M & J Trucking Co., Inc.

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD M & J Trucking Co., Inc. and Local Freight Drivers, pervisors as defined in the Act. Local Union No. 208, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers and, in the event an agreement is reached, embody of America. Case 21-CA-12135 such understanding in a signed agreement." November 4, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On April 17, 1974, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its 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,2 and conclusions, as modified,' of the Administrative Law Judge and to adopt his recommended Order, as mod- ified herein. 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 below, and hereby orders that the Respondent, M & J Trucking Co., Inc., Commerce and Riverside, Cali- fornia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order as modified: 1. Delete paragraph 1(e), and reletter paragraph 1(f) as 1(e). 2. Substitute the following paragraph for para- graph 2(b) of the Order: "(b) Upon request, bargain with the above-named labor organization as the exclusive representative of all the employees in the following appropriate bar- gaining unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment: "All truckdrivers and mechanics employed by Respondent at its facilities located at 4600 She- lia Street, City of Commerce, California, and 5001 Pedley Road, Riverside, California; ex- cluding all other employees, office clerical em- ployees, professional employees, guards, and su- 3. Substitute the attached notice for the notice at- tached to the Decision of the Administrative Law Judge. i This case was consolidated for hearing on objections to the election in Case 21-RC-13365, which was conducted pursuant to an agreement for consent election The Administrative Law Judge severed the representation case and remanded it to the Regional Director for Region 21, and that proceeding is not before the Board 2 Respondent contended that 8 of 20 authorization cards were invalid because they were obtained by means of representations that they were to be used for an election However, we note that the record contains no evidence of statements to the card signers that the cards would be used solely for an election We note, additionally, that the cards state unambigu- ously that the cards are for representation purposes. Consequently, like the Administrative Law Judge, we find that all 20 cards were proper expressions of support for representation purposes N LR B v Gissel Packing Co, Inc 395 U S 575, 606-608 In reaching that conclusion, we find it unnecessary to rely upon the final sentence of fn 49 in the Administrative Law Judge's Decision 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, enfd 188 F 2d 362 (C A 3, (1951)) We have carefully exam- ined the record and find no basis for reversing his findings J We agree with the Administrative Law Judge that a bargaining order is appropriate herein as a part of the remedy However, in accordance with the views they expressed in Steel-Fab, Inc, 212 NLRB 363 (1974), Chairman Miller and Member Penello do not adopt the Administrative Law Judge's finding of an 8(a)(5) violation upon which he predicated the Order Instead, they rely solely on the serious and extensive 8(a)(1) and (3) violations com- mitted by the Respondent as requiring the granting of such a bargaining order to remedy these unfair labor practices Accordingly, they adopt all of the conclusions of law of the Administrative Law Judge except par 7 thereof Member Fanning dissents from the dismissal of the 8(a)(5) finding of the Administrative Law Judge, and the failure to adopt the corresponding con- clusion of law, for the reasons stated in his dissent in Steel-Fab, Inc , supra APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National La- bor Relations Board has found that we have violated the National Labor Relations Act, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representative of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protec- tion To refrain from the exercise of any such activities. 214 NLRB No. 63 M & J TRUCKING CO., INC. WE WILL NOT lay off or otherwise discriminate against any employee for joining or supporting Local Freight Drivers, Local Union No. 208, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, or any other union. WE WILL NOT question you about your membership or activities in the above-named Union, or any other union. WE WILL NOT threaten you with economic reprisals, including closing our business and laying off the least senior employees, if you support the above-named Union, or any other union. WE WILL NOT tell you that we have laid off employ- ees because a union has engaged in an organizational campaign. WE WILL NOT in any other way interfere with, re- strain, or coerce you in exercising the rights guaran- teed by the National Labor Relations Act. WE WILL offer to reinstate, if we have not already done so, the employees named below to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without any loss of seniority or other rights previously enjoyed, and WE WILL reim- burse them for any loss of earnings suffered because of their layoff, together with 6-percent interest. Richard Babb Arthur Bazan James Brockway John Brockway John Daley WE WILL, upon request, bargain with the above- named Union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All truckdrivers and mechanics employed by Re- spondent at its facilities located at 4600 Shelia Street, City of Commerce, California, and 5001 Ped- ley Road, Riverside, California; excluding all other employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. M & J TRUCKING CO., INC. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The consolidated hearing in these cases held on January 24, 25, 29, and 30, 1974, is based upon unfair labor practice charges filed by Local Freight Drivers, Local Union No. 208, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America on September 17, 1973, and upon objections to conduct affecting the results 593 of a representation election filed on September 18, 1973. A complaint issued in the unfair labor practice proceeding on November 9, 1973, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 21, who, on November 16, 1973, issued an order consolidating the Union's objections to conduct affecting the results of the representation election with the aforesaid unfair labor practice case for hearing before an Administrative Law Judge. The complaint as amended at the hearing alleges that M & J Trucking Co., Inc., herein called the Respondent, has engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, herein called the Act. Respondent filed an an- swer to the complaint in which it denies committing the alleged unfair labor practices. The Union's objections to conduct affecting the results of the representation election, in substance, allege that the Respondent engaged in conduct which interfered with the holding of a free and fair election and constitutes grounds for setting aside the election. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT M & J Trucking Co., Inc., the Respondent, a California corporation, is engaged in the business of hauling general freight by truck from its places of business located in Com- merce and Riverside, California. In the course and conduct of its business operations, it annually performs services val- ued in excess of $50,000 for customers located within the State of California, which customers annually sell and ship goods valued in excess of $50,000 directly to customers located outside the State of California. I find Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Local Freight Drivers, Local Union No. 208, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES The ultimate issues litigated are whether, in laying off five-named employees, the Respondent was motivated by its animus against the Union, threatened employees with economic reprisals if they supported the Union, and ques- tioned employees about their union activities and sympa- thies. Also involved is whether the Respondent engaged in the type of conduct sufficient to set aside a representation election lost by the Union and, if so, whether in the cir- cumstances of this case an appropriate remedy is an order 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requiring the Respondent to recognize and bargain with the Union as the employees' exclusive bargaining represen- tative. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting The Respondent, a trucking company, picks up and de- livers for various business enterprises in Southern Califor- nia. It has been operating since 1959 under the direction of its president and principal stockholder Max Menkus. The Respondent's vice president, the president's son, is Joel Menkus. Its general manager is Dale Holybee. The Respondent's employees are not represented by a union and in 1970, when it came to President Menkus' attention that several of the drivers were considering unionization, Menkus made it clear that he was emphati- cally opposed to the unionization of his business. President Menkus, at that time, assembled all of the employees and told them that he was the only boss; he did not want a union and if a union came in, he would close the doors. He advised the employees that if any of them favored union representation that they should terminate their employ- ment.' Despite President Menkus' warning several of the Company's drivers, unhappy about their wages, in August 1973 2 visited the Union. On August 9, drivers James Brockway, his two sons, John Brockway (herein called "Jackie") and Thomas Brockway, and James Brockway's brother John Brockway (herein called "Uncle Jack"), with fellow drivers John Daley and Edwin Gaudette, went to the Union's office and spoke to Union organizer Eddie McKiernan. McKiernan answered their questions, ex- plained the benefits of unionization, and gave them union authorization cards and literature to distribute to their fel- low employees. The employees scheduled another meeting with McKiernan for the following week on August 15. On August 15, the group of employees who had initially met with union organizer McKiernan, plus driver Arthur Bazan, met with McKiernan at the Union's dispatch hall. The employees had succeeded in soliciting 20 of the Company's 38 drivers and mechanics to sign union author- ization cards which they turned over to McKiernan. The Union, in turn, on August 20 by letter notified the Respon- dent that it represented a majority of its employees, de- manded recognition as the employees' exclusive bargaining representative, offered to prove its majority status through a check of the authorization cards in its possession, and requested a meeting to negotiate a collective-bargaining agreement. Respondent did not answer this letter. Also, on August 20, the Union filed with the Board a representation petition in Case 21-RC-13365 asking for an election among the Respondent's employees. On August 27, the Re- 'President Menkus' warning to the employees in 1970, as described above, is based on a synthesis of the credible testimony of employees Rich- ard Babb, Arthur Bazan, "Jackie" Brockway and James Brockway, who impressed me as more trustworthy and reliable than Max Menkus, whose version of the above-described episode I reject 2 All dates hereafter, unless otherwise specified, refer to 1973 spondent and the Union , with the approval of the Board's Regional Director for Region 21, entered into an agree- ment for consent election wherein it was agreed, among other things, that a secret ballot election would be conduct- ed by the Board on September 17 to determine if the Respondent's truckdrivers and mechanics desired to be represented by the Union. The election was held as sched- uled. Of the approximately 38 employees eligible to vote, 19 voted against union representation, 18 voted for the Union and 1 ballot, having been challenged, was not opened. In short, the Union lost the election. B. The Interference, Restraint, and Coercion The evidence presented by the parties in connection with this section of the Decision is in sharp conflict on virtually every material point. The General Counsel's witnesses, a substantial number of whom were employed by the Re- spondent at the time they testified, impressed me in man- ner and bearing-demeanor-as being more trustworthy and reliable witnesses than Max Menkus, Joel Menkus, and Dale Holybee, the witnesses called by Respondent. Nor was the various testimony of the General Counsel's witnesses in whole or in part inherently improbable when viewed in the light of the whole record. Accordingly, the findings in this section "B" are based upon the testimony of the witnesses called by the General Counsel whose re- spective names have been set out in the margin. Although the rejected testimony of the Menkuses and Holybee has not been set out, I have carefully considered their testimo- ny but have rejected it in favor of testimony which, for reasons set out above, in my opinion is more trustworthy and reliable. 1. The conduct of Max Menkus Max Menkus, Respondent's president and principal stockholder, made the following statements to employees: (1) in or about June, he warned employee Richard Babb that he would sell the Company's trucks and "close the doors" if the employees ever went union;3 (2) on or about August 22 or 23, warned a group of employees "that he would close the doors if the Union comes in";' (3) in Au- gust and on September 14, warned employee James Brock- way that if the Union came in, the Respondent would close its doors and stated, without explanation, that the Respon- dent "could not afford" the Union, and further explained that the reason the Respondent was in a position to close its doors was that he (President Menkus) had already made his money;5 (4) in early September, prior to the date of the election, in speaking with employee "Uncle Jack" Brock- way he referred to the petition filed by the Union asking for the representation election, and told "Uncle Jack" he did not want a union and did not care about the results of the election because he was ready to retire and would just as soon sell his trucks and close the business and move to the State of Arkansas;' (5) twice within 2 to 3 weeks of the 3 Based upon the testimony of Richard Babb 4 Based upon the testimony of Arthur Bazan 5 Based upon the testimony of James Brockway 6 Based upon the testimony of "Uncle Jack" Brockway M & J TRUCKING CO., INC. September 17 election he warned employee David Cornejo, a driver with very little employment seniority, that if the Union succeeded in getting into the Company that the five drivers with the least seniority (which included Cornejo) would be terminated and that Menkus would close the business before he would let the Union come in;' and (6) on or about September 22, told employee James Brockway's son, employee Thomas Brockway, that his fa- ther, James Brockway, was stabbing Menkus in the back and warned that if the Union came in, that the business "could not stand it" and that Respondent would reduce the number of its trucks to six and just keep its good customers and stop doing business with the remainder.8 I find that the statements made by Max Menkus to the employees, as described in subsections (1) through (6) im- mediately above, either expressly or by implication threat- ened employees that unionization would ipso facto result in the loss of their employment. Although an employer may predict the precise effects he believes unionization will have on his company, the prediction must be carefully phrased on the basis of objective facts to convey an employer's belief as to demonstrably probable conse- quences beyond his control. N.L. R. B. v. Gissel Packing Co., 395 U.S. 574, 618 (1969). President Menkus did not voice the above-described statements in such a noncoercive man- ner. They were not phrased in terms of objective state- ments of possible financial problems which the Respon- dent would face in the event of unionization, followed by a prediction that such problems could make closure or a re- duction in business a necessity. In contrast to the coercive nature of Menkus' above statements is the noncoercive manner in which he initially explained the Respondent's position toward unionization to employee James Brockway in early August when Brock- way, before visiting the Union, advised President Menkus that the employees, absent an increase in their rate of pay, intended to unionize. Menkus told Brockway that the Company could not afford to pay the employees more money, offered to show Brockway the Company's books, and warned if the employees unionized, that the Company could not afford the Union and would have to close. In my opinion, this statement did not constitute an unlawful threat but was a lawful exercise of Respondent's right of free speech protected by Section 8(c) of the Act. The state- ment-if the employees unionize, the Company would have to close-was made in the context of Menkus' de- scription of the Company's poor financial condition and its inability to grant a general increase in wages and what would happen if the employees chose to force the Compa- ny to grant such a wage increase through unionization. In short, Menkus unambiguously told Brockway the effects he believed the employees' efforts to get a general wage increase through the Union would have on his Company. The statement was not calculated to reasonably lead em- ployee Brockway to believe that Respondent would retali- ate against the employees simply because they had sup- ported the Union. In addition to engaging in the above-described unlawful 7 Based on the testimony of David Cornejo 8 Based upon the testimony of Thomas Brockway 595 conduct, President Menkus interrogated employees Thom- as Brockway, David Cornejo, and Edwin Gaudette about their union activities and sympathies. Twice within 2 to 3 weeks before the September 17 elec- tion, Menkus asked employee David Cornejo what he thought of the Union. Cornejo, who had signed a card for the Union, claimed a lack of knowledge. On each occasion Menkus, as described above in subsection (5). threatened Cornejo with a loss of employment if the Union succeeded in organizing the Company? Twice in September before the date of the election, over the telephone and at the premises of the Respondent, Presi- dent Menkus asked employee Edwin Gaudette if he had signed a union card. Gaudette indicated that he had signed such a card. Once, in response, Menkus stated that "there is no way I'm going to be able to function if this ever goes through."10 On or about September 10, over the telephone, President Menkus asked Thomas Brockway "what do you think about the Union? Which way are you going?" When Brockway, who had signed a union card, indicated he fa- vored the Union, Menkus answered "he just wanted to know."11 In questioning employees Brockway, Cornejo, and Gau- dette about their union activities and sentiments, as de- scribed above, President Menkus did not have, and did not suggest to the employees that he had, any legitimate reason for questioning them, and gave no assurances against repri- sal. Contrariwise, Menkus expressly threatened employee Cornejo with a loss of employment if he supported the Union and implicitly suggested to employee Gaudette that the Respondent would not operate with the Union. More- over, the interrogation took place in the context of Men- kus' several unlawful threats to close the business or reduce its size if the Union succeeded in organizing the employees. In these circumstances, I am convinced that the interroga- tion of Brockway, Cornejo and Gaudette by President Menkus reasonably tended to restrain or interfere with em- ployees' rights guaranteed by Section 7 of the Act, and violated Section 8(a)(1) of the Act. See, generally, Blue Flash Express Inc., 109 NLRB 591 (1954). 2. The conduct of Dale Holybee On or about August 21 or 22, the date the Respondent received notification from the Board that the Union had filed a petition asking for a representation election, Dale Holybee, the Respondent' s general manager, made the fol- lowing statements to employees: (1) in the Company's shipping dock office, told a group of approximately three drivers that President Menkus was "mad" because the Union was attempting to organize the employees and that he would close the business if the Union succeeded;12 (2) in the area of the Company's shipping dock office, spoke to a group of employees in a voice loud enough to be heard by others in the vicinity and said that the Company wanted a fast election and would know who to fire when the election 9 Based upon the testimony of David Cornejo 10 Based upon the testimony of Edwin Gaudette 11 Based upon the testimony of Thomas Brockway 12 Based upon the testimony of Alfred Alderette. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was over;13 (3) in the Company's shipping dock office, told employee Raymond Lunsford, a driver with very little em- ployment seniority, that the Respondent could not afford the Union and if it succeeded in getting in that the Respon- dent would have to terminate about five drivers having the least seniority and, if the Union did not succeed, that Ho- lybee knew which employees were behind the Union and would terminate those employees;14 (4) at the Company's gas pump, told driver John Perkins and mechanics James McCartney and Larry Danhieux that President Menkus would close the business if the Union came in.15 I find that the statements made by General Manager Holybee to the employees, described immediately above in subsection (1) through (4), are unlawful within the meaning of Section 8(a)(1) of the Act. Each expressly threatened employees that unionization would ipso facto result in the loss of their employment. They constitute out-and-out threats designed to discourage employees from supporting the Union rather than carefully phrased predictions de- signed to convey economic consequences beyond the Respondent's control which would flow from unionization. Likewise violative of Section 8(a)(1), for the same reasons, is the further statement made by Holybee to employee "Jackie" Brockway on the day of the election after the results had been announced, that if the Union had won the election the five drivers with the least seniority would have been terminated.16 I further find that the Respondent, through General Manager Holybee, on a number of occasions, described below, unlawfully interrogated employees about their union activities and feelings. As described in subsection (1) immediately above, Holy- bee warned a group of employees that President Menkus would close the business if the Union succeeded in orga- nizing the employees. Holybee also asked the employees being addressed if they had signed a card for the Union. Each answered negatively. Holybee then indicated that he did not understand the basis for the Union's petition for a representation election, since he had asked all of the em- ployees if they had signed union cards and no one would admit to having signed such a card.17 On the same day, August 21 or 22, referring to the petition for a representa- tion election filed by the Union, Holybee asked employee James Brockway if he knew anything about the Union and told Brockway that, in response to his (Holybee's) interro- gations, none of the employees would acknowledge that they knew anything about the Union.18 As described in subsection (3) immediately above, Holy- bee threatened driver Lunsford with a loss of employment if the Union succeeded in organizing the employees. He 13 Based upon the testimony of James Brockway which was substantially corroborated by the testimony of "Jackie" Brockway and Richard Babb 14 Based upon the testimony of employee Raymond Lunsford 15 Based upon the testimony of employee John Perkins In connection with this conduct , I have considered and rejected the testimony of mechanic McCartney, called by Respondent, who testified that he was the person who told Perkins that President Menkus would close the business if the Union came in In manner and bearing (demeanor) McCartney was not an impres- sive witness 16 Based upon the testimony of employee "Jackie" Brockway 17 Based upon the testimony of employee Alfred Alderette 15 Based upon the testimony of employee James Brockway also asked if Lunsford knew anything about the Union. Lunsford, although he had previously signed a union card, replied he had heard "a little" about the Union.19 As described in subsection (4) immediately above, Holy- bee warned employees Perkins, McCartney, and Danhieux that President Menkus would close the business if the Union came in. He also asked if they had signed cards for the Union. Each of them, including Perkins, although he had previously signed a union card, denied doing so. 0 Two to three weeks prior to the election, Holybee ap- proached three drivers on the Company's shipping dock, one of whom was employee David Cornejo, and asked if they knew anything about the Union. Cornejo, although he had previously signed a union card, stated he knew nothing about the Union 21 On or about September 15, the credible and undenied testimony of driver Edwin Gaudette is that Holybee asked him if he had signed a union card. Gaudette admitted he had signed such a card. In asking employees if they had signed cards for the Union or if they knew anything about the Union, as found above, the Respondent, through General Manager Holy- bee, violated Section 8(a)(1) of the Act. Holybee did not have, and did not suggest to the employees that he had, any legitimate reason for questioning them and gave no assurances against reprisals. To the contrary, a substantial amount of the interrogation took place at the same time the employees involved were being threatened by Holybee with a loss of employment if they supported the Union. Moreover, all of the interrogations took place in the con- text of Respondent's threats, voiced through President Menkus as well as Holybee, to retaliate against the employ- ees if the Union won the representation election. In these circumstances, I am convinced that Holybee's interroga- tion of employees, as described above, reasonably tended to restrain or interfere with employees' rights guaranteed by Section 7 of the Act, and violated Section 8(a)(1) of the Act. 3. The conduct of Joel Menkus The complaint, as amended at the hearing, alleges that Joel Menkus, the Respondent's vice president who is also the son of Respondent's president, Max Menkus, between August 20 and September 17 interrogated employees about their union sympathies. In support of this allegation, the General Counsel established that on or about September 1 Vice President Menkus, while helping driver Alfred Alder- ette, asked Alderette how he felt about the Union. Alder- ette, who had previously signed a union card, evaded the question by answering that he did not care one way or another. Menkus, however, continued to press the matter. He assured Alderette that whether he admitted he favored 19 Based upon the testimony of employee Raymond Lunsford 20 Based upon the testimony of employee John Perkins McCartney, a witness called by the Respondent who, as I have previously found, was not a convincing witness, at one point in his testimony admitted that Holybee at the gas pump asked Perkins, McCartney, and Danhieux if they had signed cards for the Union He later retracted this testimony I have rejected Mc- Cartney's testimony as well as Holybee's denial 21 Based upon the testimony of employee David Cornejo Holybee testi- fied that he probably asked Cornejo "do you know about the Union " M & J TRUCKING CO., INC. or opposed the Union his job was not in jeopardy. Alder- ette repeated that it did not really matter.22 I am of the opinion that Vice President Menkus' ques- tion-"how [Alderette] felt about the Union"-constitutes unlawful interrogation violative of Section 8(a)(1) of the Act. See Winchester Spinning Corporation v. N.L.R.B., 402 F.2d 299, 301-303 (C.A. 4, 1968). The interrogation took place in the context of the Respondent' s extreme hostility toward the Union. Menkus insisted upon an answer to his question despite Alderette's expressed reluctance to discuss the subject. Alderette's response, when viewed in the light of his having signed a union card, indicates an apprehen- sion of reprisal. And the Respondent had no permissible business interest or other justification for probing into the union sentiments of this employee. In these circumstances, despite the fact that Vice President Menkus advised Alder- ette that no reprisals would be taken, on balance, I find that the interrogation had the reasonable tendency to inhi- bit the free exercise of an employee's union activities or sympathies and was proscribed by Section 8(a)(1) of the Act. In addition to his interrogation of employee Alderette, the following conversation in which Vice President Joel Menkus was involved is relevant to this proceeding. On the morning of the representation election of September 17, shortly after the announcement of the election results, the Respondent, as described later in this decision, terminated the employment of five drivers, one of whom was the fa- ther of driver Thomas Brockway. That same afternoon when Thomas Brockway returned to the Company from his morning route, he spoke with Vice President Joel Men- kus, who told him that the five drivers had been terminat- ed, named the five and explained that the Respondent's president had left word that if the Union did not win the election that these five drivers, one of whom was James Brockway, were to be terminated. Continuing, Vice Presi- dent Menkus then asked Thomas Brockway why his father, James Brockway, was such an avid adherent of the Union. Thomas Brockway in response pointed out that other em- ployees besides his father also supported the Union.23 I find that on September 17 Respondent's vice president, by telling employee Thomas Brockway that the Respondent's president had left word that if the Union lost the election that five drivers whom he specified should be terminated, engaged in conduct which was calculated to discourage employees from supporting the Union and, as such, violated Section 8(a)(1) of the Act. That it was Vice President Menkus' intent to lead Thomas Brockway to be- lieve that the Union's unsuccessful organization campaign was responsible for the termination of the five employees is evidenced by his juxtaposing his explanation for the termi- nations with an inquiry into the reason that Thomas Brockway's father, one of the terminated employees, had been such an avid union adherent Also, any doubt of the coercive nature of this statement if removed when it is viewed in the context of General Manager Holybee's pre- election threats, previously described, to the effect that Re- spondent would know whom to fire when the election was 22 Based upon the testimony of employee Alfred Alderette 23 Based upon the testimony of employee Thomas Brockway 597 over and specifically that, if the Union lost the election, he would terminate those employees whom Respondent be- lieved were union adherents. In concluding that the Respondent violated Section 8(a)(1) by virtue of Vice President Menkus' postelection statement to employee Thomas Brockway, I have carefully considered that this misconduct was not specifically al- leged in the complaint and that at the hearing the counsel for the General Counsel acknowledged that he was not seeking a finding of a violation of Section 8(a)(1) based upon this conduct. The Respondent, however, was not prejudiced by this disclaimer. Respondent fully litigated this matter, closely cross-examined Thomas Brockway about the conversation, and called upon Vice President Menkus to give his version of the conversation. For this reason and because this conduct is directly related to other specifically alleged unfair labor practices, the termination of the five-alleged discriminatees, I believe I am obligated to rule on this conduct even though it is not specifically alleged as an unfair labor practice. See, e.g., Monroe Feed Store, 112 NLRB 1336 (1955). C. The Discriminatory Layoff of Five Employees 1. The Government's case-in-chief Respondent on the day of the Board-conducted repre- sentation election laid off five of its drivers immediately following the announcement of the results of the election. The circumstances surrounding the layoff can be briefly stated. The election took place on September 17 between 7:30 and 8:30 a.m. The ballots were counted and the results announced that same morning about 9:30 a.m. The Respondent's General Manager Holybee approximately 10 minutes after the announcement of the election results in- structed drivers Arthur Bazan, Richard Babb, John Daley, "Uncle Jack" Brockway, and James Brockway to turn in their company gasoline credit cards and handed them their paychecks. Holybee returned to the office. The five em- ployees immediately followed Holybee into the office and, with James Brockway acting as spokesman, demanded an explanation. Holybee replied that the Company was "cut- ting back" and they were the drivers selected for layoff. When James Brockway threatened to go to the Board and protest the layoff, Holybee replied that he was only follow- ing instructions. The layoff occurred in the middle of the workday and on a Monday, the start of a workweek. The employees had received their paychecks on Friday, September 14. On Sep- tember 17, they were paid for the full day, although they were terminated about 10 a.m. The Respondent at the time of the layoff employed ap- proximately 37 employees of whom 19 had signed cards authorizing the Union to represent them. Each employee laid off on September 17 had signed a union card; no em- ployee who had not signed such a card was laid off on that date and as far as the record shows on any other date. The five laid off employees each had been employed by the Company for a number of years and were regarded as competent employees whom the Respondent intended, as 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD President Menkus testified, to recall to work at the first available opportunity. They were not given any indication, however, that their layoff was only temporary and that they could expect to be recalled as soon as possible. To the contrary, their request for an explanation for the layoff was, in effect, ignored. In my opinion, the abrupt manner in which the layoff was effectuated was calculated to frighten the laid off employees into believing that they had been permanently terminated rather than temporarily laid off. This abruptness, coupled with the timing of the layoff, coming hard on the heels of the representation election, and the Respondent's openly expressed antagonism toward the Union, was further calculated to frighten the Respondent's employees into believing that the layoff was motivated by the Respondent's union animus . Also, in this connection, I note that the manner in which the Respon- dent notified the employees of the September 17 layoff dif- fers markedly from the manner in which it handled a simi- lar situation in about 1970 . Then, as will be described in greater detail later in this Decision , Respondent, because of economic conditions, decided it needed to lay off em- ployees but, rather than abruptly lay them off without ex- planation, the Respondent's President Max Menkus assem- bled all of the Company's employees and told them that he would have to lay off three or four until business improved and explained the situation to the employees. This stands in marked contrast to the callous manner in which the Sep- tember 17 layoff was handled. The explanation for this unusual treatment of valued se- nior employees, the General Counsel urges , stems from the Respondent's desire to destroy the Union's campaign to organize the employees. In this regard, I note that the lay- off occurred after the Union's organizational efforts were met by a massive but largely unsuccessful unlawful coun- tercampaign by the Respondent 24 President Menkus warned employees, in effect, that if the Union won the election that they would be out of jobs because he would sell all or part of his trucks or close the Company or termi- nate employees with the least seniority. General Manager Holybee echoed these sentiments and warned employees, in effect, that if the Union won the election the Respon- dent would close the business or would know which em- ployees to terminate or would terminate the employees with the least seniority. Also, Holybee warned that even if the Union failed to win the election that the employees behind the Union would be terminated. Finally, on the day of the layoff, Vice President Menkus, in explaining the lay- off to an employee, in effect indicated that the layoff was motivated by union considerations. To recapitulate, the Respondent engaged in a massive antiunion campaign designed to discourage its employees from voting for the Union. The Union, despite the Respondent's coercive tactics, narrowly missed securing a majority of the employees' votes. The strength of the 24 Despite its massive campaign of coercion designed to discourage the employees from voting for the Union , 18 of the Respondent's 37 employees voted for the Union . The large number of votes for the Union came as a complete surprise to President Menkus , who prior to the election, as he testified, "felt sure we would not have any problem" because he believed the great majority of his employees would not vote for the Union He testified that he "never dreamed" that so many employees favored the Union Union among the employees, as indicated by the results of the election, admittedly came as a complete surprise to the Respondent and indicated to the Respondent that its an- tiunion campaign had failed. Within 15 minutes after the announcement of the election results and the knowledge that it had a large number of union adherents in its em- ploy, the Respondent with no prior warning abruptly laid off five of its drivers, all of whom had signed union author- ization cards. The layoff was the first one in the Respondent's 14 years of existence. It took place in the midst of a workweek and the laid off employees were not allowed to finish out the workday. Despite their years of service with the Respondent, the laid off employees' re- quest for an explanation for their layoff was, in effect, ig- nored by General Manager Holybee, whose response was that there was a "cutback" and they had been chosen for layoff. The abrupt manner in which this layoff was effectu- ated was not consistent with the Respondent 's conduct prior to the Union's campaign in a similar situation. Also, Vice President Menkus contemporaneously with the layoff explained the selection of employees for layoff in terms which indicated that union considerations played a part in the layoff. Finally, prior to the election General Manager Holybee had warned that if the Union lost the election that employees behind the Union would be terminated. For all these reasons, summarized above , the layoff of the five drivers on September 17 cnes out discrimination. The General Counsel urges that the September 17 layoff was motivated by antiunion considerations but that , even if the layoff was necessitated by legitimate business consider- ations, the selection of employees for layoff was motivated by unlawful considerations . For the reasons summarized above, I am satisfied that the record establishes a strong prima facie case of unlawful discrimination which imposed upon the Respondent the duty of going forward with evi- dence giving an adequate explanation for both the decision to lay off and its basis for selecting the particular employ- ees for layoff. See N.L.R.B. v. Miller Redwood Company, 407 F.2d 1366, 1369 (C.A. 9, 1969). In concluding that the General Counsel has made out a prima facie case of dis- cnminatory selection for layoff, as well as a prima facie showing that the decision was discriminatory, I have care- fully considered the lack of direct evidence that the Re- spondent knew that any of the laid off employees, other than James Brockway, were union adherents . But, for the reasons summarized above, I am convinced that the cir- cumstantial evidence establishes that Respondent, in se- lecting each of the five employees for layoff , was motivated by its knowledge or belief that each one was a union adher- ent. Particularly relevant in this respect is the fact that of the employees selected for layoff, all five had signed union cards. This presents a telling percentage of a 100-percent layoff of union card signers, while the percentage of union card signers employed in the voting unit , as a whole, was only 51 percent. When viewed in the context of the Respondent's extreme hostility toward the Union as ex- pressed by its unlawful preelection course of conduct, this by itself indicates discriminatory selection for layoff. N.L. R.B. v. Midwest Hanger Co. and Liberty Engineering Corp., 474 F.2d 1155, 1158 (C.A. 8, 1973). Also see N.L.R.B. v. Chicago Steel Foundry Co., 142 F.2d 306, 308 (C.A. 7, M & J TRUCKING CO., INC. 599 1944), where the Court stated: To be sure, percentage evidence, standing along, will not support or sustain an order based on §8[(a)](3) of the Act. But the disproportionate treatment of union and nonunion workers may be very persuasive evidence of discrimination, and may create an infer- ence of discrimination leaving it to an employer to give an adequate explanation of the discharge or lay- off . . . [Citations omitted.] I shall now set out and evaluate the Respondent' s case- in-chief. 2. The Respondent's case-in-chief a. The Respondent's reasons for deciding to lay off the five employees The Respondent contends that its decision to lay off em- ployees as implemented on September 17 was triggered by a recommendation of its accountant, Charles Stephens. Stephens, the owner of Transport Data Processing, a com- pany which does bookkeeping and accounting for a num- ber of motor carriers , was first employed by the Respon- dent in about April. Following his normal practice, Ste- phens visited the Respondent's place of business on a date, described later in this Decision, for the purpose of prepar- ing an "Income Statement" for August. This statement consists of an itemization of the Respondent's operating income and expenses for the month . Stephens' investiga- tion revealed that operating revenues for August totaled $66,519 and operating expenses $87,875 showing a net op- erating loss of $21,456 . Included in the expenses was a "re- serve" of $15,000 to cover an insurance expense which had not been incurred in August. In talking with the Respondent's office clerical who is the Company 's book- keeper, Stephens testified, he was informed that the Re- spondent, although it had never been billed, owed an esti- mated $15,000 for certain insurance coverage for the 12- month period ending November 30. Based on his conversa- tion with the Respondent's bookkeeper and various documents, not described, he estimated that the Respon- dent owed at least $15,000 for this insurance . Expecting that eventually the Respondent would receive a bill for this amount, Stephens, as he testified, included this amount as an added insurance expense for August. The Respondent's August income statement , as prepared by Stephens, in this regard reads in the margin : "Included in the August state- ment of Income and Expenses, a reserve of $ 15,000 has been established to cover a forthcoming final insurance statement. This statement shall be subject to audit and ver- ification." Accountant Stephens informed President Menkus that this $ 15,000 insurance expense that he had discovered might eliminate a good portion of the Respondent 's operat- ing profits for the 8-month period ending August 31. Ste- phens also advised President Menkus to liquidate the large indebtedness as fast as possible In this connection Ste- phens, as he testified, asked President Menkus "if possibly he could reduce his labor force , but at the same time not sacrafice his service. I don't know whether I suggested or whether I asked, I don't recall. I just made-I possibly made a suggestion. I think it was in the form of a sugges- tion rather than asking." President Menkus did not re- spond either affirmatively or negatively, he simply said he would consider the matter.25 Thereafter, President Menkus testified that he met together with Vice President Menkus and General Manager Holybee at which time he decided he would lay off employees and, after discussing the matter with Vice President Menkus and Holybee, selected five employees for layoff. Briefly stated, the Respondent con- tends that its president prompted by a suggestion by its accountant that it reduce labor costs, for this reason, decid- ed to lay off the five employees involved in this case. I reject this defense for the following reasons. (a) The testimony of General Manager Holybee does not support President Menkus' contention that his decision to lay off was prompted by a suggestion of accountant Stephens. Also, Holybee's testimony on a significant mat- ter sharply conflicts with Stephens' story. Holybee testified that it was the Respondent's own bookkeeper, not Stephens, who told the Respondent's offi- cials that it owed a substantial amount to an insurance company. Specifically, according to Holybee, the Company's bookkeeper, Helen, told management that it owed a substantial bill to an insurance company. She told them, according to Holybee, that the Respondent's insur- ance broker had not kept the Respondent currently billed but had "all at once threw a big bill to us and we had to figure something out." Yet, according to accountant Ste- phens, when he recommended a reduction in the labor force, the Respondent had not been presented with such an insurance bill. Indeed , Stephens testified that as late as the hearing in this case, January 1974, the Respondent still had not received such a bill and had not paid the estimated $15,000 allegedly owed the insurance company. (b) It would seem that if a decision to lay off employees was based upon legitimate business considerations that President Menkus, who made the decision, and Vice Presi- dent Menkus and General Manager Holybee, whom he consulted with, would have no difficulty in recalling when the decision was made, especially since it was the Respondent's first layoff 26 Nevertheless, the testimony ad- duced by the Respondent on this essential point was vague, evasive, and inconsistent. President Menkus initially testified that his conversation with Stephens which prompted his decision to lay off em- 25 The version of what Stephens said to President Menkus when they discussed the Company's operating income and expenses for August is based upon the testimony of Respondent's witness Stephens I have not relied upon President Menkus' version of this conversation On the subject of the Respondent's decision to lay off employees and events which prompt- ed the decision , President Menkus was not a convincing witness He did not impress me as a candid witness impress this regard, I note that the charge in this case alleging, among other things, that the September 17 layoff was unlawfully motivated, was filed on September 17 Thus, Respondent was on notice at an early date that the events which prompted the discharge were significant and possibly would involve it in litigation Under the circumstances, it is not likely that the memory of Respondent's officials of the events surrounding the Respondent's decision to lay off would have been dulled by the passage of time 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees took place "around the 1st of August or the 1st of September. That was the month of August. I say around the 5th of September, some where in that area." He then unequivocally dated the conversation as occurring on Sep- tember 5, but then changed the date to August. Regarding the date he decided to lay off the employees, President Menkus initially testified the decision was made " at least" 2 weeks before September 17 but then changed this to Au- gust 14 and still again changed his testimony, now placing the date of his decision as occurring after he received a copy of the August income statement from accountant Ste- phens. This last date is obviously impossible inasmuch as President Menkus admittedly did not receive this income statement until October 16. The testimony of Respondent's General Manager Holy- bee rather than clarifying the date when Respondent de- cided to lay off the employees only makes the matter more confusing. Holybee, at first, testified that the decision was made in late August, then testified he was first told there was going to be a layoff in early August, then testified his first information about the layoff came in September, then testified that President Menkus between August 1 and 10 told him he had decided to lay off employees, at which time the particular employees were selected for layoff. Vice President Menkus, the son of President Menkus, testified that he met with his father and Holybee in the beginning of August "or thereabouts" at which time he was told about the decision to lay off employees and, together with his father and Holybee, selected the employees to be laid off. Later, when asked if he was certain that the deci- sion to lay off employees had been made in August, he testified "I believe it was the beginning of August, correct." But then proceeded to change his testimony to the "end" of August. In my opinion, the inability of the Menkuses and Holy- bee to place the decision to lay off with any degree of exactitude and their vagueness and evasion and inconsis- tent testimony indicates a desire to conceal something il- legitimate rather than simply mere forgetfullness caused by the passage of time. (c) Also relevant in evaluating the Respondent's justifi- cation for the September 17 layoff is its explanation for the timing of the layoff. President Menkus and General Man- ager Holybee testified that the decision, and the selection of the employees, for layoff was made on or about Septem- ber 10, 1 week before the actual layoff, at which time it was also decided to allow the employees selected for layoff to continue working until after the election of September 17. They further testified that, in accordance with this deci- sion, the Company's bookkeeper at that time, September 10, made out separate termination checks for the laid off employees to cover I day, September 17. This rings false. Respondent did not call its bookkeeper to substantiate this highly unusual procedure allegedly used by Respondent, nor did the Respondent produce its checkbook or the can- celled checks drawn during this period which, according to Holybee, would show that the termination checks were in fact made out 1 week prior to September 17. When asked why the Respondent chose the date of Sep- tember 17 to implement its decision to lay off employees, President Menkus answered: "I was only waiting for the election to be over and the decision on the vote. And either way-we would have probably had it worse, you, a lot more, if it had went the other way, but as long as we had one [referring to the fact that the Respondent won the elec- tion by one vote], I felt to layoff the few men we had to plan on." When the question was asked a second time, President Menkus answered: "I thought the laid off em- ployees were entitled to vote . . . and I wanted to give them their chance." No mention was made by Menkus that his decision not to implement the layoff before the election was motivated by a belief that he could not lay off employ- ees prior to the election.27 Holybee, on the other hand, in explaining why the layoff was delayed for I week until immediately after the election, testified: "We had the no- tice from the Board [referring to the Notice to Employees submitted to the Respondent for posting] and my interpre- tation of it was I could not lay anybody off or fire anybody until after the election." Holybee did not refer to the lan- guage in this notice which Respondent had received on either August 21 or 22 which led him to believe that he could not lay off or discharge employees prior to the elec- tion. I have carefully read this notice, General Counsel's Exhibit 9, and am of the opion it cannot be reasonably so construed. Indeed, Holybee admitted that prior to the elec- tion and after the Respondent received this notice that he discharged employee Hal Boehm and that before discharg- ing Boehm telephoned the Board's Regional Office for ad- vice and the Board employee told him to do what he had to do.28 No one from the Board advised him that the Respon- dent could not terminate Boehm and the Respondent dis- charged Boehm on August 24 To sum up, I find that the inconsistent reasons advanced by the Respondent to justify the alleged delay in imple- menting its decision to lay off, the patently false reasons advanced to justify the delay, the inability of Respondent's officials to place the date of the decision to lay off with any degree of exactitude and their evasive and inconsistent tes- timony on this point, when coupled with the failure of the Respondent to produce its available documentation or its bookkeeper to support its story that the decision postdated the election, all support an inference that the decision to lay off was not made until the time of the actual layoff, September 17. (d) An explanation for the vague, evasive, and inconsis- tent testimony given by the Menkuses and Holybee on the 27 Later in response to a leading question, Menkus testified the "Notice to Employees" forwarded to him for posting by the Board in connection with the Union's petition for the election was interpreted by him to mean that he could not lay anyone off Menkus was not a convincing witness when he gave this testimony which seemed to be an afterthought on his part If, by this testimony Menkus was inferring that he would have immediately laid off the five employees prior to the election but for his understanding of the notice, it is inconsistent with his earlier testimony to the effect that he de- layed laying them off because he wanted to give them a chance to vote which he thought they were entitled to do 28 In explaining why he phoned the Board in the case of Boehm and not in the case of the five laid off employees, Holybee testified, in substance, that "he thinks" the reason was that his interpretation of the notice was that an employer prior to a representation election can terminate employees for cause but cannot otherwise lay off employees for legitimate business rea- sons The notice does not support such an interpretation and, in advancing what he thought was his reason for treating the laid off employees different- ly than Boehm , Holybee was not a convincing witness M & J TRUCKING CO., INC 601 subject of the date the decision to lay off was reached is the strong inference that the meeting between accountant Ste- phens and President Menkus, which allegedly triggered the decision, did not take place until after the layoff had al- ready occurred. Accountant Stephens services a number of clients be- sides Respondent, whom he apparently visits each month. Stephens normally presumably does not have an indepen- dent recollection of the date he visits any one of his cus- tomers. Specifically, normally he would not remember the exact date when he visited the Respondent's premises and spoke with President Menkus about the Company's August operating expenses. But Stephens does keep a "day book" in which he writes all his appointments and which he testi- fied contains the exact date when he met with Menkus and suggested that Respondent reduce its work force. Respon- dent knew that this date was a vital part of its defense, yet Stephens testified that he did not bring his day book with him and his testimony indicates that he did not even con- sult this book so as to refresh his recollection prior to com- ing to the hearing. When Stephens was asked to date his meeting with Menkus, he testified: "I don't recall the exact date, but I do recall it was the early part of September. I will take a guess. I will say between the 5th and 10th of September." At this point Stephens was not a convincing witness in manner and bearing. Also unexplained was his failure to either bring his day book or at the very least to consult it to refresh his memory about the date I would be naive to believe that prior to taking the witness stand Ste- phens had not been advised by the Respondent's attorney as to the nature of the subject matter on which he would be questioned, especially where, as here, Stephens in prepara- tion for this litigation had prepared certain documentary evidence for use by Respondent. Stephens' inability to re- call the date of his meeting with President Menkus, his unconvincing demeanor when he testified on this point, and the evasive and inconsistent testimony of President Menkus as to when he met with Stephens make Stephens' day book crucial and I can only infer that the information contained therein would have been unfavorable to Respon- dent. Certain other testimony given by Stephens reinforces this inference. Stephens testified, in effect, that it is his practice to send a written monthly income statement to the Respondent approximately 10 days after visiting the prem- ises and looking over the books of account. President Men- kus reluctantly admitted that he did not receive the Respondent's income statement for August from Stephens until October 16, thereby indicating that Menkus' meeting with Stephens where Stephens recommended a cutback in personnel did not take place until after the layoff of Sep- tember 17. (e) Even assuming that accountant Stephens on or about September 5 suggested to President Menkus that if service would not be compromised that the Respondent should reduce its labor force, the evidence does not estab- lish that Menkus during the normal course of business would have implemented this suggestion. It suggests the opposite. Prior to the layoff of September 17 and prior to the Union's organizational campaign, the Respondent had ser- iously considered laying off employees but had rejected this course of conduct. Thus, in 1972 the Respondent lost $8,200. Unable to borrow money from the bank, the Re- spondent had to borrow $6,000 from President Menkus in January 1973 for its license plates and about $3,700 in Feb- ruary 1973 for a down payment on equipment. Vice Presi- dent Menkus testified that in late 1972, when Respondent realized it was not operating at a profit, it recognized and discussed the need for layoff and further testified that even before August 1973 "someone" suggested that employees be laid off. This suggestion, Vice President Menkus testi- fied, was discussed by Respondent's officials and it was decided that rather than lay off employees to rearrange the Company's "business activities." The rearrangement ap- parently worked out fine. In 1973, during the 6-month peri- od ending June 30, Respondent earned a profit of $18,000 and in July earned a profit of $5,034. Its freight revenues for the month of August were the highest of any month in 1973. However, Respondent's profit picture suffered in Au- gust in large part because of an unexpected $15,000 ac- counting insurance expense. This expense is simply a paper expense for, as accountant Stephens testified, it has never been paid. In fact, according to Stephens, the Respondent has never even received a bill for this amount. Yet it is plain from the testimony of General Manager Holybee that the main factor which prompted the decision to lay off was this unexpected insurance expense of $15,000. Unexpected that is as far as Stephens was concerned, for it is plain that President Menkus had known about this alleged unpaid insurance account as early as July. Menkus admitted that as early as late July Respondent had received a notice of cancellation of this insurance for nonpayment. In sum, what the record reveals is that Respondent with- in a year prior to the layoff of September 17, despite oper- ating losses, had consciously chosen not to lay off employ- ees. The only substantial new element in the picture in September was the Respondent's knowledge of the Union and its animus.29 In addition, the evidence establishes that the Respon- dent simultaneous with the September 17 layoff was forced to curtail its services, a course of conduct contrary to what Stephens suggested. Thus, President Menkus admitted that about the same time that Respondent was laying off em- ployees on September 17, it discontinued a service to cus- tomers previously instituted which was similar to a parcel post type service. Menkus testified that it was because of this parcel post type service that in about June or July the Respondent "put on a lot of new men." Menkus vaguely indicated that the new service was discontinued because it turned out to be losing money. But this certainly was not reflected in the Respondent's operating position for the first 7 months of 1973;30 it operated at a substantial net profit. I cannot believe that the Respondent's sudden ces- sation of this service, about the same time as the layoff of September 17, was coincidental, but am of the opinion that 29 In arriving at this conclusion. I have carefully considered the testimony of President Menkus that in August business "took a down slump very badly for some unknown reason" and that the Respondent's "receipts" dropped $2,000 to $3,000 each week Respondent's income statement for 3 gust shows that its receipts for that month were the highest for that year. Au President Menkus admitted that the Company had been using this ser- vice since 1972 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it was the natural result of the layoff of five drivers which meant that the Respondent had to cut back its services. Previously, when business conditions warranted a layoff, Respondent rather than lay off employees had reduced the working hours of some employees. Thus, it is undisputed that in 1970 due to poor business conditions the Respon- dent decided to lay off three or four of its employees. At this time President Menkus assembled all the employees, explained he would have to lay off three or four for a peri- od of time until business improved, and suggested that the employees accept a 4-day week and in that way he would not have to lay anyone off. The employees agreed to this solution. No one was laid off. Rather, some employees were cut back from 5 to 4 days a week with the remainder working 5 days.31 This condition existed for about 3 or 4 months until business picked up, at which time everyone resumed the normal 5-day workweek. When first asked to explain his reason for not reducing the dnvers' hours of work rather than laying them off on September 17, Presi- dent Menkus testified that it would create a problem; it would create dissention among the drivers. The drivers whose hours were reduced, Menkus testified, would feel that he was favoring the ones whose hours were not re- duced. There is no evidence, however, that when this pro- cedure was used in 1970 that it caused any dissention among the drivers or problems for the Respondent. To the contrary, it would seem that a driver would be much hap- pier to receive four-fifths of his week's pay than none at all and that the device of spreading the work would enable the Respondent to retain five of its more senior employees rather than run the danger that they would accept other employment during their layoff. In my opinion, President Menkus' explanation for failing to follow his past practice of reducing employees' hours rather than laying off em- ployees does not withstand scrutiny. In short, even assuming that the Respondent's accoun- tant prior to the layoff suggested that the Respondent re- duce its labor force without sacrificing service does not ipso facto mean that this is what prompted the layoff. For it is the state of mind of Respondent, particularly that of its president, that is crucial to this case, not the state of mind of accountant Stephens. Here, the Respondent's decision prior to the Union's campaign not to lay off employees despite operating losses, its cancellation of customer serv- ices because of the layoff, and its failure to maintain such services by following its past practice of reducing the hours of some employees rather than laying off, establishes that during the normal course of events the Respondent would not have laid off employees on September 17. • Ultimate Findings Based on the aforesaid findings in this section, I find that the General Counsel's prima facie case is not rebutted by the reasons advanced by the Respondent to support the 71 To the extent that President Menkus' testimony indicates that the em- ployees suggested the 4-day workweek and that all of the employees were placed on a 4-day workweek , I reject it in favor of the testimony of "Uncle Jack" Brockway who, of the two, impressed me as the more trustworthy witness on this point decision to lay off employees on September 17, rather, an examination of Respondent's reasons reveals that they are either patently false or pretextual . I further find that the implausibility of the Respondent's justification for its deci- sion to lay off employees on September 17 reinforces the inference that in making this decision the Respondent was motivated, in significant part, by its union animus and a desire to once and for all discourage its employees from supporting the Union. 2 In so concluding, I have carefully considered that from October through December the Re- spondent laid off five other drivers , that in December it recalled the five discnminatees , and at the time of the hear- ing in this case, January 1974, it was operating with 30 employees, approximately 8 less than at the time of the layoff on September 17. Nevertheless, for reasons already fully outlined, on balance, I am convinced that the basis for the layoff of September 17 was motivated in significant part by the Respondent's extreme animus toward the Union and a desire to destroy once and for all the Union's ability to organize its employees. b. The Respondent's reasons for selecting James Brockway, John Brockway, Richard Babb, Arthur Bazan, and John Daley for layoff James Brockway James Brockway, a personal friend of President Menkus, has been employed by Respondent for about 6 years and is one of the Company's more senior drivers. President Men- kus testified that Brockway was selected for layoff because one of Respondent's customers, in February, had com- plained and asked that Brockway be replaced by another driver. Menkus then added a further reason, "[Brockway] was the least productive. He wasn't as fast as a younger man" and added then still another, "because he was an extra man to start with. If he had of been on a regular run or steady run, of course, I might have made a different decision. But as an extra man . .. I decided he would be the logical man to go." Regarding the customer's complaint, Brockway for sev- eral months in 1972 and 1973 was delivering for Goerlich's, a company which distributes automotive parts. Goerlich, under a contract with Respondent, leased two of Respondent's trucks and Respondent supplied the two drivers, one of whom was James Brockway. The drivers worked under the direction of Goerlich in delivering to its customers. On or about Wednesday, February 21, Goerlich's distribution manager, Boling, told President Menkus that because of customers' complaints he wanted Brockway replaced with another driver or Goerlich would stop doing business with Respondent.33 Menkus agreed 32 Although , as indicated earlier, I am of the opinion that the evidence establishes that Respondent either knew or suspected that each of the five employees selected was a union sympathizer, the law is settled that a lack of knowledge of the union sentiments of laid off employees is no defense to a violation of Section 8(a)(3) where, as in the instant case , the layoff was motivated by a desire to thwart the Union's efforts to organize the Compa- ny E g. Arnotdware Inc, 129 NLRB 228, 229 (1960) 33 Customers were complaining that Brockway was leaving automotive parts stacked on four-wheel carts rather than unloading and removing these carts from their premises M & J TRUCKING CO., INC and immediately notified Brockway that he was being re- placed. Menkus did not, however, then or thereafter either reprimand or criticize Brockway about the matter. He sim- ply informed Brockway that Boling was mad and that Brockway was being replaced with another driver at the end of that workweek. He gave Brockway a choice of a new route, the West Los Angeles route which he had previ- ously driven for a number of years, or a San Diego route, and told Brockway to decide which one he wanted .14 Brockway, however, injured himself that Friday and was absent from work until approximately July 1. Regarding the contention that Brockway when he was laid off was employed as an extra man, the evidence estab- lishes that, upon his return to work about July 1 until the layoff, Brockway was employed as a "utility driver." In this capacity he filled in for drivers on vacations and absent from work, or was otherwise used wherever needed. This was not, however, a job which the Respondent created for Brockway. General Manager Holybee admitted that the Respondent at all times, presumably even after the layoff, normally employed utility drivers. In other words, contrary to President Menkus' testimony, James Brockway was not an extra man at the time of the layoff. President Menkus' testimony that Brockway was the least productive driver is not supported by an iota of evi- dence. When asked to explain this contention, Menkus was unable to do so and simply evaded answering the question. Based on the foregoing, I find that President Menkus' uncorroborated assertions that James Brockway at the time of the layoff was an extra man and the least produc- tive driver are patently false.35 I further find that the com- plaint or complaints by Goerlich did not lessen President Menkus' estimation of James Brockway as an employee whose services he valued. Brockway, one of the Company's most senior employees, was a personal friend of Menkus. Goerlich's demand that he be replaced by another driver was the first and last complaint ever made to the Respon- dent against Brockway in his approximately 6 years of ser- vice.36 And it is clear that Respondent did not view Brockway's problem at Goerlich's seriously but considered it as an isolated incident. Brockway was not reprimanded or criticized about this matter. Instead he was given his choice of a new job assignment. Also an indication that the Respondent on September 17 regarded Brockway as a val- ued employee is the fact that he was one of two employees granted a raise in pay 1 month before he was selected for layoff, and the further fact that in late June President Men- 34 Based on the credible testimony of James Brockway who on this mat- ter impressed me as being a more credible witness than President Menkus 35 In this regard, I also note that General Manager Holybee did not cor- roborate Menkus on these contentions Holybee testified that his only rea- son for recommending that Brockway be selected for layoff was the com- plaint by Goerlich 36 Brockway, when told by President Menkus about his removal from the Goerlich job at Goerlich's request, objected vehemently and told President Menkus that the Goerlich complaints were the only ones ever made against his work in all the years of his employment President Menkus at the hear- ing did not deny this was a fact , rather, when asked "had you ever had complaints from other customers about [Brockway]." Menkus evaded the question and never answered it It was admitted by Menkus that upon the return of Brockway to work until his layoff, there were no complaints about his work 603 kus informed a group of employees that James Brockway was a "fantastic" driver, that he was one of the fastest drivers ever encountered by Menkus, who would not mind having a couple of dozen in his employ like Brockway.37 In summation, I find that the reasons put forward by Respondent to justify the selection of James Brockway for layoff are in part patently false and in part pretextual, and further find that the evidence establishes that Brockway, one of the Company's most senior employees as well as a personal friend of President Menkus, was on September 17 regarded by President Menkus as a valued employee.38 John "Uncle Jack" Brockway John "Uncle Jack" Brockway has been employed by the Company for approximately 6-1/2 years. When selected for layoff, he was among the top five or six employees in seniority. In other words, he had been in the Company's employ longer than about 28 drivers. President Menkus testified that he was a good and reliable driver. In fact, in April, when Brockway asked for a raise in pay, Menkus, according to Brockway's credible testimony, told him he deserved a raise and could expect a good one in the fu- ture.39 Thereafter, I month before he was selected for lay- off, Brockway was one of two employees who received a raise in pay Based on the foregoing, I find that at the time he was laid off John Brockway was one of the Respondent's most senior employees whose services were highly valued. President Menkus testified that he selected Brockway for layoff because the volume of business on his route, the Covina route, had fallen off to such an extent that it made sense economically to consolidate this route with the adja- cent one. When asked why a driver with less seniority was not selected for layoff rather than Brockway, and Brock- way assigned to the route of a less senior driver, President Menkus answered: .. . because I had men like Tommy Brockway that were doing a good job, and he would have to learn all over again. On top of that, our policy is to try to have the men end their runs where they live so they don't have to drive the trucks all back to work. They just take the trucks back home with them. This saves them gas and oil and it saves us gas and oil. And then in response to a leading question, Menkus testi- fied that another consideration in selecting Brockway for layoff over less senior employees was that, if he had been transferred to another run, he would have had to drive a 37 Based on the credible testimony of employee Edwin Gaudette I reject President Menkus' testimony that he was referring to Thomas Brockway rather than James Brockway when he made these statements. Of the two witnesses, employee Gaudette impressed me as the more trustworthy 38 f note that if the layoff made it necessary to transfer James Brockway to another driver's route, this would have been accomplished easily . Presi- dent Menkus testified that senior drivers, such as Brockway, are able to shift around between various routes without any difficulty In fact, this is exactly what Brockway had been doing as a utility driver 79 To the extent that President Menkus' recollection of this conversation differs from Brockway's, I reject it as Brockway impressed me as the more trustworthy witness 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD truck larger than the 1-ton truck he had been driving on his Covina route. Regarding the driving of a larger truck, both Holybee and Menkus testified that they were unhappy with Brock- way because he refused to use a larger truck, when neces- sary, on his Covina route. It is undisputed, however, that Respondent at no time expressed this alleged dissatisfac- tion to Brockway, let alone reprimand or criticize him for his alleged refusal to use a larger truck. Brockway, who traditionally drove a small (1-ton) truck on his Covina route, admittedly indicated to employees he would just as soon drive a small rather than a large truck but, as he credibly testified, Brockway never indicated to either Holy- bee or Menkus that if Respondent asked that he would refuse to drive a larger truck4° This is not surprising be- cause Brockway, with 22 years of experience driving trucks, has no difficulty, as he testified, in driving the larger trucks used by Respondent which are small in comparison to the size of the trucks Brockway has handled in the past. In fact, upon his reinstatement by the Respondent in De- cember, he was assigned to and drove a larger truck with- out objection. Based on the foregoing, I find that Respon- dent at no time believed that Brockway would refuse to drive one of the Respondent's larger trucks, nor did Re- spondent regard Brockway's preference expressed to ex- ployees for a small truck as a matter of concern. Likewise without substance is the Respondent's refusal to transfer Brockway to the route of a less senior driver because the new drivers were doing a good job and if re- placed would have "to learn all over again."41 For it is natural for an employer to retain a senior employee in a layoff by virtue of his superior experience, proficiency and service, and the failure to do so, when the senior employee is a union adherent, supports an inference that the actual motive for the employees selected for layoff was pretextual. N.L.R.B. v. American Casting Service Inc., 365 F.2d 168, 174 (C.A. 7, 1966); N. L. R. B. v. Tennessee Packers, 390 F.2d 782, 784 (C.A. 6, 1968); N.L.R B v. S. E. Nichols-Dover, 414 F.2d 561, 564 (C.A. 3). The absence of a contractual requirement or a past practice of following seniority does not rebut this inference, for it is predicated not on a legal obligation but on normal, sound business practice. Differ- ential Steel Car Co., 75 NLRB 714, 716 (1948); Consolidat- ed Industries Inc., 108 NLRB 60, 66-67 (1954). Indeed, in explaining why the Respondent recalled one of the laid-off employees, Richard Babb, who had even less seniority than Brockway, President Menkus testified that experienced employees were needed in the trucking business, that it was difficult to find experienced employees, "so we usually hire them back rather than try to start all over again."42 More- 40 Respondent's only evidence that Brockway refused to drive a larger truck was the testimony of Holybee that once Brockway refused to follow Holybee's instruction to use a larger truck Brockway allegedly told Holy- bee he would rather make two trips using the 1-ton truck , whereupon Holy- bee testified he told Brockway "go ahead " I reject Holybee's testimony Of the two witnesses , Brockway was the more credible 41 President Menkus' refusal to transfer Brockway to another run for the additional reason that it was contrary to the Company's policy "to try to have the men end their runs where they live" rings false In this regard, when Respondent recalled Brockway from layoff , it reinstated him not to the Covina route, the area in which he resides, but another route over, the pretextual nature of Brockway's selection for lay- off, instead of a less senior dnver, is bolstered by the fact that Brockway, as shown above, was admittedly regarded by Respondent as a highly valued employee. Based upon the foregoing, I find that the reasons ad- vanced by the Respondent for selecting John "Uncle Jack" Brockway for layoff were in part patently false and in part so insubstantial as to indicate they are not the real reasons. Arthur Bazan Arthur Bazan had been employed by Respondent for about 2-1/2 years when he was laid off. It is undisputed that he always did a good job and that no one ever crit- icized his work. President Menkus admits that Bazan was a "good worker," one of the Company's "better drivers," whom Menkus selected for layoff, he testified, only be- cause he had told Menkus and Holybee that he intended to terminate his employment when he finished night school and qualified as a driver of diesel tractors. Bazan in August enrolled in a 9-week course, which he attended after working hours, designed to qualify him to drive diesel tractors which are more powerful than the nor- mal tractors and are designed to haul so-called " semis." Respondent does not own such equipment. The drivers of "semis" generally are higher paid than other drivers. Presi- dent Menkus and General Manager Holybee knew that Bazan was attending classes to qualify as a diesel driver. The only comment that either one made to Bazan about the matter was a remark by Holybee to the effect that per- haps by the time Bazan qualified to drive a semi the Re- spondent would have such a truck for him to drive. Bazan credibly testified that he did not indicate at any time to either Menkus or Holybee that he intended to terminate his employment with the Respondent upon completion of his course in diesel driving.43 In fact, despite his completion of the schooling in October and his qualification to drive diesels, Bazan accepted the Respondent's request, made in December, that he return to work. When asked why the Respondent recalled Bazan from layoff despite its pro- fessed knowledge and concern over his expressed intent to eventually terminate his employment, President Menkus testified, " ... I thought sure he would not come back to work, because I felt that he had another position. . . . But we called him as one of our better men, and we called him first." Bazan returned to work and was still employed at the date of the hearing. President Menkus admitted Re- spondent did not speak to Bazan at the time it recalled him or since his recall about whether he intended to carry out his alleged prior warning and quit the Company's employ. Based upon the foregoing, I find that the reason relied upon by President Menkus for selecting Bazan for layoff is patently false and further find that when it selected him for layoff the Respondent regarded Bazan as a highly valued employee and did not regard Bazan's intent to qualify as a 42 In this regard, President Menkus also testified that the Respondent's more senior drivers, such as Brockway, were able to shift around and handle any of the Company's routes without any difficulty 3 I reject the contrary testimony of President Menkus and General Man- ager Holybee They were not convincing witnesses, whereas Bazan was an impressive witness M & J TRUCKING CO., INC. driver of diesel-powered trucks as a matter of concern. Richard Babb Richard Babb when laid off had been employed by the Respondent for approximately 4-1/2 years. President Men- kus, in substance, testified that in selecting Babb for layoff he was motivated by two things. (1) In 1972, without giving notice Babb abruptly terminated his employment and abandoned the Company's truck. (2) In late July or early August, on one occasion, Night Manager Richard Perdue notified Menkus that "Babb refused to go downtown to make pickups." For the reasons set forth below, I find that President Menkus' testimony about his motivation for se- lecting Babb for layoff is patently false. In about May 1972, because of personal problems Babb one weekend abruptly left California for Oregon and, with no notice to Respondent, terminated his employment. In the process he left his company truck parked at a truck stop hear his home." Upon his return from Oregon some 3 or 4 months later, Babb visited his former employees at the company premises at which time President Menkus invited him out for lunch and solicited him to return to work 41 Babb accepted and was reassigned his old route and in 2 weeks was paid his former rate of pay . At no time did Menkus or Holybee either speak to Babb or criticize or reprimand him for, without notice , having quit his employ- ment and having "abondoned" the Company's truck. Based on the foregoing, I find that President Menkus' testi- mony that this conduct played a part in his selection of Babb for layoff is patently false , and further find that Re- spondent if it ever in fact held this conduct against Babb plainly forgave and forgot. President Menkus testified that on one occasion late in July or early in August the Company 's night manager, Richard Perdue, told Menkus that he had sent Babb home early because "Babb refused to go downtown to make pickups." It is undisputed that neither Menkus nor General Manager Holybee ever spoke to Babb about this alleged misconduct. This is not strange because Babb credibly tes- tified that he never engaged in this misconduct . He credi- bly testified, however, that on one occasion when Night Manager Perdue asked him to drive to downtown Los An- geles and make some pickups , his truck was not available because it was being repaired, there was no spare truck available and that he so informed Perdue. Perdue, a wit- ness for Respondent , testified in an unconvincing manner and at times his testimony was incomprehensible. Even when viewed most favorably to Respondent , however, Perdue's testimony flatly contradicts President Menkus' as- sertion that Perdue told him he had sent Babb home early because "Babb refused to go downtown to make pickups." Perdue admitted that when asked by Menkus why certain deliveries had not been made as scheduled , he told Menkus that Babb had not been able to take them because "[Babb] 44 It was Babb's practice, approved by the Respondent , to take his truck home 451 reject the testimony of President Menkus insofar as he infers that Babb asked for his job back Of the two witnesses , Babb impressed me as the more trustworthy 605 said his truck was being worked on, that's all I know." Perdue further admitted that he had no reason to believe Babb was lying to him, and it is clear that Perdue did not indicate any such belief to President Menkus. Based upon the foregoing, I find that President Menkus' contention that in selecting Babb for layoff he was motivated in part by his refusal to make a downtown pickup to have been manufactured from whole cloth. John Daley President Menkus testified John Daley was selected for layoff because : ( 1) Over a period of 2 years, in a belligerent manner, on approximately six occasions Daley had burst into Menkus' office and demanded a raise in pay. (2) In the mornings Daley refused to drive his truck from Orange County where he lived and normally worked to service a customer, Motor Wheel & Rim, located in the Los Angeles area. (3) A shipping clerk, Jones, employed by Motor Wheel & Rim complained two or three times that Daley was not doing his job properly. There is nothing in the manner in which Daley voiced his wage grievance to President Menkus which was calcu- lated to cause Menkus to take offense . In fact, there is no contention or evidence that, prior to testifying in this pro- ceeding, President Menkus ever told Daley or otherwise indicated that he viewed Daley's conduct with distaste. The record indicates that it was not uncommon for em- ployees to visit President Menkus in his office. Also, I can- not ignore the fact that the employees employed by Re- spondent are for the most part truckdrivers not clericals. In this regard, at one point when President Menkus was asked "it is true from time to time that you have accepted a little obstinacy from the drivers," he testified "all the time, ar- gue, you know . We go through that. It's good-natured fun, I guess you call it." President Menkus' second reason for selecting Daley, the alleged refusal to pick up merchandise , lacks specifici- ty. Whether Daley engaged in this alleged misconduct on one or numerous occasions and on what dates is not clear. Nor is there any contention or evidence that he was ever criticized for engaging in this alleged misconduct. Daley convincingly testified that he never engaged in this type of conduct. I believe him. Finally, regarding the third and last reason for the selec- tion of Daley for layoff, he credibly denied having engaged in the misconduct attributed to him at Motor Wheel & Rim and further credibly denied that shipping clerk Jones ever complained about his work. The only remark voiced to Daley by Jones which might be construed as a com- plaint was when Jones on one occasion told Daley that a customer had complained that it had not received one of Daley's deliveries . It is undisputed that neither President Menkus nor General Manager Holybee ever told Daley about the alleged misconduct attributed to him by shipping clerk Jones, nor that they ever criticized Daley for engag- ing in such conduct. Based on the foregoing, I find that Daley did not engage in the misconduct attributed to him by President Menkus in connection with his work at Motor Wheel & Rim and further find that at no time did Respon- dent ever believe that Daley 's work for this customer was 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less than satisfactory. For the reasons set out above, I find that the reasons relied upon by Respondent to justify its selection of Daley for layoff in large part are patently false and that Daley's so-called belligerent requests for a wage increase were at no time regarded by Respondent as an act of misconduct or insubordination. I further find that Respondent' s selec- tion of Daley for layoff is incredible. Daley, employed for about 5 years by Respondent, was one of its more senior drivers who President Menkus admitted was a "good" driv- er. That Menkus valued Daley more than others with less seniority is indicated by the fact that Daley was designated as the man in charge of a group of less senior drivers in connection with the daily transfer of freight between the drivers' trucks. Ultimate Findings For the reasons set out above, I find that the explana- tions asserted for the selection of Richard Babb , Arthur Bazan, James Brockway, John Brockway, and John Daley for layoff on September 17, 1973, are either patently false or obviously pretextual and played no part in the selection of these employees . Under the circumstances, I am of the view that the evidence introduced by the Respondent fell short of dissipating the unfavorable inferences to be drawn from the General Counsel's prima facie case, rather the in- substantiality of the Respondent 's justification bolsters the inference of discriminatory motivation . Accordingly, even assuming the decision to reduce the work force on Septem- ber 17 was motivated by legitimate economic consider- ation, I find that a preponderance of the evidence estab- lishes that the selection of each one of the employees laid off on that date was motivated in significant part by un- lawful union considerations , in violation of Section 8(a)(1) and (3) of the Act.46 C. The Representation Case (Case 21-RC-13365) The Union urges in its objections to the representation election conducted on September 17, in substance, that the Respondent engaged in the following misconduct: Threat- ened employees with discharge if they signed union author- ization cards; threatened employees with discharge upon the conclusion of the election; interrogated employees as to who signed up with the Union; and threatened to either sell or close down its place of business if the Union won the election. Upon the basis of the findings and conclusions previous- ly set out in this Decision, I further find that the Respon- dent, during the critical period prior to the representation election, engaged in unfair labor practices which prevented the employees from freely exercising their choice in the election. Accordingly, I shall recommend that Case 21- RC-13365 be severed and remanded to the Regional Di- 46 The fact that the Respondent did not select for layoff other known union adherents, of course, is no defense For, it is settled that the fact that an employer "retained some union employees does not exculpate him from the charge of discrimination as to those discharged " N L R B v W C Nabors Co, 196 F 2d 272, 276 (C A 5, 1952) rector for Region 21 and, in view of my findings below in connection with the alleged refusal to bargain by the Re- spondent, I shall further recommend not only that the elec- tion held on September 17, 1973, be vacated and set aside but that the petition in said case be dismissed. E. The Refusal to Bargain It is undisputed and I find that all truckdrivers and me- chanics employed by the Respondent constitute a unit ap- propriate for the purposes of collective bargaining. On or about August 21 or no later than August 22, the Respon- dent received a letter from the Union which, among other things, informed Respondent that the Union represented a majority of the employees in the appropriate unit and re- quested a meeting to negotiate the terms of a collective- bargaining agreement. Respondent did not answer the let- ter. The Respondent, at the hearing, indicated that the Union's bargaining demand was ineffectual assertedly be- cause, by referring to "dock workers," the Union included a type of employee not employed by the Respondent.47 However, if the Company were confused by the demand, it "certainly had the opportunity to resolve such by a simple query of the Union representative...... N. L. R. B. v. Transport Inc., of South Dakota, 453 F.2d 193, 196 (C.A. 8, 1971). And since the Respondent did not even offer the inappropriateness of the unit demanded as a reason for refusing to recognize the Union, the admonition of the court in Texaco, Inc v. N.L.R.B., 436 F.2d 520, 523 (C.A. 7, 1971) is pertinent: When the unit description, although unclear, leaves no doubt as to the claim of representation of a majori- ty of the employees, the employer is not justified in refusing to bargain. "The proper course for the em- ployer in those circumstances is to refuse to bargain with respect to those employees whose unit status is disputed, not to wholly refuse to bargain." In any event, it is settled that where the deviation between the bargaining unit requested by the union and the unit eventually found appropriate is insubstantial, as it is in this case, it cannot justify an employer's refusal to bargain. N. L.R.B. v. Richman Bros. Co, 387 F.2d 809, 813 (C.A. 7, 1967). Based on the foregoing, I find that the Respondent on or about August 21, 1973, and continuing thereafter, has re- fused to bargain collectively with the Union in an appro- priate bargaining unit. The parties stipulated that on the date of the Respondent's receipt of the Union's demand letter-Au- gust 21 or 22-there were 38 employees employed in the appropriate bargaining unit. It is undisputed that 20 of these employees had signed union authorization cards. These cards, which are identical, unequivocally recite that the signer authorizes the Union to act as bargaining repre- sentative- "I, the undersigned employees of [Respondent] 4" The record establishes that the Respondent does not employ "dock workers" as such Its truckdrivers perform this type of work when necessary M & J TRUCKING CO., INC. hereby authorize [the Union] as my collective bargaining representative with my employer with respect to my wages, hours, health and welfare, pension protection, working conditions and other conditions of employment." Based on the foregoing, I find that on August 21 the Union had been designated as the exclusive bargaining representative by 20 of the 38 employees employed in the appropriate unit. I shall now evaluate the contention of the Respondent that at least one of the union authorization cards is invalid, thereby defeating the Union's majority status It is settled that, where an employee has signed an unam- biguous authorization card of the type here, it counts as a designation unless the Respondent can demonstrate that the card's clear language was "deliberately and clearly can- celled by a union adherent with words calculated to direct the signer to disregard and forget the language above his signature." N L.R.B. v. Gissel Packing Co., 395 U.S. 575, 606 (1969). In particular, "there is nothing inconsistent in handing an employee a card that says the signer authorizes the union to represent him and then telling him that the card will be used first to get an election." Gissel, supra at 607-608. Accord: Texaco v. N.L.R.B., 436 F.2d 520, 523- 524 (C.A. 7, 1971). Indeed, the Supreme Court in Gissel expressly validated the authorization cards where each of the employees "were told one or more of the following' (1) that the card would be used to get an election, (2) that he had the nght to vote either way, even though he signed the card...... Supra at 584, fn. 5. In evaluating the validity of the Union's card: The Board looks to substance rather than to form. It is not the use or nonuse of certain key or "magic" words that is controlling, but whether or not the totality of circumstances surrounding the card solicitation is such, as to add up to an assurance to the card signer that his card will be used for no purpose other than to help get an election. [Levi Strauss], 172 NLRB 732, 733 (1968), fn. 7 [cited with approval in Gissel, supra, 608, fn. 27]. Guided by these settled principles, I have evaluated the testimony connected with the signing of all the authoriza- tion cards. For 17 of the cards 48 the evidence does not conflict on matters of substance. When the evidence is viewed most favorably for Respondent, the representations made to these 17 cardsigners do not suffice to "deliberately and clearly cancel" the unambiguous language of the cards. Gissel, supra at 606. The statements of the solicitors made in connection with the signing of these 17 cards, in my opinion, are not materially different from those which the Supreme Court in Gissel found did not taint certain cards involved in that proceeding.49 Gissel, Supra at 608, fn. 48 The 17 are G C Exh 5 , 6, 8, 10 through 16, 18 21 through 23, and 25 through 27 49 Respondent also contends that the card of employee Kalmisan (G C Exh 6), which was solicited by James Brockway , is tainted because Brock- way falsely represented that a majority of the employees had signed cards, thereby misleading Kahnisan In response to Kahnisan 's question, "how many men roughly have cards signed right now," Brockway replied "proba- bly" 18 to 22 or 25, and when asked by Kalinisan if he thought "the majon- ty of men are on our side ," answered in the affirmative Actually only 19 of 607 5. The cards signed by employees Jaime Gonzales, Donald Jeffenes, and Jose Martinez, however, raise more difficult questions as to whether there occurred misrepresentations which would invalidate any one of these cards. I shall set out the evidence in detail as it relates to these cards. Jaime Gonzales' Card Jaime Gonzales was solicited to sign a card by employee James Brockway, who credibly testified that he told Gon- zales "here is a card from the union for representation" or "here is a card to sign for the Union to come in." Gonzales in response stated that he was afraid to sign the card for the reason that he and fellow employee Jose Martinez had recently gone through a union's organizational campaign while employed by another employer and had been laid off. Brockway told Gonzales "if you are with us you sign the card." Gonzales in Brockway's presence filled out the card and stated he wanted the matter kept confidential, repeating his fear of getting laid off. I find, based on the foregoing, that the words used by Brockway in soliciting Gonzales reinforced the literal meaning of the card. Brock- way, however, also talked of an election. He told Gonzales that the Union needed a majority to win an election, that the Union was close to having enough cards for an elec- tion, and asked Gonzales "are you with us on the vote or not . . for the Union, for the Union coming in." I am of the opinion that the above-described talk of an election was not calculated to direct Gonzales to disregard and forget the language over his signature Nor, in my view, does Brockway's testimony that Gonzales "signed the card in order to have the vote" invalidate his card. This testimony was in the form of a conclusion in response to a leading question: "Q. [By Mr. Reiner] So he signed the card in order to have the vote? A. Yes." It was preceded by Brockway's specific denial that Gonzales had stated that he did not want the Union to represent him unless it won the election and that was why he was signing the card. Previously, as described above, Brockway had told Gon- zales that the card was for union representation or for the Union to come in. There is nothing either in Brockway's testimony or the whole record, and Gonzales did not testi- fy, that Gonzales signed the card "in order to have the vote." Viewed most favorably for Respondent, the record only establishes James Brockway's belief as to what the subjective motivation of Gonzales was when he signed the card. Inasmuch as Gonzales' subjective motivation is com- pletely irrelevant on the question of the validity of his card, it follows that Brockway's guess as to Gonzales' motivation is equally as irrelevant. See Gissel, supra at 608. For these reasons, I am of the opinion that the Respondent has not provided the requisite proof to overcome the clear authori- zation set forth in the card signed by Jaime Gonzales. Even assuming, however, that Gonzales expressly indi- about 39 had signed at that time Viewed in the context of the entire conver- sation. this exchange does not establish that Kalmisan in signing the card relied upon this representation In any event, the law is settled that state- ments of this type are not material in determining the validity of cards even when signed in reliance thereon N L R B v Boyer Brothers Inc, 448 F 2d 555, 562 (C A 3, 1971), Local 153, International Ladies' Garment Workers' Union [Marie Phillips Inc I. v N L R B 443 F 2d 667, 669 (C A D C, 1970) 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cated "he signed the card in order to have the vote," it would not, by itself or when viewed in its setting, invalidate the card signed by Gonzales. The evidence in its totality simply does not establish words or conduct calculated to lead Gonzales to believe that he was signing the card only to have an election. I thing that the language of the Court in Texaco Inc. v. N.L.R.B, 436 F.2d 520 (C.A. 7, 1971), is especially pertinent: .. . the cards are valid under the Gissel test. While there was some talk of an election, it does not appear that promises of an election were the sole inducement for the signatures. We disagree with the company's con- tention that an assurance of an election alone disquali- fies a card. [Supra at 523.] [Emphasis supplied] We think that Gissel means that there is some pre- sumption of regularity which attaches when an em- ployee signs an application card and this presumption is not overturned merely because an employee might have wished to be committed only to an election. The compa- ny has not demonstrated that the language of the cards is "deliberately and clearly canceled" by the ac- tivities of the solicitor. Gissel, supra at 606. [Supra at 524.] [Emphasis supplied.] Donald Jeffries' Card Donald Jeffries was solicited to sign a union authoriza- tion card by "Uncle Jack" Brockway in a beer bar one afternoon after working hours. Jeffries, a witness called by Respondent, initially testified, in substance, that Brockway told him he wanted to get enough cards signed "to get a vote" to bring the Union in and stated to him that the employees would meet first with President Menkus before they turned in the cards. He further testified that, although he filled out the card-printed his name, address, the date, home phone number, rate of pay, and classification-and signed the card, he did not read it butjust "glanced" at the card inasmuch as it was dark. In what appeared to be an effort to justify his testimony that he filled out and signed a one-sentence card without reading it, Jeffries, when asked "you didn't read the card," answered "Well [Brock- way] told me that it was a card that was a pledge to join the Union, and it would save me-like if the Union got in, it would save me a hundred dollars in union dues for signing the card then." More specifically, Jeffries then testified that Brockway told him that employees who signed cards would pay an initiation fee of $50 and those who did not sign cards would have to pay a fee of about $150. "Uncle Jack" Brockway's version of what took place dif- fers substantially from Jeffries' testimony. Brockway tells the following story. He informed Jeffries that he had union authorization cards and that if a majority of the employees signed the cards, the Union would be their bargaining rep- resentative. If Jeffries desired to have the Union, Brockway told him, he could sign an authorization card. Jeffries took a card, read it, and then filled it out and signed the card. Brockway denies there was any talk about an election. He also denies that Jeffries was told that by signing a card he would get a cheaper union initiation fee. But Brockway testified that during the course of their conversation Jef- fries asked about the Union's dues and Brockway, having no knowledge about the Union's dues scale but having heard that its initiation fee was about $150, in response to this question told Jeffries that the Union's initiation fee was approximately $150. Regarding his saying that the em- ployees would meet with President Menkus before the union cards were turned in, Brockway admitted that he told Jeffries that the employees would have a meeting with President Menkus about wages and sick leave and other working conditions before they turned the cards in. Of the two witnesses, "Uncle Jack" Brockway's demean- or was the more convincing. He impressed me as being more trustworthy and reliable than Jeffries and I credit his version of what was said when he solicited Jeffries to sign the union card. Briefly stated, Brockway handed Jeffries a union card and explained that if he wanted to be represented by the Union, he should sign the card. In response to Jeffries' inquiry, Brockway indicated the amount of the Union's initiation fee. And Brockway volunteered the fact that prior to turning in the cards the employees would meet with President Menkus to discuss the employees' griev- ances. Jeffries then read the card and signed it. I find that nothing said by Brockway forecloses the use by the Union of the card signed by Jeffries for the purpose designated on its face. Particularly, I am of the opinion that the representation made to Jeffries that the employees would meet with President Menkus before turning in the cards, even though no such meeting ever took place, is insufficient by itself to establish that Jeffries relied on or was coerced into signing the card by this representation. Nor do the circumstances surrounding the signing of the card establish such reliance or coercion. In this regard, I have carefully considered the fact that Jeffries, in response to a leading question asked by Respondent, testified that he signed the card after having been told by Brockway "it was for the purpose of having enough drivers sign in order for the drivers to have a meeting without the union." I have previously found, however, that, although Brockway repre- sented that the employees would meet with President Men- kus before turning in the cards, he did not tell Jeffries, as Jeffries testified, that this was the purpose for signing the cards. Putting to one side Jeffries' unimpressive demeanor and the fact that this testimony was elicited by a leading question,50 the testimony rings false. That Brockway told Jeffries that he was asking him to sign a union authoriza- tion card "for the purpose of having enough drivers to sign in order for the drivers to have a meeting without the Union" is the type of testimony which carries its own death wound. Thus, the union authorization card in large capital letters reads: "AUTHORIZATION FOR REPRESENTA- TION UNDER THE NATIONAL LABOR RELA- TIONS ACT" with the name of the Union in large print and asks in effect the cardsigner to authorize the Union to act as his bargaining representative. '0 "We also accept the observation that employees are more likely than not, many months after a card drive and in response to questions by compa- ny counsel, to give testimony damaging to the union , particularly where company officials have previously threatened reprisals for union activity in violation of Section 8(a)(1) " Gissel Supra at 608 M & J TRUCKING CO., INC. 609 Jose Martinez It is undisputed that employee Edwin Gaudette success- fully solicited fellow employee Jose Martinez to sign a union card. Gaudette's version of the event follows. One morning while at work, he handed the union card to Marti- nez and, in English, told him about the Union and the benefits that Union representation offered to employees. Gaudette specifically asked if Martinez wanted the Union Martinez answered in the affirmative and was informed by Gaudette that the purpose of the card was "to get the Union in." Martinez said he was afraid because he felt that the reason he was terminated by his last employer was be- cause of his support of a union. Gaudette assured him that if he signed the union card, it would remain confidential and he did not have to worry about his job. Martinez did not commit himself to signing a card but indicated he would take the card home. The next morning, at work, Gaudette asked Martinez about the card. Whereupon, without any further conversation, Martinez produced the card and filled part of it out and signed it in Gaudette's presence. Martinez has a different version of the events connected with his signing of the union card. Martinez agrees he was given a union card by Gaudette and that he took it home and the next day signed the card and returned it to Gau- dette. But the only comment made to him by Gaudette was that Martinez should sign the card to make more money. Because he had "some problems" in reading English, Mar- tinez testified, he took the card home and his next door neighbor translated the card for him into his native lan- guage, Spanish, and that in addition to translating the card his neighbor told him that if the Union represented the employees, it meant a secure job, more money and benefits for his family, and also stated that before the Union got into the Company there would be an election in which Martinez could vote any way. I am of the opinion that the union authorization card signed by Jose Martinez is a valid card. Martinez did not impress me as a candid witness. Gaudette, on the other hand, impressed me as an honest and reliable one whose testimony I credit in its entirety. In particular, I reject Mar- tinez' testimony that he was not able to read the card,51 and his further testimony that his neighbor told him that there would be an election before the Union got into the Compa- ny in which he could vote either way I realize that his testimony on these matters is uncontradicted, but I found him to be a most unconvincing witness whose testimony brings to my mind the warning of the Supreme Court that "employees are more likely than not, many months after a card drive and in response to questions by company coun- sel to give testimony damaging to the union, particularly 51 Martinez testified he could not read the card because he had "some problems" in reading As a truckdriver for the Respondent as part of his job, he must be able to follow directions and read bills of lading, all of which are in English More significant, however , is the fact that he testified in English without the aid of a translator, and a review of the record demon- strates that his testimony that he "just barely" speaks English is contra- dicted by his actual testimony where company officials have previously threatened repri- sals for union activity in violation of Section 8(a)(1)."52 Gissel, supra at 608. Briefly stated, I find that the credible evidence estab- lishes that Martinez was informed by Gaudette that the purpose of the card was to secure representation by the Union, that Martinez read the card and, when he signed it, he intended to authorize the Union to represent him. I further find that Martinez was not told that before the Union got in there would be an election in which he could vote either way. Even accepting, at face value, Martinez' story, I would find that his card is valid. It is undisputed that his neighbor translated the literal language of the card to Martinez and otherwise made it plain that the purpose of the card was to get a union into the Company to improve employees' terms and conditions of employment. Under these circumstances, Martinez' alleged inability to read the card is not critical, for the test is not whether Martinez is literate or can read the card, but "whether the purpose of the cards was ade- quately communicated to the signers." A. J. Krajewski Manufacturing Co., Inc. v. N.L.R.B., 413 F.2d 673, 677 (C.A. 1, 1969). The fact that his neighbor also told Marti- nez that before representation by the Union there would be an election in which he could vote any way, in the particu- lar circumstances of this case, does not in my view invali- date the card. It is questionable whether this representation was clearly calculated "to direct [Martinez] to disregard the language above his signature." Gissel, supra at 606 and fn. 5. Significant in this regard is the fact that this representa- tion was not made to Martinez by the union adherent who solicited him to sign the card, rather it was made by a neighbor whose conduct under the circumstances of this case cannot be attributed to the Union.53 Moreover, by his own admission, the representation about the holding of an election did not induce Martinez to sign the card.54 In sum, based upon his own testimony, Martinez knew that by signing the card he was authorizing the Union to represent him and that the promise of an election was not made by an agent of the Union and, in any event, the promise of an election did not induce Martinez to sign the card. To recapitulate, for the reasons set out above, I find that all 20 of the cards in the Union's possession when the Re- spondent received its demand for recognition and refused to bargain with the Union are valid cards, and that the Union at that time represented a majority of the 52 The validity of the Supreme Court's warning is vividly demonstrated by the portion of Martinez' testimony where he volunteered the fact that the only reason he signed the union card was as a new employee he was afraid that the other employees would be mad at him for not signing Admittedly, no employee or other person, either directly or indirectly, said anything to Martinez which would have given him a reasonable basis for believing the other employees would be mad at him for not signing a card In any event, Martinez' subjective motivation in signing the card is completely [relevant to the issues in this proceeding Gissel, supra at 608 53 In this regard , there is no evidence that Martinez indicated to Gaudette that he did not understand or was not able to read the card Nor is there any evidence that Guadette should have reasonably been on notice that Marti- nez was not able to read the card To the contrary, the record establishes that Martinez converses with Gaudette and other employees in English and in fact testified in this proceeding in English 54 As described previously in In 52, supra, Martinez testified he signed the card because "I was a new guy at M & J and I was afraid, you know, to get somebody mad at me, something like that 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees in an appropriate bargaining unit. Based upon the foregoing and the nature and extent of the Respondent's unfair labor practices, I am of the opin- ion that the doctrine of N.L R.B. v. Gissel Packing Co., Inc, 395 U.S. 575 (1969), calls for a bargaining order to remedy the Company's unfair labor practices as well as its refusal to bargain with the Union. Thus, immediately upon receipt of the Union's demand for recognition and its peti- tion for an election, the Respondent engaged in an unlaw- ful campaign to undermine the Union's majority status and to make sure that the Union did not secure a majority of the ballots cast in the scheduled election. A substantial number of the unit employees were threatened with a loss of employment if they voted for the Union. The Respon- dent, through President Menkus and General Manager Holybee, made it clear to a substantial number of employ- ees that the business would be closed or reduced and jobs lost if they voted for the Union, and interrogated several employees about their union activities and sentiments. Re- spondent made not one threat to close its doors if employ- ees voted for the Union, but a series of such threats which involved nothing short of complete termination of employ- ment and, if carried out, would affect every unit employee. They were made in substantial part by the Respondent's president, the man who possessed the power not only to threaten but also to turn the threat into reality. Finally, when the Respondent realized that its unlawful preelection antiunion campaign had failed, as almost a majonty of the unit employees had voted for the Union, it loosed its ulti- mate thunderbolt. The discriminatory layoff of five em- ployees was designed to dramatically express the Respondent's hostility toward unionization and calculated to once and for all destroy the Union's organization ef- forts. The layoff carried a message which could not have been lost on the employees in the bargaining unit. For the foregoing reasons, I find that Respondent's unfair labor practices have been so pervasive as to make "the possibility of erasing the effects of past practices and of ensuring a fair election . . . by traditional remedies . . . slight." N.L. R.B v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969). I shall, therefore, recommend that Respondent bargain with the Union, the majority representative of its employees.55 Upon the basis of the foregoing findings of fact and the entire record, I make the following: low because of their known or suspected activities on be- half of the Union and/or to discourage its employees from supporting the Union, the Respondent has engaged in un- fair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. Richard Babb Arthur Bazan James Brockway John Brockway John Daley 4 By interrogating employees about their union sympa- thies and activities; by threatening employees with eco- nomic reprisals, including closing the business and laying off the least senior employees if the employees supported the Union; and by telling an employee that employees had been laid off because of the Union's organizational cam- paign, the Respondent has engaged in unfair labor practic- es within the meaning of Section 8(a)(1) of the Act. 5. All truckdrivers and mechanics employed by Respon- dent at its facilities located at 4600 Sheila Street, city of Commerce, California, and 5001 Pedley Road, Riverside, California; excluding all other employees, office clerical employees, professional employees, guards, and supervi- sors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 6. Since August 21, 1973, the above-named labor organi- zation has been and is now the exclusive representative of all employees in the aforesaid bargaining unit for the pur- poses of collective bargaining within the meaning of Sec- tion 9(a) of the Act. 7. By refusing on or about August 21, 1973, and at all times thereafter, to bargain collectively with the above- named labor organization as the exclusive representative of all the employees of the Respondent in the aforesaid ap- propriate unit, the Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Sec- tion 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY CONCLUSIONS OF LAW 1. M & J Trucking Co., Inc., the Respondent, is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local Freight Drivers, Local Union No. 208, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men & Helpers of America, the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. By laying off the employees named immediately be- 55 Assuming arguendo that the Union's demand for recognition was inef- fectual, the Board may appropriately issue a bargaining order to remedy violations of Section 8(a)(1) and (3) where, as here, the Union in fact repre- sented a majority of the employees in an appropriate unit Gissel, supra at 587-590, 616-620 Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist there- from and take certain affirmative action in order to effec- tuate the policies of the Act. For the reasons already discussed, I shall recommend an order directing that Respondent bargain with the Union upon the latter's request Having found that the Respondent discriminatorily laid off the five employees named earlier in the Decision in paragraph 3 of the Conclusions of Law, I shall recommend that the Respondent offer each of them, if it has not al- ready done so, immediate and full reinstatement to their former jobs or, if said jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority M & J TRUCKING CO., INC. and other rights and privileges and make each of them whole for any loss of earnings suffered by reason of such discrimination, by payment to each of them a sum of mon- ey equal to that which normally would have been earned from the date of the layoff to the date of said offer of reinstatement, less net earnings during such period, with backpay computed on a quarterly basis in the manner es- tablished by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As the unfair labor practices committed by Respondent were of a character which go to the very heart of the Act, I shall recommend that it cease and desist therefrom and to cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 56 Respondent, M & J Trucking Co., Inc., Commerce, Cali- fornia, and Riverside, California, its officers, agents, suc- cessors, and assigns , shall: 1. Cease and desist from: (a) Interrogating employees about their activities and membership in Local Freight Drivers, Local Union No. 208, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization. (b) Threatening employees with economic reprisals, in- cluding the closing of the business and laying off the least senior employees if the employees support the above- named Union or any other labor organization. (c) Telling employees that employees have been laid off because of an organizational campaign initiated by the above-named Union, or any other labor organization. (d) Discouraging membership in, or activities on behalf of, the above-named Union, or any other labor organiza- tion, by laying off employees, or otherwise discriminating against them in any manner with regard to their hire and tenure of employment or any term or condition of employ- ment because of their union activities. (e) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of em- ployment with the above-named Union, as the exclusive bargaining representative of its employees in the following appropriate unit: All truckdrivers and mechanics employed by Re- spondent at its facilities located at 4600 Sheila Street, City of Commerce, California, and 5001 Pedley Road, 56 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 611 Riverside, California; excluding all other employees, office clerical employees, professional employees, guards, and supervisors as defined in the Act. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer each of the persons named immediately below, if they have not already been so offered, immediate and full reinstatement to their former positions or, if such posi- tions no longer exist, to substantially equivalent ones, with- out prejudice to seniority or other rights and privileges pre- viously enjoyed, and make them whole for any loss of earn- ings they may have suffered as a result of the discrimination against them , in the manner set forth above in the section of this Decision entitled "The Remedy." Richard Babb Arthur Bazan James Brockway John Brockway John Daley (b) Upon request, bargain with the above-named labor organization as the exclusive representative of all the em- ployees in the aforesaid appropriate bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amounts of backpay due and the rights of reinstatement under the terms of this Order. (d) Post at its places of business copies of the attached notice marked "Appendix."57 Copies of said notice, on forms provided by the Regional Director for Region 21, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that Case 21-RC-13365 be se- vered and returned to the Regional Director for Region 21, to vacate and set aside the election of September 17, 1973, and to dismiss the representation petition in said case. 5' In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "