Oahu Refuse Collection Co., Inc.

224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Oahu Refuse Collection Co., Inc. and Construction and General Laborers' Union, Local 368, AFL-CIO. Cases 37-CA-840-2 and 37-CA-863 June 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On June 29, 1973, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceed- ing. Thereafter, counsel for General Counsel and counsel for the Charging Party filed exceptions and supporting briefs and counsel for Respondent filed cross-exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its autori- ty in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, cross-ex- ceptions, and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge only to the extent consistent herewith. The amended consolidated complaint alleged vio- lations of Section 8(a)(1), (3), and (5) of the Act against Respondent, Oahu Refuse Collection Compa- ny, Inc. While the Administrative Law Judge found that Respondent was guilty of a single violation of Section 8(a)(1) of the Act and a single violation of Section 8(a)(3), he dismissed numerous other alleged violations of Section 8(a)(1) and also dismissed the 8(a)(5) allegation of the complaint. Counsel for Gen- eral Counsel has excepted to the Administrative Law Judge's failure to find the further 8(a)(1) violations alleged and the failure to issue a bargaining order as requested, while counsel for Respondent has cross- excepted to the findings of violations by the Adminis- trative Law Judge. We find merit in numberous ex- ceptions of counsel for General Counsel, including the exception to the Administrative Law Judge's fail- ure to issue a bargaining order. In light of our decision herein, we find it necessary to set out the facts of this case at some length. In July 1972, the Union began attempts to organize employees of Respondent. Some 17 authorization cards had been signed by the employees by August 30 and September 1, 1972, the days on which the Union requested recognition and bargaining with Respon- dent.' Respondent refused recognition on these days and on August 31 stated that it desired a Board-con- i Between the dates of the demand and the election herein, the Union acquired another three cards ducted election to determine the Union's representa- tive status. On September 1, the parties entered into an Agreement for Consent Election? The Union lost the election 3 but filed timely objections to its con- duct .4 The hearing before, the Administrative Law Judge encompassed the violations alleged in the amended consolidated complaint, the objections to the election, and the challenged ballots. In his Deci- sion, the Administrative Law Judge made various rec- ommendations on the objections and challenges and thereafter the representation case was, severed from the unfair labor practice cases and was remanded to the Regional Director for further processing pursuant to the Agreement for Consent Election.5 The Admin- istrative Law Judge also made various findings on the violations alleged in the amended consolidated com- plaint and it is to these findings that counsel for Gen- eral Counsel has excepted. The violations allegedly occurred: (1) before the Union's demand; (2) during the time after the demand and before the election; and (3) on the day of the election. 1. Incidents alleged before the dates of demand. As noted above, the Union requested recognition of Respondent's president and co-owner, Robert Henri- ques, on August 30 and September 1, 1972.6 Prior to that time, on August 17 or 18, Henriques had called Johnson Kalawa, one of Respondent's foremen, into his office and asked Kalawa if he had signed a union card? Kalawa replied that he.had not signed a card and Henriques stated, according to Kalawa's uncon- tradicted testimony, that "he thought it was the help- ers, and if he found out . . . anyone who signed cards to join the union, he would fire them." Kalawa stated that he told employees John Napulou and Jerry Sam- bajon what Henriques had said that same day.' Counsel for General Counsel alleged that Kalawa was a supervisor and that his communication of Hen- riques' threat to the employees was a violation of Sec- 2 Case 37-RC-1784 3 The election was held on September 20, 1972, and the tally of ballots showed that of approximately 33 eligible voters, there were 30 votes cast, of which 4 votes were for the Union , 8 were against, and 18 votes were chal- lenged The challenges were sufficient to affect the election's results ° On February 1, 1973, the Regional Director for Region 20 issued his Report on Objections and Challenged Ballots in which he sustained the challenges to five ballots and overruled one of the Union's objections. The Regional Director bound over for heanng the remaining 13 challenges and 4 objections and, since certain issues in the representation proceeding were also involved in the unfair labor practice proceedings on which a consolidat- ed complaint had already issued, the Regional Director consolidated the 2 proceedings for hearing 5 On October 17, 1973, the Regional Director issued a Supplemental Re- port on Challenged Ballots and Objections , in which he made various deter- minations on the challenges and objections, and directed that, if the revised tally of ballots showed that the Union had not received a majority of the valid ballots,cast, the election be set aside . On October 29, 1973, a revised tally of ballots showed 8 votes were cast for, and 15 votes were cast against, the Union with I undetermined challenged ballot 6 All dates are 1972 unless otherwise indicated 7 The first union authorization cards were signed on August 15. 8 Henriques did not testify at the heanng 212 NLRB No. 51 OAHU REFUSE COLLECTION CO., INC. 225 tion 8(a)(1). The Administrative Law Judge, however, found that Kalawa was neither a supervisor nor an agent of Respondent and dismissed this allegation of the complaint. Kalawa, who was a working foreman for Respon- dent, testified that, in providing refuse services to cus- tomers, Respondent has three major routes: the central route, the airport route, and the Waikiki route. Kalawa was in charge of the Waikiki route .9 Kalawa testified that he received a salary of $820 a month and had five or six employees working under his supervi- sion. Kalawa said that Henriques had expressly given him and the other foremen the authority to hire and fire employees although Kalawa had not done so. Kalawa stated that he attended management meet- ings and processed grievances on behalf of employees. In the payroll periods for July and August, Kalawa was being paid $150 more in each 2-week payroll period than the highest admitted employee. We find that Kalawa was a supervisor under the Act and thus we find that Respondent violated Section 8(a)(1) of the Act by Kalawa's repetition to employees Napulou and Sambajon of Henriques' threat to fire anyone who signed a union card. 2. Incidents between the dates of the demand and the election. (A) David Silva, an employee of Respon- dent, testified that, on or about September 11, Henri- ques called Silva into his office and told Silva he was going to change his status and make him a serviceman and give him a few pennies more. Henriques then asked Silva to sign a piece of paper that he had and told Silva that some of the boys had signed the paper. But Silva refused to sign. Silva testified that he later found out the paper was a deauthorization slip to withdraw from the Union. The Administrative Law Judge made no finding with respect to these actions of Henriques. We find, however, that Henriques solicited Silva to withdraw from the Union and, to encourage him to do so, of- fered Silva an increase in salary. Both actions were clear violations of Section 8(a)(1) and we so find. (B) During the election campaign, Respondent held a number of meetings for its employees. Various employees testified about statements made by Henri- ques at meetings held on September 11, 16, and 19. September 11 meeting. Charles Ridings testified that Henriques stated that he understood the employees were trying to organize at Respondent and that, if they were doing so, they should also try to organize the other rubbish companies. Henriques said that if the employees tried to organize at Respondent he would fire the employees and run the Company with 9 Norman Jung handled the central route and Richard Germano handled the airport route his family. Henriques said that he wouldn't let the Union in because he could not afford to pay "union scale" and, if the Union did come in, he would have to close down for that reason. Employee Brian Boteiho testified that Henriques said that, if the Union got in, it probably would drive him out of business since other rubbish companies would be nonunion and he could not afford to pay "union scale." Henriques told them that he would try to run the business himself, but if he did not he would just close the gates. Botelho testified that Henriques also mentioned something about a raise, but said he couldn't give one because of the union election. Employee George Ahia stated that Henriques said the employees should have a raise. But Henriques also stated that, if the Union came in, the Company would close down and Henriques' family would run the busi- ness. Henriques said he had to stay in competition with the other companies, but stated as the reason for having to close up that, if the Union got in, and he had to pay the higher wages that the Union wanted, he would go broke. Employee John Napulou also testified that at this meeting Henriques said that, if the Union came in, he was going to close down the Company and would probably run it by himself. September 16 meeting. Charles Ridings testified that at this meeting Henriques said that if the employees continued on with their organizing efforts that he would let them all go and operate without them. Hen- riques again reminded the employees that he could not pay higher wages than what he was now paying and, if he were forced to do so, he would have to close up. Henriques did say though that the drivers would get a raise to $3 per hour but not immediately since he could not afford to pay the raise then and to give one at that time would look like a bribe. George Ahia testified that Henriques said the driv- ers should have a raise. But Henriques also said that, if the Union got in, he was going to close the gates and let his family run the operation. David Silva testified that Henriques stated at this meeting that whether the Union did or did not get in that he held no grudges. Henriques informed the em- ployees that he knew most of them had signed cards, but he stated that this did not obligate them to vote for the Union. Henriques stated he was not antiunion, but said that, if the Union got in, he would last 3 months and then would have to shut down. Henriques also said that, if the Union got in, most of the employ- ees would not be there the next time. Frank Verece, who initially was the employee lead- er in securing authorization cards, but who later signed a deauthorization slip withdrawing from the Union, testified about this meeting also. Verece relat- 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ed that Henriques said that because Henriques could not come with "union wages" that "he would have to close his doors and work with his family and if he can't he would close his doors." September 19 meeting. John Napulou testified that Henriques said at this meeting that he did not want the Union to come in and if it did he was going to close his shop. Henriques also said he was going to fire anyone who signed a union card. Napulou replied "yes" in answer to a question by Respondent's coun- sel whether Henriques said at the meeting that he could tell who signed union cards because, when the Union came in, he would be able to see who was "out there picketing." Lastly, Napulou testified that Henri- ques said at that meeting that whoever wanted to get out of the Union could sign papers he had in his office. The Administrative Law Judge found that Re- spondent violated Section 8(a)(1) of the Act at the September 11 and 16 meetings when Henriques threatened the employees that he would terminate them for the specific acts of signing a union card or voting for the Union in the election. We agree that at the September 11 and 16 meetings Henriques threat- ened to fire the employees, but we find, based on the testimony of employee Ridings, that Henriques threatened such action on the general sanction that the employees continued their organizing activities. We do find, however, based on the testimony of em- ployee Napulou, that at the September 19 meeting Henriques violated Section 8(a)(1) by threatening spe- cifically that whoever signed union cards would be fired. The Administrative Law Judge failed to find that Henriques further violated the Act at these meetings since he apparently found Henriques' comments on closing the plant to have been merely "ingenious and often rhetorical." Unlike the Administrative Law Judge, we find that Respondent also violated Section 8(a)(1) of the Act at the September 11 and 16 meetings when it threatened that it would have to close if the Union got in due to an alleged inability to pay the wages the Union would supposedly seek . Although the various employees' recollections of the meetings are not precisely the same, we think it clear from their testimony that Henriques stated, at the least, that, if the Union came in, he would have to close down because he could not pay the higher wages, i.e., the often quoted "Union scale" wages, that the Union would demand.10 10 We note that some of the employees further testified that when Henri- ques said he would close the business to the employees he also said he would try to run it with his family. We do not pass on this statement since what we have found Henriques said at those meetings is sufficient to support a finding of a violation here. An employer may speak freely to his employees regarding issues that arise in connection with a union organizational campaign, so long as his statements do not contain a threat of reprisal or force or promise of benefit. However, the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc.," set forth certain standards to which an employer's statements, when they consti- tute predictions of the effect unionization will have on the employees, must conform in order not to be found threatening. The Court stated that, although an em- ployer is free to make a prediction as to the precise effects he believes unionization will have on his com- pany, he must carefully phrase that prediction on the basis of objective fact to convey his belief as to the demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization.' Further, the Court noted that " `conveyance of the employer's belief, even though sincere, that unioniza- tion will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable of proof.' " 13 Judging Henriques' statements that Respondent would have to close if the Union came in in light of these standards, we find those statements were not protected expressions of opinion but were threats of retaliation in violation of Section 8(a)(1). They are so because Respondent introduced no reliable evidence to prove that the statements were based on fact or that the eventuality of plant closing was a demonstrably probable consequence of such fact. Respondent intro- duced no proof showing that "union scale" wages were and, in fact, it is clear that no wage or other economical proposal had been presented by the Union when these remarks were made.14 But Henri- ques' statement implied that if the union got in, it would automatically insist on "union scale" wages, allegedly higher than what Henriques could afford, which would automatically result in Respondent's closing down. Balanced against this "certainty" that the Union's coming would force Respondent out of business, Henriques, at least at the September 16 meeting, offered the employees the promise of a small raise after the election. Henriques' statements thus faced the employees with the "dilemma" of selecting the Union and seeing their jobs disappear or rejecting 11 395 U.S 575 ( 1969). 12 Gissel, supra at 618. 13 Gissel, supra at 618, quoting from the circuit court's decision to Sinclair at 397 F 2d 160 14 We do note , however, that at the time of the Union's request for recogni- tion Henriques told Albert Keamo , the Union's representative, that he was afraid that if the Union came in he would have to close his operation Keamo replied, however, that the Union had no history of running companies out of business and that, if recognized, the Union would negotiate a contract suited to Respondent's financial situation. OAHU REFUSE COLLECTION CO., INC. 227 the Union and obtaining an increase in pay. Under all the surrounding circumstances, we find Henriques' statement at the September 11 and 16 meetings that Respondent would have to close if the Union came in to be a violation of Section 8(a)(1) of the Act.15 We also find, based on the testimony of employee Napulou, that at the September 19 meeting Henriques solicited employees to withdraw from the Union. While we do not overrule the Administrative Law Judge's determination that employees Verece and Buck, who signed withdrawal slips from the Union, were not coerced into doing so by Respondent, we do find, in line with paragraph 6(g) of the complaint and Napulou's testimony, that, on September 19, Henri- ques' general solicitation of the employees to with- draw from the Union constituted a violation of Section 8(a)(l).16 (C) The Administrative Law Judge found that Re- spondent discharged and refused to reinstate Charles Ridings on September 18 because of his union activi- ties and that this was in violation of Section 8(a)(3) of the Act. We find that Respondent violated the Act that day with respect to Ridings, but we find that the violation occurred with respect to Respondent's refus- al to reinstate Ridings rather than its firing of him. Ridings testified that early in September he told Eddie Kahanui, Respondent's dispatcher, that he was taking a 2-week leave of absence to aid his wife who was expecting a baby and Kahanui granted his leave of absence. Ridings was ultimately called back to work by Kahanui and reported on September 18. Henriques notified Ridings that day that he was dis- charged for his failure to inform either Henriques or his copartner or anyone in the Company that he was taking leave. Ridings told him that he had told Kaha- nui about the leave and Henriques said he had not known that. But Henriques then said that, although he wanted Ridings to return to work, he had been advised not to hire Ridings back until after the elec- tion. Ridings did not return to work until September 23, 3 days after the election. We do not think that counsel for General Counsel has proven that Ridings' discharge was motivated by discriminatory reasons. There is no evidence to refute Henriques' statement to Ridings that he had not known that Ridings had informed Kahanui that he was taking a leave of absence prior to his doing so. Henriques' discharge of Ridings for this supposed failure to inform anyone in the Company was thus nondiscriminatory. However, the evidence does clearly show that Hen- riques' sole reason for refusing to reinstate Ridings before the election was to try to prevent him from voting in the election or to prevent having his vote counted." By such action, Respondent violated Sec- tion 8(a)(1). Further, we infer that Respondent's sole reason for trying to keep Ridings from voting was its thought that Ridings would cast a vote for the Union.18 Thus, we also find Respondent's action to have been a violation of Section 8(a)(3) of the Act. 3. Incidents on the day of the election. Henry Silva testified that he was to act as an observer for the Union at the election. Silva, who had called in sick on election day, arrived at the company premises a few hours before the election and had been talking to a few employees when Henriques came, in Silva's words, "storming out" of his office and told Silva to stop harassing the men. Henriques told Silva to get off his property or he would "shoot" Silva off the proper- ty. Silva then started to walk out of the yard when Henriques called him back. The two then went into Henriques' office where Henriques apologized to Sil- va for his action. Henriques then told Silva that he did not want any trouble with him and told Silva he had confidence in him. Henriques told Silva of his finan- cial problems, i.e., that he could not pay union scale, and reminded him of the raise he was to get. He also told Silva again that if the Union got in he would lock the employees out and try to run the trucks himself and if he could not then "that is it."" The Administrative Law Judge found that Silva had used the word "shoot" as merely an expression not meant to indicate that Henriques had intended to inflict bodily harm on Silva, but rather that Henriques would eject Silva from the yard. The Administrative Law Judge thus dismissed that allegation of the com- plaint which alleged that Henriques had threatened to shoot Silva. Counsel for General Counsel had not specifically alleged the meeting immediately follow- ing this incident as a violation and, although the issue of this meeting was fully litigated at the hearing, the Administrative Law Judge made no finding on it. We find, however, that Respondent violated Sec- tion 8(a)(1) of the Act in the meeting Henriques had with Silva after threatening him since at that meeting Henriques repeated the threat to close that he had previously made to Silva in the first week of Septem- ber and to the employees at the meetings of Septem- ber 11 and 16. For the reasons noted in our discussion of those meetings, we find Respondent violated the Act here.19 15 For the reasons noted above, we find that Henriques also violated Sec 17 Ridings did vote in the election and his ballot was challenged. 8(a)(1) when he told Silva in the first week of September that if the Union 18 There would have been no other rational reason for Hennques' action got in he would last 3 months and then would have to close up since Hennques considered Ridings a good worker and wanted him back. 16 Del E. Webb Corporation, Harry Rosenzweig, and Newton Rosenzweig, 19 At para VI(d) of the amended complaint, it had been alleged that Co-Partners d/b/a North Central Development Co, 204 NLRB No 158. Continued 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Contrary to the Administrative Law Judge, we also find that Henriques' threat to shoot Silva was a viola- tion of Section 8(a)(1). First, we find that Henriques' statement was clearly taken by Silva to be a threat of physical harm against him. The Administrative Law Judge found that Silva did not intend to convey such a meaning, but we note Silva's direct testimony to the contrary that Henriques "threatened my life there." Silva testified that Henriques told him after the inci- dent that he knew Silva was going to be a union observer and, with that as background, in the context of Henriques' conversation with Silva thereafter wherein the sole topic was the Union, we find that Henriques' threat to shoot Silva was an attempt to dissuade him, in Henriques' mind, from fostering the Union's cause and was thus in violation of Section 8(a)(1). The Request for a Bargaining Order Counsel for General Counsel urged the Adminis- trative Law Judge to find that Respondent's actions were so flagrant that a bargaining order was the only appropriate remedy under the teachings of Gissel. The Administrative Law Judge declined to so find but, instead, recommended to the Regional Director that the election held on September 20 be set aside and a second election be held. Because of this recommenda- tion, the Administrative Law Judge did not make any specific findings as to the appropriateness of the unit sought to be represented, the number of employees within the unit, and the number of employees in that unit who had signed valid authorization cards on the days the Union demanded recognition of Respond- ent. We now set out our findings in these areas. All the parties stipulated that the Union requested recognition of Respondent on August 30 and Septem- ber 1. Respondent in its amended answer, however, denied the approrpiateness of the unit set out in the amended consolidated complaint, although it did ad- mit that this was the unit for which it refused to grant the Union recognition on August 31 and thereafter. Paragraph VII of the amended complaint sets out the unit as: All employees of the Employer on the Island of Oahu, in the State of Hawaii, excluding office clerical employees, confidential employees, pro- fessional employees, guards and/or watchmen and supervisors as defined in the Act. Henriques at various unknown times from August 1, 1972, to on or about September 20, 1972, at the premises of Respondent had threatened employ- ees that, if the employees selected the Union, Respondent would close its operation . Thus this allegation fully covers the violation here found Notwithstanding Respondent's denial in its amended answer, the unit set forth above is a presumptively appropriate unit, and we so find. The parties stipulated that the following employees were employed in the unit on the days of the demand: George Ahia Bryan Botelho Joseph Buck Jason Costa Marshall Costello Clayton Demello Alfred Ekau Charles Honokaupu Michael Kaahanui Alexander Kauanui Steven Knight Samuel Malama Alexander Mercado Ron Mannow John Napulou Henry Nuuanu Jim Nicholson Mike Nicholson Charles Ridings Jerry Sambajon Ivan Santos David Silva Herman Smith Jason Tai Frank Verece Richard Wong The record shows that Robert Perez was also working in the unit on the days of the demand. The parties stipulated that various employees whose names appear on Respondent's payroll records at relevant times should be excluded from the unit because they were hired after the demand,20 left be- fore the demand,21 were sons of Henriques,22 were outside the unit,23 or were casual employees.24 The various stipulations of the parties leave the following employees whose status is still in doubt: Joseph Alana, David McClain, Johnson Kalawa, Richard Germano, Norman Jung, and Eddie Kaha- nui. Joseph Alana. After initially stipulating that Alana was an employee on the dates of the demand, counsel for Respondent changed his position on the represen- tation that Respondent's payroll records last show Alana working for the payroll period ending August 25. The payroll records bear out this contention. In light of this, we exclude Alana from the unit. David McClain. McClain was employed at Re- spondent from August 29 to September 11 and Re- spondent contends he was a regular employee at the 20 Ricarte Albayant, Leonard Kaih, Roger Sanico , Smauel Towles, Saburo Worl 21 Harvey Makekau, Alan Makekau, James Shizuru, Jr 22 Robert Henriques, Jr, Joseph Henriques. 23 Frank Enright , a salesman. We note also that the Union and Respon- dent at the time they signed the Agreement for Consent Election agreed that the following persons were properly excluded from the unit. Kathaleen Cos- ta, Janet Kaninau , Marylou Stazskow, Barbara Cervantes 24 Robert Smith After arguing at the hearing that Jules Demello should be included in the unit, counsel for General Counsel in his brief now states Jules Demello should be excluded as a casual employee Respondent had argued this at the hearing We accept the parties' disposition on Jules Demel- lo OAHU REFUSE COLLECTION CO., INC. 229 time. Respondent has submitted no further evidence to support its contention and we find that McClain is a casual employee who is excluded from the unit. Johnson Kalawa, Richard Germano, Norman Jung. Kalawa was found to be a supervisor supra and is thus excluded from the unit. At the hearing, all parties stipulated that at all times material the job responsi- bilities of Kalawa, Germano, and Jung were the same and that a determination on Kalawa's status would govern the findings on Germano and Jung. We thus find Germano and Jung to be supervisors and we exclude them from the unit.'s Eddie Kahanui. Kahanui was Respondent's dis- patcher, and counsel for General Counsel alleges that he is a supervisor. Kahanui was salaried and earned approximately $130 more in each 2-week pay period in July and August than the highest admitted employ- ee. According to Kalawa, Kahanui attended manage- ment meetings .26 Kahanui is the individual to whom the employees call in if they are to be out of work for a while since neither Henriques nor his copartner are present at work early in the morning. Kahanui's gen- eral duties are to relay messages to the drivers con- cerning pickups, but we note that Ridings testified that it was Kahanui who granted him the leave of absence. This action, plus his salary and his atten- dance at management meetings convinces us he is a supervisor, and thus we exclude him from the unit.27 We therefore find that, on the days of the demand, the unit numbered 27 employees. This includes the 26 agreed-upon employees and employee Robert Perez. When the Union requested bargaining of Respond- ent, 17 employees had signed authorization cards. Two of those employees, however, were Joseph Ala- na, whom we have found was not working at Respon- dent on the days of the demand, and Jules Demello, whom the parties agreed should be excluded as a cas- ual employee. This leaves 15 cards as possibly valid. The following 13 employees signed cards before the 25 We note that Richard Germano voted in the election held on September 20, and that m his Supplemental Report on Challenged Ballots and Objec- tions the Regional Director adopted the Administrative Law Judge's recom- mendation that the challenge to the ballot of Richard Germano be overruled and his ballot counted . While the Regional Director's disposition of Germano's ballot is determinative in the representation case by virtue of his powers under the agreement for consent election, we are not precluded from considering Germano's status as it relates to the unit in which the Union alleges majority status since a determination on the Union's claim of majority is here the predicate to a determination of whether a bargaining order is warranted. This issue, which is presently before us, is necessarily, a matter for Board resolution. In such circumstances, we deem it irrelevant that we have reached a decision on Germano's status that is different from that of the Regional Director. 26 Kahanui did not testify. 27 We note that Kahanui, like Germano, voted in the election , had his ballot challenged, and that the Regional Director over-ruled the challenge to his ballot and counted it . For the reasons expressed in footnote 25 above, we do not consider the Regional Director's decision as to Kahanui's status determinative of the issue herein. demand dates and. Respondent does not question the validity of their cards: George Ahia, Joseph Buck, Charles Honokaupu, Michael Kaahanui, Alexander Kauanui, Alexander Mercado, John Napulou, Henry Nuuanu, Robert Perez, Jerry Sambajon, David Silva, Jason Tai, and Frank Verece. Respondent, however, does argue that the cards of Bryan Botelho and Steven Knight, both of whom signed before the demand dates, are invalid since these employees were deceived as to the purpose of the cards. The authorization cards that all the employees signed stated: I, the undersigned, hereby designate Local Union No. 368 of the of the Laborers' Interna- tional Union of North America, affiliated with AFL-CIO, as my collective bargaining represen- tative in all matters pertaining to labor condi- tions, wages and hours of employment, and (if not yet a member,) I do hereby apply for member- ship in Local Union No. 368 affiliated with the above International Union and agree to abide by all the provisions of the Constitution and By- Laws of said Local and the International Union. Brian Botelho answered affirmatively to the follow- ing leading question asked him on cross-examination by counsel for Respondent: "Did Mr. Verece tell you that the only reason for signing the card was to get an election for the employees to see if they wanted to have a Union? " Seemingly, it is on the basis of Botelho's affirmative response that Respondent ob- jects to his card. Botelho testified further, however, that he knew what the card said when he signed it. When asked on redirect by counsel for General Coun- sel to state again what Verece said, Botelho stated this time that Verece "said it was for an election. And he said if the election did go through it was sort of like an application. I guess. I mean, it was like you were in the Union, something like that." Botelho also testi- fied that Stephen Knight signed a card at the same time as he did and he thought Verece told Knight what he had told him since the two were standing together. Knight, however, said that Verece had asked him if he wanted more money and, when he said he did, Verece then said, "Okay, here is a card, join the Union." Verece also told Knight that if he signed the card he would become eligible for the benefits of the Union's health and welfare fund. Knight never men- tioned that Verece had said the card was only to get an election. It is clear that Stephen Knight was in no way de- ceived as to the purpose of the card he signed and his 230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD card is counted. So also is the card of Bryan Botelho. We note that the card he signed stated clearly and unambiguously on its face that the signer designated the Union as his representative. We note Botelho's statement that he knew what the card said when he signed it. Finally, we do not think it has been^demon- strated that the language of the card was "deliberately ahd clearly cancelled" with words calculated to direct Botelho to disregard and forget the words of the card 28 We do not think it has been shown that Botel- ho was told his card was to be used solely to secure an election and, in such circumstances, we think Bo- telho should be bound by the clear language of what he signed.29 Accordingly, we find that on August 30 and Sep- tember 1, when the Union requested bargaining with Respondent, 15 employees in a unit of 27 employees had signed valid authorization cards and that the Union was thus the collective-bargaining representa- tive of the employees in that unit. Further, in the circumstances of this case, we conclude that a bar- gaining order, rather than a second election, is clearly warranted. We have found that upon the advent of the Union's organizing efforts Respondent's president and co- owner, Robert Henriques, by means of individual conversations and group meetings with employees, engaged in a number of 8(a)(1) violations and a viola- tion of Section 8(a)(3). The evidence shows that Hen- riques threatened numerous times to close down and/or lockout the employees if the Union got in; threatened to fire the employees if they continued in their organizing efforts or if he found out they had signed authorization cards; solicited employees to re- voke their union authorizations; and refused to rein- state an employee until after the election in order to prevent that employee's voting. The threats and actions described above may, of course, be presumed to have had a severe initial im- pact on the employees. We also conclude that these actions may be presumed to have had an impact that has destroyed the likelihood that a true picture of employee sentiment may now be obtained through the election process. Thus, we note that the actions of Respondent's president included not one but a series of serious threats which were communicated to the employees as a group and on an individual basis on numerous occasions. We note that the threats, if car- ried out, would have affected every employee in the 28 Gissel, supra at 606. 29 Gissel, supra at 606-607. Member Kennedy would not count Botelho's card He is persuaded that the evidence establishes that Botelho was told that "the only reason for signing the card was to get an election ." Member Kennedy agrees , however, that the Union had a majority without Botelho's card and that a bargaining order is warranted unit and that the threats included nothing short of complete termination of employment, whether by Henriques' threatened firing of the employees or his closing down his operation. Finally, we note that Henriques, as president and co-owner of Respondent, was in a position eminently suited to carrying out the threats he made, and that it is thus reasonable to assume that the employees took his threats seriously. Thus, we find that the actions of Respondent have rendered a fair second election a slight possibility at best. We conclude that the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would a second election and that the policies of the Act will be best effectuated by our entering an order requiring Re- spondent, upon request, to bargain with the Union. However,, consistent with our opinion in Steel-Fab, Inc.,30 we predicate this bargaining order solely on our finding of the numerous 8(a)(1) violations and the 8(a)(3) violation set forth above. We dismiss that part of the amended consolidated complaint which alleges an 8(a)(5) violation based on Respondent's commis- sion of the various unfair labor practices we have found. As we noted in Steel-Fab, Inc., it is not essen- tial to make 8(a)(5) findings in order to insure a, bar- gaining order and we prefer to ground our issuance of the bargaining order on the more desirable analysis of the Employer's 8(a)(1) and/or 8(a)(3) conduct. Hav- ing concluded that analysis, we reiterate that a bar- gaining order is appropriate here. CONCLUSIONS OF LAW 1. The Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By Respondent President Henriques' threat, communicated to employees Napulou and Sambajon by Respondent's supervisor, Kalawa, that Henriques would fire anyone he found had signed a union card, Respondent violated Section 8(a)(1) of the Act. 4. By Respondent President Henriques' threat to employee Silva that Respondent would close down if the Union got in, Respondent violated Section 8(a)(1) of the Act. 5. By Respondent President Henriques' solicita- tion of Silva to sign a withdrawal slip from the Union and his offering an increase in salary to Silva, Re- spondent violated Section 8(a)(1) of the Act. 6. By Respondent President Henriques' threat to the employees who were present at the meetings of September 11 and 16 that he would fire the employees 30212 NLRB No 25. OAHU REFUSE COLLECTION CO., INC. 231 if they continued their organizing activities, Respond- ent violated Section 8(a)(1) of the Act. 7. By Respondent President Henriques' threat to the employees who were present at the September I 1 and 16 meetings that Respondent would close down if the Union came in, Respondent violated Section 8(a)(1) of the Act. 8. By Respondent President Henriques' solicita- tion of the employees at the September 19 meeting to withdraw from the Union, Respondent violated Sec- tion 8(a)(1) of the Act. 9. By Respondent President Henriques' threat at the September 19 meeting to fire anyone who signed a union card, Respondent violated Section 8(a)(1) of the Act. 10. By Respondent President Henriques' election day threat to Silva that Respondent would close down if the Union came in and his threat to shoot Silva, Respondent violated Section 8(a)(1) of the Act. 11. By Respondent President Henriques' refusal to reinstate employee Ridings in an attempt to prevent him from voting in the election or to prevent having his ballot counted, Respondent violated Section 8(a)(1) and (3) of the Act. 12. An appropriate unit for the purposes of collec- tive bargaining within the meaning of Section 9(b) of the Act is: All employees of the Employer on the Island of Oahu, in the State of Hawaii, excluding office clerical employees, confidential employees, pro- fessional employees, guards and/or watchmen and supervisors as defined in the Act. 13. On August 30, 1972, and September 1, 1972, the Union represented a majority of the employees in the above unit and was, and is now, the exclusive repre- sentative of all employees in the unit above for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 14. The above-mentioned unfair labor practices af- fect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that Respondent, Oahu Refuse Collection Co., Inc., Honolulu, Hawaii, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees that it would close down if the Union got in. (b) Threatening its employees that it would fire anyone whom it found had signed a union card or who was engaged in organizing activities. (c) Soliciting its employees to withdraw from the Union. (d) Threatening to shoot an employee to dissuade him from engaging in activities it thinks were pro- union. (e) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union as the exclusive collective-bargaining represen- tative of its employees in the unit found appropriate above. (b) Make Charles Ridings whole for any loss of pay he suffered by reason of the refusal to reinstate him in the manner set forth in the section of the Adminis- trative Law Judge's Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post at its place of business at Honolulu, Oahu, Hawaii, copies of the attached notice marked "Ap- pendix." 31 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Decision, what steps the Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the amended consolidat- ed complaint be dismissed insofar as it alleges viola- tions of the Act not found herein. 3 1 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD MEMBER FANNING, concurring in part and dissenting in part: I agree with my colleagues in the majority that Re- spondent engaged in egregious violations of Section 8(a)(1) and a violation of Section 8(a)(3) of the Act and that a bargaining order to remedy such violations is warranted in this case. However, as stated in my dissent in Steel-Fab, Inc., 212 NLRB No. 25, 1 would continue, in accordance with the Supreme Court's de- cision in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), to base the issuance of such bargaining orders on findings of violations of Section 8(a)(5). In this case I would find that Respondent has violated Section 8(a)(5) and that a bargaining order should issue dating from August 30, 1972, the date of the Union's initial request for recognition and Respondent's refusal. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government watchmen , and supervisors as defined in the Act. WE WILL make Charles Ridings whole for any loss of pay he suffered by reason of our discrimi- natory refusal to rehire him. OAHU REFUSE COLLECTION CO, INC (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, 1311 Kapiolani Boulevard, Suite 308, Honolulu, Hawaii 96814, Telephone 808-546-5100. WE WILL NOT threaten our employees that we will close down if the Union, Construction and General Laborers' Union, Local 368, AFL-CIO, gets into our operation. WE WILL NOT threaten our employees that we will fire anyone whom we find out signed a union card or participated in organizing activities. WE WILL NOT solicit our employees to withdraw from the Union. WE WILL NOT threaten to shoot any employee to dissuade him from engaging in activities we think are prounion. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act. WE WILL, upon request , bargain in good faith with the Union as the exclusive collective-bar- gaining representative of the employees in the following appropriate unit: All employees of the Employer, on the island of Oahu, in the State of Hawaii, excluding of- fice clerical employees, confidential employ- ees, professional employees, guards and/or DECISION AND REPORT ON OBJECTIONS HENRY S. SAHM, Administrative Law Judge: These cases arose as a result of a union organizational campaign, insti- tuted in July 1972 by the Construction and General Labor- ers' Union, Local 368, AFL-CIO, herein called the Union, among Respondent's employees who were engaged in col- lecting refuse.' Twenty of the either 33 or 34 unit employees signed authorization cards between August 15 and Septem- ber 14, inclusive, which designated the Union to act as their bargaining agent for the eventual purpose of having the Union represent the said employees in collective-bargaining negotiations with Respondent, Oahu Refuse Collection Co., Inc., hereinafter called the Company By letter dated Au- gust 22, the Union notified Respondent that "several" of its employees had indicated an interest in authorizing the Union to represent them. The Union filed a representation petition with the Board on August 23. On August 30 and September I, the Union claimed that it represented a major- ity of Respondent's employees who hauled refuse and orally requested recognition. Respondent refused to grant recogni- tion but an agreement for a consent election was entered into on September I, pursuant to which an election was held from 5 to 5:30 p.m. at the company premises on September 20. The tally of ballots showed that there were 33 eligible voters and that 30 votes were cast, of which 4 votes were for the Union and 8 against the Union. There were no void ballots and 18 were challenged. The challenged ballots are sufficient in number to affect the results of the election. Thereafter, on September 26, the Union filed timely objec- All dates are 1972 unless otherwise indicated OAHU REFUSE COLLECTION CO, INC 233 tions to the conduct of the election, based on alleged im- proper company conduct Charges were filed by the Union on September 27 and December 5, 1972, and the trial began on March 8, 1973. Briefs were filed on April 19 and 23, 1973. REPORT ON OBJECTIONS 2 The objections to be considered allege- 1. That on September 19, 1972, the Employer engaged in antiunion activity by obtaining from several employees written statements revoking previously granted authority to the Union to represent said employees. 2. That between the time of the filing of the agreement for consent election by the parties on September I, 1972, and the time of the election held on September 20, 1972, the Employer substantially changed the membership of the bar- gaining unit by firing and otherwise pressuring and coercing employees to quit These employees were subsequently re- placed by antiunion workers. 3 That the Employer threatened to close down the plant with resulting loss of jobs if the Union won the election. 4. That the Employer's representatives influenced the election by being in the immediate vicinity of the balloting area at the time of the election. No evidence, as such, was produced at the hearing by the General Counsel in support of the objections. He stated that "the issues in the representation case are not a part of the General Counsel's case." However, Charging Party main- tained that the objections were substantially the same as those alleged in the complaint. The unfair labor practices alleged in the complaint are discussed in later sections of this Decision and disposition made of them. On°January 16, 1973, the Regional Director issued an order directing that the hearing on objections (Case 37- RC-1784) be consolidated with the unfair labor practices allegations (Cases 37-CA-840-2 and 37-CA-863), and the three cases were set for hearing on March 8, 1973. The order of consolidation requested that a report be made by the undersigned, consisting of findings of fact and recommen- dations as to the disposition of the above objections and challenged ballots. Briefs were filed on April 19 and 23. The Respondent answered by a general denial which disclaimed commission of any unfair labor practices. FINDINGS OF FACT THE BUSINESS OF THE RESPONDENT AND THE LABOR ORGANIZATION INVOLVED Respondent, a Hawaii corporation, is engaged at Hono- lulu, Hawaii, in the collection of refuse. For the year ending July 31, 1972, Respondent's gross revenues were $1,096,335.85 and Respondent purchased and received goods and supplies valued in excess of $50,000 from sup- pliers located outside the State of Hawaii. Upon the above admitted facts, it is found that Respondent is an employer engaged in an activity affecting commerce within the mean- 2 Objection 1, alleging that employer met with the employees and discussed the Union within 24 hours prior to the election , was dismissed by the Region- al Director See p 3 of G C Exh 1(k) ing of Section 2(6) and (7) of the Act J It is further found that the Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent did not summon any witnesses in this pro- ceeding The testimony elicited from the General Counsel's witnesses, therefore, is uncontroverted. Accordingly, the facts as they related them under oath are found to be true and the Respondent is precluded from challenging them. The complaint alleges Respondent violated Section 8(a)(l) of the Act by interrogating, threatening, and promis- ing benefits to employees to induce them to abandon the Union, and soliciting them to revoke union authorization cards which they had previously signed. Furthermore, the complaint alleges that Respondent has violated Section 8(a)(5) by refusing to meet and bargain with the Union and, additionally, by refusing to reinstate an employee because of his union activities in violation of Section 8(a)(3) of the Act. The testimony concerning the chronology of some inci- dents involved is contradictory, ambiguous, and incomplete regarding what occurred where due in part to various wit- nesses' difficulty with English. Findings of fact made herein, therefore, result from an attempt to reconcile the evidence to determine not only when particular events occurred but what occurred. In attempting to supply coheience to both those statements which in some instances approach incoher- ence, and acts which are ambiguous because of a paucity of evidence or, in some instances, a failure of proof, necessary recourse has been made to the context of other facts and circumstances in an effort to determine what was meant or occurred. Alleged Section 8(a)(1) Violations Employees of the Respondent 4 testified that Robert Henriques, President of the Company, spoke to them about the Union at two meetings held on or about September 11 and 16, at the Company's premises. At these two meetings, Henriques told the assembled employees that he was against the Union and he did not want the Union He said he could not afford to pay his employees the union wage scale, and if they were "to vote in the Union," he would be forced to close his business. Henriques also warned the employees that if they signed a union card or voted for the Union in the Board election on September 20, he would fire all of them. Henriques continued that his was the only refuse company in Honolulu whose employees were being orga- nized by the Union, and if the Union was successful and he had to pay the union wage scale and his competitors did not, it would force him to close down his business because of his poor financial situation. At the second meeting on September 16, which was held 4 days before the election, John Napulou, who worked for the Respondent, testified that Henriques announced to the employees that whoever wished to get out of the Union J It was stipulated that Respondent purchased fuel and other related prod- ucts from Standard Oil Company in the approximate amount of $48,000 annually 4 Steven Knight, Charles Ridings, Bryan Botelho, George Ahia, David Silva, John Napulou, Jerry Sambajon, Frank Verese, Joseph Buck, and John- son Kalawa 234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should come to his office and sign a paper. Two employees, Verese and Buck, both testified that they voluntarily and on their own initiative went, at different times, on September 19 to Henriques' office and inquired separately of him how they could withdraw from the Union, whereupon they signed a "paper" which was handed them.5 At the meeting on September 16, Verese told all the em- ployees present, after Henriques had left the meeting, that he was withdrawing from the Union because the employees of Respondent's business competitors were not being orga- nized by the Union. This he implied was unfair to Respon- dent. Silva, an employee, corroborated Verese. He testified that at the September 16 meeting, Verese apologized to the em- ployees "for the mistake he made .. . in getting the boys involved with union activity . . . he was the one that held the meeting over to his house . . . He was the one that passed cards around; he was the one that told everybody to vote yes for the Union." 6 Silva continued that Verese told the assembled employees he was "very sorry" for his union activities, as Mr. Henriques had been so good to him as evidenced by him loaning Verese money in the past. Buck signed the withdrawal paper in Henriques' pres- ence, and there was no discussion between him and Henri- ques. ". . . I just wanted to pull out." Silva testified that Henriques called him into his office around September 11, and informed him "he was going to ... change myjob . . . and he was going to give me a few pennies more. . . . He had a piece of paper . . . and told me that some of the boys had signed this paper, that he would want me to sign it too." Silva refused and "walked out." He continued that he later learned at the "union hall . .. that if I was to sign that paper that I would give my authorization to dump the Union." The complaint alleges that Respondent promised em- ployees a wage increase and "improved working condi- tions." There is no evidence that Henriques promised them improved working conditions. All of the witnesses, except Ridings, testified that Henriques stated he would like to give them a pay raise but he could not afford it. Ridings, the alleged discrimmatee, testified that Henriques told the em- ployees at the September 16 meeting that "if he gave us a raise now that the Union would think that he was trying to bribe us into favoring him on the election. . . . He said he would like to give us a raise. . . . And that we would get a raise but it would be after the election." The complaint further alleges that Henriques on the day of the election "threatened to shoot an employee because he had come to Respondent's place of business in order to vote." The record reveals that on the day of the election, David Silva, an observer for the Union, testified that he went to Respondent's premises approximately 2 hours be- fore the polls were to open.' While speaking to a few of his fellow employees, Silva testified that "all of a sudden Henri- 5 G C Exhs 5 and 6 6 Verese obtained nine signatures on union authorization cards and had a meeting at his home 7 Silva had a friendly telephone conversation with Henriques on the morn- ing of the day the election was held, at which time Henriques inquired whether he was going to vote ques comes flying out, storming out of his office. He looks at me. He says, `I want you to quit harassing the men.' .. . so he said, `Look, I want you out of this yard or I will shoot you out of the yard.'.. . . So I started to walk out of the yard . . and he called me back into his office... ." A calm conversation, Silva testified, then ensued during which Henriques "apologiz[ed]" to him and said- "if the Union got in he was going to lock us all out, he was going to try and run the trucks by himself, and that if he can't run the trucks by himself that is it." 8 On cross-examination, when Silva was asked to explain his testimony on direct that Henriques told him he wanted him out of the yard or he would "shoot [him] out of the yard," Silva testified that when Henriques used the word "shoot" -- "He flew out of the office ... like a bird .. . He was off the ground and coming down and power land- ing. He was nuttier than I am. . . . It is the same thing as if I said he stormed out of the office because there was no stormy day that evening. But that is an expression." Discussion and Ultimate Findings and Conclusions The burden is on the General Counsel's representative to prove his case affirmatively against Respondent by a pre- ponderance of the evidence,9 and not upon Respondent to disprove it.10 The burden may be met by drawing reason- able inference from established fact," provided it is sup- ported by substantial evidence when viewed on the record as a whole;12 unless there is a reasonable basis in the evi- dence for findings of unfair labor practices, the Employer need not excuse orjustify his action.'3 It is not the burden of the Employer to show the absence of proscribed motiva- tion but that of the General Counsel to establish its pres- ence.14 The burden to sustain the allegations in the complaint rests continuously on the General Counsel, and does not shift to the Respondent.l5 However, the evidence adduced here, in many instances, merely raises some specu- lation but speculation can neither suffice for substantial proof nor can such speculation be accepted as justifiable inference, 1f to do so means ignoring positive evidence ar- rayed against such mferences.16 To be sure, every reason- able inference is permissible but suspicion must not be allowed to take the place of proof. Accordingly, viewed as a whole, and bearing in mind that in controversies of this kind, the paramount purpose of the Act is to secure to the employees freedom of choice in the selection of their collective-bargaining representative, it is found that in the specific instances below, the General Counsel's representative has not proved affirmatively by 8 The record reveals Respondent operated approximately 15 garbage trucks 9 Sec 10(e) of the Act. N L R B v Cleveland Trust Co, 214 F 2d 95, 99 (C A 6) See American Flint Glass Workers' Union v N L R B, 230 F.2d 212, 216 (C A D C . 1956). cert denied 351 U S 988 (1956) i° N L R B % Soft Water Laundry, Inc, 346 F 2d 930, 935 (C A 5, 1965) 1 N L R B v Neveda Consolidated Copper Corp, 316 U S 105, 107 12 Universal Camera Corp v N L R B, 340 U S 474 13 N L R B v Wagner Iron Works, 220 F 2d 126 (C A 7), cert denied 350 U S 981 14 New Big Creek Mining Co, 105 NLRB 97, 104 15 N L R B v Brady Aviation Corp, 224 F 2d 23, 25 (C A 5) 16 N L R B v Murray Ohio Mfg Co, 326 F 2d 509, 513 (C.A 6), N L. R B v Ace Comb Co. 342 F 2d 841 (C A 8. 1965) OAHU REFUSE COLLECTION CO., INC. 235 substantial evidence the allegations of the complaint. How- ever, in other instances specified below, he has discharged the burden of proof, which the law places upon him with respect to other allegations of his complaint. There is not any probative evidence that Johnson Kala- wa, as alleged in the complaint, both interrogated an un- specified "employee" and also informed an unnamed "employee" that Henriques would find out which employ- ees had signed union authorization cards and would termi- nate any such "employees." It is true that Kalawa testified that Henriques told him if he found out the names of any employees who had signed a union card, he would fire them, and that Kalawa repeated his conversation with Henriques to employees Napulou and Sambajon; nevertheless, on cross-examination, when asked to account for his affidavit, which he gave to a Board investigator, not mentioning Sambajon's name but only Napulou, Kalawa explained that he "forgot." When asked what Napulou and Sambajon said in response to his recital of Henriques' threat, he answered: "They said, `Oh, yeah"' and nothing more. However, before imputing legal responsibility to Respondent for his alleged violation of the Act, it must be shown that Kalawa was an agent of Respondent.17 Johnson Kalawa is alleged in the complaint not to be a supervisor but an "agent" of Respondent within the mean- ing of Section 2(13) of the Act, which states that "In de- termining whether any person is acting as an `agent' of another person so as to make such other person responsible for his acts, the question of whether the specific acts per- formed were actually authorized or subsequently ratified shall not.be controlling." The General Counsel argues that Kalawa was such an "agent" and therefore, Respondent is liable for the incident detailed immediately above. Even assuming, arguendo, that Kalawa was such an agent, his actions did not constitute a violation of the Act under the circumstances. Kalawa is merely one of all the drivers em- ployed by Respondent to man its approximately 15 rubbish trucks. Kalawa never exercised any hiring or firing power nor recommended pay raises for his helper. Sambajon testi- fied that Kalawa is a "worker" like himself. Keamo, a union official, described Kalawa as "sort of a leadman." Respon- dent had three collection routes on the island of Oahu, one of which was handled by Kalawa and the other two routes by truckdrivers Germano and Jung. The latter two, it is not too unreasonable to assume, were not supervisors either, but merely truckdrivers who had a helper to aid them in loading the rubbish into the truck. Both the General Counsel and Kalawa referred to Germano and Jung as "foremen." It is found that Kalawa, Germano, and Jung were not superviso- ry employees within the meaning of Section 2(11) of the Act. None of them, it appears, had responsibility requiring the exercise of independent judgment within the meaning of Section 2(11) of the Act. Moreover, both Kalawa and his fellow employees regarded one another as rank and file. Furthermore, an employer is not liable for the antiunion conduct of a nonsupervisory employee who is not so identi- fied with management that the other employees could rea- sonably infer that Kalawa was acting for Respondent.'$ Accordingly, it is found that Kalawa is not an agent of Respondent within the meaning of the Act. It shall be rec- ommended, therefore, that paragraphs VI(a), (b), and (c) of the complaint, as amended be dismissed. The allegation that Henriques solicited employees Verese and Buck to revoke their union authorization cards is not shown by the evidence to be a violation of Section 8(a)(1). On the contrary, the evidence reveals that both Verese and Buck went to Henriques' office on their own initiative and voluntarily told him they wished to withdraw from the Union. No evidence was introduced which reveals either of these two employees were coerced or offered any proscribed inducement to sign the "paper" whereby they revoked and withdrew their previously signed union authorization cards. They voluntarily wished to disaffiliate from the Union. Ac- cordingly, it is recommended that this allegation be dis- missed. It is believed that when Silva used the word "shoot" it was being used by him as "an expression" and not literally, as he seems to indicate above, and that he did not mean to convey that Henriques had threatened to imperil Silva's life by the use of a lethal weapon. It is found that Henriques, assuming he used the word "shoot," employed this word in the sense that he would eject Silva from the premises. It is possible also that Silva, an emotional and volatile witness, probably misunderstood what Henriques said. Significant also is the fact that Ridings, an alleged discriminatee, who voted the day this incident occurred, testified that he never heard that Henriques had threatened to shoot an employee. It is not too unreasonable to assume that such an unusual incident, allegedly occurring on the day of the election, would have been known to the employees, particularly in a small company such as Respondent. It is recommended, therefore, that the allegations of para- graph VI(1) of the complaint, which alleges Henriques threatened to shoot Silva be dismissed. Also alleged by the General Counsel as a violation of Section 8(a)(1) is a conversation in Henriques' office be- tween Henriques and Silva during the first week of Septem- ber. Silva testified that Henriques told him if the Union "got in . . . he would last three months and would have to close down the yard." Implicit in this statement, as reflected throughout the record, is the fact that Henriques did not mean this as a threat but rather to indicate that his financial condition was so bad that he would be unable to stay in business if he were required to pay union wages in the context of his competitors not being unionized. Silva's testi- mony continues that Henriques stated: "He wasn't against the Union . . . but he wanted the boys to get the right Union.... He also mentioned about he knew who signed cards, in other words, we weren't obligated to vote, that we was entitled to vote, yes or no regardless of how we felt .... He had confidence in me to do the right thing." Not only Silva, but also other witnesses , made it clear that Henriques did not promise employees "a wage increase in order to persuade them to abandon their union activities," as alleged in paragraph VI(k) of the complaint. What Henri- 17 The General Counsel at the hearing moved to amend the complaint to allege interrogation of Verese by Henriques 2 weeks before the election, 18 A W.C Inc., 162 NLRB 1119, 1136; Goodyear Mill No 2, 102 NLRB which motion was granted. See p.p. 324-327 of the transcript 1329 1346; The Russell Manufacturing Co., 82 NLRB 1081 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ques told them was that he would like to increase their pay and that he would if his financial situation improved but at the present time he was unable to do so. These statements do not attain the stature of an unfair labor practice. Accord- ingly, it is recommended that paragraphs VI(i) and (k) be dismissed. In this proceeding, however, the bare recital of the above facts is insufficient to show restraint , coercion, or interfer- ence within the meaning of Section 7 or Section 8(a)(1)., Accordingly, recourse was had and reliance placed upon accompanying circumstances. Consideration has been giv- en also to all the attendant circumstances in the context of the overall perspective here presented.19 These circumstances have been considered compositely and inferences drawn which are reasonably justified by their cumulative, probative effects. "Events obscure, ambig- uous, or even meaningless when viewed in isolation may, like the component parts of an equation , become clear, definitive and informative when considered in relation to other action. Conduct, like language, takes its meaning from the circumstances in which it occurs." 20 "The fact that there is evidence considered, of and by itself, to support an ad- ministrative decision is not sufficient where there is oppos- ing evidence so substantial in character as to detract from its weight and render it less than substantial on the record as a whole." 21 With respect to the alleged violations of Section 8(a)(1), the test is whether the conduct charged was reasonably calculated to interfere with the employees' free choice as to whether they desired to be represented by the Union for the purpose of collective bargaining .22Interference, restraint, or coercion is not measured by the employer's intent or the effectiveness of his action, but rather by whether the con- duct is reasonably calculated, or tends to interfere with the free exercise of employees' rights under the Act 23 The language and legislative history of Section 8(a)(1) show that Congress intended in banning "interference" to proscribe any employer activity which would tend to limit employees in the exercise of their statutory rights. The key to interpretation of Section 8(a)(1) is the purpose of the Act as expressed by the preamble: to preserve to employees an atmosphere in which they have full freedom of choice with respect to collective bargaining and the designation of a bargaining representative. Inherent in the very nature of the rights guaranteed by Section 7 is the concomitant right of full freedom from employer intermeddling. Employees have as clear a right to organize and select their representatives for lawful purposes as the employer has to organize its business and select its own officers and agents. One of the purposes of the Act is to insure that employees shall have a free choice as to the question of their represen- tation in negotiating with an employer . This, of course, does not preclude the employer from stating his views as to whether or not his employees should join a union. 19 N.L R.B v Popeil Brothers, Inc, 216 F 2d 66, 68 (C.A 7). 20 Stafford Trucking, Inc, 154 NLRB 1309 at 1310 21 Universal Camera Corporation v. N.L R B, 340 U S. 474, 487. 22 N L.R B v. Wilbur H Ford, d/b/a Ford Brothers, 170 F 2d 735, 738 (C A 6). 23 Dixie Shirt Company, Inc., 79 NLRB 127, 128. Also, when one considers the rather intimate and infor- mal relationship that existed between the employees and Henriques, the fact that they may have discussed employ- ment problems, his financial situation, his inability to con- tinue in business if he was forced to pay union wages while his competitors were not, his views about the Union, and that some of these conversations were initiated by the em- ployees themselves, it would seem to be rather captious to hold that under the circumstances here present, these ingen- ious and often rhetorical discussions require a fording of an independent violation of Section 8(a)(1) in view of the inci- dents detailed above which are found not to have interfered with, restrained, or coerced the employees. 24 However, it is found that Henriques did violate Section 8(a)(1) of the Act when he threatened the employees at both the September 11 and 16 meetings that he would terminate them if they signed a union card or voted for the Union in the impending election. Alleged Violation of Section 8(a)(3) The complaint avers that Respondent refused to reinstate Charles Ridings because of his union activities. He was hired by Respondent in February 1972 as a rubbish pickup helper for the truckdriver. He signed a union authorization card on September 14. On or about September 1, Ridings notified Respondent's dispatcher, Eddie Kahanui, that his wife was expecting a baby about September 8, and that he "was going to take off for two weeks until my wife got back on her feet and was able to take care of herself. . . . Eddie and I talked to each other on the telephone at least every other day . . . because he was always calling and asking how things were and how things were and how the baby was . . . and when I was able to come back to work. And I explained to him again, as soon as my wife was able to get on her feet and then I would come back." Also, Ridings attended the September 16 employees' meeting called by Henriques at the Respondent's premises, while still on leave status. Ridings returned to work on September 18, 2 days before the election when he received a telephone call on September 17 from Kahanui, Respondent's dispatcher, who ordered him to report for work the following morning. Kahanui called for Ridings at his home the morning of September 18, and drove him to work. When they arrived at Respondent's yard, Ridings began to service his truck preparatory to col- lecting rubbish. Shortly thereafter, Kahanui told him that Henriques had telephoned and requested Ridings to wait until he arrived at the yard. When Henriques arrived at 8 a.m., he told Ridings to come into his office, at-which time he notified him that he was fired, because Ridings had failed to notify him he was taking off 2 weeks from work. Ridings remonstrated with Henriques , reminding him that not only did he notify Kahanui, the dispatcher, around September 1, but that he also kept in touch with Kahanui during the time his wife was recuperating; and he also reminded Henriques he had attended the employees' meeting called by Henri- ques on September 16. Ridings' testimony continues as fol- 24 See Howard A ero, Inc, 119 NLRB 1531; General Electric Company, 119 NLRB 1821. OAHU REFUSE COLLECTION CO., INC. 237 lows: "Mr Henriques told me that he wanted me to come back to work for him after the election but that his attorney had advised him not to hire me back until after the voting election." 25 Ridings voted on September 20, but his vote was challenged He returned to work on September 23, but voluntarily left Respondent's employ on October 10. Henriques' reason for discharging Ridings on September 18 was patently antiorganizational in an effort to prevent him from voting and contrary to Section 8(a)(3) of the Act, which proscribes discrimination in regard to hire or tenure of employment or any term or condition of employment in order to discourage membership in any labor organization. The record here speaks for itself. Henriques' motive in dis- charging Ridings 2 days before the election was part of a scheme whereby he hoped to prevent him from voting. Riding's discharge during the course of the Union's organi- zational campaign lends credence to the finding that this was not a legitmate exercise of managerial discretion On the contrary, Ridings' discharge 2 days before the election and his rehiring 3 days after the election confirm that Respondent's purported reason for discharging Ridings, namely, his failure to notify Respondent he was taking a leave of absence, is not only a pretext but also a patently false fabrication motivated by illegal considerations. It is clear that where an employer is set against a union's attempt to organize his employees, every equivocal act that was done may be properly viewed in the light of Respondent's animus toward the effort to organize his employees.26 More- over, a purportedly justifiable cause for the discharge can- not shield discrimination in employment shown to have been unlawfully motivated.27 Corroborative of this finding is Henriques' senseless charade by firing Ridings 2 days before the election and hiring him again 3 days after the election. These cogent indicia, in conjunction with Henri- ques' animus toward the Union, brand his conduct as illegal and a violation of Section 8(a)(3) of the Act. Accordingly, Respondent's illegal actions and challenge to Riding's eligi- bility to vote prevented Ridings' ballot from being counted. Accordingly, his ballot shall be counted. Objections to the Election and The Alleged Violation of Section 8(a)(5) The Union had obtained 20 valid authorization cards from the either 33 or 34 unit employees when it requested recognition on August 31 and September 1.28 The appropri- ate unit described in paragraph VII of the complaint com- prised 20 employees who were eligible to vote on September 20, the day of the election. The status of three employees is in dispute 29 For the reasons stated above, Johnson Kalawa and Richard Germano, two of the three employees whose eligibility to vote is challenged, are found not to be supervi- sors and accordingly eligible to vote. No probative evidence 25 The same day, September 18, that Henriques fired Ridings. he loaned him money 26 N L R B v Houston Freight Lines, 193 F 2d 394, 398 (C A 5), cent denied 334 U S. 834 N L R B C 28 The Union's letter dated August 22 (G C Exh 3) is found not to be a request for recognition 9 See G C Exh 19 which is a stipulation of the parties was introduced with respect to whether Eddie Kahanui, who is Respondent's dispatcher, is a supervisor as alleged by the General Counsel and counsel for the Charging Party. The burden of proof is on the party asserting such a rela- tionship, both as to the existence of the relationship and as to the nature and extent of the agent's authority.30 No such probative evidence was introduced by the General Counsel. Consequently, there is a failure of proof, thus obviating the possibility of making a finding with respect to the eligibility of Kahanui 31 The remaining objections to the elections will be found at the beginning of this Decision. Objection 1, as indicated above, has already been overruled by the Regional Director in his "Report on Objections and Challenged Ballots." 32 Objections 1, 2 and 3, have already been disposed of in this Decision. Objection 4 alleges that Respondent's "representa- tives influenced the election by being in the immediate vicinity of the balloting area at the time of the election." There is not a scintilla of evidence with respect to this objection. The only remote mention is Ridings' testimony, in answer to a question by Counsel for the Union, that he did not observe any official of the Respondent Company "at the polling place on the election day." The General Counsel alleges that not only did the Re- spondent "refuse to meet and bargain with the Union" in violation of Section 8(a)(5), but it also committed various unfair labor practices between the time recognition first was requested on August 31 and September 20, the date of the election. It should be noted that the first time that Keamo, the union official, met with Henriques and stated he was organizing Respondent's employees, Henriques told Keamo that he first would have to talk to an official of the Employ- ers' Council, Ben Akana, who represented him. Keamo later telephoned Henriques and the latter informed Keamo that he would not grant the Union recognition as he preferred a Board-conducted election. Thereupon, the Union filed with the Regional Office a representation petition on Au- gust 23. At a meeting in the Regional Office, an agreement 70 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No 377 (All-American Stamp and Premium Corporation of New York), 159 NLRB 1313, 1315 3 In Associated Transport, Inc, 195 NLRB 704, the Board found dispatch- ers employed by a common carrier by truck were not supervisors A rank- and-file employee cannot be transformed into a supervisor merely by invest- ing him with a "title" and theoretical power to perform one or more of the enumerated supervisory functions N L R B v Southern Bleachery & Print Works, 257 F 2d 235, 239, (C A 4) cert denied 359 U S 911 And while the enumerated powers listed in Sec 2(11) are to be read in the disjunctive, the section also "states the requirement of independence of judgment in the conjunctive with what goes before " Poultry Enterprises, Inc v N L R B, 216 F 2d 798, 802 (C A 5) Thus, the individual must consistently display true independent judgment in performing one of the functions in Sec 2(11) The exercise of some supervisory tasks in a merely "routine," "clerical,".. perfunc- tory," or "sporadic" manner does not elevate a rank-and-file employee into the supervisory ranks N LR B v Beaver Meadow Creamery, Inc, 215 F 2d 247, 251 (C A 3) The Board, however, has found dispatchers to be supervi- sors where they exercise "independent judgment" in performing one of the supervisory functions set out in Sec 2(11) Dixie Ohio Express, 123 NLRB 1936, 1937, Groendyke Transport, inc, 171 NLRB 997, 998 However, the Board holds that "where the direction and control exerted by the individual is over the movement of equipment and the direction of personnel occurs only as an incidental result, the statutory definition of 'supervisor' does not apply " Baltimore Transit Co, 92 NLRB 1260. 1264 Accord Carey Transpor- tation Co, 119 NLRB 332, 335, Vangas, inc, 167 NLRB 805, 806, 807 32 See fn 2, supra. G C Exh 1(k) 238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for a consent election was entered into by the parties on September 1. An election by secret ballot was conducted on September 20, which the Union lost: 4 votes were cast for the Union, 8 against, and 18 ballots were challenged See supra. By stipulation (G.C. Exh. 19) the parties agreed on May 15 and 18, 1973, that the eligibility to vote of only three employees was in dispute, namely, Kalawa, Germano, and Kahanui. The stipulation described Kalawa and Germano as :'alleged foremen" and Kahanui as "alleged dispatcher supervisor." Kalawa has been found not to be a supervisor. Merely describing Germano as a "foreman" has no mean- ing or probative value in determining whether he is eligible to vote. Inasmuch as the very sparse evidence elicited with respect to Germano is limited to his having had the same job of truck driver as Kalawa, he is found by hypothesis to be eligible to vote. Because of the General Counsel's failure to sustain his burden of proof with respect to Kahanui, his ballot shall be counted. In comparing those challenged vot- ers whose names are listed at page 2 of the Regional Director's "Report on Objections and Challenged Ballots" with the names of those listed in G.C. Exh 19, it is found that the only voters at the election who were challenged and whose eligibility are not yet determined are Marshall Cos- tello, Joseph Enriquez, and Robert Henriques . No evidence with respect to any of these individuals was introduced at this hearing. In the absence of any evidence with respect thereto, no recommendation is made as to the disposition of these other objections. The record reveals Respondent neither refused to recog- nize nor refused to bargain with the Union but rather opted for a Board election when he signed the agreement for a consent election at which time the election was ordered to be held on September 20. In this regard, it is pertinent to note that the Union filed its 8(a)(5) charge on September 27. All that Respondent did was to require the Union to prove its majority status when there was no proof that its request to hold an election was tinged with any bad faith. Adding credence to this conclusion is the fact that the Union never showed Respondent the signed authorization cards In this posture, the legal incidence of such failure on the Union's part was to deal the negotiations a coup de grace which the Union's hasty filing of an unfair labor practice charge was unable to either resuscitate or revive. All of these actions, detailed above, on the part of the Union, removed the possi- bility of effective negotiations and this precluded the exis- tence of a situation in which the Respondent's own good faith could be tested. If it cannot be tested, its absence can hardly be found.33 Respondent, therefore, did not refuse to bargain with the Union under the doctrine enunciated in Aaron Brothers, 158 NLRB 1077, 1078, which held that under the circumstances here present, Respondent' s insis- tence on an election was not proscribed. Ordinarily when confronted with a union's claim that it represents a majority of the employees together with a request for collective bar- gaining, the employer may refuse to rely on the union au- thorization cards and insist that the Union prove its majority in a Board election. A L Gilbert Co, 110 NLRB 2067, 2069. See Dimarc Broadcasting Corp., 204 NLRB No. 33 Time Publishing Co, 72 NLRB 676, 683 47, third and fourth paragraphs before "Conclusions of Law" in the Administrative Law Judge' s Decision. Based upon the foregoing facts, the General Counsel has failed to sustain the burden of proving by a preponderance of the evidence that the Respondent violated Section 8(a)(5) of the Act. The General Counsel asks that the election be set aside and a "Grssel" order issue requiring the Respondent to bar- gain with the Union upon request, based upon the preelec- tion conduct which it is alleged dissipated the Union's preelection majority status. The Counsel for the Charging Party stated during the course of the trial that he would have no objection to a new election being ordered in which Coun- sel for the Respondent joined. The General Counsel contends that Respondent' s "fla- grant pattern of illegal 8(a)(1) conduct" and its 8(a)(3) viola- tion warrant a bargaining order under the Gissel doctrine as "no fair election could be held by the Board within the foreseeable future because of Respondent' s illegal con- duct." The critical issue in this case, then, is whether a bargain- ing order should be entered under the doctrine of N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). In that case, the Supreme Court sustained the Board's remedial authority to issue a bargaining order where the union has established its majority through authorization cards and unfair labor practices had been committed that interfered with the elec- tion processes and tended to preclude the holding of a fair election .34 In Gissel, the Supreme Court indicated that a bargaining order would be appropriate in two situations: (1) where the employer's unfair labor practices are so "perva- sive" and "coercive" that a bargaining order is the only effective means of remedying those unfair labor practices; and (2) where the unfair labor practices, though less sub- stantial , are nonetheless such that "the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better pro- tected by a bargaining order." 35 The Court emphasized that "there is still a third category of minor or less extensive unfair labor practices, which, because of their minimal im- pact on the election machinery, will not sustain a bargaining order." 395 U.S. 615. The Court further held that such a determination could be made without reference to whether the employer's claim of doubt of the union's majority status was made in bad faith. It has been established supra that Respondent did not refuse to bargain within the holding of Aaron Brothers. The only remaining theory upon which a Gissel order could be predicated and which would justify a remedial bargaining order is the unfair labor practices found above which were committed by Respondent. Such a remedy is to be applied cautiously because of its tendency to encroach on the em- ployees' Section 7 right not to organize a labor union and the Section 9(c)(1) right to a secret ballot election 36 In the proceedings at bar, the findings of unfair labor practices detailed above were neither "outrageous," "perva- 34Id ai 594 J5 1d al 614 36 N L R B v Flomatic Corporation, 347 F 2d 74, 77-80 (C A 2) OAHU REFUSE COLLECTION CO., INC. 239 sive," nor encompassed by the second category involving "less pervasive practices which nonetheless still have a ten- dency to undermine majority strength and impede the elec- tion process." 37 And the third category, which is cited above, of "minor or less extensive unfair labor practices which" has a "minimal impact on the election machinery, [and thus] will not sustain a bargaining order." Moreover, the record reveals there is not a preponderance of evidence to indicate Respondent rejected its collective-bargaining obligation as evidenced by its ready response when the Union demanded recognition that it preferred the employ- ees' wishes to be determined by a Board-conducted election. Prior to this time the Union had never requested recognition nor had it submitted any evidence to Respondent with re- spect to its majority status. Furthermore, as there was no prior history of collective bargaining, it was incumbent on the General Counsel to prove affirmatively that the circum- stances herein show bad faith. The General Counsel failed to carry this burden of proof.38 Finally, the decisions of the Board and courts hold that the proximate result of Respondent's commission of unfair labor practices must be "substantial" and the cumulative effect of the proscribed conduct should be considered and weighed in combination. It is not believed the violations found here, in their cumula- tive effect, are sufficiently "substantial" to justify the severe remedy of a Gissel order. 9 When the Gissel Packing stan- dards are applied to the facts of the instant case, it becomes apparent that a bargaining order is not warranted. The vio- lations of Section 8(a)(1) and (3) which the Respondent Company committed were not of such a substantial nature, considering all the relevant circumstances; nor do they create a situation adversely affecting the Union's ability to establish its representative status in a Board-conducted election. It is uncontradicted that there is an extraordinary rate of turnover indigenous to the Company's rubbish col- lection business. This condition strengthens the conclusion that the adverse effects of the Company's unfair labor prac- tice violations should be reasonably and adequately dissi- pated, prior to the holding of a new representation election, through the utilization of the traditional remedies. Further- more, those employees hired subsequently to the eligibility date of the first election must be considered. Thus, a bar- gaining order would impose representation upon a current unit of employees, many of whom were not employed by .Respondent when the violations of Section 8(a)(1) and (3) were committed. As stated above, the effects of these unfair labor practices are not sufficiently pervasive and lingering to justify a determination that a subsequent election could not be held which would be reasonably free from the ad- verse influence of the Respondent's unlawful action. It is, therefore, found that "the possibility of erasing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies" is so evident in the context of 37 N.L R.B. v. Gissel Packing Co., supra at 614 and 615. 38Aaron Brothers, 158 NLRB,1077, John P Serpa, Inc., 155 NLRB 99, 100-101. 39 Hammond & Irving, Inc., 154 NLRB 1071; Foremost Dairies, 172 NLRB 1246. the Gissel doctrine as to warrant rejecting the General Counsel's proposed bargaining order in favor of the "pre- ferred" election process.40 Accordingly, it is recommended that the election held on September 20 should be set aside that the Regional Director for Region 20 hold a second election at such time as he deems and circumstances permit a free choice of a bargain- ing representative. In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them. Excelsior Underwear, Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759. Accordingly, it is suggest- ed that an election eligibility list, containing the names and addresses of all the eligible voters, be filed by the Company with the Regional Director for Region 20 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director should make the list available to all parties to the election. No extension of time to file this list should be granted by the Regional Direc- tor except in extraordinary circumstances. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, there are made the following: CONCLUSIONS OF LAW 1. By threatening that it would terminate employees if they signed union authorization cards or voted for the Union in the imminent election, in order to discourage membership in, sympathy for, and activity on behalf of the Charging Union, Respondent violated Section 8(a)(1) of the Act. 2. By discharging and refusing to reinstate Charles Rid- ings because of his union activity, Respondent engaged in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(3) and (1) and Section 2(6) and (7) of the Act. 3. Respondent did not violate Section 8(a)(5) of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices it shall be recommended that it cease and desist therefrom and take' certain affirmative action neces- sary to effectuate the policies of the Act. Having found that Respondent discriminatorily terminated Charles Ridings on September 18 and hired him again on September 23, 1972, it will be recommended that Respondent make Ridings whole for any loss of earnings suffered by reason of the discrimination against him for the period of such discrimi- nation. Backpay with interest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.] 40 Gissel Packing Co., supra at 602 and 614.