Taylor-Rose Manufacturing Corp.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Taylor-Rose Manufacturing Corp. and Suffolk County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Case 29-CA-2929 August 6, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On January 30, 1973, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the 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 modified herein. The Administrative Law Judge found that the Re- spondent violated Section 8(a)(1) of the Act when Taylor, its president, left his office and went outside the building to try to listen to what was being said between Respondent's employees and a stranger- admittedly suspected by Taylor of being a "labor or- ganizer," and who indeed was a business agent of the Union-while the employees and the stranger were conversing in Respondent's parking lot. Taylor testi- fied that his purpose in attempting to monitor their conversation was to ascertain the identity of the per- son talking to his employees. Chairman Miller and Member Jenkins agree with the Administrative Law Judge's finding of a violation concerning this incident, but Member Kennedy does not. Member Kennedy would not find that Respon- dent engaged in unlawful surveillance merely because Taylor sought, as described above, to determine if the person on Respondent's premises was a union organ- izer. Chairman Miller and Member Jenkins cannot ac- cept their colleague's view of this incident for the following reasons. Taylor's effort to confirm his suspi- cion that the unidentified man was a union organizer was frustrated by the employees and their companion ceasing to speak to each other as soon as they ob- served him standing nearby, and until after he reen- tered the plant. Despite being thwarted in his attempt by their silence, and notwithstanding his pressing con- cern about the identity of the stranger, Taylor did not then try a different approach to ascertain who he was, although surely it must have crossed Taylor's mind that by simply going up to him and asking him to identify himself his interest in this regard could have been satisfied.' Consequently, Taylor went back into the plant without knowing any more about the stranger's identity than he knew before engaging in his unsuccessful attempt at eavesdropping (although the fact that his employees lapsed into silence at sight of him must have furthered his suspicion that a union organizer was in their midst). In the majority's view, Taylor's failure to follow through and take more di- rect steps to find out who the stranger was belied his ostensible purpose for engaging in the unusual proce- dure to which he resorted to learn that fact, and points up the specious nature of Respondent's proffered ex- planation. They conclude, therefore, that Taylor real- ly had no doubt that the stranger was a union organizer, and that the real reason for his conduct was to overhear what was being said between the employ- ees and the union organizer. In any event, Chairman Miller and Member Jen- kins find that whatever purpose Taylor may claim to have had in eavesdropping on the conversations of Respondent's employees with the union representa- tive, his tactics required that he listen in on and ob- serve their union activities, and, therefore, his conduct clearly was unlawful, whether viewed in the circum- stances here as outright surveillance of such activities, or creating the impression of surveillance of same. Accordingly, Chairman Miller and Members Jen- kins, unlike Member Kennedy, would affirm the find- ing of the Administrative Law Judge regarding this particular incident. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified herein, and hereby orders that Respondent, Taylor- Rose Manufacturing Corp., Deer Park, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Delete paragraph 1(d) of the Administrative Law Judge's recommended Order and substitute the following: "(d) Refusing to bargain with Suffolk County Dis- trict Council of Carpenters, United Brotherhood of 1 There is no evidence in the record, nor is it contended, that Taylor was concerned about trespass on Respondent's property by the suspected organ- izer 205 NLRB No. 42 TAYLOR ROSE MANUFACTURING CORP. Carpenters and Joiners of America, AFL-CIO, as the exclusive representative of the employees in the fol- lowing unit: All production and maintenance employees em- ployed by Respondent at its Deer Park, New York, place of business, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act." 2. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER KENNEDY, concurring in part and dissenting in part: I do not agree with my colleagues that Respondent engaged in unlawful surveillance in violation of Sec- tion 8(a)(1) of the Act when Respondent's president, Taylor, left his office and went outside Respondent's building to determine whether the person on Respondent's premises was a union organizer. The union organizer, Powers, came to Re- spondent's plant for the first time on June 15, 1972, in preparation for starting a union organizing cam- paign among Respondent's employees. While Powers was speaking to employees in Respondent's parking lot, Respondent's president was told by an employee that a union man was outside. Taylor then went out- side the building. Taylor testified: I had a suspicion that this might have been a labor organizer, and that if I would go outside, I might ascertain whether he was or not, but he stopped talking for the whole period of time that I was outside, and I went back in. At most, Taylor was outside 2 minutes and made no attempt to hide or conceal himself from the plain view of Powers or the employees. In my opinion , Taylor's spontaneous reaction to the first visit of the union organizer to Respondent's premises was not unlawful . Taylor's purpose in going outside was not to spy on his employees, but, instead, to ascertain whether the stranger was , in fact, a union organizer. If a union seeks to carry on its organizing activities by having a nonemployee organizer come on an employer's premises to talk to employees, I cannot accept the conclusion that the employer engages in unlawful surveillance if the employer seeks to ascer- tain who is on its own premises.2 In similar circumstances, the Board has not found unlawful surveillance when a supervisor has stood in a plant doorway or looked out of a window and ob- served union organizing activities taking place just outside the plant.' 263 The Administrative Law Judge also found that Re- spondent engaged in surveillance or created the im- pression of surveillance of employees' union activities when Respondent's president asked a supervisor, Sherman, to keep his ears open and let Taylor know what was going on. Because specific exceptions were not taken to this finding, I adopt it pro forma. 2 The Supreme Court in N L R B v Babcock & Wilcox Company, 351 U S 105, 112 (1956), held "It is our judgment, however, that an employer may validly post his property against nonemployee distribution of union literature if reasonable efforts by the union through other vmlable channels of com- munication will enable it to reach the employees with its message and if the employer's notice or order does not discriminate against the union by allow- ing other distribution " Acacio Guerra, Individually, Columbia Casuals, Inc, 180 NLRB 741, Du- mas, Inc , d/b/a Sterling Mfg Co, 169 NLRB 892, in . 1, where the Board specifically rejected the Trial Examiner's finding of unlawful surveillance at 896-897, Borden Cabinet Corporation, 148 NLRB 996, 1001, where the Board adopted the conclusion of the Trial Examiner in not finding a violation of Sec 8(a)(1) The Trial Examiner stated "Finally , there is nothing wrong in the conduct of Supervisors Fromme and Maudlin in observing Carol Rockey passing out union cards on Respondent's parking lot This is so because an employer may notice and look at what is taking place on his property regard- less of what prompted him to look " R & J Underwear Co, Inc , 101 NLRB 299, In 2 , 303, H & H Manufacturing Company, Inc, 87 NLRB 1373, 1388 -89 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL offer Paul Grady, Robert Rebholz, and Jack Lubowsky their former jobs or, if such jobs no longer exist, substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, and we will pay them for any loss of pay they may have suffered by reason of our discrimination against them togeth- er with interest thereon at 6 percent per annum. WE WILL bargain, upon request, with Suffolk County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO, as the exclusive representative of the employees in the appropriate unit described below, with respect to wages, hours of employ- ment, and other conditions of employment and, if an understanding is reached, we will embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees employed by us at our Deer Park, New York, place of business, excluding office clerical em- ployees, professional employees, guards and supervisors as defined in the Act. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with dis- charge because of their union activity, nor threat- en to close and move the plant. WE WILL NOT threaten to lower wages because of union activity. WE WILL NOT interrogate employees to find out who and how many signed union cards. WE WILL NOT interrogate employees as to their reasons for supporting the Union. WE WILL NOT put union activities of our em- ployees under surveillance, nor create the impres- sion of surveillance. WE WILL NOT refuse to bargain collectively with the Union as the exclusive representative of the employees in the bargaining unit described here- in. WE WILL NOT discharge or otherwise discrimi- nate in regard to the hire and tenure of employ- ment or any term or condition of employment of our employees because of their membership in and activities on behalf of the Union herein or of any other labor organization of their choice. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, includ- ing the Union herein, to bargain collectively through a bargaining agent chosen by our em- ployees, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities. TAYLOR-ROSE MANUFAC- TURING CORP (Employer) Dated By (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 concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 16 Court Street, Fourth Floor, Brook- lyn, New York 11241, Telephone 212-596-3535. DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge: Based on a charge filed on June 26, 1972,1 by Suffolk County District Council of Carpenters United Brotherhood of Carpenters and Join- ers of America, AFL-CIO, herein called the Union, a com- plaint against Taylor-Rose Manufacturing Corp., herein the Company or Respondent , was issued on July 31 alleging violations of Section 8(a)(1)(3) and (5) of the National La- bor Relations Act, as amended . Respondent filed an answer to the complaint denying it had engaged in the alleged unfair labor practices . A hearing in this proceeding was held before me, and both the General Counsel and Respondent filed briefs. Upon the entire record in this case , and from my observa- tion of the witnesses and their demeanor, I make the follow- ing:2 FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent has maintained its principal office and place of business at 1365 Marconi Boulevard, in the City of Co- piague, State of New York,' where it is engaged in the manufacture, sale, and distribution of wood decorative products and related products. During the year, which pen- od is representative of its annual operations generally, Re- spondent manufactured, sold, and distributed at its place of business products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped from said place of business in interstate commerce directly to States of the United States other than the State in which it is located. The Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The complaint alleges that during various dates in June, the Respondent unlawfully interrogated and threatened dis- charges of employees and other reprisals because of their union activity, that Respondent warned and directed its employees to refrain from becoming or remaining members of the Union, and that Respondent kept under surveillance, and created the impression of keeping under surveillance, the meeting places and activities of the Union. It is also alleged that on about June 21 the Respondent discriminato- rily laid off its employees Paul Brady, Robert Rebholz, and Jack Lubowsky, and there is the further allegation that since June 22 the Respondent has refused to bargain with the Union. The allegations sufficiently outline and point up the main issues in this case. All dates are 1972 unless specifically stated otherwise z All credibility resolutions made herein are based on a composite evalua- tion of the demeanor of the witnesses and the probabilities of the evidence as a whole 3 The present address of Respondent is 91 North Industry Court, Dear Park, New York TAYLOR ROSE MANUFACTURING CORP. On or about June 15 the Union's business representative, John Powers, went to the Respondent's plant and talked with employees about their working conditions and, as a result of these contacts, arrangements were made for a union meeting that same evening. The three alleged discri- minatees involved herein attended this meeting on June 15 along with fellow employees Anthony Monza and Arno Vesik. On June 20 and on June 21, Powers held two addi- tional union meetings and at both of these meetings employ- ees Lubowsky, Grady, and Rebholz were present along with other employees. A demand for recognition was made by Powers on June 22. At the first meeting on June 15, Powers discussed some of the benefits of having a union and then distributed au- thorization cards and asked those attending to secure signa- tures on them. In between the first and second union meetings the three alleged discriminatees talked with other employees in the plant about the Union's organizational efforts and informed them of the next meeting on June 20 and urged them to attend. At this second meeting on June 20 numerous authorization cards were signed and I will detail other events in relation thereto later on. On about June 15 the Respondent's president, Nathan Taylor, admitted seeing Business Agent Powers talking to his employees on the plant premises and said that he had "a suspicion" that Powers was a labor organizer. On this occa- sion Taylor also ventured outside in an attempt to ascertain further details in what was going on and to overhear what was being discussed but was recognized, and about this time he also asked Foreman Joe Sherman, admittedly a supervi- sor, and employee Brian Bordt, to keep their "ear open" and to let him know what was happening.4 On the morning of June 16, Taylor was told of the union meeting of the previ- ous evening, and after being advised as to some of the promises Powers had made, Taylor inquired as to who was present at this meeting on June 15, and admittedly Bordt then told him that Jack Lubowsky and Paul Grady were two of the employees who had attended. On Monday morning, June 19, Taylor individually called Lubowsky, Grady, and Rebholz into his office for discus- sions about the Union. Taylor testified that as he talked to each one he first mentioned a "fairy tale" about a man with "a dream" who set out to save everyone, then mentioned to each about the appealing promises always made by labor organizers, mentioned increased costs and lower starting salaries as a result, said that a strike would be the only recourse if the employees lost benefits, and how in the final analysis, only he, Taylor, could grant any of the benefits. The credited testimony of the three discriminatees reveals that at the conclusion of their individual conversation with Taylor, he told them that the Company could not operate with a union and he would "close up" or "lock the doors" and move to Chicago. This same threat was also made to employee Ken Triper. Taylor admittedly asked Rebholz why he thought a union was necessary, and also inquired of employees Joe Stokes and Don Whalen if they had signed a union card. Taylor said he did not ask Lubowsky, Grady, and Rebholz if they had signed cards because "there was no 4 Brian Bordt had previously been a supervisor with the Company. 265 need to," and obviously Taylor knew full well that they had done so, as aforestated.5 On June 22, following the three discharges here in ques- tion and after the Union's demand for recognition, Taylor held a group meeting in the plant lunchroom with his em- ployees and the credited testimony of employees Stokes, Whalen, and Monza reveals that after Taylor informed them of his contact with the Union; he then proceeded to take a hand count of how many employees had signed union cards, asked several employees why they had signed their cards, and also threatened to lower wages if the Union organized the plant. The Respondent argues that "whatever" took place be- tween June 15 and June 22 was for only a short duration, that during this period Respondent did not have advice of counsel, and maintains that with Taylor's assurances of no retaliations or punishments, coupled with free speech provi- sions, and in consideration of all these factors and other circumstances, there is lacking an "atmosphere" of any coercion or intimidation on the part of the Respondent. It is well settled by the Board and courts that, in de- termining whether an employer's conduct amounts to inter- ference, restraint, or coercion within the meaning of Section 8(a)(1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of the rights guaranteed by the Act. If the setting, the conditions, the methods, or other probative context can be appraised, in reasonable probabili- ty, as having the effect of restraining or coercing the em- ployees in the exercise of such rights, then his activity on the part of the employer is violative of this section of the Act. N. L.R.B. v. Protein Blenders, Inc., 215 F.2d 749, 750 (C.A. 9). This is especially true in the insecure organizational peri- od, as here, where an employer can make some seemingly innocent question or remark to suggest his displeasure with employees who support the Union. The foregoing instances that have been credibly attributed to the Company include unlawful interrogations to ascertain which employees and how many had signed authorization cards, interrogations into why employees were supporting the Union, threats to lower wages, threatening employees with discharge by clos- ing the plant and moving its location, and keeping union activities of employees under surveillance and creating the impression of surveillance. This conduct on the part of Re- spondent clearly constitutes violations of Section 8(a)(1) of the Act, and I so find. The Respondent contends that the layoffs of Grady, Lu- bowsky, and Rebholz were attributable to business condi- tions. Taylor testified that since late January he had been under repeated instructions from Russ Stonier in Chicago to reduce his work force from 99 to 30 employees. Taylor also said that by the end of March his books showed a loss of $25,000, and he had to reduce the number of employees. He said the people on the night shift in the plant (about 20 employees) were laid off around the middle of May, and by 5 Between June 15 and June 20, Taylor also had numerous union conversa- tions with his other employees, sometimes alone and sometimes with two or three together, and admitted these talks were very similar to the ones he had on June 19 with the three alleged discriminatees 6It appears that Stonier has a related business in Chicago, but more important owned a majority of stock in the Respondent 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this time he had also started reducing employees on the day shift. Taylor explained that the summer months are consid- ered seasonal slow periods in his business and that each year he has layoffs during these months. Paul Grady started working for the Respondent in De- cember 1971, and was initially employed as a router in the lettering department and later as a spray painter in the shelving department. On June 20, Taylor told Grady he had just received a call from Chicago (Stonier) and had to lay him off because of a slowdown in business . Grady testified that on prior occasions he had been taken off his job be- cause of a slowdown in work, but said that as of June 20 he had sufficient back orders to last him the rest of the week, and that when work was slow in one area of the plant it was customary to transfer employees to another department. Grady was never told by Taylor or Foreman Sherman that he was not performing his work properly. Grady mentioned a mid-June conversation with management wherein Taylor suggested that he go on an incentive program . Grady said that under these arrangements he expected to make more money than by his hourly pay. Taylor testified that Grady had been a candidate for dismissal for quite some time , and said that a few days prior to June 20, Grady had been working in the warehouse rather than in the spray booth and when he went to the warehouse to try to find Grady, Joe Commando told him that Grady was "slower than molasses." There were 12 people in the shelving department, but Taylor said he only needed 9 em- ployees, and testified that Grady had built up a record of "being no good" and was absent all of the time. Taylor also testified that in mid-June Grady had asked him for a pay raise, and it was then he contemplated putting Grady on an incentive program as he did not want to "chase around" looking for him all the time, and his earnings would then be based on what he actually did. Robert Rebholz started working for the Company in about November 1971, and his main duties were unloading and stacking lumber and operating a pull saw . Rebholz testified that on June 20, Taylor told him that there were "things" going on around the plant and while "nothing personal" was intended , and even though Rebholz was one of his "best workers," he was going to have to let him go. Rebholz said that at the time of his discharge his work load was "very heavy" and he had been constantly busy without any noticeable let ups, and that management had never previously mentioned anything about layoff. Rebholz re- called that in early June, or thereabouts, he had been as- signed to a duster machine, a process that cleans soot from boards, and said that while working on the duster he be- came ill and informed his supervisor he would have to leave. Rebholz said he then stayed off work from 3 days to a week, and upon his return talked to Taylor about his difficulties working with the duster machine, and testified that Taylor thought he had quit at the time he unexpectedly left, but he was then rehired. Taylor admitted having a rather extensive union conver- sation with Rebholz on June 19, and said that he was an- noyed with Rebholz for prejudging many situations and especially his concern for the large turnover of employees and suggested to Rebholz that he look into matters "more deeply," and this advice included looking into the Union before going any further. Taylor further testified that Re- bholz then told him he could not make enough money for the Company and, therefore, he would be leaving in a few weeks. Taylor admitted he had no complaints whatsoever with the work Rebholz was doing, but testified that he based his decision to terminate him on the fact that Rebholz had told him the day before he was only going to be around for another 2 weeks. Rebholz flatly denied telling Taylor that he had anotherjob or that in a few weeks he would be gone. Jack Lubowsky started his employment with the Compa- ny in late 1971, and does general factory work but at the time of his termination he was working in the spray booth. He testified that on the morning of June 20, Taylor told him he also would be put on piecework or the incentive plan similar to Grady. Later the same day Lubowsky was given a pink slip notifying him of his discharge due to a slowdown in business. Lubowsky then reminded Taylor that during their morning conversation Taylor had told him the plant had enough work to last for "quite a while." Taylor replied, "There's been a change in plans." Lubowsky testified that in the week prior to his termination there had been slow days at the start of the week, but said that by Thursday he had a "whole bunch of work" to get out. According to Lubowsky there were also about seven employees retained by the Company who had less seniority than he. Taylor stated that Lubowsky was fired for a number of reasons and mentioned the feeling he had that Lubowsky was padding his work to inflate the incentive program, said that two other people were better qualified to run the spray department, and detailed incidents when Lubowsky had been assigned to the duster machine but then left without notifying anyone. Taylor explained that on a number of occasions the Com- pany has recalled employees who were previously dis- charged, and said that Rebholz and Lubowsky were going to be recalled but he had received an inquiry from another employer asking for recommendations on them, and after he gave "very good" recommendations to both Rebholz and Lubowsky they "obviously" were employed and, therefore, he was unable to call them back. By this record there is no doubt whatsoever that the Com- pany had specific knowledge of union activity prior to the three discharges here in question. In fact, Taylor openly admits that he knew each one of the alleged discriminatees had been to the first union meeting, and that he had this information by the time he called them individually into his office on June 19. From initial aspects in this case, the Respondent has shown some economic justifications and reasons for the reduction in the number of employees during the first half of 1972, and, in fact, this record reveals a gradual reduction in the working complement of 99 employees in February, to about 38 people 4 months later. However, a sizable drop in the number of employees resulted from the layoff of the night crew in May, and normal attrition was also a consider- able factor in the reduction of employees. In fact, the drop in employment appears to relate directly to the above cir- cumstances, and accomplished with very few discharges, if any at all, other than the three discharges here in question. In making my final conclusions it should be noted initial- ly that at the time of their terminations all three of the TAYLOR ROSE MANUFACTURING CORP. employees involved herein were quite busy in the immediate jobs they were performing, as aforestated, and it is further noted that in the past management had also transferred numerous employees to otherjobs when one particular task or department was temporarily out of work. Moreover, even acknowledging that Taylor had received instructions to cut down to 30 employees because of financial losses, he, never- theless, chose to layoff or terminate the three discriminatees on June 20, the very day of the second union meeting and despite Taylor's own statements that the need for the layoffs had been in existence for several months prior thereto. In further attempts to justify these discharges there is some sprinkling of testimony by Taylor that his operations were seasonal and layoffs normally occurred during the summer months. However, this contention becomes quite obscure and confusing when considering the Respondent's turnover rate from December 1971 to June 1972 was approximately 284 employees, and admittedly very few recalls were ever made. Furthermore, Taylor finally admitted that his em- ployment figures for the summers of 1970 and 1971 did not drop. From the evidence in this record, I do not believe the Respondent's operations can be successfully classified as seasonal. Although Taylor testified as to Grady's shortcomings and his discussions with Foreman Sherman about them, Grady himself was never told by anyone that he was not perform- ing his work properly, and on cross-examination Taylor admits he never spoke to Grady about his work. Taylor fully recognized that Rebholz was a good worker, and from my observations of the demeanor of the witnesses and for other reasons noted herein, I do not credit Taylor's testimony to the effect that Rebholz told him he was leaving in a few weeks to take another job. Lubowsky had been told on the morning of his termination that the plant had quite a little work to do, yet he to was dismissed a few hours later be- cause of a slowdown in business.' As pointed out, early in the morning of the first workday following the June 15 evening union meeting, Taylor indi- vidually called into his office the three discriminatees whom he knew attended the meeting. In each of the three confer- ences with them Taylor let it be known that he would not accept a union unless it was his own "sweetheart union," and tried to persuade them that the Union was interested merely in itself, and only he could decide what benefits the employees should have. However, the discriminatees re- mained steadfast in their support for the Union, and this fact became even more obvious when Taylor learned that the discriminatees had attended the afternoon union meet- ing on June 20, and had continued in their efforts to solicit support for the Union. Within a few hours of that second union meeting Taylor terminated the three employees. For the above reasons, coupled with the sudden abruptness and unusual timing of Respondent's action, 7 Both Grady and Lubowsky were given pink slips by the Company stating that the reason for their termination was "slowdown in business," but appar- ently no other termination slips have ever specified such a reason Taylor ventured the explanation that this reason was given to Grady and Lubowsky because he did not want any further conversation or a "floor debate" with them 267 along with continually shifting and different reasons for the terminations, as readily apparent herein, I find that by dis- charging Paul Grady, Robert Rebholz, and Jack Lubowsky on June 20, 1972, Respondent discriminated against them because of their union activities in violation of Section 8(a)(3) and (1) of the Act. Turning now to the 8(a)(5) allegation in the complaint. The unit is described as follows: all production and mainte- nance employees of Respondent, exclusive of office clerical employees, guards, and all supervisors as defined in the Act. The parties stipulated that the complement of employees in this unit on about June 22 consisted of 34 employees, not including the three discriminatees. The parties also stipulat- ed that authorization cards were signed by 13 unit employ- ees on the dates indicated thereon. Ten of these cards indicate dates of either June 18, June 20, or June 21, while the three remaining cards are undated. However, the testi- mony reveals, and it is not disputed, that these latter three cards were signed by unit employees Gerard Wietz, Arno Vesik, and David Pike and were collected between June 20 and June 21. There is further undisputed testimony that an additional seven authorization cards were signed by unit employees on June 20 and/or June 21, and three of these cards were signed by the alleged discriminatees prior to their discharge. Thus, as of about June 21, 20 unit employ- ees of Respondent, a majority of the alleged total unit of 37 (34 plus the 3 alleged discriminatees), had designated the Union to be their collective-bargaining representative. The parties further stipulated that the Union made a demand for recognition in the appropraite unit on about June 22. As pointed out, Respondent's contention and argument that due to seasonal operation its actual employee comple- ment on the demand date was between 40 and 50 employees simply is not supported by this record. Summarized, there is no evidence whatsoever that on the demand date some 13 to 23 additional employees were in the unit as seasonal employees, nor does the stipulation between the parties, as previously mentioned herein, reflect any seasonal employ- ees.' The Respondent agreed that on June 22 there were only 34 employees performing production and maintenance work, and the only additions thereto are the three discrimi- natees involved herein. The General Counsel submits that an appropriate remedy in the instant case is a bargaining order pursuant to the Supreme Court's directive in Gissel Packing Co., Inc., 395 U.S. 575 (1969). The facts in this case show that about as soon as the Union began to organize the plant, the Respon- dent began to undermine their organizational efforts. Tay- lor held separate meetings with the discriminatees and with most of the other unit employees, and in such conversations interrogated and threatened discharges by closing and mov- ing of the plant. At a group meeting on June 22 he again conducted intensive interrogations and made other threats, as previously noted herein, and in between June 15 and 22 engaged in the surveillance of union activities coupled with three discriminatory discharges on June 21, all such inci- dents and events detailed earlier herein. Taylor testified that, when Union Representative Powers made the demand for recognition on June 22, he told Powers he would like to 8 See G C Exh 22 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have an election and said that the Respondent has never objected to an election? Since the unfair labor practices referred to herein were obviously directed at undermining the strength of the Union and impeding the election process. I believe that the possibility of ensuring a fair election is slight because of the lingering coercive effect of the Respondent's unfair labor practices, and I therefore find that the employees' majority designation of the Union as expressed in their authorization cards provides a more relia- ble measure of the employees' true desires than would be provided by an election, and in accordance therewith, I shall recommend that Respondent bargain upon request with the Union.1° IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY It having been found that the Respondent committed certain unfair labor practices, it must be ordered to cease and desist from further such conduct and to take certain remedial action designed to effectuate the policies of the Act. The Respondent unlawfully refused to bargain with the Union on demand; accordingly, it must be ordered to bar- gain with the Union in the unit found appropriate, upon demand, and in the event an agreement is reached to em- body such understanding in a signed agreement. It having been found that the Respondent unlawfully discriminated against three employees by discharging them it must be ordered to make them whole for any loss of earnings they may have suffered in consequence of the unlawful discrimi- nation and to offer them reinstatement." The unfair labor practices committed were so extensive in scope that the remedial injunction must be against further commission of any kind of unfair labor practices. CONCLUSIONS OF LAW 1. Respondent is an employer whose operations affect commerce within the meaning of Section 2(6) and (7) of the 9 At the time Powers confronted Taylor on June 22 and demanded recogni- tion, he told him the Union had 20 authorization cards and that he repre- sented a majority of the production and maintenance employees Powers also offered to show Taylor the cards, but Taylor told him he did not have enough cards and he wanted an election Powers testified that since the Company had already terminated three employees on the day before, he was "not about" to hold an election 10 While some of Respondent's wrongful conduct preceded the Union's demand, the Board has held that even where unfair labor practices occur prior to the demand, if such unfair labor practices tended to undermine "majority strength and impede the election process," a bargaining order is warranted Merritt Motor Company, 181 NLRB 1099 11 F W Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co, Inc, 138 NLRB 716 Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees exclusive of office clerical employees, professional employees, guards, and all supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining. 4. The Union was on June 21, 1972, and has been at all times thereafter the exclusive collective-bargaining repre- sentative of the Respondent's employees in an appropriate unit. 5. By refusing to bargain in good faith with the above- named labor organization the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By discharging employees Paul Grady, Robert Reb- holz, and Jack Lubowsky the Respondent has engaged in unfair labor practices as defined in Section 8(a)(3) of the Act. 7. By surveillance, threats, and interrogations the Re- spondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in violation of Section 8(a)(1) of the Act. 8 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record in this case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 12 Taylor-Rose Manufacturing, Co., its officers, agents, suc- cessors, and assigns, shall- 1. Cease and desist from: (a) Interrogating employees to find out who and how many of them signed authorization cards, and why they were supporting the Union. (b) Threatening employees with lower wages, and threat- ening discharges by closing and moving the plant because of their union activities (c) Creating the impression of surveillance and the sur- veillance of union activities. (d) Refusing to bargain collectively with the Union as the exclusive representative of all employees in the bargaining unit. (e) Discharging its employees or otherwise discriminat- ing against them in their employment because of their union activities. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, loin, or assist labor organizations, including the above-named organization, to bargain collec- tively through representatives of their own choosing, to en- 12 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the finding, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order and all objections thereto shall be deemed waived for all purposes TAYLOR ROSE MANUFACTURING CORP. gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment , and if an understanding is reached embody such understanding in a signed agreement. (b) Offer Paul Grady, Robert Rebholz , and Jack Lubow- sky immediate and full reinstatement to their former jobs or, if such jobs no longer exist, substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay which they may have suffered as a result of the discrimina- tion against them , in the manner set forth in that portion of this Decision entitled "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 , person- 269 nel records, and reports , and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its plant copies of the attached notice marked "Appendix." 13 Copies of said notice , on forms provided by the Regional Director for Region 29, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the receipt of this Order, what steps have been taken to comply herewith. 13 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 "