired whose name was on a list of those who signed for the Union in the spring of 1971, Respondent has violated and is violating Section 8(a)(1) of the Act. 8. By interrogating an employee as to what he thought of the Union, Respondent has violated and is violating Section 8(a)(1) of the Act. 9. By threatening a prounion employee that he is cutting his own throat Respondent has violated and is violating Section 8(a)(1) of the Act. 10. By suggesting that the employees form their own union within the Company, Respondent interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act, in further violation of Section 8(a)(1). 11. On August 20, 1971, the Union timely filed and served upon Respondent a copy of its objections to conduct affecting the results of the August 17, 1971, election, by depositing it in the United States mail on August 20, 1971, properly stamped and addressed to Respondent at its prin- cipal office and place of business. 12. On May 18, 1971, the Union demanded that Respon- dent bargain with it and Respondent refused the demand. This demand operated in law as a continuing demand. 13. On June 22, 1971, the Union represented a majority of Respondent's employees in an appropriate unit and was, and since then at all times has been and is, the exclusive 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agent of those employees. 14. By refusing and failing to recognize and bargain with the Union on and after June 22 , 1971, Respondent has violated and is violating Section 8 (a)(5) and (1) of the Act. 15. The aforesaid labor practices are unfair labor practic- es affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to effectuate the policies of the Act, I recom- mend the customary broad cease-and-desist order and the affirmative relief conventionally ordered in cases of this nature, where Respondent's unfair labor practices were of a character which struck at the roots of employee rights safeguarded by the Act. To remedy its discriminatory failure and refusal to rehire Edward Fedor and Joseph Gilson , Respondent will be re- quired to offer each of them, immediately, employment for the full 1973 construction season at the work they principal- ly performed in the 1970 construction season, or if that work no longer exists, to substantially equivalent work, without prejudice to his seniority or other rights and privileges; and to pay them backpay for the 1971 construction season (less net interim earnings) computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716, from the date the first truckdri- ver started working to the date the last truckdriver stopped working that season in the case of Fedor, and for the full period Ronnie Oines worked that season in the case of Gilson. Under all the circumstances of these cases I recommend that the election of August 17, 1971, be set aside, and that Respondent recognize and bargain in good faith with the Union. [Recommended Order omitted from publication.]