Stephens Produce Co., Inc.

STEPHENS Stephens Produce Co., Inc. and Temple Stephens Company and Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Local Union 576. Case 17-CA-5601 October 18, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On May 10, 1974, Administrative Law Judge Leo- nard M. Wagman issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions 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 au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order,' as modified here- in. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified, and hereby orders that Respondent, Stephens Pro- duce Co., Inc. and Temple Stephens Company, Mob- erly, Missouri, its officers, agents, successors, and as- signs, shall take the action set forth in the said rec- ommended Order, as modified below: Delete paragraph 1(h) and reletter the remaining paragraphs accordingly. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule 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 Contrary to the Administrative Law Judge, we find that Supervisor Johnson did not violate Sec. 8(a)(I) by questioning employee Black if em- ployees Minks and Kendall were going to stay (not strike). Johnson rather than interrogating Black in violation of Sec. 8(a)(I) was merely responding to Black's comments to Johnson made earlier the same day that Minks and Kendall would like to stay and work and would the two be fired. which Johnson answered that in his opinion they would not suffer discharge. In adopting the Administrative Law Judge's finding that the Union repre- sents a majority of the employees in the bargaining unit. Members Kennedy and Penello do not rely on the authorization card signed by employee Crain. 3 Members Kennedy and Penello agree that a bargaining order is appro- priate herein as a part of the remedy. However, in accordance with the views they expressed in Steel-Fab, Inc., 212 NLRB No. 25 (1974). they do not adopt the Administrative Law Judge's finding of an 8(a)(5) violation PRODUCE CO. 131 upon which to predicate the order. They would instead rely solely on the serious and extensive 8(a)(l) and (3) violations committed by the Respon- dent as the basis for such a bargaining order. Member Fanning dissents to the dismissal of the 8(a)(5) finding of the Administrative Law Judge, for the reasons stated in his dissent in Steel-Fab, Inc., supra. DECISION STATEMENT OF THE CASE LEONARD M. WAGMAN, Administrative Law Judge: Upon a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, referred to herein as the Union, on April 19, 1973, a first amended charge filed by the Union on June 7, 1973, and a second amended charge filed by the Union on June 25, 1973, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 17, issued the complaint herein on July 10, 1973, against Stephens Pro- duce Co., Inc., and Temple Stephens Company (herein called Stephens and Temple Stephens Company re- spectively) alleging that Respondents had engaged in un- fair labor practices within the meaning of Section 8(a)(1),(3), and (5) of the National Labor Relations Act, as amended, herein called the Act. Respondents filed an an- swer denying the allegations of unlawful conduct alleged in the complaint. Pursuant to notice, a hearing was held before me at Moberly, Missouri, on August 29 and 30 and October I. 2, 3, 4, and 15, 1973, at which the complaint was amended to allege additional violations of Section 8(a)(1) and (3) of the Act.' Briefs were received from the General Counsel, the Charging Party, and the Respondents. Upon the entire record in this case, my consideration of the briefs filed by the parties, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Stephens is a Missouri corporation engaged in the pro- cessing and storage of meat, baked goods, and dairy prod- ucts at its Moberly, Missouri, warehouse. In the course and conduct of its business operations, Stephens annually pur- chases goods valued in excess of $50,000 directly from sources located outside the State of Missouri. In addition, Stephens, in the course and conduct of its business, annual- ly purchases goods valued in excess of $50,000 from Mis- 1 In the proceeding, I granted counsel for the General Counsel's motion to quash a subpoena ad testijicanduwt which the Respondents served upon the Board attorney who investigated this case. The Respondents' stated purpose in seeking the Board's attorney as a witness was to attack the credi- bility of the General Counsel's witnesses. The General Counsel refused to authorize the Board attorney to testify. Such authorization is required as a precondition to such testimony by Section 102.118(a) of the Board's Rules and Regulations. Series 8. as amended. In its brief, the Company argues that my ruling denied it due process. However. I see no ground for my reconsid- eration of that ruling at this point. Campbell Soup C'ontpamt 152 NLRB 1645. 1646, In. 1 (1965). 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD souri firms which in turn purchases said goods directly from suppliers located outside the State of Missouri. Temple Stephens Company is a Missouri corporation principally engaged in the warehousing and distribution of meat, bakery, and dairy products and other merchandise from the same warehouse used by Stephens and in the op- eration of retail food stores at various localities in Missou- ri. In the course and conduct of its business operations, Temple Stephens Company annually derives gross reve- nues in excess of $500,000 from its retail sales and perfor- mance of services. Stephens and Temple Stephens Company are, and have been at all times material to this proceeding, a single inte- grated enterprise engaged at the Moberly, Missouri, ware- house and elsewhere in business operations described above. Temple Stephens Company is Stephens' sole cus- tomer. Stephens and Temple Stephens Company concede, and I find, that they constitute a single employer within the meaning of Section 2(2) of the Act. The two firms are re- ferred to collectively herein as the Company. I also find from the foregoing that the Company is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction over the Company. 11. THE LABOR ORGANIZATION INVOLVED promise of job security, threats, interrogation, the impres- sion of surveillance of union activity, a refusal to discuss employee grievances with an employee spokesman, and the issuance of warning notices. The amended complaint fur- ther alleges that the Company violated Section 8(a)(3) and (1) of the Act by laying off Robert L. Mattice on February 16 and March 9, and by discriminating against the re- turned strikers between July 26 and August 3. It is also alleged that as the Union achieved majority status on February 26, in an appropriate unit of the Company's employees, the Company's refusal to recognize and bargain on and after March 1, together with its viola- tions of Section 8(a)(1) and (3), constituted a violation of Section 8(a)(5) and (1) of the Act. To remedy the alleged unlawful refusal to bargain, the General Counsel seeks a bargaining order under the principles set forth in N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 612-615 (1969). The Charging Party urges the award of costs to the General Counsel and itself as part of the remedy. Finally, the complaint, as amended, alleges that the two meat department stoppages constituted a single unfair la- bor practice strike. B. Alleged Interference, Restraint, and Coercion 1. Incidents involving head meatcutter George Robert Hudson Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Local Union 576, is a labor organization within the meaning of Section 2 (5) of the Act. 111. THE UNFAIR LABOR PRACTICES A. Background and Issues It is undisputed that in late December 1972, and thereaf- ter in January and February 1973,2 company employee Robert L. Mattice solicited the support of fellow meat de- partment employees in an effort to obtain union represen- tation. Following a meeting between Mattice and a Union representative on February 13, the Union began an orga- nizing campaign among the Company's 17 or 18 meat de- partment employees. By February 26, the Union had ob- tained 13 signed authorization cards from the meat depart- ment employees. On February 27 the Union sent a letter to the Company demanding recognition as the collective-bar- gaining representative of the Company's meat department employees. On March I the Company refused the Union's demand. Thereafter, on March 21, a majority of the meat department employees engaged in a strike which ended with their return to work on July 26. On August 3, the meat department employees again went out on a strike which persisted at the time of the hearing in this case. The complaint, as amended at the hearing, alleges that in response to the Union's campaign and the employees' strikes, the Company committed unfair labor practices in violation of Section 8(a)(1) of the Act, which included a 2 Unless otherwise stated all dates refer to 1973. General Counsel contends that company head meatcut- ter George Robert Johnson (referred to in the transcript as "Bob Johnson") was a supervisor within the meaning of Section 2(11) of the Act, and that he engaged in conduct violative of Section 8(a)(1) of the Act in February and March. The Company urges that Johnson was not a super- visor during those months and therefore none of his alleged conduct violated the Act. As defined in Section 2(11) of the Act, the term supervi- sor denotes: [A]ny individual having authority, in the interest of the employer, to hire , transfer, suspend , lay off, recall, promote, discharge , assign , reward, or discipline other employees, or responsibly to direct them , or to adjust their grievances , or effectively to recommend such ac- tion if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. It is settled that this section is to be read in the disjunctive and that possession of any one of the enumerated powers establishes supervisory status. Ohio Power Co. v. N.L.R.B., 176 F.2d 385 , 387 (C. A. 6), cert . denied 338 U.S. 899 (1949); Great Central Insurance Company, 176 NLRB 474, 475 (1969). The Company concedes that Johnson , who has been in its employ for about 22 years , supervised the approximate- ly. 17 meat department employees from 1967 or 1968 until mid-November 1972. However , the Company claims that in mid-November 1972, the current meat department man- ager, Jesse Dou Brava , assumed complete charge of the meat department, and that since that event Johnson has STEPHENS PRODUCE CO. 133 been a rank -and-file employee . But the evidence as to Johnson's status since November 1972 is otherwise . Thus, a composite of the credited testimony of meat department employees Robert L. Mattice, Elizabeth White, Dorothy Kendall , Katherine Minks, Doris Freeman , and George Morgan Hudson shows that Dou Brava is usually present in the meat department less than 1 hour each workday, and that since November 1972, Johnson has continued respon- sibly to direct meat department employees in their work, grant their requests for time off from work , and assign ov- ertime work to them. Corroboration is provided by Johnson's credited testimony that in Dou Brava 's absence he transfers employees from job to job, and that in March he granted time off to employees Kendall and Minks. Fi- nally, on direct examination by company counsel, Johnson admitted that in January he instructed Mattice not to "go home again without checking with me first ." Other factors which weigh against the Company's contention are Johnson's $5 hourly wage which is the highest rate in the department and is 57 cents higher than the hourly wage of the next highest paid meatcutter , the absence of evidence that the Company ever announced to the employees that Johnson was no longer a supervisor , and the fact that as- suming Johnson is not a supervisor, the 18 employees of the department would be without supervision for most of each workday . In sum, I find that Johnson has been a su- pervisor within the meaning of Section 2(11) of the Act since November 1972. J. W. Mays, Inc., 147 NLRB 942, 963-964 (1964), enfd. 356 F.2d 693 (C.A. 2, 1966). The first alleged Section 8 (a)(l) violation involving Johnson occurred on February 5 when he warned employ- ee Hudson "that if anyone around [here] was trying to form a union , or even mentioned a union, the Company would let him go." During the week of February 5, John- son also told Hudson that "he [Johnson ] knew that Bob Mattice was trying to form a union , and that he hoped that [Hudson ] did not try to follow Bob Mattice 's footsteps." 3 Beyond question, Johnson's warning of company repri- sals against employee efforts to organize the meat depart- ment was a threat violative of Section 8(a)(1) of the Act, Gerbes Super Markets, Inc., 176 NLRB 11, 21 (1969), enfd. 436 F.2d 19, 21 (C.A. 8, 1971). Against the background of this threat, I also find that Johnson's further remarks were designed as a warning that the Company was keeping track of Mattice's union campaign which had not gone beyond conversation and had not yet been openly revealed to the Company, and that management was also keeping its eye on Hudson for the first sign of prounion sentiment on his part . Thus, I find that these remarks which were designed to persuade Hudson that the Company was keeping em- ployee union activity under surveillance were also violative of Section 8(a)(1) of the Act. See N. L. R. B. v. Medley Dis- tilling Co., Inc., 187 NLRB 84, 89 (1970), enfd. 453 F.2d 374 (C.A. 6, 1971). On February 14, Johnson asked meat department em- ployee Elizabeth White if Mattice "had ever mentioned union to [her]." When White answered that Mattice had done so, Johnson responded, "Well, I don't think Temple 3 My findings of fact regarding these two incidents are based upon Hudson's credited and undisputed testimony. J.° will ever go union , I think he will close down first." 5 By thus interrogating White about Mattice's union activity and then responding to her affirmative answer with a threat of plant closure if a union succeeded in organizing White and her fellow employees , Johnson violated Section 8(a)(1) of the Act. Crispo Cake Cone Co., Inc., 190 NLRB 352, 362-363 (1971), enfd. 464 F.2d 233, 236 (C.A. 8, 1972). It is undenied that on March 18, Johnson asked meat department employee Dorothy Kendall, who had signed a union authorization card on February 26, "Why don't you come back over to the good guys' side. . .. I'm surprised that you're following Bob Mattice . . . . I wouldn't be sur- prised if it wasn't George Hudson, because you've known him longer and you trust him more." By these remarks Johnson implied that the Company was particularly inter- ested in Kendall's union activity and sentiment and was maintaining a watch on her. I find that Johnson's remarks violated Section 8(a)(I) of the Act. See N.L.R.B. v. Ralph Printing and Lithographing Company, 379 F.2d 687, 691 (C.A. 8, 1967). Kendall also testified that in- further conversation that same day, 3 days before the meat department employees first went out on strike, Johnson told her "if you walk out into the street you'll never work for Temple Stephens an- other day." However, on cross-examination , she conceded that Johnson actually said: "If you go out you might never get to work another day," and that she understood from her exchange with Johnson that the Company might re- place her if she went out on strike. On this record , I cannot find a violation of Section 8(a)(1) of the Act. The final version of Johnson's advice, which I have accepted, shows only that Johnson apprised Kendall that she ran the risk of being permanently replaced if she engaged in a strike. As it is well settled that an employer may lawfully replace eco- nomic strikers permanently , Johnson's advice was not an unlawful threat of discrimination but rather a statement of the Company's legal option. See N.L.R.B. v. Fleetwood Trailer Co., 389 U.S: 375, 378-379 (1967). Accordingly, I shall recommend dismissal of this portion of the complaint. However, Kendall's - credited and uncontradicted testi- mony shows that in the same conversation , Johnson violat- ed Section 8(a)(1) when he assured her that if she did not join the strike , her job would be "guaranteed ." For by this assurance , Johnson held out preferred status as a reward for her refusal to join a strike against the Company and thus unlawfully interfered with her Section 7 rights. This is a reference to Temple Jay Stephens, who is president of Temple Stephens Company and a vice president and director of Stephens Produce Co.. Inc . His testimony and the record in general show that he controls and directs the operations of both enterprises. Johnson admitted questioning White about Mattice's union activity on February 14, but denied making any further remarks to her . However, of the two: White impressed me as the more candid witness. Johnson 's testinw- ny on cross-examination is marked by much reluctance and evasiveness. For example . when questioned about conversations between himself and Jesse Dou Brava regarding the union campaign he first admitted having such a conversation and began relating a word for word account . However. he suddenly stopped and said - 1 don't remember any of the conversation. That was just all there was to it." Finally, he changed his testimony. admit- ting only that their discussion was limited to the strike then in progress. Moreover, in view of Johnson 's resort to an unlawful threat in his antiunion remarks to Hudson in February. it is not unlikely that he would make the threat reported by employee White. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N.L.R.B. v. Erie Resistor Corp., 373 U.S. 221, 233 (1963). On the morning of March 12, 9 days before the meat department strike, employee Keenar Black told Supervisor Johnson that meat department employees "Kittie" Minks and Dorothy Kendall "would like to stay and work," and then asked if they would get' fired. Johnson answered that in his opinion they would not suffer discharge. Later that same day, Johnson approached employee Black in the meat department and asked if "they were going to stay." Black replied that she didn't know, adding that "Kittie talked to George; and after that she didn't say anything to me." By thus questioning Black, Johnson violated Section 8(a)(I) of the Act. J.C. Penney Co., Inc., 209 NLRB 313 (1974), National Can Corporation, 159 NLRB 647, 661-662 (1966).6 2. An incident involving Temple Jay Stephens During the week of February 19, Temple Jay Stephens in conversation with George Hudson declared that he knew that the employees in the meat department "were trying to form a union." I find that this declaration reinforced the impression of surveillance created by Supervisor Johnson's remarks to Hudson on February 5. For there is no showing that by February 19 the surreptitiousness of employee Mattice's union activity had been compromised by any open notice to the Company. Accordingly, I find that Ste- phens' statement violated Section 8(a)(1) of the Act. C. Robert L. Mattice's Layoffs 1. The facts The Company hired Robert L. Mattice as a meatcutter in November 1972. In a prehire interview late in October 1972 Jesse Dou Brava, the meat department manager, complained to Mattice about the.quality of the meat de- partment employees' performance. In his testimony Dou Brava conceded, and I find, that Mattice suggested a union might remedy the situation. However, Dou Brava denies Mattice's testimony, which was corroborated by the latter's wife, Rozelma, that. Dou Brava replied that the Company would never have a union. Instead, Dou Brave insists that he made no comment. In resolving this credibility issue, I have noted that Mattice's testimony regarding his union activity, though not fully confirmed by fellow employees testifying for the General Counsel, was substantially corroborated by them and that there were some collateral inconsistencies in his testimony on cross-examination. However, I have also not- ed that Dou Brava was reluctant to 'testify about the Company's attitude toward the union campaign. More im- portant, while testifying that he had no recollection of the substance of even one discussion with Temple-Stephens about the union campaign, he conceded there were "hun- dreds." Accordingly, of the two, I find Mattice the more reliable witness. As previously found, in December, January, and Febru- 6 My findings as to this incident are based upon Keenar Black's undisput- ed testimony. ary Mattice sought support for a union among fellow meat department employees. I have also found that during the week of February 5, head meatcutter Johnson revealed his knowledge of Mattice's union activity, in a conversation with employee Hudson. On February 13, at a cafe in Moberly, Mattice and Union Business Representative Eugene Reece discussed the prospects of a successful union organizing campaign. Reece gave Mattice a number of union authorization cards and a copy of a current union contract covering a unit of meat department employees in the area of Sedalia, Missou- ri. On February 14 Supervisor Johnson learned from meat department employee White that Mattice had discussed the Union with her. Mattice did not report for work on February 14 because he was sick. On the following day, Mattice reported for work and during the workday report- ed the results of his conversation with Union Representa- tive Reece to George Hudson and other meat department employees. He also gave Hudson some authorization cards to obtain signatures from meat department employees. On the afternoon of February 16, Dou Brava ushered Mattice into General Manager Kruse's office and told him: "Bob, I have some bad news for you. We're going to have o let you go."'Mattice responded in substance that he knew that he would be fired because of his union activity, referring particularly to his contact with Union Represen- tative Reece 3 days earlier. At this, Dou Brava said, "Oh, this is the first I've heard about it." He then added: "We're going to try to cut down on expenses and cut down the ads, and the warehouse is losing money." When Mattice disput- ed Dou Brava's claim of losing money, Dou Brava said he could.show him the loss "on paper." Dou Brava showed Mattice inventory sheets which, according to the latter's credited testimony, reflected a loss in the Company's ware- house operations and a profit "of about 22 percent in the retail end of the business." Mattice argued that the inven- tory sheets did not present "a true picture." Dou Brava conceded that he didn't know "how they figure their profit and loss." He then went on, "Bob, Temple Jay. told me to do this. I told you they'd never have a union." ' At this, Mattice said, "Good-bye," and left the warehouse.' On February 26, Mattice attended a'union meeting at a motel in Moberly. The following day, the Union, sent. its Dou Brava's testimony corroborates portions of Mattice's version of the exchange. However. Dou Brava denies telling Mattice that he. Dou Brava, did not know how the Company determined profit and loss, and that Tem- ple Stephens told him to separate Mattice from employment. Dou Brava also denies saying "I told you they'd never have a union." However, for the reasons previously stated. I have credited Mattice's testimony in this regard. I am also troubled by Dou Brava's testimony that he told Mattice "I did not know anything about your union activities." For if head meatcutter Johnson was well aware of Mattice's union activity as early as February 5. I find it hard to accept Dou Brava's profession of ignorance. N.L.R.B. v: Transport Clearings, Inc.. 311 F.2d.519, 523 (C.A. 5,1962). 8 Employee Lucille Haggard testified that on February 18, when she asked Supervisor Johnson where Mattice was, Johnson said, "He was talk- ing union : he was a troublemaker ; and that didn't go on around there. so they got rid of him." However, under cross-examination she conceded that she could not remember Johnson's exact words. Johnson denied making the statement to her. Haggard 's inconsistent testimony on this issue of fact. the conflicts between her testimony at the hearing and her affidavit, and her generally careless attitude toward her testimony impressed me that she was not a reliable witness . Accordingly, in this instance. I have credited Johnson's denial. STEPHENS PRODUCE CO. recognition demand to the Company together with copies of signed authorization cards obtained from a majority of the meat department employees, including that of Robert Mattice. The union letter called particular attention to Mattice's card, ventured the opinion that Mattice was ter- minated on February 16 "because of his union activities in behalf of Local No. 576," and demanded his reinstatement with backpay. The Company contacted Mattice on February 28 and recalled him. He reported for work the following day, March 1. In its March 1 letter rejecting the Union's de- mand for recognition, the Company denied that Mattice was discharged for union activity and asserted that he was laid off "because we believed we did not need his services for the time involved." Mattice's credited testimony is that early on the af- ternoon of March 8, in the meat department, he overheard Anna Forrest remark to Supervisor Johnson, "The son-of- a-bitch is going to continue until he gets us all fired." Mattice's credited testimony also shows that Johnson re- plied, "They're going to fire him for good tomorrow." 9 At the end of the following workday, Dou Brava ap- proached Mattice and said, "Bob, I want to talk to you." Mattice followed Dou . Brava into General Manager Kruse's office. Before Dou Brava could speak, Mattice said, "I know, I overheard Bob Johnson tell Annie Forrest that I was going to be fired." At this Dou Brava said, "Well, Bob business is down and we have to let you go." Mattice said that he was "sorry that things have to be this way." As Mattice was leaving Dou Brava added, "Bob, we might call you back later if business picks up." 10 In April the Company notified Mattice by letter that he had not been discharged on March 9, but merely laid off, and of- fered him immediate reinstatement. However, Mattice par= ticipated in the meat department strike then in progress and did not return to work until the conclusion of the strike on July 26. 2. Analysis and conclusions There is ample factual support for the contention that Mattice's February 16 and March 9 layoffs were reprisals for his leading role in the Union's organizing campaign. The first suggestion of Mattice's sentiment surfaced in late October 1972 when he told Dou Brava that a union would solve management's problems in the meat department. 9 Forrest testified that she did not remember calling Mattice a son-of-a- bitch or having a conversation with Johnson on March 8 . She also denied that anyone told her on that date that Mattice was going to be fired. John- son denied telling Forrest that Mattice was about to be fired. However, his denial followed a carefully drawn leading question and he was not given an opportunity to testify as to whether he had any conversation with Forrest on that date about Mattice. In view of Forrest's inability to remember whether she had a conversation with Johnson on March 8, 1 do not accept her flat denial that anyone told her that day of Mattice's imminent discharge. I have also considered Johnson's demonstrated union animus, the previously dis- cussed infirmities in his testimony, his narrowly drawn testimony on this point, the slight shifting of Mattice's demeanor of the three witnesses. From this assessment , I have concluded that Mattice 's testimony is essentially accurate. 10 My findings regarding Mattice's and Dou Brava 's remarks during their March 9 encounter are based upon Mattice's credited and undisputed testi- mony. 135 Dou Brava's response was a prediction that the Company would not be organized. Though not violative of Section 8(a)(I) of the Act,tt this response set the stage for future events. For, when Mattice's union activity became known to the Company in early February, it responded with hos- tility in the form of unlawful conduct including threats of discharge and plant closure, all designed to chill such activ- ity. The Company's references to Mattice in the course of its unfair labor practices leaves little doubt that he was the focal point of its hostility. Strong evidence of the Company's desire to eradicate Mattice's union activity was provided by Dou Brava's statement at the very moment of Mattice's first layoff, "I told you they'd never have a union," and by Supervisor Johnson's revelation on March 8 that Mattice's union activity would be halted the follow- ing day when the Company intended to get rid of him. Finally, when confronted with Johnson's remark on March 9, Dou Brava did not repudiate it, but rather proceeded to carry out the prediction. The Company's unlawful design was also evidenced by the timing of Mattice's layoffs. The February 16 layoff oc- curred 3 days after Mattice's conference with Union Busi- ness Representative Reece at a Moberly cafe and 2 days after his report of the conference to the employees and his initial distribution of authorization cards in the meat de- partment. The second layoff came one week after 'the Com- pany received the Union's February 27 letter containing a recognition to Mattice and his signed authorization cards. Thus, "it stretches credulity too far to believe that there was only a coincidental connection between" Mattice's leading part in the union campaign and his layoffs. Angwell Curtain Company, Inc. v. N. L. R. B., 192 F.2d 899, 903 (C.A. 7, 1951). In sum , Dou Brava's and Johnson's incriminating re- marks, the timing of the layoffs close upon significant events in the union campaign, and the Company's open and unlawfully manifested union animus convince me of the Company's unlawful motive. N.L.R.B. v. Superior Sales, Inc., 366 F.2d 229, 233 (C.A. 8, 1966). N. L. R. B. v. Council Manufacturing Corp., 334 F.2d 161, 164 (C.A. 8, 1964). The Company urges that Mattice was selected for layoff because of declines in business and because he was the least senior employee in the meat department. However, in face of the foregoing array, the Company's defense is un- convincing. Thus, while the Company asserts that both of Mattice's layoffs were motivated by adverse business con- ditions it has failed to flesh out its claim with adequate evidence. With respect to the February 16 layoff, the in- ventory sheets referred to by Dou Brava on that occasion were not available to show the claimed loss being suffered in the meat department. Instead, the Company offered the appraisals of Temple Jay Stephens and Dou Brava, a table extracted from the Company's records showing fluctua- tions of hours worked in the meat department between the week ending January 6 and the week ending March 24, the dollar volume of meat processed in the department during that period, and a table of prices per pound of eight-900- 11 I shall recommend dismissal of so much of the complaint as alleges Dou Brava's response to be violative of Section 8(a)(I). 136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pound choice steers from November 1972 until March 13, 1973. However, there was no financial record presented to show the claimed business reversals in dollars and cents. Similarly, aside from testimony about declining sales, the Lenten season, an expected consumer boycott of beef, and rising wholesale beef prices, there was no showing of a dollars-and-cents reason for laying Mattice off on March 8. In short, I find the evidence offered by the Company inadequate to sustain its defense against the strong evi- dence of unlawful motive. I therefore find its proffered economic defense to be a pretext. . Nor does the layoff of part-time meat department em- ployee Steven Crain on March 9 assist the Company's de- fense. For in light of the Union's February 27 letter charg- ing that Mattice's February 16 layoff was because of his union activity, the Company may well have used Crain's layoff to mask its discriminatory motive 12 in laying Mat- tice off in the second occasion.l3 In view of the foregoing, I find that the Company violat- ed Section 8(a)(3) and (1) of the Act when it laid off em- ployee Robert L. Mattice on February 16 and March 9. I also find that in the context of Mattice's unlawful lay- off on February 16, Dou Brava's remark, "I told you they'd never have a union" amounted to a warning that the Company would resort to other unfair labor practices to prevent its employees from obtaining union representation. Accordingly, I find Dou Brava's remark was violative of Section 8(a)(l) of the Act. D The Warning Notices 1. The facts On March 11, meat department employee George Hud- son received the following letter from the Company: Yesterday you did not appear for work and you did not tell anyone that you were not coming. Please con- sider this a warning notice that you are on probation and the next time you do not appear for work without calling in as soon as you know that you cannot come, suitable action will be taken. You have previously been given verbal notice of this situation. Thereafter on or about July 27, Lucille Haggard received a written warning from Jesse Dou Brava for failing to com- ply with his request that she work "a few minutes over- time" on July 27. Finally, Robert Mattice received a writ- ten warning from Dou Brava on July 30 for leaving his work station and'engaging in conversation with other em- ployees during worktime. Prior to the hearing none of the three employees com- plained to management about his or her warning notice. At the hearing Hudson did not challenge the contents of his notice. In her testimony, Haggard admitted that on or about July 27, Dou Brava assigned her to "scrub some of the tables even if [she had] to stay over a little while." 12 Indeed, Temple Jay Stephens admitted in his testimony that Mattice's layoff was "a sensitive issue" because of the Union's accusation. 3 There is no allegation before me that Crain's layoff was unlawful. Haggard's testimony also shows that upon completion of that assignment she went home without checking with Dou Brava after another employee told her she could leave. Mattice's testimony shows that he did in fact engage in conversation with employees Kathy Chism, Shirley Wilson, Bill Cloyd, and one other employee.14 It is indisputed that for the 5 to 6 years prior to this proceeding the Company issued such warning to its em- ployees for various infractions in all of its departments.15 Copies of six other warnings issued to employees in 1972 were offered and received in evidence at the hearing. There is no evidence that the Company expressed any intention to tighten up on discipline in the meat department or to use written warnings in its antiunion campaign. 2. Analysis and conclusions From the foregoing, I find no basis for the General Counsel's contention that the three warning notices were part of the Company's antiunion campaign. There was nothing unusual about the issuance of such warnings. The three employees apparently deserved the warnings. And finally, there is no showing that the Company threatened to use such warnings to punish union adherents. Accord- ingly, I find that the warnings did not violate the Act and shall recommend dismissal of the allegation. E. The Alleged Discrimination Against the Strikers I. The facts On March 21, 12 of the meat department's approximate- ly 16 employees went out on strike in response to the Company's refusal to recognize and bargain with the Union. In.April laid-off meat department employee Robert L. Mattice refused the Company's offer of reinstatement and became a striker. Thereafter, on July 21, the striking employees made an unconditional offer to return to work, which the Company accepted on July 23. Ten of the strik- ers returned to work in the meat department on July 26, but went out on strike again on August 3. During the first strike the Company hired six or seven replacements for the meat department of whom four remained after July 26. a. The lack of white aprons and jackets According to Robert Mattice's credited testimony, prior to the first strike the Company provided white jackets to the meat department as follows: "On the days that the laundry was delivered, it was brought back to the break room . . . and I picked out jackets that would fit me. I'd take two, wear one and put one in my locker." He also testified that the meat-department employees "had clean white aprons every day." However, on cross-examination Mattice also credibly testified that prior to the first strike, the Company's laundry "was delivered twice a week," that on the day of each delivery he "took enough to last a cou- 14 The Company issued similarly worded warnings to employees Veronica Martin and Katherine Minks in October and July 1972. respectively. is On August 30. 1973, the Company suspended all warning notices pend- ing the outcome of this proceeding. STEPHENS PRODUCE CO. ple or 3 days and put them in my locker." Employee Hag- gard conceded that prior to the March strike, the Company occasionally had "problems" obtaining enought white gar- ments for its employees. Turning to the period between the strikes, Mattice's credited testimony reveals that while non- strikers Cloyd, King, and Jacoby appeared to have had clean aprons daily the Company provided Mattice with one jacket and one apron on Thursday July 26, a clean apron on Friday July 27, two aprons on August 1 and one jacket during the week of July 30. 1 also find from Mattice's testimony that on Tuesday, July 31, when he asked Department Head Dou Brava if there were any clean jackets, the latter replied: "I don't know where the laundry is at. You'll just have to do with what we have." There is no evidence that the Company made any special distributions of white garments to the three nonstrikers during the peri- od from July 26 to and including August 3. b.• Entry to the warehouse and reporting to work. As a matter of practice prior to the March strike, Robert Mattice and the other meat department employees came to work through the front door of the Company's warehouse. During the period from July 26 to August 3, while Mattice and the other strikers continued to use the front door, the nonstrikers reported for work through the warehouse's back door. The Company opened the front door 5 to 10 minutes before 6:00 a.m. There is no evidence as to when the door was opened. Mattice also credibly testified that after the front door was opened, as he and employee Hud- son walked to the meat room , "Bob Johnson or Jesse Dou Brava, whoever had unlocked the door, would go right back . . . and unlock the division door between the bakery and the dairy area and the main warehouse and allow the people who were already inside the building to . . . come on in and punch in." Finally, on cross-examination, Mat- tice conceded that both groups were arriving in the meat department "at about the same time." 16 It is also undisputed that since late in 1972, Dou Brava has required meat department employees to be attired in their white aprons and jackets before punching in on the time clock. Dou Brava also posted a notice to the employ- ees announcing this requirement at that time . On direct examination , Mattice testified that during the July 26-Au- gust 3 period, the meat department employees who had worked during the first strike punched in first and "then dressed." Later , on cross-examination, Mattice testified as follows: Q. Who did you see punch in before he put on a white apron and coat? A. I've seen Bob Johnson, I've seen Bill Cloyd, Roy King I've seen Keenar Black stand there and punch five or six cards, the girls were standing around and she would punch five or six cards. Q. What date do you have reference to? Let's do it 16 Mattice's testimony in this regard confirms the Company' s summary entitled "Check In Time Produce Employees" which shows the punch-in time for all meat department employees for the weeks of July 28 and August 4 (Resp . Exh. 19). 137 this way. What day did you see somebody punch in before they had their whites on, before you punched in? A. Before I punched in? Q. Yes. A. I don't believe anybody did. c. Overtime work At the hearing, I received in evidence an extract of the Company's records (G.C. Exhibit 14) showing the total hours worked by each meat department employee during the weeks ending July 28 and August 4, respectively. The extract together with Temple Stephens credited testimony shows that from July 26 up to and including August 2. the last full day before the second strike, the only employees who worked 9 hours or more on two or more normal work days were Anna Forrest (2), William Jacoby (3), Mark Wille (2), Kathryn Thompson (3), Wanda Ridgeway (3), and Keenar Black (3), none of whom participated in the first strike. The Company's summary also shows that the only employees who worked on Saturday July 28 were nonstrikers Forrest, Wille, Thompson, and Black. Of the strikers , only Kendall worked 9 hours or more on any of the 6 workdays covered by the period, and she achieved that distinction only once. 2. Analysis and conclusions I find that the General Counsel has not established by substantial evidence that the lack of white aprons and jack- ets for distribution to the strikers and the segregation of strikers from nonstrikers, between July 26 and August 3 were violative of Section 8(a) (3) and (1) of the Act. There is no showing that the Company made any surreptitious distribution of white garments to the nonstrikers or as- signed separate entrances to the strikers and nonstrikers. Nor is there any showing that management voiced any in- tent to discriminate against the strikers in these respects. Also, the credited testimony suggests a number of nondis- criminatory explanations for the apparent disparity in whites such as the sudden end of the 4-month-old strike in the latter half of a workweek, faulty laundry service, and the possibility that the three nonstrikers had accumulated whites in their lockers. As for the apparent segregation of strikers from nonstrikers at reporting time, there is no showing that the strikers suffered any pecuniary loss. In- deed, Mattice conceded that the two groups were arriving in the meat department at about the same time. In sum, I am not persuaded that either the problem with the white aprons and coats or the use of the two warehouse entrances between July 26 and August 3 provides any ground for findings that the'Company violated Section 8(a)(3) and (1) of the Act. However, I find sufficient evidence to support the Gen- eral Counsel's contention that between July 26 and August 3, the Company discriminated against the strikers with re- gard to hours of work. The Company's records show that of the 10 returned strikers, only one was assigned overtime of I hour or more during the period July 26 through and including August 2. Further, the Company assigned none 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strikers to Saturday work on July 28. In contrast, 6 of the 10 nonstrikers received a total of 16 overtime assign- ments of I hour or more during the same period, and 4 of the 10 received a Saturday assignment on July 28. In light of the Company's demonstrated hostility toward employee adherence to the Union, such a contrast in treatment can- not be viewed as a mere coincidence. Cf. N.L.R.B. v. Cam- co, Incorporated, 340 F.2d 803, 809-811 (C.A. 5, 1965), cert. denied 382 U.S. 926 (1965). To avoid a finding of unlawful conduct, the Company asserts that during the period in question, the strikers were leaving work daily at 3:00 p.m. without permission from the meat department head, Dou Brava. However, the only such instance shown by the record involved employee Lu- cille Haggard, who received a written warning on or about July 27 for failing to comply with Dou Brava's July 27 request to "remain and work a few minutes overtime." There is no evidence to support the Company's suggestion that all 10 of the returned strikers were leaving the ware- house daily at 3:00 p.m. Nor is there any showing that company intentions to assign the strikers to overtime or Saturday work were in any way thwarted by the strikers. In short, I find the Company's explanation to be wanting in evidentiary support. Accordingly, in view of the strong evi- dence of disparate treatment and the attendant union ani- mus, I find the Company violated Section 8(a)(3) and (1) by discriminating against the the 10 strikers. in the assign- ment of overtime and Saturday work because they had supported the Union's strike which began on March 21. F. Jesse Dou Brava's Refusal To Recognize Mattice as the Meat Department Employees' Spokesman 1. Facts On August 2, Robert Mattice arranged for a meeting with Jesse Dou Brava on the following morning at the company warehouse.' On August 3, Mattice and nine other meat department employees met Dou Brava during their morning coffeebreak. Mattice said: "Jesse, we would like to talk to you." Dou Brava replied: Bob, I'm not going to talk to you. You are not a spokesman for this group, you never have been and never will be. If they have complaint: or gripes, they can come to me individually and privately and I'll at- tempt to resolve these. At this, Mattice asked Dou Brava if that meant "You're not going to talk to us then?" Dou Brava replied, "No!" With the discussion thus ended, the 10 employees removed their white jackets and aprons and walked out of the ware- house. Thus began the second strike which was in progress at the time of the hearing in this matter. 2. Analysis and conclusions The General Counsel urges that Dou Brava's refusal to 17 The purpose of the meeting was to discuss conditions of employment. treat with Mattice as a spokesman for a group of meat department employees on August 3 constitutes a failure and refusal "to permit employees to concertedly request the [Company] to take corrective action in regard to certain terms and conditions of employment." I agree for the fol- lowing reason, Section 9(a) of the Act provides as follows: Representatives designated or selected for the purpos- es of collective bargaining by the majority of the em- ployees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment: Provided, That any individual employee or a group of employees shall have the right at any time to present grievances to their employer and to have such grievances adjusted, without the intervention of the bargaining representa- tive, as long as the adjustment is not inconsistent with the terms of a collective-bargaining contract or agree- ment then in effect: Provided further, That the bargain- ing representative has been given opportunity to be present at such adjustment. Absent a recognized bargaining representative through whom the 10 employees could have processed their griev- ances, their attempt to act through a spokesman such as Mattice came within the foregoing Section and was pro- tected by Section 7 of the Act. N.L.R.B. v. Lundy Manufac- turing Corp., 316 F.2d 921, 925-927 (C.A. 2, 1963), enfg. 136 NLRB 1230 (1962), cert. denied 375 U.S. 895 (1963). In Lundy Manufacturing, Corp., supra,'the Board also recog- nized that absent a functioning union grievance machinery, employees are entitled to establish a committee to repre- sent them in the presentation of grievances to their employ- er, and that such a committee is entitled to recognition by the employer. In that case, the Board found the employer's refusal to "accept and meet with and discuss grievances" with such a committee violative of Section 8(a)(1) of the Act. 136 NLRB at 1244-45. Here, faced with the Company's rejection of the Union's demand for recogni- tion, the 10 employees had attempted to press their griev- ances collectively, through Mattice. In such circumstances, Dou Brava's refusal to recognize Mattice as the group's spokesman for the presentation of grievances brought home to the frustrated employees the Company's complete rejection of their right to engage in any form of collective bargaining a right fostered by Sections 9(a) and 7 of the Act. I find, therefore, that by such refusal, the Company violated Section 8(a) (1) of the Act. Lundy Manufacturing Corp., supra, 136 NLRB at 1244-45.18 I further find that Dou Brava's unlawful refusal to rec- ognize Mattice as the spokesman for the meat department strikers groups was the immediate cause of the strike which is The record does not support the Company's claim in its brief that "there is absolutely no evidence in the record to establish the purpose ... of why the group wished to speak to Dou Brava ." For, in his response to Mattice's request for a conference. Dou Brava recognized the probability that the employees had "gripes" and "complaints." Thus. Dou Brava's re- sponse showed that he recognized that the employees were approaching him about their conditions of employment including the denial of overtime. STEPHENS PRODUCE CO. 139 began on August 3. 1 also find that a contributing cause of the strike was the Company's unlawful discrimination against the strikers with respect to hours of employment during the period from July 26 to and including August 3. For, these reasons, the August 3 strike was an unfair labor practice strike. N.L.R.B. v. Comfort, Inc., 365 F.2d 867, 873-874 (C.A. 8, 1966). G. Jesse E. Kruse's Warning Late in the afternoon of August 31, a truck belonging to Beaver, another employer, approached the Company's warehouse. Striking employee Doris Freeman, who was walking the picket line approached the truck, which then stopped, and asked the driver to honor the picket line. The driver said he would comply with Freeman's request, but first he had to call his employer. He asked where he could park his truck and where he might find a phone. Another striker, Katherine Chism, came to the truck and told the driver where to park and Freeman directed him to a near- by tavern where there was a phone. At about this point, Company General Manager Kruse, who was standing in the warehouse door, called to the driver telling him to back his truck into the warehouse dock. The driver ignored Kruse's direction, but parked his truck and started walk- ing. At this, Kruse shook his finger at Freeman and Chism, and warned them he would call the police and, "Get rid of them one at a time." 19 1 find Kruse's warning amounted to interference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act. Cone Brothers Contracting Com- pany, 135 NLRB 108, 109, 132 (1962), enfd. 317 F.2d 3 (C.A. 5, 1963), cert. denied 375 U.S. 945 (1963). H. The Refusal To Bargain As of February 27, when the Union wrote its letter de- manding recognition and-bargaining, it had obtained au- thorization cards from a majority 20 of the 17 employees in the Company's meat department.21 On March I the Com- pany rejected the Union's demand. In defense of its refusal to bargain, the Company contends that the bargaining unit sought by the Union is inappropriate, and that only an 19 My findings are based upon the testimony of Freeman and Chism, who presented their testimony in a straightforward and convincing manner. Kruse, who was less certain about the event testified in substance that the "truck was being held up." However, his testimony reveals that he did not witness the entire incident , but came upon it after the truck had stopped. He also conceded that he said "Maybe we ought to call the police and see if can help out on this." the As of February 27, the Union had obtained 13 cards. However, it sent copies of only 12 of the cards as enclosures with its letter td the Company. One of the 12 cards was executed by Wanda L. Colmer on February 26 under circumstances which cast doubt upon her status as a meat department employee. As the remaining I I cards were sufficient to support the Union's demand , I find it unnecessary to determine Colmer 's status. 21 The proposed bargaining unit is more fully described as: All regular full-time and part-time meat department employees em- ployed by Stephens Produce Co., Inc., at its Moberly, Missouri, ware- house, excluding all dockmen, warehousemen , truck drivers , helpers. janitors, checkers, fork lift operators, produce order men, bakery em- ployees, dairy employees, office clerical employees, professional em- ployees, guards and supervisors as defined in the Act. overall unit consisting of Stephens' meat, bakery, and dairy departments would be appropriate. There is no bargaining history for any of Stephens' employees. In support of its unit position, the Company stresses in- stances of transfer and interchange between the three de- partments dating from 1958, occasions when meat depart- ment employees hae sacked donuts and when bakery em- ployees have done some meat department work. The Company also calls attention to a coordinated layoff policy between the three departments, their common seniority list, common fringe benefits and working hours, and Temple Stephens' overall control of their operations. On the other hand, the General Counsel has shown that the meat de- partment is in a room separate from the other departments, has its own separate immediate supervisor, and performs work distinct from that of the other two departments. The General Counsel also points out that unlike the dairy and bakery work areas, the meat department's temperature is kept at about 45 degrees Fahrenheit.22 The record also shows that except for baking chickens in the bakery once or twice weekly and occasionally washing meat trays there, the meat department employees do not go into other de- partments to pi:rform their department's work. The meat department employees punch a separate timeclock and have two separ, to locker rooms, one for men and the other for women. Taking into account the factors urged by the Company, I find that the record as a whole reveals that the meat department employees enjoy a separate and distinct community of interest similar to that of retail store meat departments which the Board has traditionally found to be appropriate units. Owego Street Supermarkets, 159 NLRB 1735, 1741 (1966): The Great Atlantic & Pacific Tea Compa- ny, Inc., 130 NLRB 226 (1961). In sum, I find a separate unit of Stephens' meat depart- ment employees, as sought by the Union, to be an appro- priate unit for purposes of collective bargaining. - The Company complains that misstatements made by union. representatives and employee Mattice impaired the validity of the Union's card majority. Specifically, the Company relies upon the testimony of employees Keenar Black and Bill Cloyd that misrepresentations and threats were made to them individually, a showing that a proposed contract was read to the meat department employees by the Union on February 26, and Mattice's testimony, that in his effort to gain support for the Union he showed meat department employees a contract designated as the Sedalia area contract. However, the evidence does not warrant re- jection of the Union's authorization cards. Neither Black nor Cloyd signed union cards and there is no showing that the misstatements allegedly made to them were made to any of the employees who did sign cards. Further, neither the reading of the proposed contract on February 26 nor the circulation of the Sedalia area contract constituted promises that specific wages or other 'benefits would be obtained from the Company. Accordingly, I find that at the time of its demand for recognition on February 27, the Union had a clear majority evidenced by valid authoriza- tion cards. 22 The dairy storage room is kept at 35 to 40 degrees Fahrenheit and the dairy pasteurizing area's temperature range is between 80 and 90 degrees. 140 DECISIONS OF NATIONAL Finally, I am persuaded that the Company's many and persuasive unfair labor practices found above were of such a nature as to make impossible the holding of an election in an atmosphere free from fear and coercion. Consequent- ly, a bargaining order is warranted in these circumstances, as established by Board and circuit precedent. Gissel Pack- ing Co., Inc., 395 U.S. 575 (1969), Best Industrial Uniform, 203 NLRB 1166 (1973). 1 conclude accordingly, that the Company violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain with the Union, on and after March 1,23 as the exclusive bargaining representative of the meat department employees. As the meat depart- ment strike which began on March 21 was caused by the Company's March I refusal to recognize the Union, I find that strike was an unfair labor practice strike. CONCLUSIONS OF LAW 1. By unlawfully interfering with, restraining, and coerc- ing the employees, as found herein, the Company has en- gaged in unfair labor practices within the meaning of Sec- tion 8(a)(1) of the Act. 2. By discriminating against Robert L. Mattice, George Hudson, Lillian Canaday, Dorothy Kendall, Katherine Minks, Kathryn Chism, Elizabeth White, Lucille Haggard, Doris Freeman, and Shirley Wilson because of their activi- ty in support of the Union, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By refusing to bargain with the Union, on and after March I, 1973, when the Union represented a majority of the Company's employees in the appropriate unit de- scribed above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6), and (7) of the Act. THE REMEDY Having found that the Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom, and that it take certain affirmative action necessary to remedy the unfair labor practices and to effec- tuate the policies of the Act. Included in this affirmative action will be a recommendation that the Company make Robert L. Mattice whole for the loss of wages he suffered as a result of his layoffs on February 16 and March 9, 1973, and the further recommendation that Robert L. Mat- tice, George Hudson, Lillian Canaday, Dorothy Kendall, Katherine Minks, Kathryn Chism, Elizabeth White, Lucille Haggard, Doris Freeman, and Shirley Wilson, be made whole for the loss of overtime wages they suffered as a result of the Company's withholding of overtime from them. Mattice's backpay arising out of the two layoffs shall be computed on a quarterly basis plus interest at 6 percent 23 The Union's motion to strike the testimony of Earl J . Engle on the ground that he appeared as Company counsel is denied . Vanderbih Prod- ucts, Inc. v . N.L.R.B., 297 F.2d 833 (C.A. 2, 1961). LABOR RELATIONS BOARD per annum as prescribed in F. W. Woolworth, Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 shall also provide for interest at the rate of 6 percent per annum with respect to the overtime wages due the above-listed employees. Having found that the Company on and after March 1, 1973, and at all times thereafter, failed and refused, in vio- lation of Section 8(a)(5) of the Act, to recognize and bar- gain with the Union as the duly designated exclusive col- lective-bargaining representative of its employees in the unit herein found appropriate, and that, independent of such violation, a bargaining order is necessary to remedy the Company's other unfair labor practices, it will be rec- ommended that the Company, upon request, bargain with the Union concerning the wages, hours, and terms and conditions of employment of the employees in the said unit and if an understanding is reached, embody the same in a written contract. However, I see no ground for burdening the Company with the General Counsel's and the Charging Party's litigation expenses in this proceeding. Having found that the strikes by the Company's employ- ees which began on March 21 and August 3, respectively, were caused by the Company's unfair labor practices, and, therefore, were unfair labor practice strikes, I shall, in ac- cordance with Board policy, recommend that upon the un- conditional offer of the strikers, including those who did not return to work on July 26, 1973, to abandon their strike and return to work, the Company shall offer each of them reinstatement to their former or substantially equivalent employment, dismissing, if need be, any person hired on or after March 21, and make each such striker whole for any loss of pay suffered by reason-of the Company's failure to reinstate an employee, within 5 days after application, to the date of the Company's offer of reinstatement, by pay- ing to such striker a sum of money equal to the wages he would have earned during said period, less his net earnings in that period, in accordance with the formula set forth in F. W. Woolworth Company, supra, with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., supra. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 24 Respondents Stephens Produce Co., Inc., and Temple Stephens Company, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning the union activi- ties or union sentiments of other employees. (b) Creating the impression that the union activities of their employees are under surveillance. (c) Threatening discharge, plant closure, or other repri- 24 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all.objections thereto shall he deemed waived for all purposes. STEPHENS PRODUCE CO. sals because its employees engage in union activities or express prounion sentiment. (d) Promising employees job security or other benefits to induce them to withdraw their support from a protected strike or other concerted activity protected by the Act. (e) Interfering with the right of employees to present grievances through an employee whom they have selected as their spokesman. (f) Threatening employees with arrest or other reprisals in retaliation for their participation in a strike or other concerted activity protected by the Act. (g) Encouraging or discouraging membership in, or sup- port for, Amalgamated Meat Cutters and Butcher Work- men of North America , AFL-CIO, Local Union 576 or any other labor organization , of its employees by discrimi- natorily laying off employees or withholding overtime work assignments from employees because of their union or other concerted activities. (h) Refusing to recognize Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, Lo- cal Union 576 , as the exclusive collective-bargaining repre- sentative of its employees in the following appropriate unit: All regular full-time and part-time meat department employees employed by Stephens Produce Co., Inc., at its Morberly, Missouri, warehouse, excluding all dockmen, warehousemen, truck drivers, helpers, jani- tors, checkers, fork lift operators, produce order men, bakery employees, dairy employees, office clerical em- ployees, professional employees, guards, and supervi- sors as defined in the Act. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guar- anteed by the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act. (a) Make whole Robert L. Mattice, as set forth in the section entitled "The Remedy," for any loss of earnings suffered by reason of his discriminatory layoffs. (b) Make whole Robert L. Mattice, George Hudson, Lillian Canaday, Dorothy Kendall, Katherine Minks, Ka- thryn Chism, Elizabeth White, Lucille Haggard, Doris Freeman, and Shirley Wilson, in the manner set forth in the section entitled "The Remedy," for any loss of earnings suffered by reason of the discriminatory withholding of overtime work from them. (c) Upon request, recognize and bargain with Amalga- mated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, as the exclusive col- lective-bargaining representative of the employees in the aforesaid appropriate unit respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (d) Upon the unconditional application of those em- ployees who went on strike on March 21, 1973, and did not return to work since that date, and the unconditional appli- cation of those employees who went on strike on August 3, 141 1973, offer each of them immediate, full, and uncondition- al reinstatement to their former or substantially equivalent jobs without prejudice to their seniority or other rights and privileges, dismissing, if need be, any person hired on or after March 21, and make each such striker whole for any loss of pay suffered by reason of Respondents' refusal, if such there be, to reinstate such striker, beginning 5 days after application for reinstatement, to the date Respon- dents offer reinstatement. (e) Post at its warehouse at Moberly, Missouri, copies of the attached notice marked "Appendix." 25 Copies of said notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondents' author- ized representative, shall be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writ- ing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the amended complaint be. and it hereby is, dismissed insofar as it alleges unfair labor practices not specifically found herein. 25 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT question employees about the union activities or union sentiments of other employees. WE WILL NOT give the impression that the union ac- tivities of our employees are under surveillance. WE WILL NOT threaten our employees with discharge, plant closure , or other reprisals because they engage in union activities or express prounion sentiment. WE WILL NOT promise employees job security or other benefits to induce them to withdraw their sup- port from a protected strike. WE WILL NOT interfere with the right of employees to present grievances to us through an employee whom they have selected as their spokesman. WE WILL NOT threaten employees with arrest or other reprisals in retaliation for their participation in a strike or other protected concerted activity. WE WILL NOT discriminate against any employee be- cause of his or her activity on behalf of Amalgamated Meat Cutters and Butcher Workmen of North Ameri- 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ca, AFL-CIO, Local Union 576, or any other union. WE WILL pay Robert L. Mattice for wage losses he suffered as a result of his layoffs on February 16 and March 9, 1973, respectively. WE WILL pay Robert L. Mattice, George Hudson, Lillian Canaday, Dorothy Kendall, Katherine Minks, Kathryn Chism, Elizabeth White, Lucille Haggard, Doris Freeman, and Shirley Wilson for losses they suf- fered as a result of our withholding of overtime work assignments from them between and including July 26 and August 2, 1973. WE WILL bargain collectively, upon request, with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, re- specting rates of pay, wages, hours, and other terms and conditions of employment, as the representative of our employees in the following bargaining unit: All regular full-time and part-time meat department employees employed by Stephens Produce Co., Inc., at its Moberly, Missouri, warehouse, excluding all dockmen, warehousemen, truck drivers, helpers, janitors, checkers, fork lift operators, produce order men, bakery employees, dairy employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. WE WILL, upon the unconditional application of those employees who went on strike on March 21, 1973, and did not return to work since that date, and the unconditional application of those employees who went on strike on August 3, 1973, offer each of them immediate, full, and unconditional reinstatement, to their former or substantially equivalent jobs without prejudice to their seniority or other rights and privi- leges, dismissing, if need be, any person we hired on or after March 21, and make each such striker whole for any loss of pay suffered by reason of our refusal, if such there be, to reinstate such striker, beginning 5 days after application for reinstatement, to the date we offer reinstatement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to join or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local Union 576, or any other union. STEPHENS PRODUCE CO., INC. AND TEMPLE STEPHENS COMPANY