Ferland Management Co.

FERLAND MANAGEMENT COMPANY Ferland Management Company and Rhode Island Workers Union, Ind. Cases I -CA- 11531, I -CA 11720, and 1-RC-14352 November 15, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On March 16, 1977, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, General Counsel and Re- spondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge to the extent consistent herewith, to modify his remedy so that interest is to be computed in the manner set forth in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified herein. The Administrative Law Judge found, and we agree for the reasons set forth by him, that Respon- dent embarked on a course of unlawful conduct on February 27, 1976, 3 that the Union achieved majori- ty status in an appropriate unit of Respondent's employees on February 28,4 and that, because of Respondent's unlawful conduct during the critical period, the election conducted in Case 1-RC-14352 should be set aside and the petition in that proceed- ing dismissed. The Administrative Law Judge further found that Respondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as of February 27, the date of Respondent's first known unfair labor practice. Although we agree with the Administrative Law Judge that Respondent violated Section 8(a)(5) and (1) of the Act, we do not adopt I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 All dates hereinafter are 1976 unless otherwise indicated. 4 The General Counsel has excepted to the Administrative Law Judge's finding that employee Albert LaFontaine signed an authorization card for the Charging Party. herein called the Union, in reliance on a misrepresenta- tion and that, therefore, the card should not be counted in determining whether or not the Union represented a majority of Respondent's 233 NLRB No. 69 his rationale for so finding, nor do we agree that the bargaining obligation attached as of February 27. The record establishes, as the Administrative Law Judge found, that the Union achieved majority status on the basis of authorization cards on February 28,5 that Respondent's unlawful conduct, aimed at discouraging employee support for the Union, had a tendency to undermine such majority status and precluded the holding of a fair election on April 16, and that the Union lost that election. The Adminis- trative Law Judge failed to mention, however, the uncontradicted evidence that, by letter dated April 20, the Union requested that Respondent recognize and bargain with it, and that, by letter dated April 29, Respondent refused to do so. In these circumstances, we conclude, in agreement with the Administrative Law Judge, that the continu- ing impact of Respondent's coercive conduct is such as to render a fair election unlikely and that, therefore, the authorization cards signed by employ- ees are a more reliable indication of their desire for representation. Accordingly, we conclude that Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to bargain with the Union as of April 20, the date the Union demanded recognition.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Ferland Management Company, Pawtucket, Rhode Island, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: Substitute the following for paragraph i(b): "(b) Refusing to recognize and bargain with the Rhode Island Workers Union, Ind., as the exclusive representative of all the employees in the bargaining unit described below: "All full-time and regular part-time maintenance, janitorial, and landscape employees of the Re- spondent, employed at service locations at which employees. We find it unnecessary to pass upon the validity of LaFontaine's card inasmuch as we find that, even without counting LaFontaine's card, the Union achieved majority status on February 28, 1976. 5 Respondent contends that the Union never achieved majority status. contesting the validity of certain authorization cards. We find no ment to this contention. As the Administrative Law Judge found, the Union's card majority continued at least through April 14. Furthermore, Respondent's payroll records, admitted into evidence at the hearing without objection, indicated that the same employees were in the bargaining unit on April 21 as on April 14. and there is no evidence that any employee who signed an authorization card withdrew or revoked such authorization. 6 Trading Por,t. Inc., 219 NLRB 298, 301 (1975). We note that Respondent's unfair labor practices occurring before April 20 are otherwise remedied by our Order herein. 467 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent has custodial management contracts, including Four Seasons North and Plaza Village, Woonsocket; Four Seasons South, Warwick; Four Seasons West, West Warwick; and George Street Apartments, Pawtucket, Rhode Island, excluding guards and supervisors as defined in Section 2(1 1) of the Act." 1T IS FURTHER ORDERED that the election in Case 1- RC-14352 be, and the same hereby is, set aside, and that the petition in Case I-RC-14352 be dismissed. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This consolidated proceeding was heard before me on October 5, 6, 26, and 27, 1976,1 at Providence, Rhode Island. Charges were filed in Cases I-CA-11531 and I-CA-11720, on March 15 and April 28, respectively, by Rhode Island Workers Union, Inc., hereafter called the Union. Com- plaints and an amended consolidated complaint issued based on these charges. Ferland Management Company, herein variously called Respondent, the Employer, and the Company, filed timely answers denying any unfair labor practices. The consolidated complaints alleges that Re- spondent violated Sections 8(a)(l), (3), and (5) of the Act by interrogating its employees about their union activities; by soliciting grievances from employee Milton Teasdale in order to discourage his union activity and promising him a wage increase and other benefits on condition he cease union activity; by issuing a written instruction to Milton Teasdale, on March II 1, that he could not work Saturdays or through the lunch period and by discharging him on March 12, all because of his union activities; by unlawfully refusing to bargain with the Union; and by engaging in a course of conduct designed to destroy the Union's majority status and make a fair election impossible. In Case I-RC-14352, the Union filed a petition for election on March 11. The parties executed a Stipulation for Certification Upon Consent Election on April 2, which the Regional Director approved on April 5. An election was conducted on April 16 in a unit of maintenance, janitorial, and landscape employees of Respondent. There were 11 votes cast for the Union, 20 against, and I challenged ballot. The Union filed objections to the election on April 22, and, on July 6, the Regional Director issued a Report on Objections directing a hearing on Objections 2 and 4, which alleged matters covered by the complaints, and consolidated Case I-RC-14352 for hear- ing with Cases 1-CA-11531 and I-CA-11720. Upon the entire record, including my observation of the witnesses as they testified, and after due consideration of the able posttrial briefs filed by the parties, I make the following: I All dates herein are in 1976 unless otherwise specified. 2 The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses, the exhibits, and careful consideration of the logical consistency and inherent probability of the facts found. Although I may not, in the course of this decision, advert to all of the FINDINGS AND CONCLUSIONS i. RESPONDENT'S BUSINESS The complaint alleges, Respondent admits, and I find that Respondent is a Rhode Island corporation with principal office and place of business at Pawtucket, Rhode Island, where it is engaged in construction of houses, apartments, and commercial buildings and the manage- ment of real estate property; and that Respondent annually purchases and receives, at its Pawtucket and other Rhode Island locations, goods and materials valued in excess of $50,000, which are shipped directly from points outside the State of Rhode Island. I further find that Respondent is now and has been at all times material herein an Employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Evidence2 I. The appropriate unit and its members The consolidated complaint alleges and Respondent admits that the appropriate collective-bargaining unit involved in this case is composed of all full-time and regular part-time maintenance, janitorial, and landscape employees of Respondent, employed at service locations at which Respondent has custodial management contracts, including Four Seasons North and Plaza Village, Woon- socket, Rhode Island; Four Seasons South, Warwick, Rhode Island; Four Seasons West, West Warwick, Rhode Island; and George Street Apartments, Pawtucket, Rhode Island, excluding guards and supervisors as defined in Section 2(11) of the Act. The parties stipulated that the following named employ- ees were employed in the above-described unit throughout the period from and including the workweek ending February 11 through the workweek ending April 14: Allan Morrison Roland Morin Norman Boyd Fred Browne Laurent Guilbault George Murdock James Kelly Edward Godfrey Kenneth Bouvier Albert La Fontaine R. J. Fernandes Patrick Demers Robert Maurice Walter Maurice Raymond Dohring Raymond Teasdale Robert Resendes Harvey Williams Michael Lanctot Eric Francis Edward Tyerell T. W. Gramstorff Robert Goulet Stephen J. Covill record testimony or documentary evidence, it has been carefully weighed and considered and to the extent that testimony or other evidence not mentioned herein might appear to contradict the findings of fact, that evidence has not been disregarded but has been rejected as incredible. lacking in probative worth, surplusage. or irrelevant. 468 FERLAND MANAGEMENT COMPANY The parties further agreed that (1) Kim Davis and Stephen Casey were employees in the unit, for the period from and including the week ending February 11, until both were terminated on March 26; (2) Paul Dansereau was an employee in the unit beginning with the week ending February II until March 10 when he ceased to be an employee; (3) the status of Ronald Bessette, who worked throughout the period first set forth above, as an employee in the unit or as a supervisor excluded therefrom will be dependent on the ultimate decision in this case as to his supervisory status; (4) although a unit employee until his discharge on March 12, the inclusion or exclusion of Milton Teasdale in the unit thereafter will depend on the disposition of the complaint allegation that he was unlawfully discharged; (5) that Respondent takes the position Michael Merola was discharged on March 12, and John Russell no longer worked after January 21, whereas the General Counsel contends Merola and Russell contin- ued as unit employees until later dates; that Kevin Meehan was a unit employee during the weeks ending February I 1, 18, and 25; and that Dominic Giorgianni was employed from the week ending March 10 through the week ending April 14. The parties further agree that no individuals other than those named above were members of the unit during the period beginning with and including the week ending February 11 through the workweek ending April 14. With regard to John Russell, the evidence is contrary to Respondent's position that he should not be considered as a unit employee after January 21, solely because that was the last day he actually worked. Richard Ferland, director of property management for Respondent, a statutory supervisor with total control over the day-to-day opera- tions of the property management department with which this case is concerned, testified that Russell last worked on January 21, at which time he advised the Company he was going to see a doctor; that Russell later advised the Company's supervisor, Spear, that he was still out sick; that Russell's weekly timecards continued to carry the notation that he was out sick all week through the pay period ending March 17; and that Russell was not separated from the Company payroll until March 25, when the Company received an unemployment inquiry from California regarding Russell and Ferland sent a memo to personnel to classify him as a voluntary quit. Russell's name appears on the stipulated compilation of Respon- dent's payroll for each and every payroll beginning with the week ending April 14. Furthermore, Respondent included Russell's names on a list of employees submitted to the Regional Director of Region I on March 29 in connection with Case l-RC-14352, and a list of discharges and quits received into evidence by stipulation as authentic and accurate shows Russell quit on March 26. In all the circumstances, the preponderance of the evidence clearly establishes that John Russell was a unit employee on sick leave until terminated as a voluntary quit. The date of his actual termination is given by Ferland as March 25, and by stipulation as March 26, yet his name appears on a list of employees submitted 'by Respondent to the Regional Director on March 29, and in every week through April 14 of a stipulated compilation of the payroll. Though the matter is clearly not one easily susceptible to exact determination, I am persuaded from the logical probabili- ties of the situation that he was actually terminated on March 25 or 26, during the workweek ending March 31, when the March 29 list was prepared; 3 that the compila- tion of employees on the payroll is in error in continuing his name during the April 7 and 14 payrolls; and that the stipulation of the parties to the written list of quit and discharged employees, received into evidence which lists Russell as quit on March 26, takes precedence over Ferland's testimony that Russell was terminated March 25. I therefore conclude Russell was an employee on sick leave until he was terminated on March 26 and remained a member of the appropriate unit through that date. The case of Michael Merola is similar to that of Russell with respect to confusion of dates. Ferland testified that he fired Merola in the first quarter of 1976. Merola's personnel envelope bears the notation that he quit on March 12, as does the Employer's compilation of quits and discharges. However, the stipulated compilation of Re- spondent's payroll shows Merola on the payroll during the week ending March 31, and a memo to personnel on Merola initiated by Ferland and dated March 26 states: "I talked to Mike yesterday 3/25/76, told him he must show up for work Friday 3/26 or I would consider him a voluntary quit. I gave Chief Spear a note that Mike would be in, which is what Mike told me. Mike did not show up. Process him as a voluntary quit." From the foregoing, particularly the intraoffice memo of March 26, I conclude that Merola was a unit employee until March 26, when he was removed from the payroll. There is no evidence to support Ferland's bare assertion that he fired Merola and, although it is of no real consequence in the disposition of the issue of dates of employment or other issues in this case other than the reflection it casts on Ferland's credibility, I find Merola quit, and that Ferland himself considered him as quit, effective March 26. Turning to Ronald Bessette, Respondent vigorously contends he is a supervisor and the General Counsel just as vigorously contends he is not. I agree with the General Counsel for the reasons set forth below. It is clear that Respondent never contended Bessette was a supervisor or even considered that he was until the question of his status was raised by my question to Bessette as to the difference between an "overall crew boss," which he claimed to be, and a "crew chief." That simple question opened a veritable Pandora's box of testimony, documents, and arguments regarding whether or not he is a supervisor. Richard Ferland, in testimony given prior to Bessette's appearance as a witness, as General Counsel points out, stated that Ferland had total oversight of the day-to-day operation of the property management department and supervised a staff of site managers and central office managers. He further averred that site managers supervised maintenance employees working at their sites and that Maintenance Supervisor Spear supervised some 15 mainte- nance employees, who worked at locations not under a 3 There is no evidence when the March 29 list was prepared. 469 DECISIONS OF NATIONAL LABOR RELATIONS BOARD specific site manager, was responsible for the scheduling of the day-to-day work functions of these employees and told them where to work and what to do, and was responsible to Ferland for their performance. Ferland's testimony here implies that Spear is the direct supervisor of the mainte- nance employees, which includes the lawn crews. Ferland made no mention of Bessette, who works at this latter function. I note, however, that, after I questioned Bessette regarding his claimed job title, Ferland, on recall as Respondent's witness, and Spear testified extensively about Bessette's duties in an obvious effort to show he was indeed a supervisor. As further discussed below these efforts were not fruitful. Both the list of unit employees submitted by Respondent to the Regional Director on March 29, and the stipulated list of eligible unit employees signed by Ferland for Respondent and by the Union on April 2, contained the name of Ronald Bessette. Although the March 29 list and the subsequent Norris-Thermador4 list are not dispositive of Bessette's alleged supervisory status, they do show that Ferland and Respondent, of which he is a manager and agent, considered Bessette to be a unit employee at that time. I observed Ferland to be a calculating and clever witness not given to naivete, and I do not believe his testimony on recall that he placed Bessette's name on the eligibility list because he thought all nonsalaried supervi- sors should be on the list and anyone who did not get paid overtime should be left off, and since Bessette was hourly paid and received overtime he was included on the list. Apart from my observation that Ferland's demeanor betrayed his answer, the same day, April 2, that Ferland signed the Norris-Thermador list, Respondent s signed the election stipulation which flatly excluded statutory supervi- sors from the unit without any reference whatsoever to salary, overtime, or other factors. Ferland's purported understanding of eligibility, which I have discredited, is made even more unbelievable by the circumstance of concurrent signing of the Norris-Thermador list and the election agreement setting forth the appropriate unit. It was quite obvious to me further on the admission by Respondent that the possibility of Bessette being a supervisor had never even occurred to them prior to my question to Bessette about his job title, and that Respon- dent's inquiry thereafter at the hearing was an opportunis- tic investigation as opposed to advocacy of any position that Bessette was a supervisor. I say this not in a derogatory sense, inasmuch as I raised the statutory question which the parties were then free to pursue, but as evidence that even at the hearing Respondent was hesitant, to say the least, to openly allege Bessette to be a supervisor, thus revealing doubt even by Respondent that Bessette was a supervisor. Respondent did not, in fact, do so until the third day of the hearing, although I raised the question on the first day, and General Counsel requested Respondent to clarify his position on Bessette's status on the second day. 4 Norris Thermador Corporation, 119 NLRB 1301 (1958). 5 The record does not show the identity of the signer of the consent election stipulation. 6 Ferland's testimony that he relied on Bessette's concurrence with the hiring of Lanctot and Francis to determine if they were satisfactory is Having noted the Respondent's prehearing position with regard to Bessette's status, together with Ferland's purport- ed explanation of it, and the manner in which the question of his status arose and was pursued at the hearing, I have also considered the testimony and documents introduced at the hearing with recognition of the long-established precedent succinctly enunicated by the Board in United States Gypsum Company, 118 NLRB 20, 25 (1957), as follows: The question whether particular individuals in a given case are supervisors within the meaning of Section 2(11) of the Act must be resolved upon examination of all the evidence in the case. Conclusory statements that the individuals can 'effectively recom- mend' changes in the status of employees and that they 'exercise independent judgment' . . . do not establish supervisory authority. Such expressions are words of art reflecting legal conclusions, but they are not evidence which assists in the resolution of disputed supervisory authority. [Footnote ommited.] Accordingly, I will not hereafter allude to the numerous conclusionary assertions in the record, but will only discuss the credible evidence, its implications, and the reasonable inferences to be drawn therefrom. On November 11, 1975, Ferland submitted a mainte- nance reorganization plan to higher management which was approved. The plan lists, among its manpower needs to fill each job category, "Grounds Crews-7 fulltime work- ers-in season 3 crews are utilized," and "Maintenance Supervisor--I person would handle all supervision, pur- chasing, scheduling, inspections, trouble shooting, and related function. Could possibly assist in leasing as time would permit." The plan further states a need for new help to fill out the complement set forth in the plan and enumerates the number of new employees needed in each job category of the plan. Relevant to the instant case is the stated need to hire "Grounds-3 employees (2 of which should be crew chiefs)" and "Maintenance Supervisor--I employee." Milton Spear was hired on or about December 18, 1975, to fill the maintenance supervisor slot and continues in that capacity as a salaried employee. Ronald Bessette was hired on or about December II11, 1975, to fill a crew chief vacancy at an hourly rate of $3.75. Both responded to help wanted ads in the Providence Journal- Bulletin of November 22, 1975. Bessette responded to the ad stating "Landscaper: knowledgeable crew chief being sought. Year around work good pay and benefits for good workers." The ad to which Spear replied specifically states "Maintenance Supervisor." I deem it significant that the "Landscaper" ad emphasizes a need for landscaping knowledge as opposed to supervisory ability. Michael Lanctot and Eric Francis, who have been stipulated as unit members, were hired as crew chiefs on the same day as Bessette was.6 Since that date, Lanctot, Francis, and transparent fiction. Ferland did not even know if Bessette was going to be satisfactory, and I regard this claim of "reliance" to be a deliberate manufacture designed to support Respondent's fortuitous opportunity to construct a defense to certain aspects of the complaint by portraying 470 FERLAND MANAGEMENT COMPANY Bessette have been the crew chiefs on the three ground crews, and each crew has been composed of one employee other than the chief from that time at least through April 1, and the chief also functions as the "crew" truckdriver. Thus, from the preponderance of the credible evidence, what we really have here are three crews of two men each (one of whom is denominated chief of that crew), which comports with the complement set forth in the reorganiza- tion plan, with the single exception that the plan suggests seven full-time workers including crew chiefs. After these new men were hired, Respondent sent a letter to the residents of its apartment buildings in January 1976, advising them that the Company had added workers in the painting, lawn crews, and janitorial crews to better service the residents' needs and that any service problems should be brought directly to the attention of the "Maintenance Supervisor." There is no provision in this communication for resident complaint to or contact with crew chiefs. Bessette testified variously that he is the overall crew boss for grounds maintenance and this job involves "making sure the crew bosses are doing their job, and they all know what places they are to go"; that Ferland told him on hire that he "was to be hired to take care of group of men in different crews. In other words, there would be three trucks on the road and I was to be one of the crew bosses, overall crew bosses of everything"; that Ferland told him his job would be "to take over all the crews and to maintain the lawns and shrubbery of the complexes"; and that Ferland told him his job was "to take care of the men, make sure they were on the right jobs, and to do the work myself also." I find no material internal inconsistencies in this testimony, and I observed Bessette to be a forthright, credible witness not given to contrived or evasive testimo- ny.7 Looking past what Bessette was told on hire, to what his duties actually turned out to be, I find that by virtue of his educational background and experience in landscaping he was responsible for checking the hedges, lawns, plants, shrubs, and trees to see that they were properly cared for. He is, in sum, a groundskeeper with superior knowledge and training in the area of landscaping whose duty, in addition to doing work himself, is to see that the landscaping is done right from a landscaper's viewpoint. He then tells Spear what is needed in the way of grounds materials, and Spear then does the actual purchasing of the materials. Bessette cannot hire or fire, nor can he effectively recommend such action. This is illustrated by Spear and Ferland's rejection of his recommendation that Davis be discharged for continually sleeping in the truck. He has no authority to discipline, approve overtime, or permit employees to leave work early. A striking reflection of the employees' understanding of Bessette's authority is the refusal of Davis, while working with Bessette, to quit sleeping and get out of the truck and Davis' refusal to do different jobs. Obviously, Davis did not believe Bessette could do anything about it, and the Respondent's refusal to Bessette as a supervisor. I also credit Bessette's testimony that Ferland told him Lanctot and Francis were already hired at the time Bessette himself was being interviewed. 7 In this regard, Bessette was a far more credible witness then Ferland, whom I do not credit when his testimony conflicts with that of Bessette as to what one said to the other about Bessette's duties. fire Davis when Bessette reported these matters to Spear confirms Davis' belief and a lack of authority in Bessette. The schedule of the three crews was set up by Ferland and Spear. This schedule was to be followed unless Spear had a special assignment for them. Ferland and Spear split up the apartment complexes into three routes for the three crews. Each crew chief had his route to follow and the crews could go through their route in a routine fashion over and over without any special instructions. Bessette works regularly on one of the routes and, although Spear, who testified credibly that the foregoing procedure was the one followed, claims that Bessette is supposed to both work with a crew and spot check the other crews, I conclude that this means Bessette is supposed to examine the plantings from a standpoint of expertise and advise the men accordingly. In any event, I am convinced from a careful consideration of all the testimony on the matter that Bessette never did leave his "crew," which only consisted of one other employee, to visit the other jobsites. Further, Spears goes from job to job during the day supervising the men and seeing how the work is proceeding, and the whole purpose of the three routes according to Spear was to avoid moving employees around in a haphazard fashion "from one side of Pawtucket up to East Providence in the same day." Respondent concedes that Bessette was not included in preelection meetings held with its supervisors for the purposes of instructing them on proper behavior during the union organizational effort. Additionally, Ferland testified that when the older employees complained to him that they should get pay raises because the new employees were getting more pay, he explained to them the difference in compensation was occasioned by the technical training of the new men. In my opinion, further laborious statement of the evidence relating to Bessette's status would only compound the already redundant recitation above. Respondent has totally failed to show that any of the elements recited in Section 2(11) of the Act are applicable to Bessette. The only discretion he has that remotely resembles statutory authority is the right to determine when the one-half hour lunch will be taken by his crew, which right is itself dependent on the work in process as specifically provided in the Company's rules and the election to dispense with coffeebreaks when required by the workload. This is minuscle authority in itself and is given to all crew chiefs, including those stipulated in the bargaining unit, not just Bessette. I therefore find and conclude in consideration of all the foregoing that Bessette is a skilled landscaper whose role as "overall crew chief's means only that he checks the plantings from a standpoint of expertise, reports to Spear, and acts as a conduit for Spear's instructions to other employees. Spear is the only statutory supervisor over the lawn crews; the only control Bessette exercises over other employees is that derived from his superior experience in R Richard Ferland was much given to inflation of his testimony, and I discount his description of Bessette as "chief of the grounds maintenance crews" as an example of that inflation. 471 DECISIONS OF NATIONAL LABOR RELATIONS BOARD landscaping and does not make him a statutory supervi- sor;9 and Bessette is a rank-and-file employee properly included in the agreed-upon bargaining unit at all times material to this case. 2. Union activity and authorization cards In late January, after some of the other employees had expressed an interest in securing union representation, Milton Teasdale telephoned Union Representative George Nee and asked him if the Union could help improve the wages, working conditions, and other benefits of Respon- dent's employees. Nee replied that it could and a meeting was arranged for February 2 at the Broadway Athletic Association. Teasdale notified other employees, and he, his brother, Raymond Teasdale, Harvey Williams, Stephen Casey, and Ronald Bessette met with Nee and Hamelin, a fellow union agent, at that time and place. Nee and Hamelin explained the process of union organization, what a union could do for the employees, and what matters could be covered by a collective-bargaining agreement. The Union and the employees then discussed the men's complaints about their jobs. After the February 2 meeting, Milton Teasdale called the Union, l° arranged a meeting at his house for February 7, and asked that Nee and Hamelin bring along some union cards. Nee and Hamelin met with Milton and Raymond Teasdale, and Ronald Bessette on February 7 at Milton Teasdale's home, and explained that the Union wanted to make sure the employees wanted a union, and the way to show it was to sign an authorization card. It was further explained by the Union that in order to file for an election the Union had to have 30 percent of the employees signed 9 Bugle Coat, Apron & Linen Service, Inc., el al., 132 NLRB 1098, 1100 (1961). 'o The date of the call is not in the record. I At p. 23, 1. 14, of the official record General Counsel mistakenly cited February I I as the date of the meeting at Teasdale's house. 12 Respondent concedes the validity of the cards signed by Raymond Teasdale and Milton Teasdale on February 7 as designations of the Union to represent them, but challenges Bissette's on the ground he is a supervisor. I have found Bissette to be a nonsupervisory unit employee and therefore find his card signed on February 7 to be a valid designation of the Union as his collective-bargaining representative. Respondent also concedes the validity of the authorization cards signed by Edward Godfrey on February 8, George Murdock on February 26, Robert Resendes on February 27, Paul Dansereau on March 2, and Kenneth Bouvier on February 28. The cards read as follows: AUTHORIZATION CARD FOR BETTER wORKING CONDITIONS AND JOB SECURITY Under the laws of the United States Government employees have a legal right to organize and bargain with their employer on wages and other conditions of employment. Name-- Address - City Employer Wage -- Phone Zip - Job Title - Soc. Security No. I designate and authorize the Rhode Island Workers Union to act as my collective bargaining representative with my employer Date Signature (written) All Names Kept Confidential up, but that the Union would not seek an election from the Board unless 60 to 70 percent of the employees signed cards, which would be used to show the Board an election was warranted, and that the cards were also an indication that the employees wanted the Union to represent them.i Raymond Teasdale, Bessette, and Milton Teasdale signed cards and returned them to the Union on February 7.12 Nee and Hamelin gave Milton Teasdale a supply of the cards on which to secure the signatures of other employees interested in union representation. Throughout the organi- zational campaign Milton Teasdale was the employee who arranged and coordinated the meetings between the Union and the employees and notified the employees of the dates and places of the meetings. Nee and Hamelin met with Respondent's employees again on February II and February 28. Milton Teasdale was present at all meetings with the Union. Finally, on March I I, the Union filed the petition for election with the Board which led to the April 16 election. During this entire period Milton Teasdale was actively soliciting signatures on cards. He secured a signed card from Edward Godfrey on February 8, George Murdock on February 26, Robert Resendes on February 27, Stephen Covill on February 27,13 John Russell on February 21,f4 Robert Maurice on March 16, and Theodore Granstorff on March 16. Harvey Williams signed a card on February 1 , Michael Lanctot on February 10, Eric Francis on February II, Robert Fernandes on February II, Stephen Casey on February 11, Kim Davis on February 13, and Fred Browne on February 28.' 5 The card of Michael Merola, bearing a date of March 2, was received in evidence after testimony by a handwriting 13 The Employer disputes the cards signed by Covill, Maurice, Gran- storff. Lanctot, Francis, Fernandes, Casey, Williams, and Davis on the ground the record does not show that those who signed the cards are the same individuals who are employees of the Company. This is an exercise in frivolity, for the record evidence clearly establishes that the cards were distributed to and signed by employees of Respondent. not some passersby, and that the names on the cards are also on the unit list which the parties stipulated into evidence. Further, not one iota of evidence nor any allegation was advanced at anytime prior to the argument in Respondent's posttrial brief, nor does the brief itself argue, that the above card signers are not employees or that the signatures are forgeries. I also reject the contention that the cards signed by Lanctot, Francis, Casey, Williams, and Davis are invalid for the reason they were solicited by supervisor Bessette. Inasmuch as I have found Bessette is not a supervisor, participation by him in the solicitation of authorization cards cannot work to invalidate them. I note further that Respondent's second argument that the cards of Lanctot. Francis. Casey, Williams, and Davis are invalid because solicited by Bessette presumes they are employees susceptible to his influence, and thus militates against Respondent's first argument that the persons who actually signed the cards bearing their names have not been shown to be employees. 14 Respondent challenges the validity of Russell's card on the ground he was no longer an employee on February 21. This challenge is without merit in view of my finding of Russell's continued employment status to March 26. 15 Respondent disputes the validity of Browne's card, contending that Browne was told by Teasdale or Nee that everyone else had signed but him and this was a misrepresentation which induced him to sign the card. Respondent relies on S. E. Nichols Company, et al., 156 NLRB 1201 (1966). and Engineers & Fabricators, Inc., 156 NLRB 919 (1966), to support his thesis. Engineers & Fabricators Inc., does not support the argument at all if Respondent, as I presume he is from a reading of the case, relies on the discussion, p. 941 therein, of the card of Stzelecke which was counted even though he was falsely told by the solicitor that a majority of employees had signed cards because there was no evidence this false claim was a material factor in his decision to sign. Nichols holds, see p. 1211, that employee 472 FERLAND MANAGEMENT COMPANY expert that the signature on the card and that on the Form W-4, Employee's Withholding Allowance Certificate, from Respondent's records were, in the expert's opinion, signed by the same person. Respondent does not dispute the signature, but disputes the date which is unsupported by any testimony as the date on which Merola signed. The point is well taken. However, the card bears the timeclock imprint of Region 1, National Labor Relations Board, showing it was received at 11:13 a.m. on March 12. General Counsel argues that no evidence was presented by Respondent it was not signed on March 2. It is not Respondent's burden to prove the date on the card. On the basis of the evidence before me, I can only conclude that it was signed on or before March 12, more likely on or before March 11 (the date of the petition which it apparently accompanied in view of the fact that 16 other cards were marked received by the Board on March 12), I can only from the evidence before me assign it a date of March 10, because Nee's testimony that he forgot to take the cards with him on the morning of March II when he filed the petition, implies that he had the signed cards in his possession before the morning of March I 1. Although the authorization cards purportedly signed by Dominic Giorgianni and Albert La Fontaine were not produced at the hearing, the General Counsel, in sub- stance, contends that the testimony of Giorgianni and La Fontaine relating to the signing of the cards is sufficient to show that they designated the Union as their representa- tive, citing Aero Corporation, 149 NLRB 1283, 1291 (1964), and Howard-Cooper Corporation, 117 NLRB 287, 288 (1957), in support of this contention. Respondent counters this argument on the grounds that (1) no cards were produced for Giorgianni and La Fontaine; (2) La Fontaine did not specifically testify that he was an employee of the Employer; (3) La Fontaine signed, if he signed, his card in the presence of supervisor Bessette; and (4) La Fontaine signed in reliance on the misrepresentation that he was told he was the only one who had not signed a card. I reject Respondent's contentions (2) and (3) for reasons set forth in footnote 13 above. Giorgianni credibly testified that he signed a card like the authorization cards in evidence at the request of Milton Teasdale on approximately March 3, which was his first day of employment, and returned it to Teasdale. It was stipulated by the parties that the payroll compilation showing Giorgianni first worked during the week ending March 10 is accurate, and the basic payroll register, which I have examined, shows he worked 40 hours that week. March 10, 1976, fell on Wednesday, therefore, excluding Saturday and Sunday, I conclude Giorgianni's first day at work was Thursday, March 4, and that he did sign an authorization card on March 4. Inasmuch as Giorgianni's uncontroverted testimony is that he signed the authoriza- Bonham signed a card in reliance on the misrepresentation that 75 percent of the girls had signed. In the instant case. Browne credibly testified that he was given the card by Milton Teasdale or union agent Hamelin, probably Teasdale, who said "you're the only one who hasn't signed." However, Browne refused to sign, stating "I don't sign anything without reading it." He then read it. filled it out, and signed it "of my own free will." Clearly, Browne did not sign the card because of the misrepresentation. In fact, he refused to do so and only did sign after he carefulls examined the card and exercised his independent judgment in deciding to sign Unlike Nihols, and tion card, which was like that of Bouvier which is in evidence and reads as set forth in footnote 12 above, and was told at the time by Teasdale that the purpose of signing was to get the Union in, I conclude that Giorgianni designated the Union as his bargaining representative on March 4.16 La Fontaine also testified that he signed an authorization card like that of B uvier after Milton Teasdale was fired on March 12 and before the election on April 16. He was home recuperating from an operation at the time and Bessette brought him the card. He further testified that he was told at the time that he was the only employee who had not signed and that is why he signed it, but further states he read the card before he signed it. Bessette avers that he gave the card to La Fontaine and saw him sign it a few days after Teasdale was fired. Bessette claims he read the card to La Fontaine before he signed it. The card was not produced at the hearing. Apart from the impossibility of fixing a date of La Fontaine's signing with any precision on the basis of the testimony adduced, I conclude that La Fontaine's uncontroverted testimony, which I credit, that he signed the card in reliance on the statement that he was the only employee who had not signed, which is a misrepresentation inasmuch as not all employees ever signed cards (as evidenced by Roland Morin's credible testimony that he did not sign one and the maximum number of card signers claimed at hearing was 22, including La Fontaine, out of a unit of 33 employees), works to invalidate his designation of the Union as one secured by misrepresentation and does not represent his unfettered choice in the matter. 3. The alleged independent 8(a)(1) violations17 and the written warning to and discharge of Milton Teasdale Milton Teasdale met with Ferland in Ferland's office on or about February 27. According to Teasdale, Ferland said he understood Teasdale was not happy with the Company, and when Teasdale said he was not because new employees were getting paid more than old, asked how much more an hour Teasdale wanted. Teasdale asked how much Ferland thought he was worth and Ferland said he could not pay that much and asked how much larger a truck allowance Teasdale wanted and whether he would like to be salaried. Receiving no answer to either question, Ferland asked if Teasdale would like a maintenance job. Teasdale said it sounded good and Ferland said he would see what he could do about it. Then Ferland remarked that he understood there was a union movement going on. Teasdale agreed there was and volunteered that he had signed a union card. Ferland then asked how he could nip the Union in the bud. Teasdale said it could be done by paying the men more wages and holiday pay. Ferland like Engineers & Fabricators, the misrepresentation was not a material factor in his signing the card and it will be counted as a valid, uncoerced designation of the Union as his representative. 16 lloward-Cooper Corporation, 117 NLRB 287, 288, 295 ( 1957): Serv-U- Stores, Inc., 225 NLRB 37, 40 (1976). '7 At the hearing. General Counsel withdrew the allegation that Robert Eithier interrogated an employee, and no evidence was proffered or adduced in support thereof. 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked how long he had to work on it and, receiving the answer that he had from a week to a week and a half, stated there was no way he could do it in that time because he could not get Respondent's board together. Ferland's version of the February 27 meeting is that Teasdale came in and said he wanted to talk about compensation. Ferland asked him what he was looking for, what would it take to make him happy, would he like to change jobs, get into maintenance perhaps. After some discussion about a potential maintenance job, Teasdale said he would rather stay in painting. According to Ferland, he asked, "[G]ee, Milton, exactly what is it you want," and Teasdale said, "I'm going to level with you, some of the guys have got together and I signed a card for the Rhode Island Workers Union." Ferland's asserted response was, "[W]ell, fine, Milton, what is it you are looking for? You are here for a reason. You said you wanted to talk about compensation. What is it you want?" Teasdale replied he wanted accrued vacation benefits taking into account the years he had worked for the Company as a subcontractor as well as his years of direct employment. Ferland said "[W]ell, gee, Milton, that doesn't sound quite right to me," and Teasdale reminded him not to forget that employees were organizing, he had signed a card, and he thought he could nip the whole thing in the bud for Ferland. Teasdale explained that if he got his accrued vacation benefits and maybe some paid holidays within 10 days or so he might be able to nip the whole thing in the bud. Ferland's response to this was that he did not know that he would do anything in those areas, did not think Teasdale could get accrued vacation benefits, but would think about it and see Teasdale later. The two versions are in substantial agreement that the meeting first concerned the question of additional compen- sation and/or a different job for Milton Teasdale. The material divergence in testimony commenced when each discusses how the question of the Union came up and continues through the rest of the conversation. In another context, Ferland concedes that he resisted the Union and meant to do so successfully. This is not, of course, illegal in and of itself for there are many ways an employer may lawfully resist and actively campaign against union organization of its employees. Ferland's concession does however establish his hostility toward and desire to avoid unionization, and employee awareness of that hostility is evidenced by the laughter raised among them by Nee's statement, at the union meeting of February 28, that voluntary recognition by Ferland on the basis of a card check would be possible. I am convinced that Milton Teasdale was aware of Respondent's attitude in this regard when he met with Ferland on February 27. This cuts both ways. With this knowledge, it can be argued that Teasdale sought to capitalize on the Employer's attitude to ingratiate himself with Ferland and secure benefits for himself. On the other hand, it can be equally argued that knowledge of Ferland's attitude would deter Teasdale from the overt advances that Ferland testifies he made, for fear of retaliation. i' Milton Teasdale says he was alone. Kearns says Raymond Teasdale was also present. I credit Milton Teasdale, although I do not consider this a critical point. On the whole, I am persuaded that the latter is true. As I have earlier indicated, I found Ferland to be a calculating, clever, and opportunistic witness who conveyed an impres- sion of conscious effort to shore up Respondent's defenses. Milton Teasdale impressed me as a much more open and candid witness than Ferland, not given to subtle shadings and fencing with counsel, as was Ferland, Teasdale appeared to be making a conscientious effort to recount events as he recalled them, even to the extent of fully admitting faulty recollection of dates. I found Milton Teasdale a far more direct and credible witness than Ferland, and I do not believe that he attempted to strike a deal with Respondent to destroy the organizational campaign in which he was the leading employee activist. Accordingly, I conclude that Ferland seized on the opportunity presented by Teasdale's complaint about the wages being paid new employees to dangle before him the carrot of increased personal job benefits, interrogate him about the union campaign, and seek to enlist his help in defeating the Union, all individually and collectively in violation of Section 8(aXI) of the Act. Then, when he found that Teasdale's suggestion was to increase wages and holiday pay for all employees, lamely abandoned the topic by noting that the time estimated by Teasdale to be left to Respondent to so act was too short to admit accomplish- ment. In short, Ferland attempted to inveigle Teasdale, not the contrary, and I credit Teasdale's version of the conversation. Ferland told John Kearns, director of the federally insured rental program for Respondent at the time, on March 1, that the Rhode Island Workers Association was organizing the Company's employees. The following day, according to Milton Teasdale, he i entered Kearn's office and asked to talk to him privately. Teasdale asked Kearns if he had heard about the union movement. Kearns acknowledged that he had and cautioned Teasdale that he was in with the wrong crowd and that the Union was composed of radicals and named Father Shelton (appar- ently an ex-priest active in efforts on behalf of low income groups) and Gary Hamelin as radicals. Kearns agrees that he did caution Teasdale that he knew of the Rhode Island Workers Association and to be careful, "might have mentioned" Father Shelton as part of the Union, and told Teasdale that he, Kearns, was on management's side in the matter. I credit Teasdale's version as substantially corrobo- rated by Kearns, and conclude that Teasdale was the more candid and complete in his description of the meeting. There is no allegation in the complaint, nor does General Counsel contend, that Kearns' conduct constitutes an unfair labor practice. I agree. The subject was broached by Teasdale and Kearns did nothing more than respond. His cautions to Teasdale had nothing to do with possible Employer retaliation, but were designed to put Teasdale on notice of Kearns' opinion of some union elements he believed to be undesirable. Kearns' comments, as an agent of the Respondent, do however, display Company hostility to the Union. Spear concedes he had a brief discussion with Milton Teasdale during the week of March 5 that amounted to an 474 FERLAND MANAGEMENT COMPANY inquiry by Spear, after Teasdale had spoken of the Union, if the union movement was caused by Spear's hire. Teasdale assured him that it was not. I view Spear's question as quite natural in view of the general discontent about the wages being paid to new employees, and do not consider it to fall within the confines of unlawful interroga- tion, nor does the complaint so allege. Similarly, at another point in March, either March 5 or 11,19 during a discussion about Milton Teasdale doing redecorating by himself, Teasdale remarked he would get help when the Union got in. These conversations, as well as the one with Kearns, demonstrate that Milton Teasdale was the most vocal of the employees in discussions with management regarding his union sympathies. On March 11, Ferland issued a memorandum to Milton Teasdale which was placed in a sealed envelope and forwarded to Spear who delivered it to Teasdale at the end of the day. Teasdale did not open and read it until he got home from work. The memo reads as follows: Milt, upon reviewing your time card today, I find you are still turning in time for working on your lunch period. As I told you before, this is not a good practice. Therefore, I must ask that effective 3/12 you take your 1/2 hour lunch break as all other employees do. Also, please remember that no overtime for Saturday work is allowed, other than that allowed in writing by your supervisor, or someone else of equal authority. The following morning, Spear mentioned to Ferland that Milton Teasdale had been absent on March 10 without reporting in. According to Spear, Ferland said he would look into it. Ferland concedes that he was aware of the absence on March II when he issued the memo to Teasdale and did not intend to ask Spear about it, but claims he did not then know it was an unreported absence. According to Ferland, the fact that the absence was unreported was what persuaded him to discharge Milton Teasdale. Ferland equivocally first testified that he did not ask Spear what Teasdale's excuse was and did not know if he had one, but then claims that he asked Spear if Teasdale had offered a valid excuse to which Spear answered he had not, and then later testified that he did not ask Spear whether Teasdale had offered any excuse. Spear does not recall saying anything to Ferland other than that Teas- dale's absence was unreported. Without corroboration by Spear, which is notable by its absence, and given the vacillating inconsistency of Ferland's testimony on the matter, I find that Ferland did not ask whether Teasdale had an excuse, nor did Spear say he did not. In any event, Ferland called Spear back into his office later in the morning about 10 or 10:30 and told him that he had decided to discharge Teasdale for the nonreported absence and "other violations," and that Spear should have Milton Teasdale in the office at 4:30 p.m. Spear delivered Teasdale at the appointed time to Ferland's office and remained through the discharge interview. From a compos- ite of the credible testimony, it appears that Ferland told 19 I do not regard the date as a significant matter, but on balance, I am inclined to fix the date as March II, in view of Bessette's testimony corroborating Milton Teasdale on the matter. 20 I regard other matters of alleged misconduct raised after the decision Teasdale that he was being discharged for the nonreported absence as the main reason, and other company policy violations including the ones mentioned in the March 11 memo. During the conversation other matters were touched on relating to the reasons, but it is clear that Respondent takes the position Teasdale was fired for the nonreported absence and the March I 11 memo items. 20 It is also clear that Respondent concedes that but for the nonreported absence Teasdale would not have been discharged. Teasdale protested to Ferland that he was being fired for union activities, which Ferland denies was the case, and Ferland acknowledges that Teasdale told him he was sick on the day in question but states he disregarded that excuse, even though he concedes that he does not know if Teasdale was sick or not. A reconstruction of the events relating to the March I warning and March 12 discharge, with careful consider- ation of the relative credibility of the witnesses and logical consistency and probability, leads me to the following conclusions. Teasdale had worked directly for Respondent as a painter for about 8 years. During that time he had, so far as the record shows, received no warnings or other discipline and his work was satisfactory. He had long been granted permission by Ferland to work through his lunch hour and on Saturdays as the work required. He worked four Saturdays in January 1976. Although it appears that Ferland, sometime in December 1975, asked Teasdale why he was claiming one-half hour overtime and told him Respondent could neither verify nor approve of him working through his lunch period, and Spear told Teasdale that he could not work during lunch, apparently at a later date in December 1975 or January 1976, 1 credit Teasdale's testimony that he protested Spear's action to Ferland who then told him to go ahead and work the lunch hour in view of the fact it was a longstanding practice of Teasdale to so do, and I find that Ferland thereby rescinded his earlier instruction not to work during lunch. There was no more criticism of Teasdale's work practices until the March 11 memo, nor is there any evidence Ferland imparted any instructions to Spear, Teasdale's supervisor, to correct them even though Spear was the one who normally checked the weekly timecards which reflect the days and hours worked. Ferland's apparent claim that his first instructions to Teasdale in December to change his work practices remained in full force and effect is belied by the total absence of any attempt to police Teasdale's work to assure he was conforming to the purported instructions even though Ferland well knew that Teasdale's work habits for many years, which Ferland had expressly condoned, were contrary to his alleged December instruction. Fur- thermore, even Ferland's memo of March 11 bears no warning, express or implied, of discharge for repetition before Teasdale's discharge. The only real reason advanced by Respondent for Teasdale's discharge that has any colorable merit at all is to discharge, as justification therefor. to be mere makeweights, and the very attempt to raise additional defenses testifies to the weakness of the primary asserted reasons. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the failure to report in that he was off sick. Apart from the totally incredible idea that Respondent would be persuad- ed to discharge such a long-term satisfactory employee for one such infraction, without even seeking an explanation, the pretext in the thing is clearly shown by Ferland's testimony, in an attempt to show past practice, that he had fired Merola and Bird for not reporting absences, which he then retracted in the face of company records showing both had voluntarily quit. Respondent proffered no evidence that anyone had been fired for not reporting absences. The Company's own rules on the matter do not prescribe precipitate discharge as the remedy. Respondent's records show that loafing on the job, checking in early, sleeping on the job, nonreported absences, refusal to wear company uniforms, the use of abusive language to tenants, repeated horseplay on the job, use of company property for personal gain, and drinking on the job, all occasioned only a warning for the employee concerned until a number of these occurrences accumulated. The Company records thus reflect a lenient attitude toward employee breaches of policy, which sharply contrasts with the rapid discharge of Milton Teasdale, a capable long-term employee with a proven record of satisfactory performance. As Respondent concedes, and Spear testifies, when Teasdale reported to work on the morning of March 11 Spear asked where he had been the day before and, receiving the reply that Teasdale had been off sick, neither questioned the excuse nor reprimanded or disciplined Teasdale in anyway. Spear merely told Teasdale he was glad he was back and to go complete the job he was assigned to do the day before. Spear expressed no particular concern about the matter and did not mention it to Ferland until March 12, when, in the course of other work-related discussion, he commented to Ferland that Teasdale's absence had been unreported by Teasdale. From his testimony, and my observation of Spear, it was apparent to me that he attached no great importance to the matter. This contrasts sharply with Ferland's rapid action in discharging Teasdale upon receiving Spear's comment that the March 10 absence was unreported. I find it difficult to believe, in the face of the record of various types of misconduct by other employees, including nonreported absence, which drew nothing more than warnings and long tolerance from Respondent, and Ferland's failure to impress on Spear the alleged gravity of an offense like that of Teasdale's, which he obviously had not in view of Spear's mild reaction to Teasdale's absence, that Ferland's decision to discharge was based on some established company policy. Viewed in this light, I am persuaded that Ferland seized upon Spear's comment about Teasdale and coupled it with the March I warning concerning matters even he did not think warranted discharge to rid himself of a leading union adherent and thus himself "nip this thing in the bud." Ferland knew from his February 27 conversa- tion with Teasdale that he was active in the Union's campaign, and his request for Teasdale's help to stop the Union implies a belief that Teasdale was in a position to do 21 See Hartsell Mills Company v, N.L.R.B., Ill F.2d 291, 293 (C.A. 4, 1940); and N.L.R.B. v. Tepper, Edward P., d/b/a Schoenberg Farms, 297 F.2d 280(C.A. 10, 1961). 22 N.L.R.B. v. Symons Manufacituring Co., 328 F.2d 835, 837 (C.A. 7, 1964). so. Even if one accepts Ferland's version of the February 27 conversation, which I do not, Teasdale's alleged claim that he could nip the campaign in the bud was enough to alert Ferland of Teasdale's strategic position in the organizing campaign. Respondent admittedly is hostile to union organization of its employees, and Kearns' comments to Teasdale demonstrate the depth of Respondent's antipathy. Milton Teasdale was the leader of employees in the Union campaign, and he was the one most prominently known to the Company as a union adherent. Ferland knew it, Spear knew it, Kearns knew it, but no other employee's union activities were made so apparent to Respondent. He was discharged but 14 days after Ferland interrogated him and sought his assistance in defeating the Union, and during the period between February 27 and his discharge Teasdale spoke favorably of the Union to both Kearns and Spear. The causes advanced by Respondent to justify the March 11 memo and the discharge are flimsy constructs that will not withstand the breath of reason, and I conclude from all the evidence that both were motivated by Respondent's union animus applied to the Union's most visible adherent, Teasdale. The Board and courts have repeatedly observed that the employer's motive in cases of this type is often determined by circumstantial evidence.21 It is clear that "the mere existence of valid grounds for a discharge is no defense . . . unless the discharge was predicated solely on those grounds, and not by a desire to discourage union activity."22 If there are legitimate grounds for discharge, "the question is whether those were in fact the only grounds . . . or whether they were put forth as a mere pretext to justify an impermissible discharge." 23 I am convinced and find, for all of the reasons set forth above, that Respondent's asserted reasons for the March 11 memo to Milton Teasdale and his March 12 discharge were advanced as pure pretext to mask an unlawful motivation, and that the March 11 memo altering Teas- dale's working conditions and his subsequent discharge were for the purpose of discouraging union activities in violation of Section 8(a)(3) and (1) of the Act.24 4. The objections The objections to the election set for hearing in Case 1- RC-14352 read as follows: "2. On or about March 12, 1976, the day after the Petitioner requested a Board election, Employer through its agent Richard Ferland discharged employee Milton Teasdale for union activity. "4. By these and other acts the above named Employer has interfered with, restrained and coerced employees in the exercise of rights guaranteed in Section 7 of the Act." Respondent contends that the objections should be overruled because there was no objectionable conduct 23 N.L.R.B. v. Pembeck Oil Corp., 404 F.2d 105, 109-110(C.A. 1, 1969). 24 In reaching this decision, I have carefully examined the findings and related papers of the Rhode Island Department of Employment Security regarding Teasdale's discharge and find nothing therein to alter my conclusions. 476 FERLAND MANAGEMENT COMPANY alleged to have occurred after Respondent became aware, on March 15, of the filing of the petition, and that Milton Teasdale's discharge of March 12 "cannot be held to have occurred during the pre-election period for purposes of a finding that the election should be set aside, in the context of a Section 8(a)(5) case." Respondent argues that the purpose of the Ideal Electric25 rule, which sets forth the period between the date of the filing of the petition and the date of the election as the timespan within which objectionable conduct must occur to warrant setting aside an election, is to prohibit interference with the election process from the point the employer becomes aware of "the fact that than an election is imminent," and an employer cannot be guilty of seeking to interfere with an election which he does not know has been requested. This argument is plainly contrary to established Board law. There is no requirement that the Employer know of a petition before he can be held accountable for his objectionable conduct. The Ideal Electric rule carries no such caveat, nor does the further extension and explanation of the Ideal Electric rule in Goodyear Tire and Rubber Company, 138 NLRB 453 (1962), establish any such exception. Furthermore, it is well settled that the Board will consider objectionable conduct occurring on the date the petition was filed, even though it occurred prior to the hour of filing. West Texas Equipment Company, 142 NLRB 1358 (1963). Respondent, however, points to Connor Trading Companr, Inc., 188 NLRB 263 (1971), as precedent for its argument. This reliance is misplaced. Connor does not purport to change the rule of Ideal Electric and Goodyear Tire and Rubber, nor does it do so. Connor merely holds that the employer therein did not commit objectionable conduct by announcing wage in- creases because it was not shown that the timing of the announcement was for the purpose of influencing employ- ees in their choice of bargaining agents, or that the employer even had notice of any continued union interest in representing its employees. In short, there was no illegal motivation by Connor and the objection therein failed on its merits. This is quite different from the situation in the instant case where there was a continuing union campaign of which Respondent was aware, and the record displays an illegal motivation in Ferland's statements of February 27 and the March 11 and 12 actions taken against employee Union Leader Milton Teasdale. Accordingly, I find Connor clearly distinguishable on its facts and unsupportive of Respondent's thesis that an employer must know of a pending petition before it can be held liable for its objectionable conduct. The only matters before me that fall within the critical period are the warning to Teasdale of March 11 and his discharge on March 12. 1 do not believe that the March I warning, although an unfair labor practice, is in itself sufficient to warrant setting aside the election because it was only communicated to Teasdale and could only have had a minimal effect on the election in that it could only have affected his vote, which was not determinative of the results. An unlawful discharge, however, has an impact far 2S Ideal Electric Co., 134 NLRB 1275 (1961): Goodvear Tire and Rubber Company. 138 NLRB 453 (1962). 26 Irving Air Chute Comrany. Inc., Marathon Division, 149 NLRB 627 (1964). beyond the discharge, particularly the discharge of a leading union adherent the effect of such discharges was aptly described by my colleague Administrative Law Judge Silberman in Performance, Inc., 208 NLRB 618, 625 (1974), in the following terms: A threat then hangs over the remaining employees that if they support the Union they too will be subject to peremptory removal from their jobs. Such threat is a forceful constraint on the exercise by employees of their statutory rights to engage in self-organizational activi- ties. It interferes with the opportunity the statute gives employees to make a rational, considered and free choice in a representation election. Also, the fears generated in employees by the discharge of coworkers are pervasive, difficult to extinguish, and quick to reappear under only slight stimulus. I concur completely in Administrative Law Judge Silberman's exposition of the effect of an unlawful discharge on the electorate, and conclude that the illegal discharge of Milton Teasdale on March 12 is objectionable conduct requiring that the election be set aside, and I shall so recommend to the Board. 5. The duty to bargain and the refusal to bargain Having concluded that the election should be set aside, it is now appropriate to consider the refusal-to-bargain allegations. 26 The parties have agreed to the appropriate unit which is set forth hereinabove. The evidence derived from the Respondent's records, stipulations of the parties, and the credible testimony discloses the following unit composition: Payroll ending date 2/11-number of employees 32; 2/18-32; 2/25-32; 3/3-31;27 3/10-32; 3/17-31; 3/24--31; 3/31--31;28 4/7-27; and 4/14-27. (Including Milton Teasdale.) The following named unit employees signed valid union authorization cards on the dates set after their names. Milton Teasdale Raymond Teasdale Ronald Bessette Edward Godfrey Michael Lanctot Eric Francis Robert Fernandes Stephen Casey Harvey Williams Kim Davis John Russell George Murdock Robert Resendes Stephen Covill Fred Browne Kenneth Bouvier February February February February February February February February February February February February February February February February 7 7 7 8 10 II II II 11 13 21 26 27 27 28 28 27 Kevin Meehan was not an employee after February 25. 26 Kim Davis. Stephen Casey. Michael Merola. and John Russell. included in the number. were terminated March 26. Therefore, there only remained 27 unit employees thereafter. 477 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Paul Dansereau 29 Dominic Giorgianni Michael Merola Robert Maurice Theodore Gramstorff March 2 March 4 March 10 March 16 March 16 From the foregoing, it can be seen that the Union enjoyed majority status commencing February 28, when valid authorization cards had been signed by 16 of the 31 unit employees. Its majority increased to 19 of 32 on March 10, which was Dansereau's last day of employment; went to 20 of 31 by March 16; remained at that level until Davis, Casey, Merola, and Russell were terminated on March 26; and thereafter stood at 16 of 27 through April 14. Respondent, by its agent Ferland, knew there was union activity among its employees at least as early as February 27, and on that date, embarked on its course of unfair labor practices which were aimed at discouraging employee support of the Union and thus prevent the Union from attaining majority status, or destroying any majority status the Union may have attained. I find that Respondent's unfair labor practices, particularly the discharge of Milton Teasdale, interfered with the election process, had a tendency to undermine the Union's majority strength, and prevented the holding of a fair election on April 16. In these circumstances a bargaining order effective February 27 is warranted to protect the employees' statutory right to select their own collective-bargaining representative, and to be free from restraint or coercion in the exercise of that right.30 Upon the foregoing findings of fact and conclusions based thereon, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW I. The Respondent, Ferland Management Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Rhode Island Workers Union, Ind., is a labor organization within the meaning of Section 2(5) of the Act. 3. The following unit constitutes a unit appropriate for collective bargaining: All full-time and regular part-time maintenance, janito- rial and landscape employees of the Respondent, employed at service locations at which the Respondent has custodial management contracts, including Four Seasons North and Plaza Village, Woonsocket; Four Seasons East, East Providence; Four Seasons South, Warwick; Four Seasons West, West Warwick; and George Street Apartments, Pawtucket, Rhode Island, excluding guards and supervisors as defined in Section 2(11) of the Act. 4. At all times since February 28, 1976, and continuing to date, the Union has been the exclusive representative of all the employees within said appropriate unit for purposes 29 Dansereau was terminated March 10. :3o N.L.R.B. v. Gissel Packing (bo. Inc., 395 U.S. 575 (1969): Trading Port, of collective bargaining within the meaning of Section 9(a) of the Act. 5. By interrogating Milton Teasdale about his union activities on or about February 27, 1976, Respondent has violated Section 8(a)(1) of the Act. 6. By soliciting grievances from and offering Milton Teasdale improved wages, benefits, and working condi- tions on February 27, 1976, in order to induce him to abandon his union activity, Respondent violated Section 8(a)(1) of the Act. 7. By soliciting Milton Teasdale, on February 27, 1976, to assist in undermining and destroying the Union's organization effort, that Respondent violated Section 8(a)(1) of the Act. 8. By eliminating, on March 11, 1976, Milton Teas- dale's lunch time and Saturday work in reprisal for his union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 9. By discharging Milton Teasdale on March 12, 1976, for engaging in union activities, and thereafter failing or refusing to reinstate him, Respondent has violated Section 8(a)(3) and (1) of the Act. 10. Respondent engaged in objectionable conduct requiring that the election conducted on April 16, 1976, in Case I-RC-14352 be set aside. 11. By engaging in the above-described violations of Sections 8(a)(3) and (1) of the Act for the purpose of undermining and destroying the Union's majority status, or to prevent it from attaining such status, Respondent violated Section 8(a)(5) and (1) of the Act. 12. The violations of the Act found herein interfered with the election process, had a tendency to undermine the Union's strength, prevented the holding of a fair election, and warrant the issuance of a collective-bargaining order. 13. The unfair labor practices set forth above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist from further violations, to post an appropriate notice, and to offer unconditional reinstate- ment to Milton Teasdale and make him whole for all wages lost by him as a result of his unlawful discharge, such backpay to be computed on a quarterly basis, plus interest thereon at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I will also recommend that the Respondent be ordered to recognize and bargain with the Union as the exclusive collective- bargaining agent of the employees in the unit found appropriate herein. Pursuant to Section 10(c) of the Act, I hereby issue the following recommended: Inc., 219 NLRB 298 (1975); Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). 478 FERLAND MANAGEMENT COMPANY ORDER 31 The Respondent, its agents, officers, successors, and assigns, shall: i. Cease and desist from: (a) Discouraging membership in the Union, or any other labor organization, by discharging employees or otherwise discriminating in any manner in respect to their tenure of employment or any term or condition of employment. (b) Refusing to recognize and bargain with the Union as the exclusive bargaining representative of all the employees in the above-described appropriate unit. (c) Coercively interrogating employees concerning their and other employees' union activities and desires. (d) Soliciting grievances from and promising benefits to employees for the purpose of discouraging union activity. (e) Soliciting employees for assistance in undermining and destroying union organizational efforts among its employees. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the purpose of the Act: (a) Upon request, recognize and bargain with the Union as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a written, signed agreement. (b) Offer to Milton Teasdale immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make Milton Teasdale whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon reasonable request, make avail- able to the Board and its agents, for examination and copying, all payroll records and reports and all other records required to ascertain the amount, if any, of any backpay due under the terms of this recommended Order. (d) Post at its Rhode Island offices and facilities, copies of the attached notice marked "Appendix."3 2 Copies of said notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's autho- rized agent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that these notices are not altered, defaced, or covered by other material. 31 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 32 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply with this Order. IT IS FURTHER ORDERED that Case I-RC-14352 be, and it hereby is, transferred to and continued before the Board in Washington, D.C., and that the provisions of Section 102.46 and 102.69(e) of the Board's Rules and Regulations, Series 8, as amended, shall govern the filing of exceptions in said case. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE hereby notify our employees that: WE WILL NOT discourage membership in Rhode Island Workers Union, Ind., or any other labor organization, by discharging any of our employees or in any other manner discriminating against them in regard to their tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their or other employees' union activities, membership, or desires. WE WILL NOT solicit grievances from and/or promise benefits to our employees for the purpose of discourag- ing their union activities. WE WILL NOT solicit our employees to assist us in undermining and destroying union organizational efforts. WE WILL NOT refuse to recognize or bargain with Rhode Island Workers Union, Ind., as the exclusive representative of all employees in the bargaining unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the Act. WE WILL upon request, bargain collectively with Rhode Island Workers Union, Ind., as the exclusive bargaining representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody that understanding in a written, signed agreement. The bargaining unit is: All full-time and regular part-time maintenance, janitorial and landscape employees employed by us at service locations where we have custodial management contracts, including Four Seasons North and Plaza Village, Woonsocket; Four Seasons South, Warwick; Four Seasons West, West Warwick; and George Street Apartments, Pawtucket, Rhode Island, excluding guards and supervisors as defined in Section 2(11) of the Act. WE WILL offer to Milton Teasdale immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, 479 DECISIONS OF NATIONAL LABOR RELATIONS BOARD without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him. All our employees are free to join Rhode Island Workers Union, Ind., or any other labor organization. FERLAND MANAGEMENT COMPANY 480