Cenco Medical/Health Supply Corp.

CENCO MEDICAL/HEALTH SUPPLY CORP. Cenco Medical/Health Supply Corporation and Gen- eral Warehouse, Cannery and Food Process Workers Union, Local 655, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Cases 20-CA-7997, 20-CA-8159, and 20-RC-11024 November 9, 1973 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MILLER AND MEMBERS KENNEDY AND PENELLO On June 7, 1973, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a supporting brief, in addition to a response to the General Counsel's exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions" and briefs and has decided to affirm the rulings, findings, and conclusions 2 of the Adminis- trative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Cenco Medical /Health Supply Corporation, Burlingame, California, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, substituting the attached notice for the notice attached to the Administrative Law Judge's Deci- sion.3 CERTIFICATION OF RESULTS OF ELECTICINT It is hereby certified that a majority of the valid votes have not been cast for General Warehouse, Cannery and Food Process Workers Union, Local 655, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, and that said labor organization is not the exclusive representative of all the employees, in the unit herein involved, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. 123 i In its cross-exceptions, Respondent contends that, if Collins is determined to be entitled to backpay , the amount found due should be reduced by a sum "[e]qual to his net earnings plus the net earnings he would have obtained had he sought , or accepted, comparable work." In our view, Respondent's request is more properly addressed to the compliance officer and, accordingly, should be raised at the compliance stage of this proceeding- 2 In the absence of exceptions thereto, we adopt , pro forma, the Administrative Law Judge's conclusions that Respondent violated Sec. 8(a)(l) of the Act by ( I) Area Manager Patterson's January 5, 1973, interrogation of, and threat of reprisal to, employee Fennell; (2) Operations Manager Lietke's January 11, 1973, interrogation of Fennell. and (3) Branch Manager Heath's January 15, 1973, interrogation of Fennell. For the same reason, we also adopt, pro forma, the Administrative Law Judge's conclusions that Respondent did not convert employee Rich from a permanent to temporary employee, nor did Respondent violate Sec. 8(a)(1) of the Act through statements made by Area Manager Patterson to employees Collins and Fennell during an October 30, 1972, meeting 3 We find merit in Respondent's cross-exception to inclusion of the phrase "and to keep our word about what we say in this notice" in the notice which it is required to post by our Order Accordingly, we shall order that the above phrase be deleted and the phrase "and carry out its provisions" be substituted therefor. Unit Drop Forge Division, Eaton, Yale & Towns Inc v. N.LR. B., 412 F.2d 108 (C.A. 7, 1969) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, the National Labor Relations Board found that we, Cenco Medical/Health Supply Corporation, violated the National Labor Relations Act, and ordered us to post this- notice and to carry out its provisions. The law gives you the right: To form, join, or help unions Tachoose a union to represent you in bar- gaining with us To act together for collective bargaining or other aid or protection To refuse to participate in any or all of these things. The National Labor Relations Board has ordered us to promise you: WE WILL NOT demote or discharge or otherwise discriminate against any employee for joining or supporting General Warehouse, Cannery and Food Process Workers Union, Local 655, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other union. WE WILL NOT question you about your or your fellow employees' membership or activities in the above-named Union or any other union. WE WILL NOT threaten you with economic reprisals for supporting or joining the above- named Union or any other union. WE WILL NOT in any way interfere with, 207 NLRB No. 2 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrain, or coerce you in exercising the rights guaranteed you by the National Labor Relations Act. Since the National Labor Relations Board has found that we violated the law by demoting and discharging employee Gregg Collins, WE WILL offer to reinstate Gregg Collins to his former job or, if that job no longer exists, to a substantially equivalent position, without any loss of seniority or other rights previously enjoyed, and WE WILL reimburse him for any loss of earnings suffered because of his discharge, together with 6-percent interest. CENCO MEDICAL/HEALTH SUPPLY CORPORATION (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, Room 13018, Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-0335. complaint denying the commission of the alleged unfair labor practices. The Union's objections to conduct affecting the results of the representation election, in substance, allege that the Employer engaged in conduct which interfered with the holding of a free and fair election and constitutes grounds for setting aside the election. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the post hearing briefs submitted to me, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Cenco Medical/Health Supply Corporation, the Respon- dent, is a Delaware corporation with a warehouse located in Burlingame, California, where it is engaged in the wholesale and retail sale of medical and surgical supplies. During the past year the Respondent sold and shipped supplies valued in excess of $50,000 directly to customers located outside the State of California and purchased and received goods valued in excess of $50,000 directly from suppliers located outside the State of California. The Respondent admits, and I find, that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED General Warehouse, Cannery and Food Process Work- ers Union, Local 655, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The consolidated hearing in these cases held on April 10 and 11, 1973, is based upon unfair labor practice charges and objections to conduct affecting the results of a representa- tion election filed by the above-named Union in Case 20-CA-7997 on January 5, 1973, in Case 20-CA-8159 on March 20, 1973, and in Case 20-RC-11024 on December 22, 1972. In Case 20-CA-7997 and Case 20-CA-8159 complaints issued on February 13, 1973, and March 28, 1973, respectively, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board for Region 20, herein called the Regional Director. An order was issued by the Regional Director on March 28, 1973, consolidating the Union's objections to conduct affecting the results of the representation election conducted in Case 20-RC-11024 with the aforesaid complaint proceedings for the purpose of a hearing before an Administrative Law Judge. The consolidated complaint alleges that Cenco Medical /Health Supply Corporation, herein called Respondent or Employer, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act. Respondent answered the consolidated III. THE QUESTIONS PRESENTED The ultimate questions presented in this consolidated proceeding are: 1. Whether the Respondent on or about November 1, 1972, changed the status of John Rich from a regular to a temporary employee and on November 10, 1972, dis- charged Rich because of his union activities, in violation of Section 8(a)(3) and (1) of the Act. 2. Whether Gregg Collins was a statutory supervisor and, if not, did the Respondent discharge him on January 4, 1973, because of his union activities, in violation of Section 8(a)(3) and (1) of the Act. 3. Whether in violation of Section 8(a)(1) of the Act, the Respondent interrogated employees about their union sympathies and activities and about other employees' union sympathies and activities, threatened employees with reprisals if they supported the Union, and told an employee that the Respondent would not recognize or bargain with the Union. 4. Whether the alleged unfair labor practices set out above, if committed in whole or in part, constitute the type of conduct sufficient to set aside the representation election lost by the Union on December 15, 1972, and if so, whether in the circumstances of this case an appropriate remedy for the Respondent's unfair labor practices is an order requiring the Respondent to recognize and bargain CENCO MEDICAL/HEALTH SUPPLY CORP. 125 with the Union as the employees' exclusive bargaining representative. IV. THE UNFAIR LABOR PRACTICES A. The Status of Gregg Collins The Respondent distributes medical and surgical sup- plies to hospitals. It operates distribution facilities-ware- houses-located throughout the United States and services the northern part of California and other western States from a warehouse located near San Francisco, California, in Burlingame, California, hereafter called the warehouse. The warehouse comes under the jurisdiction of Ronald Patterson, the Respondent's western division area manag- er, whose office is located in Los Angeles, California. Under Patterson, and in overall charge of the operations of the warehouse is the branch manager, Charles Heath, Jr. Next in the chain of command, at all times material, was Operations Manager Kenneth Little, who testified that the warehouse was "under his direct supervision." The warehouse, a one-story structure, contains about 25,000 square feet, of which 1,200 is office space. Heath and Little have offices on the warehouse premises, adjacent to and with easy access to the floor of the warehouse. There is no evidence or contention that Heath and Little are normally not in their offices or readily available at the warehouse during the course of the workday. Collins credibly testified that Little and Heath each spent about 2 hours a day on the floor of the warehouse.' Apart from Heath and Little, admittedly statutory supervisors, and perhaps a clerical employee, the work force in the warehouse is composed of warehousemen, herein sometimes called warehouse employees, who alone are directly involved in this proceeding. During the time material to this case, the Respondent employed five regular full-time warehousemen-Gregg Collins, Jonathan Fen- nell, William Patterson, Mark Belluomini, and Robert May. Collins had the title of warehouse foreman. All of the warehouse employees, including Collins, punched a time- clock and were hourly paid with Collins receiving the highest rate, $3 an hour; May received $2.90; William Patterson, $2.65; and the others, $2.36. Other than the higher rate of pay, Collins worked under the identical terms and conditions of employment as the other ware- housemen. General Counsel contends that Collins was at most a leadman or straw boss, and the Respondent contends that he was a supervisor within the meaning of Section 2(11) of the Act. The warehouse opened in November 1971. Collins began work in , February 1972 and was the warehouse's only receiving clerk. He unloaded incoming shipments from trucks using a forklift, checked the merchandise against the bills of lading, entered the incoming merchandise on a freight log, and stacked the merchandise on shelves in the warehouse. Late in August all dates hereinafter, unless otherwise noted,, refer to 1972-Warehouse Foreman Rucker quit and after a 2-week trial period Collins was designated warehouse foreman. He was not replaced by another receiving clerk and during his entire tenure as warehouse foreman continued to be the Respondent's only receiving clerk, and continued to perform all of the duties he had previously performed as receiving clerk. Collins, as he credibly testified, after becoming warehouse foreman spent 90 percent of his workweek doing the work of a receiving clerk or other work usually performed by other warehouse employees, such as filling orders for delivery and cleaning up the warehouse. In order to draw any conclusions as to Collins' position in the warehouse, it is necessary to visualize the warehouse operation. Merchandise was delivered by truck, unloaded, checked, and shelved. Customers, through salesmen or by phone, placed orders which were transmitted normally by the warehouse foreman, Collins, to warehouse employees to fill and prepare for shipment. Between 10 to 15 times each day Collins went into the warehouse office where he picked up sales invoices and took them to the order fillers who filled them for delivery. Collins stacked the sales invoices in order of priority for delivery based upon geography or code number or whether the order was marked "rush." Using these sales invoices the order pickers took the ordered items from the stock bins, the order was boxed, sometimes weighed, and the necessary paperwork completed. During the course of the day Collins and Shipping Clerk Fennell, as well as Shipping Clerk Belluom- ini, on occasion, spotchecked completed orders ready for shipment to determine whether orders were being correctly filled. Each warehouseman was assigned a permanent position. Collins was the receiving clerk as well as foreman. Fennell and Belluomini were the shipping clerks. Bill Patterson and Robert May were the order pullers. New employees were trained in the shipping procedures by Fennell and Belluomini and in the receiving procedures by Collins. But, although each warehouseman had a regular assignment, in certain circumstances, employees assisted on jobs other than their normal assignment. This is illustrated by the credible testimony of Fennell: "Generally, I would come in in the morning, punch in, go straight to shipping and start shipping without any instructions from anyone. I just knew what to do. Everyone had their set jobs in the warehouse. Once in a while, a truck would come in with an exceptional load, just a giant load, and if we didn't have more than one guy [referring to Collins] taking the stuff off the truck, the whole warehouse would, get behind. Instances like this Mr. Collins would . . . ask for help." All of the warehouse employees on occasion helped Collins to unload trucks. Likewise, Collins would neglect his receiving work to assist the order fillers. The reason for this lies in the nature of Respondent's business. Each day Respondent shipped between 100 to 150 orders averaging 10 or more items which were received from about 100 hospitals. Respondent sold prompt service to its customers. Accordingly, Respon- dent gave customer delivery top priority which made it necessary for Collins to help the order pickers prepare their orders for delivery. It is undisputed that Heath, Little, and Collins each issued directions to the warehouse employees. Heath and Little minimized the frequency with which they directly I To the extent that Little and Heath, particularly Little, immunized the amount of time they physically spent on the floor of the warehouse, they did not impress me as sincere witnesses. 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spoke to the employees. I received the impression that their testimony was not reliable, that they were underestimating their direct contact with the warehouse employees. Collins credibly testified that Heath and Little gave him orders to relay to the other warehouse employees, i.e., which orders should be given priority or which warehouseman should do a certain job. In the area of job transfers or assignments Collins had no discretion for, as previously described, each warehouseman had a permanent assignment. Collins' credible and undenied testimony is that he had no authority to transfer a warehouseman from one job assignment to another, that either Heath or Little changed the job assignments. On occasion, however, Heath or Little did inform Collins that work, unrelated to the normal shippmg-receiving work, had to be done; washing the building's sign, cleaning out the sump pumps, sweeping the shipping-receiving dock, or carrying boxes from the office. Collins did this work himself or directed one of the other warehouse employees to do it. Also, in doing his job as receiving clerk, Collins on occasion, particularly when a large shipment arrived, directed one of the other ware- house employees to assist him in unloading the shipment from the truck. The two of them apparently worked together and Collins did not have to instruct the employee what to do inasmuch as the work consisted simply of unloading and counting boxes. In performing the part of his job which went with the title "foreman," Collins on a number of times was ignored by the warehouse employees and management. Employees Robert May and William Patterson admitted that at times they refused to obey Collins; they told Collins they were too busy doing their regularly assigned work to do what he wanted. Collins credibly testified that on several occasions he complained to both Little and Heath about William Patterson's insubordination and that his complaints, in effect, were ignored. Regarding May's insubordination, Collins credibly testified he complained to Heath and was never told by Heath whether Heath had ever spoken to, or reprimanded, May. William Patterson credibly testified that he was never reprimanded by anyone for his refusal to follow Collins' orders.2 May, who I do not believe, vaguely testified- that "once" he recalled being reprimanded for his conduct toward Collins.3 Finally, in the middle of November Shipping Clerk Fennell, while operating the Respondent's one forklift, refused Collins' request that he drive the lift over to the receiving dock to receive some merchandise which had just arrived. Fennell told Collins that he was too busy doing his job as shipping clerk, whereupon Little, who was in the area, orally reprimanded him for not obeying Collins. On one occasion, December 1, Little ignored Collins' complaint that Robert May and William Patterson had on that day punched in late, 12:30 p.m., and together had 2 Heath, Little, and Area Manager Patterson testified that on separate occasions each reprimanded William Patterson for refusing to follow the directions of Collins. When they testified on this point, each impressed me as an untrustworthy witness. William Patterson, the brother of Area Manager Patterson, admittedly opposed the Union, testified for Respon- dent, and impressed me as being friendly toward Respondent. He certainly had no motive to falsely deny that he was reprimanded for refusing to obey Collins. Of the four witnesses on this point, in bearing and manner he impressed me as the more reliable. Also, I note that initially Heath immediately taken a break until I p.m. This was in violation of the Respondent's announced policy that two persons could not take their break at the same time. When this occurred, it made Collins, Fennell, and Belluomini mad, and Fennell prepared a written grievance which, in substance, stated that May and Patterson without notifying the foreman had punched in at about 12:30 p.m. and immediately left on break until 1 p.m. Collins 'took the grievance to Little and complained about the conduct of May and Patterson. Little, the supervisor over the warehouse, told Collins to talk with Heath about the matter. Because he was so busy, Collins had no time to take the matter up with Heath. On the same day, however, Collins received a reprimand from Little for engaging in the same type of conduct which May and William Patterson had engaged in without reprimand by Little. Little's memo , of December 1 to Heath regarding his reprimand to Collins' reads as follows: ... Gregg Collins violated warehouse procedure as stated in directive of 10/31/71 (attached) in that he authorized two persons to be on break at the same time. Gregg Collins and Mark Belluomini went to break together leaving only John Fennell in the warehouse and causing all warehouse activity except shipping to be stopped. Regarding the question of whether Collins had the authority to discipline or to effectively recommend the discipline of employees, the record establishes that Collins, as he put it, "chews out" warehouse employees. There is no evidence that he has authority to discipline or effectively recommend discipline. Collins credibly testified, without contradiction, that no one from management told him he had the power to even orally reprimand employees. Moreover, the lack of response by Heath and Little to Collins' complaints about Robert May and William Patterson establish Collins' lack of authority to recom- mend discipline let alone administer it. Although there is a space for the signature of the foreman on the Respondent's reprimand forms and Collins did in fact affix his signature to such forms, the evidence establishes that Collins played no part in the decision to issue such reprimands. The decision to issue written reprimands was arrived at by Heath and Little either separately or together and Collins was called in to affix his signature only after the decision to reprimand had been reached. He simply, in effect, rubber stamped the decision. Regarding the discharge of employees, there is no evidence that Collins had the authority to discharge or to effectively recommend such action. Contrariwise, the undenied and credible testimony of Collins is that in the case of the two employees who were terminated during his tenure as foreman, he was not consulted about their unequivocally testified that Collins once or twice complained that William Patterson, Bob May, and John Fennell were not obeying his orders and that Heath did not reprimand any of these employees but simply told Collins it was Collins' responsibility to get them to do their work. - 3 May was not an impressive witness. Moreover, Respondent adduced no evidence to support May's vague testimony. To the contrary, Heath admitted that when Collins complained about May that Heath did not reprimand May 1 CENCO MEDICAL/HEALTH SUPPLY CORP. 127 termination but learned for the first time about their terminations after the fact. Regarding authority to either hire or effectively recom- mend the hire of employees, the evidence establishes no such authority vested in Collins. While Collins was employed as foreman, four employees were hired. All of them were hired either by Little or Heath or based upon their joint decision. Of the four, only in the case of one was Collins asked to make a recommendation. That was when Mark Belluomini was hired, at which time Collins recommended another applicant over Belluomini. Heath and Little overruled him and hired Belluomini. The only time Collins interviewed a prospective employee was in the case of May's hire at which time Collins was present in the warehouse office while May was being interviewed by Heath and Little. Collins at this time asked one insignifi- cant question. It is plain, and I find, from a composite of the testimony of Heath, May, and Collins that Collins played no part in the decision of Little and Heath to hire Maya They made the decision independent of Collins. Regarding the authority of Collins to adjust employees' grievances or to effectively recommend such action, Collins had no such authority. Shipping Clerk Fennell credibly testified that if he had a minor complaint, he would -go to Collins about the matter but with major complaints, he would go directly to Heath. The credible and undenied testimony of Collins is that the employees would come to Collins first with their problems and Collins would invariably transmit all of their complaints to either Heath or Little. When asked at the hearing to describe the problems which employees brought to him, Collins testified that once Fennell stated he was going to be late arriving for work and Collins went to Heath and asked if Fennell had permission to arrive late. In this connection Collins' undenied and credible testimony is that he had no authority to grant employees permission to take time off from work. When such requests were made, he relayed them to Little, who either granted or denied the request. Finally, there is no contention or evidence that Collins had authority to suspend, lay off, recall, promote, or reward employees or to effectively recommend this type of action. B. Discussion and Ultimate Findings on the Status of Gregg Collins Section 2(11) of the Act defines a supervisor as a person who has authority "in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge and assign, reward or discipline other employees, or responsi- bly direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the--exercise of such authority is not merely routine or clerical in nature, but requires the use of independent judgment." Under settled law, the exercise of some supervisory tasks in a merely "routine," "clerical," "perfunctory," or "sporadic" manner does not elevate a rank-and-file employee into the supervisory ranks. Poultry Enterprises Inc. v. N.L.R.B., 216 F.2d 798, 801-802 (CA. 4 Collins was not paid significantly more than all of the other employees. He received only $4 a week more than May and $14 a week more than 5); N.L.R.B. v. Overnite Transportation Co., 308 F.2d 284, 289-290 (C.A. 4, 1962); Commercial Fleet Wash, Inc., 190 NLRB 326. As the legislative history makes clear, the emphasis by Congress on the use of "independent judgment" was designed to prevent the exclusion of "minor supervisors" from the protection of the Act. Thus, in explaining the meaning of Section 2(11), the Senate Committee considering this section stated: In drawing an amendment to meet this situation [unionization of foremen], the committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusion in the Act. It has therefore distinguished between straw bosses, leadmen, set-up men, and other minor supervisory employees, on the one hand, and the supervisor vested with such genuine management prerogatives as the right to hire or fire, discipline, or make effective recommendations with respect to such action. [Emphasis supplied. S. Rep. 105 on S. 1126, 80th Cong., 1st Sess., p. 4.] In framing this definition, the committee exercised great care, desiring that the employees herein excluded from the coverage of the Act be truly supervisory (ibid at p. 19). Finally, in measuring actual authority, it is settled law that titles are not controlling. N.L.RB. v. Gary Aircraft, 368 F.2d 223, 224, In. 1 (C.A. 5, 1966). Guided by these principles and for the reasons set out below, I find that the evidence does not establish that Collins was a supervisor within the meaning of Section 2(11) of the Act. The record reflects that Collins had no authority to hire, transfer, suspend, lay off, recall, promote, discharge, reward, discipline, adjust grievances, or effectively recom- mend action as to any of these matters. Although he did assign and direct employees, it is equally clear from the record that Collins' direction and assignment was of a routine nature and did not necessitate the exercise of independent judgment. The warehouse employees perform routine tasks requiring little or no supervision . As employ- ee Fennell credibly testified, "I would come in, in the morning punch in, go straight to shipping and start shipping without any instruction from anyone. I just knew what to do. Everyone had their set jobs in the warehouse [emphasis supplied]." In assigning sales orders to the order fillers, it is plain that Collins exercised no independent judgment. Also significant is the fact that Collins, like the other warehouse employees, was hourly paid, punched the timeclock, and other than having a higher rate of pay4 worked under the identical terms and conditions of employment as the others. Collins spent 90 percent of his time doing the work of a warehouse employee, hardly leaving him any time to "supervise." Finally, the admitted supervisors, Heath and Little, were readily available at all times and frequently conferred with Collins as well as exercising their direct supervision over the warehouse. In short, in view of the routine nature of the warehouse operation, the small number of employees involved, the William Patterson. 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close proximity and availability of two statutory supervi- sors, one of whom (Little) exercised direct supervision over the warehouse, and the position Collins occupied within the group, I find that Collins' authority with respect to the assignment or direction of work did not entail the type of independent judgment necessary to confer supervisory status. In view of the foregoing, I find that Collins at all times material was not a supervisor within the meaning of Section 2(11) of the Act. In concluding that Collins was not a statutory supervisor, I have considered the fact that when designated warehouse foreman, he was informed by management that, "it was up to me [to] make sure that this stuff is out the door and that stuff that came in the door was received, and make sure the people did their work," and that Operations Manager Little told the warehouse employees that Collins had full responsibility for the warehouse, that all problems should first be taken to Collins before coming to Little and that Collins could recommend the hiring and firing of employ- ees. Also, sometime in December, Area Manager Patterson told Collins that the warehouse was his "baby," that Little would not be coming into the warehouse any more and that Collins was in charge. Likewise, at about this time Patterson told the warehouse employees that they should report all their problems to Collins and that Collins in turn would report them to either Heath or Little. Patterson also told them that Collins had the authority to hire and fire.5 These statements by Collins' superiors to Collins and to the other warehouse employees, some of which clothe Collins with the status of a statutory supervisor are unpersuasive, in my opinion, because they were not supported by evidence. The statements by themselves constituted noth- ing more than naked designations of "paper power." In Oil, Chemical and Atomic Workers International Union, AFL-CIO [Kansas Refined Helium Co.] v. N.LKB., 445 F.2d 237, 243 (C.A.D.C., 1971), the court made the following pertinent remarks on this issue: We agree that, beyond the statements or direc- tives themselves, what the statute requires is evidence of actual supervisory authority visibly translated into tangible examples demonstrating the existence of such authority. In N.L. R. B. v. Security Guard Serv., Inc., 384 F.2d 143, 149, 66 LRRM 2247, the Fifth Circuit succinctly stated the essential point: What is amiss with this argument which is based on paper credentials is that there is a lack of actual authority to match. The concept of supervision has some elasticity, but it must have substance and not be evanescent.... A supervisor may have potential powers, but theoretical or paper power will not suffice. Tables or organization and job descriptions do not vest powers ... . In sum, I conclude that while a number of allegations of supervisory authority have been made, the nearly total lack of evidence of authority actually exercised negates its existence. Oil, Chemical and Atomic Workers International Union v. N.L.R.B., supra, at 243-244. 5 In considering Area Manager Patterson's comments to both Collins and the employees, I cannot shut my eyes to the fact that such statements were made at a time when Respondent was vigorously contending in the representation case that Collins was a supervisor and thus not eligible to vote in the representation election. See Oil Chemical and Atomic Workers I have also considered the testimony of Respondent's witnesses William Patterson and Robert May that they considered Collins as not just the "foreman"-his title -but that they regarded him as the boss in the warehouse. I do not believe them. Their conduct speaks much louder than this testimony.6 These are the two employees who, as previously described, admittedly refused on more than one occasion to obey Collins. Also, contrary to their testimony, the record indicates that neither the employees nor Collins' superiors identified Collins with management. His terms and conditions of employment were virtually identical with the other employees, employees who refused to take orders from Collins were not disciplined by management, Collins was expected to obey the same company rules as the other employees or be disciplined, the management ignored Collins' complaints about the other employees, and Collins spent almost all of his time performing warehouse work like the others, including menial jobs such as sweeping up, leaving him no time to "supervise." Finally, in arriving at the conclusion that Collins was not a statutory supervisor, I have considered the fact that the Regional Director in the representation case, after a hearing, found that Collins was a supervisor within the meaning of Section 2(11) of the Act. The law is settled, however, that the Regional Director's determination in the representation case, although it may have some relevance in this proceeding, is not controlling. See Spruce Up Corp., 181 NLRB 721, and the cases cited at footnote 4. This is especially true in the instant case since neither the General Counsel nor Collins were parties to the representation proceeding. The sole testimony offered to shed light on Collins' supervisory status was the testimony of Area Manager Patterson, who testified for Respondent and was the only witness called in that proceeding. Collins did not testify. Patterson's office is located in Los Angeles several hundred miles away from the warehouse. He only infrequently comes to the warehouse and does not appear to have any direct knowledge of Collins' authority, knowledge possessed by Branch Manager Heath and Operations Manager Little, neither of whom testified in the representation matter. C. The Setting for the Alleged Unfair Labor Practices Respondent, as previously indicated, distributes medical supplies from its warehouse located in Burlingame, California. During the period relevant to this case-Octo- ber 1972 to January 1973-the warehouse was staffed by approximately four to five regular warehouse employees. The supervisory hierarchy-all of whom are admittedly statutory supervisors-consisted of Area Manager Ronald Patterson, Branch Manager Charles Heath, and Opera- tions Manager Kenneth Little. Little's employment at the warehouse terminated on January 15, 1973. He assumed a -similar position with Respondent at another location and was replaced by Jim Lietke. International Union v. N.LR.B., 445 F.2d 237,243 (C.A.D.C.) 6 From my observation of both May and William Patterson, I received the impression that in giving this testimony they were making a conscious effort to slant their testimony in favor of the Respondent rather than making a sincere effort to tell the truth. CENCO MEDICAL/HEALTH SUPPLY CORP. Four of the warehouse employees on October 26 and October 27 signed cards designating the Union as their exclusive collective-bargaining agent. On October 27, the Union filed a representation petition (Case 20-RC-11024) with the Regional Director seeking to represent and asking for an election among a unit of warehouse employees. On November 16, a formal hearing was held on disputed matters raised by the petition. The Regional Director on November 27 issued a decision and direction of election, directing an election in a unit of all regular full-time warehouse employees. The election was conducted on December 15. Of the approximately four eligible voters, two voted for, and two against, the Union. It is undisputed that the Respondent was opposed to the Union's effort to organize its employees. Area Manager Patterson made this clear to Warehouse Foreman Collins even prior to the Union's organizational campaign. According to the undenied and credible testimony of Collins, Union Representative Joe Dillon came to the warehouse during September and arranged to meet with Collins for lunch at a coffee shop to discuss the Union. Later that same day Collins was designated foreman with an increase in pay, so, feeling guilty about having arranged to meet with the union representative, Collins told Patterson a union representative had come into the warehouse, and Collins had arranged to meet with him at a coffee shop. Collins asked if he should still keep the appointment. Patterson advised Collins not to meet with Union Representative Dillon and warned, "next time any union man comes around here, tell me . . . and I'll throw a warrant on the SOB." D. The Alleged Interference, Restraint, and Coercion On November 3, Area Manager Patterson, in the warehouse office, asked Foreman Collins how many employees had signed union cards and for the names of the employees who had gone to the Union. Collins told him that everyone had signed a union card and gone to the union. Patterson asked, "whose idea it was," and Collins replied "all of us." Patterson asked for, and Collins gave him, the name of the Union's representative. Patterson then asked if Collins had met the union representative that morning in the restaurant located across from the warehouse. Collins denied this. The conversation ended with Patterson inviting Collins out for lunch. Collins refused. On January 5, 1973, warehouse employee Jonathan Fennell met with Area Manager Patterson, Branch Manager Heath, Operations Manager Little, and the new foreman, Robert May, in the warehouse office to discuss an increase in his wages. During the course of the conversation, Patterson asked Fennell if he had heard anything more from Union Representative Dillon. Fennell said, "no." Patterson then asked if former employee John Rich 7 "would be interested in pursuing the matter any further" since the representation election was over. Fennell 7 John Rich, one of the alleged discriminatees in this case, was terminated on November 10 and was reemployed by Respondent on January 2, 1973. 8 Fennell was one of the employees who had signed a union card. As 129 told him "no." At this point Patterson asked, "you're not shitting me." Fennell assured him he was telling the truth whereupon Patterson commented, "good, because you tried to f- me once.8 If you try and f- me, I'll f- back." The above-described conversations attributing certain words to Patterson is based on the credible testimony of Collins and Fennell which was presented in a straightfor- ward candid manner. Fennell when he testified was in the employ of Respondent. Patterson, who testified for Respondent, did not deny that either of the conversations took place, nor did he give his version of either conversa- tion. He initially generally denied interrogating employees about the Union or about other employees' union activities and testified that he never threatened an employee expressly or by implication in connection with the employees' selection of a union. Later, during his testimo- ny, when specifically confronted with the alleged conversa- tion about the Union attributed to him by Collins, Patterson admitted there was a "brief" conversation but evasively testified that he would rather not say whether Collins' version was true or untrue. Regarding Patterson's conversation, described above, with Fennell, neither Heath, Little, nor May, who were present and who testified for Respondent, contradicted Fennell's version. Under the circumstances, I reject Patterson's general denials and credit the testimony of Collins and Fennell who impressed me as honest witnesses. Branch Manager Heath admitted that on about January 15, 1973, while in the warehouse he asked warehouse employee Fennell, "have you heard anything further from the Union?" and that Fennell replied "no." Heath did not explain what compelled him to ask the question. Earlier that month, on January 11, 1973, according to the undenied and credible testimony of Fennell, Jim Lietke while in the warehouse asked, "have you heard anything from the Union?" and Fennell answered "no." Respondent denies responsibility for Lietke's conduct urging that he was not a statutory supervisor. Lietke was Respondent's purchasing agent at the warehouse until Operations Manager Little, an admitted statutory supervisor, left in January 1973 at which time Lietke assumed the position of operations manager. Little testified that while he officially left the warehouse's payroll on January 15, 1973, that as early as the first week of January 1973 he had ceased participating in the operation of the warehouse since he was actively preparing to move to his new location, and that Lietke in fact took over the position of operations manager either on January 6 or January 7, 1973. Accord- ingly, I find that at the time he interrogated Fennell that Lietke was a supervisor within the meaning of Section 2(11) of the Act. Last, on October 30, warehouse employee Fennell with Foreman Collins was called to the warehouse office at which time, in the presence of Little, Heath, and Patterson, they were asked to affix their signatures to a series of written reprimands which were being issued to Fennell. Fennell and Collins refused to sign the reprimands, previously indicated, Collins early in November in response to Area Manager Patterson's questions told Patterson that all the employees, including Fennell, had signed union cards and gone to the Union. 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explaining that their union representative had warned them not to sign written reprimands. At this point Area Manager Patterson asked Fennell for the name of the union representative who had given them this advice. Patterson explained that the reprimands had nothing to do with the Union, that he refused to recognize the Union and again repeated that the signing of the reprimands had nothing to do with the Union. The foregoing is based on the credible and undenied testimony of Collins. 1. Discussion and conclusions as to the alleged interference, restraint, and coercion It is well settled that in considering the legality of interrogation, the ultimate test is "whether, under all the circumstances, the interrogation tends to restrain or interfere with the employees in the exercise of rights guaranteed by the Act." Blue Flash Express, Inc., 109 NLRB 591, 593. However, in deciding this question, as the Supreme Court has observed, any assessment of the impact of employer speech "must take into account the economic dependence of the employees on their employer, and necessary tendency of the former, because of that relationship, to pick up intended implications of the latter that might more readily be dismissed by a more disinterest- ed ear." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 at 617 (1969). And, the Ninth Circuit has observed, "interrogation as to union sympathy has been held to violate the Act because of its natural tendency to instill in the minds of employees fear of discrimination on the basis of the information the employer has obtained." N.L.RB. v. West Coast Casket Company, 205 F.2d 902, 904 (C.A. 9). Guided by the above principles, and for the reasons set out below, I find that Respondent, as alleged in the consolidated complaint, violated Section 8(a)(1) of the Act by Area Manager Patterson's interrogation of Collins on about November 3; his interrogation of Fennell on about January 5, 1973; Branch Manager Heath's interrogation of Fennell on about January 15, 1973; and by Operations Manager Lietke's interrogation of Fennell on January 11, 1973. I further find, for the reasons set out below, that Respondent, through Patterson, as alleged in the consoli- dated complaint, violated Section 8(a)(1) of the Act on about January 5, 1973, by threatening Fennell with reprisals if he supported the Union. The interrogation of Collins about his union activities and sympathies was conducted by Area Manager Patter- son, the ranking company official, in the locus of managerial authority-the warehouse office. Patterson questioned Collins not only about his own involvement in the Union but questioned him about the union sympathies and activities of the other warehouse employees. There is no question that Patterson did not have, and did not suggest to Collins that he had, any legitimate reason for questioning him, and it is undisputed that Patterson did not give Collins any assurances against reprisal. Addition- ally, at the time of the questioning Collins knew, as indicated earlier in this decision, that Area Manager Patterson was opposed to the Union. In the light of these circumstances, I am convinced that the interrogation of Collins by Patterson reasonably tended to restrain or interfere with the employees in the exercise of their rights guaranteed by Section 7 of the Act. I do not believe, however, as contended by the General Counsel, that either the substance or context of Patterson's further ambiguous remark to Collins, "make sure when you come at me you have both barrels loaded," establishes an implied threat of reprisal and will recommend that this portion of the consolidated complaint be dismissed. Area Manager Patterson's interrogation of Fennell on or about January 5, 1973-asking if he had heard anything more from the union representative-was conducted by the ranking company official in the warehouse office, the locus of managerial authority, and in the presence of the entire supervisory staff. There is no question that Patterson did not have, and did not suggest to Fennell that he had, a legitimate reason for asking this question which in my opinion by its very nature was calculated to elicit a response concerning Fennell's union activities or his feelings toward the Union. Also, it is undisputed that Patterson did not give Fennell any assurances against reprisal. To the contrary, after Fennell in response to Patterson's question had indicated that he had not heard anything more from the Union, Patterson warned that if he was not telling the truth, Patterson would retaliate against him. Patterson did not say this in those words. But, it is clear that when Patterson's obscene threat, "you tried to f- me once. If you try and f- me again, I'll f- back," is considered in the context of the entire conversation, there can be no doubt that the statement was calculated to make clear to Fennell the Respondent's intolerance of the union activities, and to vividly illustrate the risk of pursuing union organization. Accordingly, I find that Patterson's obscene statement constituted a none-too-subtle threat of economic retaliation against Fennell if he supported the Union and, therefore, as alleged in the consolidated complaint, violated Section 8(a)(l) of the Act. I further find that in the context in which it occurred that Patterson's interrogation of Fennell at the same meeting reasonably tended to restrain or interfere with Fennell in the exercise of his rights guaranteed under Section 7 of the Act, and thereby violated Section 8(a)(1) of the Act. The interrogation of Fennell by Branch Manager Heath, who on about January 15, 1973, asked, "have you heard anything further from the Union," and by Operations Manager Lietke on January 11, 1973, who asked, "have you heard anything from the Union," as was the case with the acts of interrogation previously discussed, served no legitimate purpose and was accomplished by no assurances against reprisals. Also, these two acts of interrogation cannot realistically be viewed as separate acts but must be considered as a pattern of interrogation directed against Fennell. On about January 5, January 11, and January 15, 1973, Fennell on separate occasions was asked, in effect, by representatives of Respondent whether he had been in contact with the Union. The continuous interrogation suggests that the Respondent did not believe his denials. Indeed, as previously described, Area Manager Patterson openly expressed his skepticism and threatened Fennell with reprisals if he was not telling the truth but was still supporting the Union. In the light of the foregoing circumstances, I find that the interrogation of Fennell by Heath and Lietke reasonably tended to restrain or interfere CENCO MEDICAL/HEALTH SUPPLY CORP. with Fennell in the exercise of his rights guaranteed under Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. This leaves one allegation of interference, restraint, and coercion alleged in the consolidated complaint, namely, that Respondent, through Area Manager Patterson, told employees that the Respondent would not recognize or bargain with any union selected by the employees. The evidence does not support this allegation. It establishes that employees told Patterson that they would not sign written reprimands on the advice of the Union''s represent- ative. In response, Patterson asked for the name of the union representative who had given them this advice, noted that Respondent refused to recognize the Union, and assured the employees that the reprimands had nothing to do with the Union. The remarks of Patterson, viewed in the context in which they occurred, do not convey the thought that it would be futile for the employees to support the Union since the Respondent had already decided not to recognize it even if selected by a majority of the employees. Under the circumstances, I find nothing in Patterson's remarks which would reasonably tend to interfere with, restrain, or coerce employees in the exercise of their Section 7 rights, and shall recommend that this portion of the consolidated complaint be dismissed. E. The Discharge of John Rich John Rich was hired by Respondent on October 24, and on October 26 at the Union's office he signed a union authorization card. On about November 3, in response to Area Manager Patterson's interrogation, Foreman Collins, as described above, revealed that all of the warehouse employees had signed union cards and gone to the Union. Rich was discharged on November 10. The General Counsel contends that Rich after he began work was changed from a regular to a temporary employee and was then discharged because of his union activity. The Respondent urges that Rich was hired as a temporary employee to conduct a so-called freight weight study and was discharged when this project had been concluded. The record in my opinion supports Respondent's defense. The principal witnesses for Respondent-Howard Swiger, Ronald Patterson, and Ken Little9-who testified about the significant events leading up to and surrounding Rich's hire and discharge impressed me as making an honest effort to accurately present the relevant events and conversations. In addition, their testimony was in most important instances internally consistent, largely in agree- ment with one another,, and they did not demonstrate evasiveness or inadequate memory. In contrast, John Rich exhibited a poor memory and did not impress me as being a reliable or trustworthy witness. On the important subject of his hire, at first he adamantly insisted that he was interviewed, completed his employment application and was hired, all on the same day. On cross-examination he eventually admitted this was not true. Also, on cross- examination Rich admitted that before he was hired that Operations Manager Little in discussing his employment 9 The bearing, delivery and manner in which Little presented his testimony relating to matters concerning Rich stands in sharp contrast to his 131 had told him that the Respondent due to incorrect weights had a "very serious" problem on freight rates. Only reluctantly did Rich testify that during his employment he in fact did conduct a freight weight study, that Little had stated Rich would work directly with him on the freight weight study, and that Little on a number of occasions discussed the study and went over the figures with Rich. Also significant is the fact that shortly after he began work Rich, without protest, signed a form for Respondent which in substance stated that he had been hired as a temporary employee and would be terminated after 30 days. Also, at the time Rich was discharged, it is undisputed that he admitted that he had known he had been employed only on a temporary basis. Rich's explanation, "I didn't think it meant anything," for signing without protest the form saying he was only a temporary employee who would be shortly discharged is an absurd explanation. Rich did not explain why at his discharge interview he agreed that he had been only hired on a temporary basis rather than explain that this was untrue. For the' foregoing reasons, I have not credited Rich's testimony where it conflicts with the credible testimony of Little and Area Manager Patterson concerning the events leading up to and surrounding his employment and termination. The facts pertinent to Rich's hire and discharge follow. Respondent's treasurer is Howard Swiger whose office is located in Chicago, Illinois. In connection with the preparation for the budget for the last quarter of the fiscal year, Swiger in the middle of October visited the Respon- dent's western division and conferred with Ronald Patter- son, the area manager for this division. On or about October 18 when Swiger was at the warehouse, one of the salesmen complained that in his opinion excessive freight costs were being deducted from his commissions. Respon- dent in shipping customers' orders uses outside trucking companies and assumes the freight expenses, charging one third to its salesmen and absorbing the rest of the cost. Later that day, Swiger met with Area Manager Patterson to discuss the budget for the last quarter at which time selling expenses, among other items, were discussed. In connection with these expenses, Swiger reviewed freight costs and reached the conclusion that they seemed high. Swiger and Patterson went into the warehouse and determined that excessive weights were being `given to orders, particularly, the heavier bulk items. They decided that a temporary employee should be employed to conduct a study of the weights of the various items sold by Respondent with the aim of developing standard weights for the different classification of goods, and to obtain more efficient and cheaper freight service. Two hundred dollars was budgeted for the hire of an employee to conduct such a study. At this point, on October 19, Patterson directed Operations Manager Little to hire a temporary employee to conduct a freight study. He told Little this job would last for about 3 weeks and explained the type of study he had in mind. Patterson, who left that day with Swiger to return to his office in Los Angeles, also informed Little that he would keep in touch with him to determine the progress of the study. untrustworthy testimony given in connection with the status and discharge of Collins. 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to Patterson's instructions, Little contacted several applicants who previously had completed job applications . One of the applicants was John Rich, who had filled out an application on October 17. Little informed the applicants, including Rich, that the Company had a position available for a month of temporary work and if they were interested to come for an interview. On October 20, Little during his interview with Rich told him that the job available involved doing a freight rate study which would take about 3 weeks. Rich apparently indicated he was interested because on October 23 Little notified him to start work on October 24. On October 24, Rich started work at which time he filled out a W-4 form.10 The same day Little told Foreman Collins that Rich would be working on a project concerning freight rates and that since the project was a temporary and a special one, that Rich would report directly to Little. And, later that day, Little introduced Rich to the warehouse employees, explaining to them that Rich would be working on a special project, weighing all the merchandise, and asked if they would give him a helping hand.11 Rich after 1 week of employment was called into the office and in the presence of Little, Heath, and Collins was given a slip of paper which, in substance, stated that Rich had been hired as a temporary employee for 30 days and that he would also help ship rush orders. Heath told Rich that if he understood the paper to sign it. Rich read and signed the paper without comment. At work Rich conducted a freight study. Admittedly, "he was in charge of all weighing," and on a number of occasions Little discussed the study with Rich. Initially, the study was conducted inefficiently. Rich simply analyzed the sales orders which totaled between 100 and 150 each day which he then transmitted to Little. During the second week of Rich's employment, Little complained about the difficulty of working with such a large number of sales orders and Patterson suggested that the pertinent informa- tion be abstracted from the sales orders and with the weights be placed on one form, called a daily weight report. Thereafter, the pertinent information was abstract- ed from the sales orders and, along with the weights, placed by Rich on the daily weight report. In the meantime, Patterson and Little by phone had been discussing the progress of the freight study. On Wednes- day, November 8, Patterson personally came to the warehouse and on November 8, November 9 and Novem- ber 10 reviewed the results of the study and on November 10 arrived at the conclusion that a sufficient amount of information had been secured to enable the Respondent to remedy the situation concerning excessive freight expenses and to arrive at a more efficient and economical system for shipping orders. Accordingly, on Friday, November 10, Patterson told Rich to come to the office at the end of the 10 Little credibly testified that Rich was not given and did not complete an enrollment card for group insurance. 11 I reject Collins' testimony that Little did not tell him Rich's employment was temporary on a special project, or that Little did not, as described above, introduce Rich to the warehouse employees. Of the two witnesses, Little appeared to be the more reliable as to what was said on these occasions. Moreover, on the matter of Rich's introduction to the employees, warehouse employee William Patterson substantially corrobo- rates Little's version. On the other hand, I reject Little's testimony given in response to a leading question that he specifically told Collins that Rich was workday and to bring the daily weight report. Rich at the end of the day went to the office at which time Patterson looked through the entries in the report made that day, told Rich he had done an outstanding job, that was all they needed him for, and that he was terminated, explaining, "you understand that we hired you as a temporary employee." Rich answered, "yes," and that ended the conversation. On January 2, 1973, Rich was rehired by Respondent. Heath told Rich that there was a job opening and if Rich needed a job he could return to work. Rich accepted. In summation, I find that on October 24 in hiring Rich it was the intent of Respondent, understood by Rich, that his tenure of employment was to be only temporary for about 3 weeks until he completed the freight weight study.12 Rich was discharged when the study was completed. The evidence does not establish that subsequent to Rich's hire the Respondent decided to retain him as a permanent employee. Nor, does the evidence preponderate in favor of a finding that the reason Respondent did not retain Rich as a permanent employee was because of its union animus. In this regard, I have considered that in addition to conducting the freight weight study Rich was processing all of the Respondent's rush orders, was regarded by Respon- dent as an excellent employee, that Respondent only 2 days before Rich's termination hired a regular warehouse employee, Robert May, to perform work that Rich could have performed, that Respondent was opposed to the Union and had learned that Rich had signed a union card. These are circumstances which point to a relationship between Respondent's opposition to the Union and its failure to retain Rich as a regular employee. But, on the other hand, Respondent when its next opening occurred immediately reemployed Rich and, regarding the reason for not retaining Rich rather than hiring May, Operations Manager Little credibly testified that Rich was considered for the job but that May was hired because he had more experience as a warehouseman, 5 years to Rich's 4 months. In view of the foregoing, and the whole record, I find that the evidence presented does not show that the Respondent reduced Rich's status from a regular to temporary employee or violated Section 8(a)(3) of the Act in its termination of Rich, and shall recommend that this portion of the consolidated complaint be dismissed. F. The Discharge of Gregg Collins Gregg Collins began work for the Respondent in February as a receiving clerk, and in September was given an increase in pay and promoted to the position of warehouse foreman after he conducted himself in a satisfactory manner in this position during a 2-week trial period. Collins was promoted to foreman because Respon- going to be employed for only 3 or 4 weeks. 12 I am mindful of the fact that Rich did work other than the freight weight study-handled all the rush orders-and that Respondent soon after it learned that Rich signed a union card had him sign a form stating he was hired as a temporary employee. However, these circumstances raise a suspicion in my mind at the most , and such is not sufficient to support a finding that Respondent initially hired Rich as a regular employee and thereafter reduced him to temporary status because it learned he signed a union card. CENCO MEDICAL/HEALTH SUPPLY CORP. 133 dent considered him an above average employee- Area Manager Patterson testified that Collins' performance as a receiving clerk had been excellent, that Patterson had received reports from Collins' superiors that he was an excellent employee and that Patterson's periodic direct involvement with Collins had been "very favorable." 13 Collins was foreman until January 2, 1973, at which time he was replaced by warehouseman Robert May. In contrast to Collins, who was openly pro-Union, May openly expressed his opposition to the Union, May's opposition to the Union was common knowledge in the warehouse and May testified that it was possible that he expressed his antiunion views to either Heath or Little. Collins was out sick with the flu during the last 3 workdays in December. Upon his return to work on January 2, 1973, he was notified that he had been demoted to warehouseman and replaced as foreman by May. Collins initially received this news from May. May explained to Collins that Respondent intended to discharge Collins but May had talked Heath and Little into retaining him as a warehouseman. When Collins asked why Heath or Little had not notified him of his demotion, May answered that they thought May was "more fit" to give the news to Collins. Later that same day or on January 3, Heath at a meeting in the office notified all of the warehouse employees, including Collins, that May was the foreman, that Collins had been demoted to receiving clerk and would continue to receive the same rate of pay. Also, Heath on January 2, when he reemployed Rich, according to Rich's credible and undenied testimony, told him that May was the new foreman, explaining that the Company thought May could handle the, job better than Collins and Collins' demotion should not be considered as a type of discipline, that it did not mean that Collins was going to be discharged, but all it meant was that Collins would just handle the receiving work. Collins worked as the receiving clerk for I or 2 days at which time he was reassigned to the job of shipping clerk and shipping clerk Fennell was assigned the job of receiving clerk. On Thursday, January 4, Collins was notified by Heath he was discharged. Either shortly before or after he was so notified, Foreman May told him the decision to discharge him was made by Area Manager Patterson, that it was not the idea of either Heath or Little. Heath spoke to Collins about his discharge on January 4 in the office in the presence of Little and Lietke. Heath told him he was discharged for basically three reasons, namely, he was not doing his job as foreman, not doing his job as receiving clerk, and he had not called in when absent with the flu. When Collins asked for proof to 13 One of the persons who presumably report to Patterson about the work of Collins was Branch Manager Heath , inasmuch as at the time of Collins' promotion Operations Manager Little was newly hired and without knowledge of Collins' work as a receiving clerk Heath, however, testified Collins was never a good warehouseman but just average I reject this testimony. In general Heath was not an impressive witness. I do not believe Respondent would promote an average employee to the job of foreman with a raise in pay. To the contrary, I credit Area Manager Patterson that he was told that Collins was an excellent employee and find that in fact Respondent considered Collins a good , if not an excellent, employee. 14 The conversations described above relating to the demotion of Collins and his discharge are based on the credible testimony of Collins. 15 The testimony of Heath on what he concluded from the fact that Collins on October 30 refused to sign written reprimands on the advice of the union representative illustrates his lack of candor. At first when support the contention that he did not perform the work of receiving clerk, Lietke stated that he had one box of returned goods--damaged goods-which had been deliv- ered in June which had not been received.i4 General Counsel contends that in demoting Collins on January 2, 1973, and in discharging him on January 4, 1973, Respondent was motivated by Collins' union activity. Respondent urges that Collins was in fact never demoted but in effect was discharged on January 2, 1973, and was not notified of his discharge until his final paychecks arrived from the Company's home office, January 4, 1973. Collins, as previously described, signed a union card on October 26. On October 28, Respondent received a copy of the representation petition filed by the Union asking for an election among the warehouse employees. On October 30, Collins informed Heath, Little, and Area Manager Patter- son that on the advice of the union representative he would not sign the written reprimands being issued to employee Fennell.15 On November 3, as previously described, Collins informed Area Manager Patterson that he had gone to the Union's office with the other employees and had signed a union card. And, it is admitted that on November 16 at the hearing in the representation proceed- ing the Union's representative told Area Manager Patter- son in the presence of Heath that Collins was the employee who had contacted the Union and initiated the union activity. Based on the aforesaid undisputed evidence, I find that Respondent on October 30 learned for the first time that Collins was an- active union adherent and on November 16 learned that Collins was the employee responsible for the Union's organizational campaign. The credibility issues raised in connection with the testimony relating to Collins' demotion and discharge, as usual in cases of this nature, are difficult and important. General Counsel's principal witness was Collins. Respon- dent's principal witnesses were Heath, Little, and May. I have no hesitancy in crediting Collins over Heath, Little, and May wherever their testimony conflicts. Also, I do not credit the testimony of Heath, Little, and May whenever it is not supported by the record asa whole. When presenting their testimony, Heath, Little, and May to my eyes did not make a good impression, each one created the impression that they were evading or intentionally falsifying. Collins, when testifying about his employment and the , events surrounding his discharge, impressed me as a sincere witness. I will now set out and discuss the Respondent's defense. The decision to discharge Collins was made by Heath, questioned by Respondent's counsel he testified this conduct did not indicate to him that Collins was sympathetic toward the Union. He was then asked, "are you testifying now that when a man tells you he's not going to engage in a certain act of conduct because the Union business agent has so instructed him, that did not make you reach any conclusion that maybe this man was sympathetic toward the Union," and answered, 'Twas wondering. I didn't come to any definite conclusion that he was definitely involved with the Union or supported the Union." At which point Respondent's counsel, realizing apparently the absurdity of Heath's answer, once again asked Heath, "But you at least knew at that time that maybe he was sympathetic , is that correct," and only then did Heath reluctantly admit that he knew "maybe" Collins was sympathetic toward the Union Heath in general did not impress me as an honest witness. He seemed to be more interested in slanting his testimony in a manner favorable to Respondent. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who testified that he discharged him because he was not doing his job properly and because his attendance record was extremely poor. Collins, as previously described, spent 90 percent of his time performing the work of a receiving clerk. Heath distinguished between Collins' work as receiving clerk from his performance as a foreman, testifying that he was discharged because of his unsatisfac- tory performance as a foreman. Regarding Collins' poor job performance, in July Collins received one reprimand for a reason not disclosed in the record. According to Heath, no reprimands were issued to Collins in August or September or October. Then, on November 1 or 2, Heath in the warehouse in Little's presence told Collins that he wanted the warehouse squared away within a week. Heath specifically informed Collins that he felt there was an intolerable amount of merchandise which had been unloaded from trucks but had not been shelved, it was sitting on the warehouse floor in the shipping crates. Collins replied that he could not handle the situation as there was not enough help.16 Heath and Little in effect testified that Collins failed to square the warehouse away and this was what, in part, led to his discharge 2 months later. Collins admits that boxes of merchandise sat on the floor for weeks before being entered as received and placed in the storage bins or shelved. The reason was that the Company gave top priority to the filling and shipment of customer orders.17 Respondent's witnesses stressed the fact that its customers expected, and Respondent sold, not simply medical supplies but prompt service. The credible and undenied testimony of Collins is that the reason for his failure to promptly receive and stock the incoming goods was that Branch Manager Heath would direct him to leave the receiving work and to pull orders for delivery to customers. Since Collins-was the only receiving clerk, the incoming freight stood around. Collins also credibly testified that he told Heath that it was impossible for him to receive goods if Heath expected him to pick orders, he could not do two jobs at the same time. Regarding the November 2 warning to Collins to get the warehouse squared away in 1 week, Heath testified that he did not feel that Collins would carry out these instructions so he decided on November 2 to keep track of Collins' errors of commission and omission and from that date documented in writing all of Collins' derelictions. These documents and Heath's admission at the hearing establish that the only reprimands given Collins by Heath from November 2 until his discharge 2 months later were the following four. On or about November 10 Collins was reprimanded for erring in filling a customer order; he included two boxes of an incorrect item. On or about November 13 he was reprimanded for his delay in answering the request of the purchasing department to inventory certain items. On or about November 13, he was reprimanded for checking an order as being completely received when in fact certain items were not included. And, on November 20, reprimanded for marking as received two eye shields of a certain kind when in fact only one was included in the shipment. These are the only reprimands given Collins by Heath from November 2 through his discharge on January 4, 1973. They can hardly be considered significant by any standards. What is signifi- cant-in view of Heath's warning of November 2 that Collins had 1 week to get the warehouse squared away-is the absence of any documentation or reprimand on matters dealing either with the condition of the warehouse or the failure by Collins to promptly receive merchandise. Heath did not explain this omission. I find that the reason is that Heath realized that on its face such a warning given to Collins would have been absurd for, as Collins testified, Heath knew that Collins' failure to receive in a timely manner the incoming freight was excusable, it was more essential for Collins to assist with the preparation and shipment of orders. Regarding the events which led up to Collins' discharge, Heath testified that during the absence of Collins with the flu during the last week in December that Heath and Little reviewed the warehouse and testified they found "numer- ous" errors indicating Collins was not much of a foreman and was not much of a warehouseman. Heath's testimony is lacking in detail. He did not describe any of the alleged "numerous" errors. He did specifically testify that "some weeks previous" he had asked Collins to straighten out the receiving file and that when Collins did not do so the files were removed to the purchasing department and the purchasing department since that time had kept these files. Either this event took place prior to November 2 or if it occurred subsequent, Heath did not feel at the time that Collins was at fault since no documentation was made or reprimand issued. That the episode with the receiving files took place long before the week prior to Collins' discharge is borne out by the fact that Little, who in his description of what Little and Heath found wrong with the warehouse during the latter part of December made no mention of the receiving files. In short, I do not believe Heath's general statement that he found numerous undescribed errors in the warehouse attributable to Collins. Regarding Collins' absenteeism, it is undisputed that counting his 3-day absence the last week in December, Collins was absent approximately 11 days. The majority of these absences took place prior to September. He was absent during September once, in October once, and was not absent in November. Collins had no telephone, which Respondent knew, and for that reason on some of his absences Collins' did not notify the Respondent. Little testified that when Collins was absent on the two occasions in September and October he failed to phone the warehouse and Little on those occasions told Collins he wanted him to phone in when absent. There is no contention that Little ever reprimanded Collins over his absences and I credit Collins' testimony that he was never reprimanded about his absenteeism-118 During his 3-day absence in December it is undisputed that during the last 2 days a friend of Collins notified Operations Manager Little 16 The above-described November 1 or 2 conversation is based on the As noted earlier, I believe Collins. undemed testimony of Heath and Little. They also testified the conversation 17 I note that it is undisputed that during all times material Respondent's occurred on October 27. Collins did not deny that such a conversation took sales were increasing. place but specifically denied it took place on October 27, testifying that he ra I do not credit the testimony of Heath that on "numerous " occasions was positive it took place after the weekend and on either November 1 or 2. he spoke to Collins about his absenteeism, that he told him "many times" he CENCO MEDICAL/HEALTH SUPPLY CORP. 135 that Collins would be absent for the reason he had the flu. There is no contention or evidence that the Respondent disbelieved Collins' assertion he was sick with the flu or that he was not in fact sick- In summation, Respondent did not reprimand Collins about his absenteeism and after Collins became foreman, his attendance record was good until he came down with the flu in the last week in December. The only concern ever exhibited by Respon- dent about Collins' absenteeism was the fact that because he had no phone he was not always able to notify the Company he was going to be absent. But, during his last absence Collins did notify the Company. Based on the foregoing, I find that Heath did not consider Collins' attendance record, as he testified, "extremely poor" and further find that Collins' attendance record was not one of the reasons which motivated Heath to discharge Collins. Operations Manager Little testified that he, in effect, caused the discharge of Collins, that on December 28 he went into the warehouse with Heath and at that time, based on Collins' record of absenteeism and the general unsatisfactory state of the warehouse, recommended Collins be discharged and replaced by May. According to Little, the warehouse was in a state of utter chaos; the aisles were blocked with merchandise, merchandise was falling down, merchandise was rolling out 'of open cases, and "things like that." This state of affairs, Little testified, had existed for the past 2 months. Heath told Little that he would take his recommendation under advisement. Later that same day Heath informed Little that he agreed with Little and had decided to discharge Collins and had sent for Collins' final check. Heath in his testimony neither directly nor indirectly suggests that Little made any kind of a recommendation to him on December 28 or on any other date concerning Collins' discharge. I do not believe this omission by Heath of such an essential fact relating to Collins' discharge was here forgetfulness. I do not believe that Little, who, like Heath, impressed me, as an untrust- worthy witness, made any such recommendation or that the warehouse on December 28 was in the condition described by Little. If such a chaotic state of affairs had existed for 2 months and the Respondent believed Collins was at fault, it is clear Collins would have been reprimand- ed. As previously indicated, Heath did not so reprimand Collins, and Little specifically and unequivocally testified that he issued only two reprimands to Collins, neither of which were connected with the unsatisfactory condition of the warehouse described by Little and attributed to Collins.19 In fact, I am convinced that the first of these two reprimands was motivated by Little's knowledge of Collins' union activity. On December 1, Collins was reprimanded for going on his break with employee Belluomini in violation of the Company's policy that employees take their breaks one at a time. Earlier that same day Little had ignored the same type of conduct by employees May and William Patterson. Little did not explain the reason for this had to call in even if it meant going to a pay booth. Nor do I credit Heath's testimony that the Company ,regarded Collins' absenteeism as a problem from "day one." 19 This was Little's initial testimony. Later he testified that he spoke to Collins on other occasions regarding the state of disorganization of the warehouse. I'do not credit this testimony. When he gave it, I received the impression it was contrived. disparate treatment. Under the circumstances, I find that this reprimand was motivated by the Respondent's opposition to Collins' known union activity. The second reprimand was issued by Little to Collins late in November or December because Little had observed Collins driving the forklift in a negligent manner. In short, Little, after the November 2 discussion between Heath and Collins, did not reprimand Collins about his failure to receive merchan- dise or about the alleged unsatisfactory condition of the warehouse. I am of the opinion that the reason Little did not so reprimand Collins after the November 2 meeting was that, like Heath, Little realized Collins was right, that it was not possible for one person to keep up with the receiving, while preparing orders for shipment, as well as doing the work of warehouse foreman. Thus, when asked at the hearing why he felt Collins was responsible for the unsatisfactory condition of the warehouse, Little answered, in substance, that Collins failed to take the initiative to move other persons from their jobs and have them assist him with the receiving. The only other employees available, however, were those whose work was connected with the preparation and shipment of orders. Little did not explain who was supposed to do their jobs while they received. Also, as previously described, Collins did in fact have other employees help him with the receiving. Indeed, on more than one occasion, when William Patterson and Robert May refused to help Collins with the receiving, Heath and Little ignored Collins' complaints about their refusal. In fact May, who testified for Respondent, testified that the reason he believed Collins was a poor receiving clerk was he did exactly what Little accused him of not doing, namely, taking the initiative and directing other employees to help with the receiving work. Specifically, May testified he felt Collins was a poor receiving, clerk because rather than do the work himself that Collins asked Patterson and May for assistance. Hardly consistent with the testimony of Little. In short, I find that Little is not telling the truth, that he did not recommend Collins be discharged and did not consider Collins was performing unsatisfactorily either as a warehouse foreman or as a receiving clerk.20 Respondent called Robert May, the employee who replaced Collins as foreman, to support the testimony of Heath and Little that Collins was an unsatisfactory employee. May testified that in his opinion Collins was a poor worker, but when asked to put flesh and blood on this characterization was only able to testify to two incidents. Twice Collins, according to May, stacked incoming freight in the receiving area and left it for May and Patterson to stock. May was of the opinion that as the receiving clerk that Collins should have done this work. When asked to give other instances which demonstrated that Collins was a poor worker, May testified he was not able to cite anything else. Respondent's counsel through a series of leading questions, at this point, proceeded to elicit from May the 20 1 do not credit Little's testimony that the reason Collins was not fired despite his failure to square away the warehouse was because Area Manager Patterson, upon receipt of the Union's representation petition on October 28, directed that no one be fired . Neither Heath nor Patterson corroborated this story. In any event, it does not explain the failure of either Heath or Little to take action against Collins less severe than discharge-wntten reprimands. 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fact that Collins loafed on the job, that he just sat around without working and that it did not seem like Collins wanted to work. I do not credit this testimony. May did not impress me as telling the truth when he so testified. He impressed me as being highly partisan toward Respondent and appeared to be making a conscious effort to tailor his testimony to favor Respondent, to the extent of allowing counsel to put words into his mouth. Also relevant in evaluating Respondent's motive in discharging Collins are the highly unusual circumstances leading up to the discharge. Heath testified that on December 28 he decided to discharge Collins. Yet, on January 2, all of the warehouse employees, including Collins, were told that Collins had been demoted and would continue in Respondent's employ without any loss of pay as a warehouseman. Heath and Little, in effect, testified the Respondent was not being candid when it told this to the employees, but that it was waiting for Collins' final paycheck which was on its way from the Company's home office and that under state law it could not fire Collins without his final paycheck. Heath did not explain why he did not simply wait 3 workdays for the paychecks, and then tell Collins he was fired rather than allowing all of the employees, including Collins, to believe he was being retained as a warehouseman. In my opinion, there is no legitimate explanation for Respondent's strange conduct. I am convinced the employees were told the truth and that as late as January 2 Respondent had decided to replace Collins with May as foreman and to retain Collins as receiving clerk with the same rate of pay. This is further established by the testimony of Robert May, who admit- tedly on January 2, 1973, was authorized by Heath to tell Collins he was demoted. May reluctantly admitted at the hearing that on January 2 he informed Collins that, although he had been replaced by May as foreman, that he could continue working at the same rate of pay without a thing to worry about. Referring to this conversation with Collins on January 2, May testified, "at that time, I thought he would be kept on. You know I did not indicate to him that he was going to be let go. I did indicate that he would be there at his rate of pay. [Emphasis supplied.]" 21 May's only basis on January 2 at the time he spoke to Collins for believing Collins would be kept on was from his prior conversation with Heath and Little at which time they promoted May to foreman and discussed Collins' status. Based on the foregoing, I am convinced that Little and Heath concocted a false story and that, as communicated to the employees, including Collins, Respondent, as late as January 2, 1973, had decided to demote Collins, not discharge him. Unexplained is the Respondent's abrupt reversal of this decision and its decision to discharge Collins. Based upon the foregoing, I am of the opinion and find that the reasons advanced by the Respondent through 21 Later, May testified that in his discussion with Little and Heath before talking with Collins on January 2 that May told them that Collins should be kept on and given a chance to straighten out, but Heath and Little turned May down, pointing out a number of Collins' deficiencies which May had not considered. I do not believe May. I received the impression this testimony was contrived to make the above-described testimony square with what took place at the meeting between May, Heath, and Little on January 2. May's later testimony was not corroborated by either Little or Heath, nor Heath and Little to justify the demotion and discharge of Collins are not the true reasons. In sum, for all of the reasons set out above, including the Respondent's animus toward the Union, its knowledge of Collins' deep involvement in the Union's campaign, the lack of satisfactory explanation for his discharge or demotion, the voicing of dissatisfaction to Collins about his work for the first time immediately after Respondent learned that he was an adherent of, the Union, the conscious effort initiated immediately after Respondent learned Collins was an active union adherent to document Collins' acts of misconduct to justify his discharge, and the Respondent's failure to explain the reason for abruptly terminating Collins only 2 days after it had decided to simply demote him with no loss of pay, I am of the opinion, and find, that Collins' demotion and discharge were motivated by his activity on behalf of the Union and by a desire to discourage activities by employees on behalf of the Union, in violation of Section 8(a)(3) and (1) of the Act. V. THE OBJECTIONS TO THE ELECTION The Union's objections to Respondent's conduct affect- ing the results of the election conducted in the representa- tion case in their entirety relate to the Respondent's alleged discriminatory treatment of John Rich, allegedly convert- ing him to a temporary employee and discharging him on November 10. The evidence relating to the objections has been set out in detail and discussed in the portion of the Decision dealing with the Respondent's alleged unlawful discharge of Rich. For the reasons set out therein, I am of the opinion, and find, that the evidence does not support the Union's objections and recommend they be dismissed for lack of evidence. But, it is well settled that the Board may properly consider evidence discovered during a post election investigation, and that such evidence alone may be used to set aside an election. An election may be set aside where objections to the election are found without merit, but where the employer has engaged in various unfair labor practices which were discovered during the postelec- tion investigation. Pure Chem Corporation, 192 NLRB 681. In the instant case, as alleged in the consolidated complaint, I have found that during the critical period between the filing of the representation petition and the holding of the election that, in violation of Section 8(a)(1) of the Act, the Respondent on November 3, through its ranking official, Area Manager Patterson, in the warehouse office interrogated Warehouse Foreman Collins about his union activities and sympathies and interrogated him about the union sympathies and activities of the other warehouse employees. Patterson asked how many of the employees signed union cards, the names of the employees who had gone to the Union's office, the name of the employee who had initiated the Union's campaign, the was May able to remember any of the alleged failings which Heath and Little allegedly attributed to Collins which May had not considered. Also, when Respondent's attorney initially questioned May about what took place at his meeting with Little and Heath on January 2, he could testify only that "the gist of it was that Collins was going to be relieved, I was going to be warehouse foreman, and that was that." It was only in response to a leading question that May testified, "something was said- about keeping Collins for a few days because of waiting for a check. CENCO MEDICAL/HEALTH SUPPLY CORP. 137 name of the Union's business representative, and whether Collins previously had met with him. It does not follow that this conduct interfered with the employees' free choice in the representation election simply because the interroga- tion violated Section 8(a)(l) of the Act. Mississippi Valley Structural Steel Company, 196 NLRB 1129. I reach the conclusion that the interrogation of Collins by Area Manager Patterson did not interfere with the employees' free choice in the representation election. I am motivated by several factors. Warehouse Foreman Collins was not eligible to, and did not, vote in the representation election. His status was litigated at the representation hearing conducted prior to the election, and based on the evidence adduced at that hearing the Regional Director concluded, "the warehouse foreman [referring to Collins]" was a statutory supervisor and specifically excluded Collins, "the warehouse foreman," from the appropriate unit. This finding was not appealed by the Union to the Board. Accordingly, it is the law of the representation case (Case 20-RC-1 1024). In other words, Collins for purposes of matters involving Case 20-RC-1 1024-the representa- tion case-is a statutory supervisor.22 The interrogation by an employer of an employee not eligible to vote is not by itself the type of conduct sufficient to set aside a representation election. There is no evidence that Collins discussed or communicated to the other employees the fact that Patterson interrogated him about their union activi- ties.23 The interrogation involved neither threats nor promises. There were no further unfair labor practices committed by Respondent until after the holding of the representation election. The election was not held until December 15, 6 weeks after the one act of interrogation. Based on the foregoing-the isolated nature of the interrogation, the one person interrogated was not eligible to vote, and the lack of evidence that employees eligible to vote were told that the Employer had asked about their union activities-I find that Patterson's interrogation of Collins does not warrant setting aside the election. Accordingly, as I have overruled all the objections and as the Union-Petitioner did not receive a majority of the votes cast in the election, I shall recommend that the results of the election be certified. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact, and the entire record, I make the following conclusions of law: 1. Cenco Medical/Health Supply Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. General Warehouse, Cannery and Food Process Workers Union, Local 655, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of 22 of course, as discussed earlier, the Regional Director's determination that Collins was a statutory supervisor is not controlling in the matter of Collins' alleged unlawful discharge. 23 I realize the Board has held that certain types of employer pre-election conduct will inevitably or presumptively be discussed by employees. General Stencils, Inc., 195 NLRB 1109, enforcement denied on this point 438 F.2d 894, 902, fn. 11 (CA. 2, 1971); Stoutco, Inc., 180 NLRB 178; but see, Mississippi Valley Structural Steel Co., supra. These cases are distinguishable from the instant situation. They involved the type of conduct, i.e., threats of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By demoting and discharging employee Gregg Collins because of his activities on behalf of the Union and to discourage employees from supporting the Union, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By interrogating employees about their union activi- ties and sympathies, by interrogating an employee about the union activities and sympathies of other employees, and by threatening an employee with reprisals if he supported the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent has not otherwise violated the Act. TuE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(l) and (3) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having found that Respondent discriminatorily demoted and discharged employee Gregg Collins, I shall recom- mend that the Respondent offer him immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges and make him whole for any loss of earnings he may have suffered by reason of such discrimination, by payment to him of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of said offer of reinstatement, less his net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. The General Counsel urges that to remedy its unfair labor practices Respondent be ordered to recognize and bargain with the Union as the exclusive bargaining representative of the regular full-time warehouse employ- ees, an admittedly appropriate unit. In this connection, it is undisputed that at all times material a majority of these employees had signed cards designating the Union as their exclusive bargaining -representative.24 However, as the election in Case 20-RC-11024 has not been set aside, I find it unnecessary to determine whether a bargaining order would be appropriate to remedy the Respondent's loss of jobs, which by its very nature encourages its communication and dissemination among employees. This casedid not involve such conduct but only one act of interrogation. Also, the instant case involves the rare situation where the objectionable conduct was directed against a person who was not included within the voting unit. 24 Respondent employed five regular full-time warehouse employees- -John Fennell, Mark Belluommi, Gregg Collins, William Patterson, and Robert May-of whom three-Fennell, Belluomini and Collins-had signed union cards during the last week in October. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices. See Irving Air Chute Co., Inc., 149 NLRB 627, 629-630, enfd. 350 F.2d 176 (C.A. 2, 1965). As the unfair labor practices committed by the Respon- dent were of a character which go to the very heart of the Act, I shall recommend that it cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. N.L R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941). Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 Respondent, Cenco Medical/Health Supply Corpora- tion, Burlingame, California, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of General Warehouse, Cannery and Food Process Workers Union, Local 655, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, by demoting or discharg- ing its employees, or otherwise discriminating against them in any manner with regard to their hire or tenure of employment or any term or condition,of employment because of their union membership or activities. (b) Interrogating employees about their union member- ship, sympathies, or activities or interrogating them about the union membership, sympathies or activities of other employees. (c) Threatening employees with economic reprisals if they join or support the above-named labor organization or any other labor organization. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Gregg Collins immediate and full reinstatement to his former position or, if this position no longer exists, to a substantially equivalent position, without prejudice to seniority and other rights and privileges previously en- joyed, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him, in the manner set forth above in the section entitled "The Remedy." (b) 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 amounts of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its place of business in Burlingame, California, copies of the attached notice marked "Appendix."26 Copies of said notice, on forms provided by the Regional Director for Region 20, 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 the Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order what steps have been taken to comply herewith. IT Is ALSO ORDERED that the consolidated complaint be dismissed insofar- as it alleges violations of the Act not specifically found. IT IS FURTHER ORDERED that the results of the election held in Case 20-RC-11024 on December 15, 1972, be certified. 25 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 26 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."