Medline Industries, Inc.

MEDLINE INDUSTRIES, INC. Medline Industries, Inc. and Warehouse, Mail Order, Technical & Professional Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca and Mark Ira Jamison. Cases 13-CA-14386, 13-RC-13712, and 13-CA-14497 November 18, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On January 13, 1977, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief, and both the General Counsel and Charging Party filed answering briefs to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, except that the remedy is modified so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977).2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Medline Indus- tries, Inc., Northbrook, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. IT IS FURTHER ORDERED that the election conducted in Case 13-RC-13712 be, and it hereby is, set aside and that the petition in that case be, and it hereby is, dismissed. The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Additionally, we are satisfied that the Respondent's contention that the Administrative Law Judge was biased is without merit. There is nothing in the record to suggest that his conduct at the hearing. his resolutions of credibility, or the inferences he drew were based on bias or prejudice. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (19%2). 233 NLRB No. 100 DECISION STATEMENT OF THE CASE I. PRELIMINARY STATEMENT; ISSUES STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding' under the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.) was heard before me in Chicago, Illinois, from January 26 to March 10, 1976, with all parties participating throughout and represented by counsel2 , who were afforded full opportunity to present evidence and arguments. Pursuant to unopposed application of counsel for extension of time to file briefs, briefs were received from General Counsel and from Respondent on May 3, 1976. 3 The principal issues are whether Respondent: (1) in violation of Section 8(aX1), (a) engaged in coercive interrogation of employees concerning their protected concerted organizational activities, (b) imposed unlawful restraints against union solicitation,4 (c) threatened em- ployees with plant closure if they selected the Union to bargain collectively for them, and (d) induced an employee to withdraw unfair labor charges he had filed against Respondent; (2) in violation of Section 8(a)(3) and (1), discharged eight employees 5 and failed to reemploy five of them 6 to discourage union membership or prevent the Union from becoming the employees' certified collective- bargaining representative; (3) in violation of Section 8(aX5) and (1), refused to recognize and bargain collectively with the Union as duly authorized exclusive bargaining repre- sentative of an appropriate collective-bargaining unit of Respondent's employees, and engaged in the foregoing unfair labor practices to undermine the Union's represen- tative status and dissipate and destroy its majority standing, thereby rendering impracticable a free and uncoerced statutory election as contemplated by the Act. Also presented for resolution here are (4) (a) challenges to seven ballots 7 in the statutory election conducted on June 23, as well as (b) resolution of Petitioner Union's objections I On June 11, 1975. the above Union filed a charge against Respondent Employer in Case 13-CA-14386; that charge was amended on June 16 and further amended on June 30. On July 16, Mark Ira Jamison, a warehouse- man formerly employed by Respondent, filed a charge against it in Case 13- CA- 14497. On October 30, the two cases were consolidated into a complaint issued by the General Counsel through the Board's Regional Director for Region 13 (Chicago. Illinois), who on October 31 further consolidated into the same proceeding. for disposition here, multiparty challenges as well as union objections (dated June 23, filed on June 24) to conduct allegedly affecting the outcome of a statutory representation election conducted by the Regional Director on June 23. The consolidated complaint was, after amendment on November 7, without objection still further amended at the hearing, raising additional issues. All of these cases and issues are now here for decision. Unless otherwise specified, dates throughout are in 1975. 2 Charging Party Jamison's interests were represented by counsel for General Counsel. I Voluminous briefs were received from counsel following their exhaus- tive litigation of the many issues presented. Briefs as well as the lengthy transcript and large number of exhibits have been carefully studied. ' Added by unopposed amendment of the complaint at the hearing. 5 Viz, Mark Ira Jamison, Donald Holland, Gregory Fair, Douglas Kline, Mark Kenney, John Chorba, Daniel Weckler, and John Ford. 6 I.e., all but Jamison, Holland, and Fair. Viz, ballots of Virginia Fritz, Virginia Lowman, and Suzie Summers (Continued) 627 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to certain conduct ascribed to Respondent Employer allegedly affecting the outcome of that election; s and, finally (5), whether the unfair labor practices ascribed to Respondent have, in the aggregate, been sufficiently substantial to warrant remediation through a Gissel9 bargaining order rather than another election. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the following: FINDINGS AND CONCLUSIONS II1. JURISDICTION At all material times, Respondent Medline Industries, Inc., has been and is an Illinois corporation engaged in manufacture, sale, and distribution of medical equipment and supplies at and from its office and principal location, 1825 Shermer Road, Northbrook, Illinois, where during the representative year immediately preceding issuance of the consolidated complaint its gross volume of business exceeded $500,000, and where during the same period it purchased and received in that business, directly in interstate commerce from places outside the State of Illinois, goods valued in excess of $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act; and that at all of those times Charging Party-Petitioner Union has been and is a labor organization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Introductory Background: Respondent's Corporate Structure, Hierarchy, and Labor Relations History Respondent is a medical/surgical/hospital/nursing home equipper and supplier, catering to needs other than pharmaceutical and dietary. Formed in 1966, although its stock is now traded over the counter, corporate stock ownership control is retained by its current president (since 1968) and board chairman (since 1971), James S. Mills, and his brother, John Mills, sons of its founder, Irving Mills. Respondent's growth pattern is described by President James Mills as "rapid - a minimum of 30 percent compounded each year," exhibiting a broad spectrum of steady assets and earnings increases. Respondent's corporate headquarters and chief ware- house complex - the location here primarily involved - are located at 1825 Shermer Road in Northbrook, approximately 25 miles from downtown Chicago. Medline itself, headed by James Mills, supplies a line of hospi- tal/nursing home equipment needs including surgical and hospital clothing, wheelchairs, and crutches. Respondent's Medcrest Division, headed by Vice President Noel S. Sterling, is its textile manufacturing element, with plants in Covington, Indiana, and Detroit, Michigan (supplying (challenged by the Union); and of Mark Ira Jamison, Donald Holland, Douglas Kline, and Daniel Weckler (challenged by the Board agent because not included in the eligibility list submitted by the Employer, Respondent here). The latter four employees are among those who were allegedly unlawfully discharged by Respondent, as set forth in the consolidated complaint. garments, including surgeons' and patients' wear, as well as linens, including sheets, wrappers, and laundry bags), and in California (manufacturing restraints). Its Dynacor Division, headed by Vice President Leonard T. Fript, with plants in Northbrook and also in Covington, Indiana, as well as in Wheeling, West Virginia, manufactures plastic items - perhaps comprising as much as half of Respon- dent's total sales - such as enema bags and Foley (indwelling) catheters. Its Accucare Division, headed by Vice President and President-elect John Mills, manufac- tures such items as crutches, pressure gauges, and tubular shells (for use with intravenous feeding devices, bedrails, and patient walkers). Its Medacor (Medicor) Division, headed by Steven Radford (not a corporate official), manufactures and merchandises furniture and draperies. Its NWT Division, headed by Secretary-Treasurer Alan Levine, manufactures or assembles in Mexico paper goods and nonwoven textiles. Its as yet unnamed division for rehabilitation equipment and supplies is headed by Mary Keating (not a corporate officer). Its director of product development and kit department head is Anselmo (Sam) Nannetti. Its vice president in charge of marketing is George Parker. All of these are subordinate operational elements of Respondent, and are not separate corporate entities. All paychecks have been and continue to be those of Medline. Although Respondent manufactures well over half of what it sells, it also acts as jobber for items, such as towels, manufactured elsewhere. Respondent markets its merchan- dise through its own sales force of about 120, dispersed throughout some 35 States, with assigned territories. These salesmen route their orders to any of Respondent's shipping locations or warehouses, including Northbrook which stores all products handled by Respondent. Respondent's Northbrook facility consists of two sepa- rate but interconnected buildings; viz, (1) the "old" building, approximately 180 by 120 feet, housing all corporate offices and some warehouse space, and (2) the "new" building, approximately 180 by 280 feet, added about 5 years ago, devoted primarily to additional warehouse space, but also providing office space for Warehouse Manager Joel Schempf (since late May 1975) and Shipping Supervisor John Summers (since at least May 1975). Corporate offices in the old building include those of Company President and Board Chairman James S. Mills, Vice President (and Accucare Division head) John Mills, Secretary-Treasurer (and NWT Division head) Alan Levine, Vice President (and Medcrest Division head) Noel S. Sterling, Vice President (and Dynacor Division head) Leonard T. Fript, Vice President (and Marketing Division head) George Parker (under whom function the national Sales manager, advertising, and customer service), Director of Product Development (and kit department head) Sam Nannetti, corporate director Arnold Mass (now working under Sterling), corporate comptroller Stan Fisher (head of corporate payrolls, receivables, and payables), and their supporting clerical staffs. n Many of these objections parallel allegations here for determination in the consolidated complaint. N. L R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 628 MEDLINE INDUSTRIES, INC. In addition to the Northbrook warehouse facility - of which Respondent Vice President Sterling was in charge from the fall of 1974 until the early summer of 1975 (including most of the operative period involved in this case), at which time he was replaced in that capacity by Dennis McGonigal and Joel Schempf - Respondent maintains its own other as well as rented warehouse space, located strategically throughout the United States with the object of maximizing its capability to expedite deliveries to its customers and thereby augment profits. Rented ware- house space added from November 1974 through August 1975 alone has been in Baltimore, Maryland, Richmond, Virginia, Birmingham, Alabama, Raleigh, North Carolina, Minneapolis, Minnesota, Columbus, Ohio, and Pittsburgh, Pennsylvania. Respondent's other locations include or have included Covington, Indiana, Houston, Texas, De- troit, Michigan, Tampa, Florida, Omaha, Nebraska, and Colorado.10 Less than 2 years prior to the filing of the charges giving rise to the instant proceeding, other unfair labor practices charges were filed against Respondent, on October 25 and November 30, 1973, alleging violations of Section 8(aX3) and (I) of the Act, growing out of claimed interference with statutory rights of employees and discrimination against participants in a union organizing campaign begun in October 1973 by Textile Workers Union of America, AFL- CIO, among Respondent's 70 production workers at its Covington, Indiana, plant, where it manufactures linens and garments for hospitals and nursing homes. Those charges were seemingly "settled" by Respondent with the Charging Party and Regional Director for Region 25, in writing, on December 27, 1973. However, after additional or renewed charges were filed against Respondent on April 4 and 8, 1974, the Regional Director on May 23, 1974, set aside the December 27, 1973, settlement agreement because of Respondent's failure to live up to its terms and because of continuing interference with employees' statuto- ry rights during the period January - April 1974 - prior as well as subsequent to a March 7, 1974, Board-conducted representation election which the union lost (43 - 29). The presettlement and postsettlement cases, totaling four," were consolidated for hearing, which took place in Covington, Indiana, on July 9 - 11, 1974, before Adminis- trative Law Judge Herzel H. E. Plaine, who found Respondent to have violated Section 8(aX3) and (1) of the Act through coercive interrogation of employees concern- ing their union activities and sympathies; threatening to discharge employees for union support or to close the plant in the event of unionization; granting economic better- ments to discourage continued union support; instituting an intimidatory reprimand and disciplinary warning system to discourage continued union affiliation or support; and discharging employees for union activities - in part, the same pattern of illegality as was litigated before me in the instant case. Among Respondent's officials centrally involved therein was its vice president, Sterling, who, as will be seen, also figures prominently here. The remedial order in the earlier cases directed Respondent to refrain from continuation of such and other acts violative lo Dynacor Plastics and Textiles Division of Medline Industries, Inc., 218 NLRB 1404, fn. 4, and passim (1975). of its employees' rights under Section 7 of the Act, to rescind and expunge its disciplinary warnings, and to reinstate the discharged employees with backpay. (Dynacor Plastics and Textiles Division of Medline Industries, Inc., supra.) B. Facts as Found The factual picture here has been painstakingly recon- structed and will be presented chronologically as it occurred, rather than under legal issue subheadings, since chronological presentation will facilitate clearer visualiza- tion of the events as they actually unfolded. 1. To May 20: Respondent's Northbrook warehousemen's unionizational efforts and their immediate sequelae a. A profit celebration banquet by Respondent, followed by unionizational activities by its warehousemen On the evening of April 29, 1975, Respondent treated its Northbrook personnel, including warehousemen, to dinner at a local restaurant. Its president, James S. (Jim) Mills, delivered a speech in which he pointed out that it was the best year the Company had ever had, in fact so good that for the first time in the Company's history bonuses could be distributed - and they were, including automobiles, trips, and money to executives, and lesser amounts of cash to lower level or newer employees, some of whom were given only a "nice letter" 12 (G.C. Exh. 28), which stated (emphasis supplied): April 29, 1975 Dear [first name of employee ], Medline's year ending March 1975 was the best in our history. Our sales were over $20,000,000 and our profits came to more than $1.00 a share. When it is completed, you will receive a copy of our new annual report. I hope that you feel the sense of accomplishment that I feel since achieving our goal was due entirely to the people who work at Medline. Some of our people who have been with Mills before Medline and have known me for more than 25 years know that I have neither any great talent nor am I an exceptionally smart person. What I have been is lucky, and also blessed with a group of people who have treated this company as if it were their own and thought it was important to see Medline succeed. I am so grateful to you. It would be impossible for me to put in words the feeling that I have of gratitude for the job that everyone did. 1974 started out with an event that was the most gratifying of my life when the employees at Kuttnauer and Covington voted to speak to management themselves and not through a union. Except for the mixed emotions with regard to Isabell's retiring, I couldn't think of anything that wasn't all to the good during the past fiscal year. " I.e., Cases 25-CA-6218, 6218-2, 5905, and 5905-2. i2 Testimony of Respondent Vice President Sterling at the hearing. 629 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I am therefore going to make an attempt to pay back some of the debt that I feel I owe. Every employee who was with Medline from March of 1974 will receive a bonus for the first time. Those who came with the company between March and September 1974 will receive a smaller bonus. In addition to that, we hope to be able to institute in the near future a plan to pay the entire costs of all insurance for those two year employees. Also, I hope to be able to set up a foundation that will receive its money from profits generated by Medline to provide scholarships to all three year employees or their children for college education. We have never paid bonuses in the past. However, I hope this becomes a habit that we are able to continue in the coming years. Sincerely yours, /s/ Jim Jim Mills Chairman of the Board and President JM/vm The testimony of warehousemen Bradford J. Brown and Douglas J. Kline is undisputed that in his remarks Mills gave no indication that the company fortunes - so glowingly described in Mills' April 29 letter - had suffered a decline (as he now contends, as will be shown) or that there might be a layoff; nor, it will have been noted, does Mills' April 29 letter contain any such intimation.13 Following on the heels of the warehousemen's receipt of Mills' April 29 "nice letter" at the company banquet, Respondent's Northbrook warehousemen, under the lead- ership of Mark Ira Jamison, began or revived talk among themselves about organizing to bargain collectively, through a union, for higher wages and improved terms and conditions of employment. A catalyst for these unioniza- tion talks among the warehousemen was dissatisfaction over the way an industrial injury to Jamison on the job on May 9 was handled or proposed to be handled by Respondent. After discussing the matter with several fellow employees and securing their approbation, during the early morning of May 13 Jamison - having taken time off from work for that purpose - visited the Charging Party- Petitioner Union at its business hall to obtain its assistance in collective bargaining with Respondent. There Jamison received an orientation from Union Recording Secretary Simpson, who supplied him with its organizing literature and cards for signature designating the Union as the 13 Upon comparative demeanor observations and for reasons elsewhere explicated, I prefer the testimony of Brown that Mills likewise said nothing at the April 29 economic celebration as to any intention on the Company's part to raise wages or fringes, to the testimony of Respondent Vice President Sterling that wages were "going to be reviewed in May." Mills himself testified to no such thing, his April 29 letter intimates no such thing, and it seems unlikely that the warehousemen's acute dissatisfaction would have flared so dramatically - as will be shown - following the April 29 banquet if Mills had uttered such a promise or prediction. 14 Barry Fript, a college student in his early twenties, had been doing this during school vacations and holidays, as well as some weekends, since age 14 . 15 The union booklet, entitled "The Law and You" and illustrated with signatories' bargaining representative. Jamison then report- ed to work and during lunchtime met and discussed with some 16 to 18 of his coworkers his meeting with the Union that morning, distributing to them the union literature and collective-bargaining authorization cards. Later that day, Jamison received 8 signed authorization cards, and on the following day (May 14) at least 4 more, for a total of 12 - 14, which he mailed back to the Union. On the very same day (May 13) that Jamison visited the Union and reported to his fellow warehousemen and distributed to them the Union's literature and bargaining authorization cards at lunch, there showed up for work in the warehouse, to assist in straightening out and arranging merchandise on shelves, Barry Fript, son of Respondent Vice President and Dynacor Division head Leonard T. Fript.14 Jamison and others saw him there then and it is undisputed that he was there. Based on my careful testimonial demeanor observations, I totally reject and discredit the testimony of Barry Fript that he was unaware of the foregoing happenings or any organizational or union activity in the warehouse prior to May 15. My rejection of this incredible denial is fortified by the testimony of Respondent's own witness, warehouseman Dennis Paul Youngs, on cross-examination, that Barry Fript was there while the card signing solicitations were in progress from May 13 to 15 but that he did not sign a card Within hours after Jamison reported to his fellow warehousemen on his morning visit to the Union and distributed to them the union organizing literature and collective-bargaining authorization cards he had received, Jamison was visited, while at work in the warehouse, by Respondent Vice President Sterling - who was (and remained until the ensuing early summer) in charge of the Northbrook warehouse. Sterling asked Jamison whether he "like[d]" his job. When Jamison expressed some reserva- tions, Sterling's response was, "Maybe we will find something else for you to do." After Sterling left, Jamison - who had received from the Union its explanatory and reassuring booklet (G.C. Exh. 27)15 - took the precaution of telephoning union official Simpson and urging him to promptly send a telegram to Respondent. This the Union did, on May 14, by telephoned telegram subsequently confirmed in writing (C.P. Exh. 2), stating: Please be advised that Teamsters Local 743 is actively organizing your warehouse employees. You are hereby on notice of such activity. Any reprisals or discrimina- tion taken against any employee as a result of such activity will be met with response of a legal or economic nature. colorful photographs of the Supreme Court and the National Capitol, states that "The law protects your right tojoin the Teamsters"; "The United States Government stands behind you!"; "The purpose of this booklet is to acquaint you with your rights under that [National Labor Relations Act] law as determined by the Supreme Court, the Federal Courts and the National Labor Relations Board. .... It will explain why your employer violates the law if he should fire you, discipline you, or threaten you in any way because you want to join [the Union]. .. . The law protects you from discharge or discipline because of your interest in the Teamsters," and other such things; and that "If you hide the light of your interest under a bushel, the employer can claim that he wasn't even aware of your union activities.... Remember. the United States Government stands behind you when you want to join the Teamsters." 630 MEDLINE INDUSTRIES, INC. Jamison thereafter continued in his union card solicita- tional activity, within 2 days (i.e., by May 15) obtaining 16 signed cards from fellow warehousemen (including his own) designating the Union as their bargaining representa- tive.t6 On May 14, Respondent Textile Manager Robert Berndt, who then worked under and occupied an office near that of Respondent Vice President and Warehouse Chief Sterling, and who at times directed the work of warehousemen, inquired of warehouseman Kenney - according to Berndt's own testimony - "How are things going?" and "What's going on?" In the ensuing conversa- tion, Kenney informed Berndt about the warehousemen's organizational effort. Testifying as Respondent's witness, Berndt conceded that he then reported to Sterling, his immediate superior, what Kenney had told him about the ongoing union organizational activity, and that Sterling thereupon grinned and remarked, "Try telling me some- thing I don't already know." Shortly thereafter, Sterling was observed circulating around the warehouse talking to various warehousemen. Respondent's answer admits that since on or about May 15 the Union has been requesting recognition as represen- tative of, and to bargain collective on behalf of, a bargaining unit of Respondent's Northbrook warehouse- men - which, "including summer employees and kitmak- ers" but excluding "clerical employees, janitors, sales trainees, guards and supervisors as defined in the Act," Respondent likewise admits is an appropriate collective- bargaining unit; 17 and that at all times since then Respondent has refused to recognize or bargain collective- ly with the Union. 16 I.e., cards of John Liston, John Sanders, Stephen Lambert, Ben Franke, Mark Ira Jamison, Gregory R. Fair, Mark A. Kenney, Douglas J. Kline, Donald R. Holland, George Carlberg, David M. Ocampo, Dennis Paul Youngs, Daniel Weckler, Ed Witt, John A. Ford, Jr., and Bradford J. Brown. As detailed below, I find all of these cards established by substantial credible evidence on the record as a whole to be properly authenticated and valid, unrevoked designations of the Union as bargaining representative. For a discussion of the total number of valid bargaining authorizational designation cards vis-a-vis the total number of employees in the bargaining unit, see "Remedy," infra. 17 The Union's demand for recognition and collective bargaining, dated May 15 (Resp. Exh. 2) describes the appropriate unit differently from the complaint (par. VI); and the parties' June 6 agreed appropriate unit as set forth in their Stipulation for Certification upon Consent Election differs from both. See "Remedy," infra. The Union's May 15 letter offers to submit the warehousemen's bargaining authonzational cards for inspection and verification; and again cautions Respondent against any "discrimination or reprisals" against the employees. ii These four were in addition to Barry Fript who, as explained, had come into the warehouse on May 13, making five. A sixth, Peter Ivy, was added on May 25 but left after only 3 days. is When one of these "college student" new hires, Keith Wessling, who had been told by Fript that "there was some union hassle there," was taken by Fript to Vice President Sterling's office. Sterling asked Fript, "Does he understand the situation," and Fript replied, "Yes." No questions were asked by Fript or Sterling as to Wessling's background or work experience. 20 Fript concedes, however, that on May 19 he not only passed disparaging remarks to the four "students" concerning unions but also reminded them that "if it was not for me personally that none of them would have a job . and ... if they would like to return the favor to me that they could vote no on the union." 21 According to Fript - a witness of unprepossessing mien - while he was at home from school in March, and again in April, Company President Mills had personally asked him to recruit some students at college to enter b. Respondent installs four new warehousemen and backdates their employment applications Also on May 15, four new employees appeared on the scene in the warehouse - Kevin Wessling, Keith Wessling, Robert Putnam, and Guy O'Connor (Gil O'Conner).t' All four were recruited by Respondent Vice President Leonard Fript's son, Barry Fript, who has already been referred to. All four were set to "work" of the same kind as Barry Fript, namely, cleaning up and straightening out and arranging merchandise on the warehouse shelves. It is conceded by Barry Fript himself that the employment application forms of these new employees whom he recruited were backdated to the beginning of May, in order, as they were told by Fript, to "make [you] eligible to vote in the union election." Credited testimony of two of these "new employees' also establishes that in arranging for their employment Fript exacted from them a pledge to vote against the Union in the upcoming election, as a condition of their getting the job.19 In view of their mutually corroborative and honestly delivered testimony to this effect, I reject and discredit Fript's unpersuasive denials,2 0 as well as his similarly lame professed inability to "recall" whether or not in prehire discussions he questioned these "new employment" prospects regarding their union views. I further reject and discredit, as unworthy of belief, Fript's "explanation" why he instructed the students to backdate their employment application forms from May 15 to the beginning of May - namely, "to get me [Fript] out of a pinch," since he (Fript) did not want Company President Mills to discover that Fript had delayed getting the "guys . . .lined up" before May 15.21 Aside from the preposterous nature of this "explanation" as utterly unpersuasively delivered by a witness (Fript) the Company's employ during summers and vacations with a view toward becoming part of its management. (Fript's testimony does not indicate that working as a warehouseman was mentioned.) Thereafter, according to Fript, in late April he spoke only to his roommate, Guy O'Connor, who expressed interest, allegedly filhng out an employment application. It is noted that the date on O'Connor's unsigned application has been changed from "5/20 1975" to "4/20 1975"; and that O'Connor's employment application card as well as his W-4 withholding form are dated "5/15/75" (Resp. Exhs. 26, 27, and 28). Further according to Fript's unconvincing yarn, when he showed up for work on May 13, he indicated to Vice President Sterling that O'Connor would be coming in "in several days," whereupon Sterling asked about "the other college guys," so - allegedly realizing for the first time that Sterling or Mills expected more than "one or two" (Fript hastily "corrected" this slip to add unabashedly that he thereupon recalled that Mills had indeed told him "six or eight," but that Fript did not realize Mills had expected him to get all six to eight)-- he brazened it out by blandly prevaricating to Sterling that the "others" would be in "at the end of the week." There were of course no "others," none having been recruited by Fript even if his testimony is to be believed. And even according to O'Connor, testifying as Respondent's witness and still in its employ, it was not until May 13 (the day Jamison began handing out union literature and cards, it will be recalled) when Fript confirmed the job, since O'Connor had been looking for work elsewhere until that very day (May 13). (Even more basically, Respondent has made not a scintilla of a showing that any - much less six to eight - new employees were needed in the warehouse; particularly in view of its almost immediate subsequent termination of the eight warehousemen here involved, and its asserted defense here that those terminations were economically motivated because of declining business.) Fnpt then plunged ahead to testify that he thereupon on May 13 and 14 recruited Keith Wessling (who here testified that when Fript offered him the job he mentioned it was because of"some union hassle there"), who in turn referred his brother Kevin Wessling and Putnam, all to report on May 15 to Fript, at which time Fript assigned them - on Vice President Sterling's instructions - to "clean up" and "straighten up" in the warehouse. As will (Continued) 631 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sadly deficient in testimonial demeanor impressiveness, not a single one of the "new employees" who backdated their applications bore him out in his testimony that he gave any such "explanation." Soon after Keith Wessling started in the warehouse, he was instructed by Barry Fript that if Wessling heard anything about the Union - meetings or other activity - Wessling was to let Fript know. Wessling apparently did so. Kevin Wessling - who, like Keith, was hired on the express condition that he "vote against the Union" - was likewise directed to report to Fript if he "saw anything going on or heard anything about the union." Fript expressly conceded that in his dealings with the recruitment and employment of the four "new employees" he was acting on behalf of the Company and carrying out its instructions.2 2 Within 2 weeks after they were hired (and, as will be shown, almost immediately after unionized warehousemen were terminated) these new and "green" employees, working only as vacationing college students, were given a 33-1/3-percent wage raise, from $3 to $4 per hour.23 c. Continued organizational activities and their consequences Union organizational activities nevertheless continued among the warehousemen,2 4 under Jamison's leadership, with additional collective-bargaining authorization cards signed on May 15. During the 10-minute workbreaks as well as during the 40-minute lunchtime on that day, Jamison and other warehousemen continued openly be shown, the advent of these "new employees" was shortly followed by the termination of warehouse employees who had attempted to unionize the warehouse and bargain with Respondent collectively in pursuit of rights guaranteed to them by the Act. In discrediting Fript's testimony as indicated, I do so with awareness of the testimony of Sterling as well as Mills - likewise unpersuasive - to the general effect that the Company had been earlier planning, hoping, or anticipating that some "college students" might or would be coming in. Not only was this at best in the somewhat vague planning stage ("long-range" planning even according to Fript), but, as indicated above, no necessity whatsoever has been shown for the induction of "green" warehousemen coincident with the "economic" termination of its more experienced warehousemen, still further coincident with the latter's commencement of unionizational efforts. Furthermore, the "college stu- dents" were to be brought in as potential future managers or executives - if this is to be believed in view of Sterling's concession that no attempt to recruit managers or executives was made from among its existing college- trained employees. Moreover, Sterling conceded that as late as April it was not intended that the "college students" should displace any of the regular warehousemen - but that this decision was made later only "for a period of time," since the college students could only work during their vacation periods. Finally, it is conceded that no college student has as yet been placed even into any management training program. Respondent's further attempt to becloud the issue by continually referring to its program for hiring college graduates "top in their class" is sheer obfuscation as to the issues here, since those "top in their class" college graduates - not a single one of whom has yet taken a job with Respondent - were intended as sales force personnel, eventually to move further up the ladder, and not as warehousemen (even though the sales training course includes a brief cycle in the warehouse). Respondent's counsel expressly stated on the record that "My position is not that the college trainees were part of the sales training program." 22 By telegraphic notice of January 26, 1976 (G.C. Exh. I (gg)), General Counsel moved at the outset of the hearing to amend the consolidated complaint so as to allege Barry Fript acted as Respondent's agent within the meaning of Sec. 2(13) of the Act, an allegation which Respondent denied after the amendment was allowed. Upon the record as a whole, including Fript's own concession that he was acting on behalf of Respondent and discussing the Union, in the employees' breakroom. At one such time one of the warehousemen, pointing out that Company President Mills appeared to be peering in, sought to hush up the discussion. At this Jamison indicated, in a voice loud enough for Mills to hear, that the discussion should continue and that, indeed, it would be better for Mills to hear it "if they try to fire any of us or something like that.... That way if he fires us, he cannot claim that he didn't know about it." For the next few days, Vice President Sterling was observed to be "making rounds" throughout the warehouse every half hour or so, and other supervisors noticeably "watched" the warehousemen "more closely," hovering over them to a degree they had not done before. The complaint alleges that on or about May 15 Respondent, through its supervisor and agent Johnny Summers, coercively interrogated an employee concerning his union or other protected concerted activities, in violation of the Act. 25 As to this, Respondent's former warehouseman Daniel J. Weckler, who had signed a collective-bargaining authorization card for the Union the day before (May 14) and who was terminated by Respon- dent on May 27 as will be shown, testified with impressive credibility that while at work in the warehouse late in the afternoon of May 15 he was approached by Warehouse Foreman (or Shipping Supervisor) Summers, who ques- tioned him directly concerning his "feeling about the union," without indicating to him that he did not have to respond. Weckler replied that he had not yet made up his mind (he had actually signed a union card the day before), but that if he could make $3 an hour during the summer he carrying out its instructions, I find the added allegation to be established. While it is often said, as a popular generalization, that agency cannot be established by the declarations of the agent himself, this applies only to out- of-court, hearsay, nontestimonial declarations of the agent, and not to cross- examined testimony in open court. Agency (and its extent) may always be established by the in-court testimony of the agent himself. 4 Wigmore, Evidence § 1078, pp. 123-125 (3d ed.); Nygard v. Dickinson, 97 F.2d 53, 57 (C.A. 9, 1938): Shama v. U.S., 94 F.2d I, 5 (C.A. 8, 1938), cert. denied 304 U.S. 508 (1938); Merchants' National Bank v. Clark, 139 N.Y. 314, 319, 34 N.E. 910; Rope v. Hess, 118 N.Y. 668, 669, 23 N.E. 128. Not only was Fnpt's agency for Respondent thus established and admitted by Fript in his own testimony at the hearing, but Respondent, which derived the supposed advantages of Fript's activities on its behalf, took no action - even at the hearing to disavow them. Although proof of agency under the Act is expressly removed from common-law stringencies (Act, Sec. 2(13); see also Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U.S. 287, 295 (1940), quoting International Association ofMachinists v. N.L.R.B., 311 U.S. 72, 80 (1940): "It is true of a union as of an employer that it may be responsible for acts which it has not expressly authorized or which might not be attributable to it on strict application of the rules of respondent superior'), even at common law the circumstances here shown would suffice to establish Fript's agency. Restatement (Second), Agency, §4; Amalgamated Clothing Workers of America, AFL-CIO v. N.LR.B., 371 F.2d 740, 744 (C.A.D.C., 1966); Intertype Company v. N.LR.B., 371 F.2d 787, 788 (C.A. 4, 1967); The Colson Corporation v. N.L.R.B., 347 F.2d 128, 137 (C.A. 8, 1965), cert. denied 382 U.S. 904; Henry I. Siegel Company, Inc., 172 NLRB 825, 838 (1968), enfd. 417 F.2d 1206 (C.A. 6, 1969), cert. denied 398 U.S. 959 (1970). 23 At least some of the terminated warehousemen who had signed up with the Union had been receiving only $3 per hour. 24 Attested to even by Respondent's witness, warehouseman Dennis Paul Youngs. 25 Another complaint allegation, that Respondent Vice President Sterling also coercively interrogated employees on the same date, was withdrawn by General Counsel and disrmissed at the hearing (Hearing transcript, p. 1602). 632 MEDLINE INDUSTRIES, INC. would have no need for a union, whereas if he did not he might look to a union. He was not told of his impending termination or that he would not be working there that summer. Summers was, without explanation, not produced to deny or controvert Weckler's testimony in any way. Crediting Weckler, I accordingly find that, as alleged in the complaint, Respondent did indeed on May 15 coercively and restraintfully interrogate an employee, viz Daniel J. Weckler, in violation of Section 8(a)(l) of the Act. Around the same time, in mid-May, within a few days after Keith Wessling was recruited through Barry Fript to work in the warehouse with a backdated application and on condition that he "vote no against the Teamsters in the election," Barry Fript began identifying and pointing out to Keith Wessling various warehousemen as "union," including Jamison - whom Fript labeled "the leader of the union movement" - and Kline, whom Fript referred to as "another union member or organizer." And suddenly, on May 16 - for the first time - Vice President Sterling assembled and addressed a meeting of the warehousemen to complain about the "mess" in which he found the warehouse, among other things accusing warehousemen - seemingly referring to Jamison and Kenney - of "sitting on some of the merchandise." To these remarks Jamison took exception, explaining that he and Kenney had been working at the time they were "sitting" on merchandise, since they were momentarily awaiting instructions from Sterling's assistant, Berndt, regarding a certain order - a fact which, according to highly credible witness Bradford J. Brown (another warehouseman), was then and there confirmed by receiving department head Allan Mills (a distant relative of President Mills), who, when asked about it by Sterling, replied, "What do you want me to do, Noel [Sterling], lie?" 26 Allan Mills was, without explanation, not called to dispute this testimony of Brown, which I credit. At the same time, not a word was said about any lack of work or about the warehouse layoffs soon to ensue. Right after this May 16 meeting with the warehousemen, Jamison and Kenney asked to speak to Sterling, who invited them to his office, where Kenney remarked to him, "We know why you are doing this, you are doing it because of the union.... You are harassing us." Sterling's response to this was that it was they who were harassing himr Jamison accused Sterling of "hassling us" in a "pretty cheap way . . . to possibly get rid of the union" and threatening them in their jobs over things that were not even true. Sterling, however, insisted that they "just don't sit on my bales any more. .... if I catch you doing it again, I am going to fire you," and that, "If you don't like it, you can quit, you can leave." When Jamison remarked that it was a "pretty obvious" way of "fightfing] the union," Sterling ordered them out of his office and to return to work. Nevertheless and notwithstanding receiving department chief or leadman Allan Mills' support of Jamison's denials, later that day (May 16) Sterling directed Warehouse 2" In his testimony, Sterling conceded that when Jamison took exception to Sterling's remarks about "sitting . and laying' on merchandise (bales of towels still wrapped in banded corrugated paper). Allan Mills supported Jamison in the latter's denial. Sterling later added that a day or two after this Allan Mills privately told Sterling that "something was bothering him" and that he (Mills) was not denying that Jamison and Kenney had been sitting on merchandise but instead of loafing they had in fact been waiting for Foreman or Shipping Supervisor Summers to pass around among the warehousemen a written communication to them from Sterling and to have them initial it. The typewritten communication (Resp. Exh. 4), a general admonition to the warehousemen, again speaks of "Mark [Jamison] and Greg [apparently a misreference to Kenney] . . . sitting on the bales during working hours . .. I asked of Al Mills why you two men were laying on the bales and if it was rest period." It also states that "We expect you people to come on time 27 and to be there every day and we will replace people who are tardy and absent more than a reasonable amount of time. We will also replace those men who do not get their work done and not done properly. If talking and fooling around will get the job done, some of you guys would be experts at getting it done. We cannot tolerate the sloppiness and the not getting the work done like it has been happening this week." (Emphasis supplied.) Sterling's memorandum goes on to indicate that there would be a "review" of the warehousemen's wages in "May or June" with a view toward upward revision. The memorandum shows it was initialed by various warehouse- men including Jamison, who added the word "untrue" following his initials. It will be recalled that by its letter of May 15 (Resp. Exh. 2) the Union formally requested recognition by Respon- dent and collective bargaining on behalf of Respondent's warehousemen. On May 19 Respondent, though Vice President Sterling, wrote to the Union formally declining to recognize it on the asserted ground that "the company has a good factual doubt of your majority status. ... If you wish to pursue this matter further, I suggest that you contact the National Labor Relations Board." On the same day (May 19) Respondent, through President James Mills, issued a "BULLETIN - IMPORTANT NOTICE TO ALL EMPLOYEES," calling attention to his receipt and rejection of the Union's recognitional and collective-bargaining re- quest, and further stating that "If an election is conducted, the National Labor Relations Board will work out the details." Mills concluded the "important notice" with, "In the coming weeks, we intend to keep you fully informed on all developments and the reasons why we oppose a union at Medline" (Resp. Exh. 29). According to credited testimony of warehouseman Guy O'Connor - Barry Fript's friend and college roommate whom he enlisted for employment in the warehouse commencing May 15 under circumstances which have been described - testifying as Respondent's witness, on the same day (May 19) as he and the other warehouse employees received from Vice Presi- dent Sterling a copy of the foregoing bulletin, Barry Fript told O'Connor, Keith and Kevin Wessling, and Putnam that "a Union would be a bad thing for the company," that Fript did not believe in unions, and that they could repay instructions from Roger Berndt regarding merchandise or an order. (As indicated, Allan Mills was not called to testify.) 27 It will be recalled that Jamison had taken an hour or so off, without pay, on the morning of May 13 to visit the Union. He had first called in to report he would be in later, without receiving any intimation that this was in any way improper or irregular. 633 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fript's favor to them in getting them their jobs by voting "no" against the Union.28 Indeed, in his own testimony Fript conceded that he said this to the four "students" who started to work in the warehouse on May 15. Also on May 19, the day when the foregoing bulletin from Company President Mills was distributed to the warehousemen, Mills - according to testimony of Vice President Sterling - asked Sterling "if any of the warehouse employees . . . were going to leave shortly." (Why Mills should be asking such a question, or asking such a question at this particular time, is not apparent in terms of reasons unrelated to the described onset of their unionization attempts.) Sterling told him that Jamison and Kenney (unionizational leaders) were "dissatisfied" with their jobs. (According to Sterling, this was based upon his surmise - a correct one, since it underlays their unioniza- tional desires and attempts. However, it does not follow that these two would be planning to leave at the same time they were spearheading a unionizational drive intended to gain them higher wages and improved employment conditions.) At this, Mills - still according to Sterling - announced that he was going to terminate some employees and preferred to terminate those who "were not going to stay anyway." On May 20, the Union filed with the Board's Chicago Regional Director its petition for certification as the collective-bargaining representative of Respondent's Northbrook warehousemen. Union organizational activities proceeded among the warehousemen, still spearheaded by Jamison, supported by others including Kenney and Brown. Thus, Jamison's remarks in a lunch or afterwork meeting of warehousemen in the parking lot included reminders as to why the Union was needed, and even predictions that the Company would probably attempt to harass or even terminate employees for trying to organize, and that "the only way to beat it was if everyone stuck together." On the other hand, Barry Fript inveighed against the Union, voiced distaste for it, "more or less just shout[ed] them down," and insisted that the "company could take care of us much better than a union could." On the same day (May 20), Jamison was called to Vice President Sterling's office, where Sterling accused him of "walking all over the warehouse ... talking with people, bothering people, keeping them from doing their work, as well as not doing [your] own" (testimony of Sterling). Thereupon, according to Sterling, Jamison indicated Sterling was doing this because of Jamison's union activity and he asked Sterling to stop "hassling him," whereupon (still according to Sterling) Sterling insisted that it was Jamison who was hassling Sterling.2 9 According to Jamison, Sterling accused him of soliciting for the Union on company time against company rules. When Jamison pointed out that his activities had been restricted to "breaks and lunch hours," Sterling replied that the company rule forbade solicitation on company property or time and "don't do it any more, is that understood?" When Jamison remarked, "I could understand that I could not 28 It will be recalled that credited testimony of both Wesslings establishes that Fript had exacted such a commitment from each of them as a condition of their being hired. According to O'Connor. no such prehire condition had been exacted of him. 29 Also according to Sterling, his only source of information as to these solicit on company time, but the breaks were not on company time," Sterling ended the discussion with, "Well, that is the rule ... don't do it again." Although Sterling on direct examination denied that he told Jamison that he could not engage in union talk or solicitation during nonworking time, and could not "recall" any mention of that subject, it is difficult to understand why Jamison was called to his office if not to discuss that very subject; and, indeed, on cross-examination Sterling appears to have improved his recollection, since he conceded that Jamison "may have said he was doing it during his break." Although Sterling's aide, Warehouse Foreman or Shipping Supervisor Summers, was present during this exchange, without explanation he was not produced to testify to assist in resolving the contradiction between the testimony of Jamison and that of Sterling. Under these circumstances, and considering Sterling's demonstratedly aberrant powers of recollection, as well as comparison of testimonial demeanors as observed, I prefer and credit Jamison's version of the episode in question. Paragraph IX(h) of the complaint (added at the hearing) alleges that Respondent through Sterling imposed an "unlawful and overbroad no-solicitation rule" at the time (May 20) and under the circumstances described. It is settled that an employer rule proscribing union talk or solicitation on company premises even during nonworking time is presumptively overbroad and therefore unlawful under Section 8(a)(1) of the Act. No satisfactory reason having been established, by credible evidence as required, for the sudden imposition of the interdict against union talk and solicitation even during nonworking time, I find that it was for the purpose of interfering with and restraining employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act. Cf. American Commercial Bank, 226 NLRB 1130 (1976). It is accordingly found that, as alleged in the complaint as amended, Respondent through its vice president, Noel Sterling, on May 20, 1975, promulgated an overbroad no- solicitation rule proscribing union solicitation or conversa- tion on its premises by its employees even during the employees' nonworking time, in violation of Section 8(a)(I) of the Act. Cf. Jas. H. Matthews & Co. v. N.L.R.B., 354 F.2d 432, 441 (C.A. 8, 1965), cert. denied 384 U.S. 1002 (1966); N.LR.B. v. Walton Manufacturing Company, 289 F.2d 177, 180-181 (C.A. 5, 1961); Medley Distilling Co., Inc., 187 NLRB 84, 87 (1970), enfd. 453 F.2d 374 (C.A. 6, 1971); The Wm. H. Block Company, 150 NLRB 341 (1964). 2. May 21-27: Respondent terminates eight warehousemen in the collective-bargaining unit The complaint (pars. X, XI, and XII) alleges that between May 23 and 27 Respondent terminated the employment of eight warehousemen in the collective- bargaining unit, in violation of Section 8(a)(3) and (1) of the Act. alleged activities by Jamison - disputed by Jamison - was warehouseman Youngs, who had allegedly complained to Sterling that Jamison was "bothering" him "every 5 minutes" and had "hassled" him into signing a union card. 634 MEDLINE INDUSTRIES, INC. a. May 21-22: Respondent asks Jamison and Kenney for cash bonds as security to Respondent that they will not leave its employ Composite credited testimony of Respondent's former warehousemen Jamison and Kenney establishes that on Wednesday, May 21, they were summoned to Company President Mills' office, where Respondent's executive Chris Kriese was also present. There Mills announced that he was letting Jamison and Kenney go. When Jamison asked him why, Mills responded that it was "because ... [you] are not planning on staying, . . . you [are] obviously planning to return to school." Jamison and Kenney both indignantly denied this, Jamison stating that it was a "complete and total misrepresentation" since he had no intention of returning to school and had pointed that out when he was hired.3 0 Kenney pointed out that in no way had he ever indicated or intimated that he had any plans to return to school and that he had explicitly so informed Sterling when Sterling hired him and specified that he was to be a permanent full-time employee. Notwithstanding their protestations, however, and their threat to file a charge with the Labor Board, Mills remained adamant, insisting that it would be as he said. When Jamison and Kenney left the office and while awaiting their terminal paychecks, Jamison asked Kriese whether he realized that this was a device to get rid of the two leading advocates of unionization. Kriese - who, without explanation, was not called by Respondent to dispute any of this testimony - asked what the Union could do for them. Meanwhile, Jamison and Kenney were passing the word to other employees that they had just been terminated. Mills, who had by this time come out of his office, ordered them not to talk to other employees. At this point, Mills asked Jamison and Kenney whether they would agree to "post ... bond" or to the withholding of 10 percent or $10 per week from their pay for a period of 4 months to insure their not leaving work to return to school, the money to be forfeited to the Company if they did not meet that obligation. The group had meanwhile been joined by company attorney and executive Allan Levine, 31 who indicated he would prepare the necessary papers, which Jamison and Kenney said they would consider signing if Mills would, "in return," talk to them about the Union, which Mills agreed to do. Jamison and Kenney then went to the warehouse to have other warehousemen on the union organizing com- mittee join them, thereafter returning to Mills' office accompanied by warehouseman Bradford Brown to ex- 30 Jamison was hired on April 10 after an interview by both Chris Kriese and Vice President Sterling. He was required to take an intelligence or aptitude test, on which he was told he rated high. Sterling said the Company expected employees to stay at least a year. Jamison, who had had a year or two or so at college, told Sterling he wanted a full-time job and had no plans, but that he might want to take some night courses. Sterling not only approved but said the Company would even promote that endeavor through such worktime rescheduling as might be required. No indication was given to Jamison that the job was temporary, nor that he would or might be laid off. Jamison was hired as a receiving department warehouseman at S3 per hour. Sterling now maintains he did not really want to hire Jamison since he was "overqualified" for the job, which he allegedly later characterized as "donkey labor .... [la Ijob for an idiot." 3' He likewise did not testify here. 32 The letters, addressed to Mills, state: plain to Mills why they wanted a union. When Brown raised the question of why the newly installed "college students" had been hired for the warehouse - while the existing warehousemen were being terminated - Mills' answer was that they were "part of a new program," being trained as future executives, and "not really warehouse employees . . . [but] just . . . learning the warehouse," to which Jamison expressed disbelief and indicated they had been brought in to "dilute the majority." Also during this discussion, for the first time Mills spoke vaguely of "problems" in the warehouse and of declining sales revenues, as well as of a need to "upgrade" the warehouse help. When Brown brought up the recent company banquet where it had dispensed lavish gifts and Mills had boasted of the Company's unparalleled financial successes, Mills replied that the Company did not need a union and could take care of its employees without one. When Brown pointed out that the warehousemen wanted to be represent- ed by a union, Mills responded that the Company was "quite fair and didn't need a union at all, and that the union would not do any good, and . . . he didn't believe that a majority of the employees were involved in the union, and that he thought his employees would be better without the union." According to Respondent's former warehouseman Holland - also terminated a few days later, as will be shown - when Mills asked them, "What are your demands?" and they indicated they "could not live on $3 an hour. . . today, the way inflation [is] going," Mills agreed that it was "not a decent living wage these days, and he would try to do something about it." On the next day, May 22, on advice of union official Simpson and of legal counsel, Jamison and Kenney placed on Mills' desk (in his absence) a letter, withdrawing from that "deal" (G.C. Exh. 3).32 No acknowledgment was ever made by Respondent of that letter nor were its contents ever discussed before their employment was precipitately terminated by Mills the following day (May 23) under circumstances now to be described. On May 22 or 23, Keith Wessling - one of the "college students" Barry Fript had recruited into the warehouse on May 15 on his assurance that he would vote against the Union in the Board election - was told by Fript that certain employees would "be let go." On the morning of May 23, Fript also told Kevin Wessling that the Company Dear Mr. Mills, In regard to the discussion that we had on 5/21, I was hired as a full-time and permanent employee and at no time was anything to the contrary mentioned to or by me. As far as your proposal to deduct ten dollars per week from my pay and to hold this money until 10/1/75 asa guarantee of my permanence, I must at this time decline such an agreement until my lawyer can research the legality of such an agreement under the Federal Wage and Hour Act. Respectfully. /s/ 635 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was that day "going to fire [or 'lay off or 'let go'] the people involved with the union." 33 b. May 23: Respondent terminates six warehousemen On the morning of May 23 - Friday, not a payday34 - warehouseman Holland was told by Warehouse Foreman Summers that "Something [is] fixing to happen, and if [you don't] have a job come Tuesday, . . . come back and see [me]." That afternoon (Friday, May 23), he was called to the office by Company President Mills, who told him he was "sorry, but [I'll have] to let [you] go," adding that "Business [is] bad" or "Sales [are] down." When Holland asked whether it was because of "the Union thing," Mills did not answer. Holland had been as busy as usual. Although Mills did not offer him any other employment at Medline, Mills' brother John Mills - company vice president as well as president-elect and Accucare Division head - put Holland to work at a different location of the Company, on Commercial Avenue, also in Northbrook, within about 3 miles from its Shermer Avenue ware- house.35 Holland remained there for about 2 months. Inasmuch as Holland's described termination was out of seniority and seemingly without reason, and since several "new" warehousemen (i.e., the college students) had just been hired a week before, a group of warehousemen including Jamison, Kenney, Kline, and Brown went to President Mills' office to find out why.3 6 In Mills' office they asked him why, pointing out that they regarded Holland's termination as unfair since the "college kids" had just been hired and "should have gone first." Jamison (and possibly others) asked whether it was because of the Union and indicated that would be in violation of his rights. Mills did not respond to these questions, but demanded to know "who sent you in here" and thereupon declaring, "I have something for you boys .... We won't be needing you boys any more," handed Jamison, Kenney, Kline, and the others, except Brown, paychecks - which Mills had ready on his desk - and directed them to leave the building at once without talking to anybody. To Kline's question why they were being terminated, Mills' response 33 I fully credit this testimony of the two Wessling brothers, who consistently demonstrated themselves to be witnesses of high order. 34 Payday was on Monday, every 2 weeks. 35 Since John Mills was, without explanation, not called to testify, this testimony of Holland stands uncontroverted. Holland's job in the nearby warehouse, where he started on the next workday after his described May 23 (Friday) termination at the Shermer Avenue warehouse by James Mills - Tuesday, May 27 (Monday was a holiday) - consisted of transfemng merchandise from Wheeling, Illinois (a Chicago suburb), to there, as well as other chores and operating machinery, work of a different nature than he had been doing at the Shermer Avenue warehouse as a member of the bargaining unit the employees were attempting to establish there. 36 Warehousemen Carlberg and Sanders, also - as well as Holland each a union card signatory, had been terminated on May 21. The complaint in the instant proceeding does not allege that the Carlberg and Sanders terminations were in violation of the Act, nor was that issue litigated here. 37 This was on a Friday afternoon. Brown, however, did not work 10 hours a day during the following week. Normal work hours were Monday to Friday, 8 a.m. to 4:30 p.m., with Saturday work at times. 3a The foregoing account of the warehousemen's May 23 terminations is based on a composite of the mutually corroborative testimony of General Counsel's witnesses Holland, Jamison. Kenney, Kline, and Brown and, to the extent credited, of Respondent's witness Mills. As previously indicated, was, "I don't have to give a reason." However, Mills did remark that "business is bad." When Brown reminded Mills about his boasts, at the recent company banquet when lavish gifts were distributed, about how good business was, Mills replied, "You will leave the premises, won't you?" Jamison angrily accused Mills of conduct that was "totally illegal" and "blatant harassment for our union activity," for which "We are going to file a charge before the NLRB." Mills did not respond, but trailed the terminated warehousemen out of his office, insisting they all (except Brown, who returned to work) "Get off the premises. Don't talk to anybody. Just leave." When Brown returned to his work, Warehouse Foreman Summers passed the remark to him, "We probably [will] have to start working ten hours a day the next week."3 7 Jamison thereupon went to the Board's Chicago Regional Office and filed unfair labor practice charges against Respon- dent.38 It will have been noted that of the six terminated warehousemen, all but Chorba had signed union collective- bargaining authorization cards.3 9 According to Respondent President James Mills - much of whose testimony, in view of the finely minced and equivocating semanticisms in which he indulged, his cautious evasiveness, his highly refined qualificational language and gingerly factual selectiveness, his inconsisten- cies, his interest, his union animus, and his testimonial demeanor as closely observed, I am constrained to view, within the total circumstances of this case, with a degree of caution and reserve, but without adverse reflection upon his business acumen or other facets of his personality - since Sterling had indicated to him that Jamison and Kenney were "not really interested in staying with the Company for any period of time," he called the two into his office on May 21 and informed them that the Company was "not doing well as we had hoped to do, that sales had not increased40 in the manner we had hoped . . . that I didn't feel they were interested, really, or needed the job in the warehouse" and were living at home "and that those guys who didn't need the job and didn't plan on staying with the company would leave." 41 Jamison and Kenney - still according to Mills' testimony - became "very upset" Warehouse Foreman Summers did not testify. Respondent Vice President Sterling testified that the decision to terminate the six warehousemen in question, i.e., Fair and Chorba in addition to Holland, Jamison, Kenney, and Kline, was made by Company President James Mills, who had not discussed it with him (Sterling), and that Sterling was out of town that day. 39 To be sure, others not terminated had also signed such cards. As will be shown, two of the others - Ford and Weckler - were likewise terminated a few days later, on May 27, raising the number to eight, or almost one-third of the collective-bargaining unit and one-half of the union card signers. 40 Emphasis supplied. This is an example of Mills' finely honed choice of words. It will be noted that he did not state that sales had decreased but merely - a very different thing - that they had "not increased. " Yet, four to six warehousemen had been added to the staff the preceding week. 41 On cross-examination, Mills conceded that he had assumed from their (assumed) living at home that they were not in "need" of their jobs. While this does not appear to make much if any sense - i.e., that persons living "at home" are less in need on employment than those living "elsewhere" - Mills further indicated that he was unfamiliar with the "home" situation and milieu of Brown (who was not terminated) or with that of Holland, Kenney, Kline, Chorba, and Fair (who were terminated). Pressed further, Mills finally appeared constrained to abandon this untenable position when he at length conceded that "No one's family situation was considered" in 636 MEDLINE INDUSTRIES, INC. at this and insisted they had no plans to leave the Company and needed their jobs. After Jamison and Kenney left for "lunch," Mills consulted company attorney Allan Levin (Levine), who advised layoffs on a direct seniority basis, so Mills decided to do just that and received a "seniority list" which, he concedes, did not include the names of any of the college students who had just been hired the previous week.42 Mills (and, again, why he should do this is not apparent if Jamison and Kenney were "low" on the "seniority list") then again spoke to Jamison and Kenney and asked them to provide assurances that they would remain in the Company's employ through at least the fall of 1975, but that he was still "hoping that they would be willing to walk away from the job, which in my [Mills'] opinion was not necessary for their food and lodgings." (It is to be noted that there is no indication that any of the nonterminated warehousemen, specifically the newly hired college stu- dents, did need for "food and lodgings" - nor proof or claim that Respondent turned its termination selections on compassionate considerations.) Mills accordingly, as he further testified, asked Jamison and Kenney to leave on deposit with Respondent a portion of their pay, to be forfeited if they left the Company's employ in the next 3 or 4 months; and, although Jamison agreed, Kenney said nothing, but the next day he received a note from them declining to do this.43 Mills conceded, on cross-examina- tion, that there is no contention by Respondent that the work performance of Jamison or Kenney was unsatisfacto- ry. Further according to Mills, in accordance with his determination of May 21 to terminate the six most junior warehousemen (again, he blithely ignores the college students who had just been hired the week before), he called them to his office. Holland was called first, for no particular reason. Mills told Holland that, although no employee had ever been laid off before, the Company was cutting down on expenses since business "had not picked up," and it was therefore letting him go but would assist in placing him elsewhere. Soon a group of other warehouse- men walked in and, protesting the layoff of Holland for "unfair reasons," asked that he be rehired. According to Mills, he denied Holland had been terminated "for unfair reasons" but "because the company's business hadfailed to increase,44 and there was no possible way that we could continue to employ the [existing] number of people who were employed in the warehouse" - without reference to the substantial augmentation of the number of warehouse- men that Respondent had itself brought about the week before through its employment of the "college students" hurriedly enlisted by Fript under the circumstances described. Mills added that he was also terminating connection with the layoffs. But this eventually wrested concession reflects on the bona fides of the thus at least partially false excuse he swears he gave the terminated employees. 4Z This is another example of a type of supposed "cleverness" or agility with words (a "senionty list" excluding the juniors) which characterizes Mills' semantical style. 43 When. at the hearing. Mills was shown a copy of the document in question (G.C. Exh. 3), he first swore - without qualification - it was not the document he received. When he was thereupon shown the identical document with the signatures of Jamison and Kenney on it (Resp. Exh. 46- Id. and G.C. Exh. 46), he modified his earlier denial by stating he could not "recall" whether this was it - without offering any other document he Jamison, Kenney, and Kline. When Jamison, Kenney, and Kline protested, Mills indicated he would try to get them, as well as Holland, other jobs; and he gave them terminal paychecks which he had ready, and directed Brown to return to his work. Finally according to Mills, as he followed them out of his office, Jamison almost "screamed" that "This [is] illegal, and ... [we are] going right to the National Labor Relations Board, and . . . [will] really get [you] for this." Later that afternoon, warehousemen Fair and Chorba were also terminated. 4 5 The record clearly establishes and I find that none of the aforementioned six warehousemen, nor the two additional warehousemen terminated on May 27 as is about to be described, was terminated for any inefficiency or short- coming in work performance, nor did nor does Respondent so claim. After the described terminations on May 23, Jamison later that day filed a charge, at the Board's Chicago Regional Office, against Respondent, charging violations of Section 8(a)(3) and (1), including the described dis- charges of its warehousemen (Case 13-CA-14343; G.C. Exh. 5). Within 3 days after these six warehousemen were thus terminated, on May 26 (Resp. Exh. 28), Respondent raised the pay of the college warehousemen it had hired less than 2 weeks before by at least 33-1/3 percent, from $3 to $4 an hour.46 c. May 27: Respondent's remaining warehousemen protest Respondent's terminations of their fellows,' Respondent discharges two more warehousemen On the weekend following the foregoing six terminations on Friday, May 23, warehouseman Bradford Brown - who, it will be recalled, was exempted by Mills from the terminations - drafted a letter of protest to Mills which, after being signed by him and five other remaining warehousemen, was delivered to Mills. The letter (G.C. Exh. 30A) states: May 27, 1975 Jim Mills, President Medline Industries, Inc. Dear Sir: We, the undersigned warehouse employees of Med- line, submit this statement of our feelings. In regards to the eight workers who have been laid off on May 21st and 23rd, we strongly protest these actions and any further actions you may contemplate against those of us who remain. concededly received. Again, it is such seeming testimonial mincing or sparring which gives me unease in accepting unreservedly his testimonial productions. 44 Emphasis supplied. See fn. 40. supra. '4 Respondent's answer admits the discharge of Holland, Jamison, Kenney. Kline, Fair, and Chorba on May 23. 4 Some of Respondent's nonterminated warehouse employees received additional "merit" increases of up to 50 cents per hour. Some other warehousemen may not have received any increase since, according to Sterling, they were already being paid $4 or more per hour. Sterling testified that it was he who decided which particular individual warehousemen would receive an increase at the end of May and how much. 637 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We protest the hiring of six casual weeks ago after you had made it known was off and work was slowing down. We submit that it is these people that been laid off first instead of previously trained, full-time workers. In light of the slow-down, we would no there should be any overtime work nor employees be added until those that have are re-hired. We feel that we are being treated un matter and hope that you will use better the future. The above statements are not i be construed as demands or ultimatums, an expression of sentiments to be given 4 ation. /s/ Brad Brown /s/ Stephen P. Lambert /s/ David M. Ocampo /s/ Ja /s/ /s/ McKinl After this letter was delivered to Mills, the men were called to his office, where Mills told was "instituting" a plan under which the w would be receiving "raises"; 47 that he had laid warehousemen because business was "down and that the college students had been hired program to train executives and salesmen. ' expressed disbelief and indicated that the r college students and not the regular warehous have been terminated, and that "you just I people in here to break up the union," app made no response. The warehousemen's le (G.C. Exh. 30A) was similarly unmentioned day, around 3:30 p.m., Brown was called to V Sterling's office and informed by Sterling, in of new Warehouse Manager Schempf,48 that given a 75-cent-per-hour raise and asked, "I think about that?" Brown answered, "That don't think it is going to stop us from orl because you give us a raise that does not me. be fired the next day. We still have no job sect Sterling replied, "Well, don't think the union i any better for you. In fact, it could do a lot fact you could lose, you could end up with less you are making now." Sterling also indic, himself would not have fired the warehousem the "college kids," and pointed out that i 47 Although college student and newly hired warehous had seemingly (Resp. Exh. 28) received his 33-1/3-percent 26, it was not shown whether it was actually announced to or on some later date made retroactively effective as of that to Vice President Sterling, the warehouse pay increases v end of May. It is thus possible that, at the time Mil warehousemen remaining after the May 23 termination warehousemen had not (all) yet received or been told increases. 4' Schempf was not called to testify. laborers two company, adding, however, that Mills "is not trying to that business bullsh-t you." 49 At the end of the workday on that same day - May 27, should have Tuesday, not a payday - warehouse employees Ford and y hired, fully Weckler were called to the office where Warehouse Manager Summers told them, without prior intimation of ot expect that any kind, that they were terminated because "business [is] should new slow." In no way had they ever been told their work was been laid-off unsatisfactory or that they were temporary or other than permanent part-time employees. Both of them, high Ifairly in this schoolers, had been working in the warehouse since around discretion in the previous August or September (1974) sweeping and in any way to generally assisting, including truckloading and other work but rather as done by the full-time warehousemen, Monday through due consider- Friday, after school, 10 to 15 hours per week, at $2.50 per hour. It will be recalled that, in response to Summers' questioning on or about May 15, Weckler had indicated he Respectfully, had not yet made up his mind about joining the Union but that if he could be making $3 per hour during the summer he would have no need for a union, whereas if not he might ck R. Liston look to a union. Weckler and Ford did in fact sign collective-bargaining authorization cards for the Union, on Ben Franke May 14 and 15. When they were summarily terminated on Tuesday, May 27, they were not told it had anything to do ley Edmunds with their work or because their school year was soon to end (the very time when, it would seem, they would be e warehouse- more available for work than ever) - in fact it did not end them that he until mid-June - or anything other than "business [is] arehousemen slow" and that they would be the "first ones that we will I off the other call when we begin hiring again." However, they were in no 20 percent"; way less busy with their work when terminated, and at no I as part of a time have they been recalled although (as shown below) When Brown there have been new hires.50 ecently hired Testifying concerning these discharges (i.e., Ford and semen should Weckler), Respondent President James Mills on direct brought these examination characterized them as part-time employees, )arently Mills but on cross-examination conceded they were regular part- tter to Mills time employees. Mills claims they were terminated - for d. Later that some inexplicable reason - simply because his "decision 'ice President was that they were not to work for the company during the the presence summer, even part time," although two other part-timers, he was being Davis and Roberti, could remain. Mills' rationale or What do you pretended rationale is that Ford and Weckler were only is great, but "high school kids," whereas Davis "was going [or going to ganizing, just go] to college." Although this lame rationale makes little if an we cannot any sense, particularly in view of the fact that, as Weckler's irity." To this undisputed credited testimony establishes, Weckler and is going to do Ford were not hired for just their school term to be worse. . . in terminated during the summer and the further fact that s money than they were never recalled at the end of the summer, it is ated that he noted that Roberti was also a "high school kid." The hard en but rather distinction between Weckler and Ford on the one hand, it was Mills' and Davis and Roberti on the other hand, is that Weckler seman O'Connor 49 While Sterling's version of this conversation is somewhat at variance Iraise "on" May with that of Brown, on comparative testimonial demeanor observations , him on that day within the context of the record as a whole, and considering that t date. According Respondent without explanation failed to call its warehouse manager, were made at the Schempf, to assist in resolving any doubt, I accept Brown's version in Is met with the preference to that of Sterling. s, the remaining 5o Based essentially upon the testimony of General Counsel witness about any pay Weckler, an unusually clean-cut and forthright witness, whose testimony was undisputed by Warehouse Foreman Summers, who, as already indicated, was without explanation not called by Respondent to testify. 638 MEDLINE INDUSTRIES, INC. and Ford signed union cards whereas Davis and Roberti did not. I totally reject Mills' at least farfetched and wholly unpersuasive "explanation" for terminating Weckler and Ford. Right after Weckler and Ford were thus also summarily terminated, Warehouse Foreman Summers asked ware- houseman Brown to come in to work an hour earlier and leave an hour later since "the two high school kids [Weckler and Ford] . . . had just been fired." Brown declined to do so "until the people that had been fired had been called back." Summers replied, "I can't do anything about it. It is not my company." During the following 2 days (May 28-29), for the first time in Brown's experience, Summers complained that the warehouse work was all piled up and more help was needed. Mills' suggestions or conclusions, nor in any event support his contention that it was necessary for him to terminate the particular eight warehousemen here involved at the particular time and under the circumstances which have been described. Respondent's annual report for fiscal year ended March 31, 1975 (Resp. Exh. 31), shows, among other things, under Mills' signature, the following increases in the Company's fortunes: 1970 1975 _ Change 1 975--74 Net Sales Earnings before Income Taxes $ 5,250,456 $21,559,044 t39.2 144,305 1,243,876 +29.1 d. Respondent's "economic necessity" defense to its termination of the eight bargaining unit warehousemen As has been indicated, the complaint alleges that Respondent terminated six warehousemen of the bargain- ing unit on May 23 and two more on May 27, in violation of Section 8(a)(3 ) and (I). Respondent concedes the termination but disputes that they were in violation of the Act, asserting that they were economically necessitated. 51 The circumstances of the terminations have been shown in some detail. They clearly, indeed overwhelmingly, estab- lish, primafacie, the terminations to have been in violation of the Act as alleged. It remains to consider whether Respondent has rebutted that prima facie showing by its "economic necessity" defense. Respondent's "economic necessity" defense is predicated basically on testimony of its president, James Mills, who attempted to portray a picture of declining corporate revenues as the real reason for its termination of these particular eight bargaining unit warehousemen at the particular time and under the particular circumstances shown. The testimony of Mills, whose deft testimonial style has already been commented upon, in my opinion provides a classic example of an attempt through astute semantics to supply a "statistical" rationalization for discharges effectu- ated for other reasons. Mills testified that, during the last half of the Company's fiscal year 1974-75,52 earnings "failed to increase . . . as they had during the past eight years so far in our existence, but. . . were falling rather rapidly" (emphasis supplied). It is thus to be noted that at the outset Mills carefully insulated himself from statistical counterattack by limiting his comments regarding the Company's alleged sudden economic "problems" to an alleged interruption in the Company's rate of increase or growth, which he had previously indicated had been spectacularly rapid and large - in his words, "a minimum of 30 percent compounded each year." To illustrate the suddenly dire economic picture he attempted to portray, Mills referred to selected company economic reports. However, analysis of those selected reports does not necessarily substantiate 51 No contention is raised or established that the terminations were for deficiencies in the employees' work performance. Net Earnings 72.30 Total Assets 2,458,96! Shareholders' Equity 604,63 Book Value per Common Share (51 par value) 1.2 and Equlvalent Return on Equity 12.1 Earnings per Share .1 Retained Earnings In his accompanying "Dear S Exh. 31), Mills glowingly states: 5 613.876 + 22 59 ,5h5,763 + 7.9 1 3,322,347 t15.9 4 5.71 +20.5 1S.5 5 1.02 e 22.8 $2,026.478 +43.5 Shareholders" letter (Resp. In a difficult year for the U.S. economy, the health care industry continues to be one of the fastest growing in the country. The fiscal year ended March 31, 1975 marked a record year for Medline Industries, Inc. Sales rose 39% to $21,559,044 and net income after taxes increased 22% to $613,876. Earnings per share were $1.02, an increase of 22%. Mills then points out that the Company has "strengthened our marketing position" in various ways, and that it was providing "better customer service," improved "control on inventory," and introducing new lines for a "highly positive effect on our profit picture in the near and long term." He indicates that substantial new warehousing and distribu- tion centers have been added to "reinforce our sales capability" and that "Major catalogs for rehabilitation, dietary and nursing care are now in preparation [and] .... will produce new customers," all aimed toward becoming "the best sales and distribution company in the health care industry." After also pointing out that "In June, 1975 we acquired approximately 133,000 square feet of land immediately adjacent to the Medline corporate headquarters" for possible future use as a "separate manufacturing plant with direct access to rail shipping," Mills recognizes and predicts that "The planned expansion of manufacturing facilities, coupled with our continuing 52 The Company's fiscal year (FY) ends March 31. 639 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expenditures for development in the areas of marketing and sales training, will probably slow down our rate of growth in earnings on a near term basis. However, we feel it is in the best interest of our customers, our employees, and our shareholders to make these decisions, and to make them now, in order to provide a solid foundation that will enable us to achieve our long term goals." The remainder of the annual report is replete with glowing accounts of accomplishments and wide-ranging plans for ever-in- creased growth, in each of Respondent's component divisions, the extensive range of the activities of which is discernible from the annual report and its illustrations including one that it describes as its "Huge warehouse facility in Northbrook [which] assures prompt shipment of orders." The report also indicates that Respondent had acquired 94.55 percent of the outstanding common stock of Theratron Corporation, as an "unconsolidated subsidiary," and that in September 1973 it had purchased the business and assets of Kuttnauer Manufacturing Co., Inc., of Michigan, which it had integrated into Respondent's operations, with the effect of a rise in sales from the Kuttnauer location to $1,575,457 in fiscal year 1975 over $570,639 in the previous period between acquisition and end of 1974. A "current" note or notes for well over $1 million, executed by Respondent Medline to "Mills Company, a partnership whose principal partners are two stockholders of the [Medline] company," are at an initial interest rate of 8 percent; in addition to a $320,000 installment note to the same payee company, at "an interest rate of 1/2% over the prime rate in Chicago," which was "weighted" in 1974 and 1975 at over 11 percent, which may "be accelerated at the holder's option in the event directors elected by James S. Mills and John Mills cease to constitute a majority of the company's Board of Directors." Stock options, available to certain company officers and employees, were exercised during the 2 years ended 1975, for 11,500 shares at an option price of $4 per share when the market value ranged from $8.50 to $10.875 per share. Also in 1974-75, in the 3-month period ended September 25, 1974, "Medline has repurchased over 11,000 shares of its own stock. This will put us in a position to more economically fulfill future incentive compensation obligations to employees, and for utilization in connection with acquisitions that might be considered in the future. We look forward to the future with confidence. The company has all the necessary strength needed to grow in even the most difficult of times." 53 "Medline has not paid any dividends on its common stock."5 4 "Management's 53 Resp. Exh. 32. The Company's 1974-75 annual report also states that in that year "the company reacquired 26,581 shares of common stock at a cost of $199,980 as treasury stock" (Resp. Exh. 31). 54 Resp. Exh. 31 (annual report, supra., "Notes to Financial Statements"). 55 Ibid 56 Mills' January 29, 1975, memorandum to the warehousemen (Resp. Exh. 6) also contains no indication of any intended retrenchment in the number of warehousemen but, rather, improved prospects and pay for them. The same is true with regard to a later memorandum of April 30, 1975 - only 3 weeks before the discharges here - from Mills to Sterling (Resp. Exh. 19). 57 Resp. Exhs. 32 through 39. 58 This figure is factually unexplained. For example, a very substantial "selling expense" of over $400,000 in I month - about double the usual - undefined and unaccounted for or otherwise described, appears on the unaudited statement for March (Resp. Exh. 38), the final month of FY 1974-75. Although the statement (Resp. Exh. 38) refers to an attached "Schedule," none was produced here. Furthermore, no seasonal figures for Discussion and Analyses of Summary of Operations" 5 5 concludes that "Medline Industries, Inc. established another new sales and earnings record for the year ended March 31, 1975." Although Mills testified that he "felt very bad" in February 1975 after he received the previous month's unaudited financial statement - allegedly causing him to send for his father Irving in Florida, as well as his brother John, for a meeting at which it was decided to raise the pay or incentives of sales managers 56 - that financial statement in relation to the other unaudited financial statements for FY 1974-75 presented here by Respondent does not appear to establish a substantial, if indeed any, cause for such concern, since they 57 show: (A) 1st 6 sonthls FY 1974-75: Sales $1 ,086, 615 Net earnings 279,812 (B) 2d 6 ionthas FY 1974--75: Month Oct. Nov. Dec. Jan. Feb. lMar. $2,005,621 1,981,937 1,839,849 2,012,226 1,930,141 1,743,452 Crnas Profit $501,405 495,484 459,962 503,056 495,035 437,113 Total sales FY 1974--75: Net earnings, (A) Gross profit, (B) Net profit, (B) For the month of submitted 61 shows: Net $ 83,900 91,668 38,766 103,628 89,112 -175,993 53/ $21,654,841 59/ 279,812 2,892,055 281,081 60/ April 1975 the unaudited report Sales Gross profit Net profit $1,035,793 474,218 61,493 It is noted that, although Respondent has submitted no FY 1975-76 annual report, and no report or figures for the periodfrom May through September 1975,62 it has submitted other years have been provided for comparison purposes. Nor have ratios of financial position or of merchandise levels to personnel levels been shown, derived, or projected. Mills conceded, however, that March "tends to be a distorted month" - as does Apnl. It is also noted that in Respondent's fiscal year configuration March is a 36-day month. Furthermore, according to Mills, accruals for the entire preceding year are picked up and thrust into March, the last month of the fiscal year. s9 This is in contrast to the $21,559,044 shown on the FY 1974-75 audited report (Resp. Exh. 31). 60 Even allowing for the alleged last FY month (March) unexplained "loss" or "write-off" of $175,993 (see fn. 58, supra), prior to which the 5- month net profit, for October through February, was $457,074. s' Resp. Exh. 39. "I In the prior unfair labor practices proceeding against Respondent, Administrative Law Judge Plaine had occasion to observe that the "alleged paucity of sales records is strange .... " (C.P. Exh. 3, Dynacar Plastics, 218 NLRB 1404, 1409, fn. 6 (1975). 640 MEDLINE INDUSTRIES, INC. a third FY 1975-76 quarterly report, for the third quarter ended December 25, 1975,63 which states that, although "For the first time in Medline's history, earnings for the quarter were less than a year ago" (emphasis supplied), this was because of new investments in new programs and facilities, including expansion of sales force, manufacturing capabilities including acquisition of a new company (Master Automation, a former Medline supplier), which with Dynacor Division were moved to a new Northbrook location, and establishment of new facilities in California and Mexico. That report also states, over the signature of "Jim" Mills, that "Medline's policy continues to be one of aggressively developing new programs, and of initiating new and larger operations. Although this policy has the effect of decreasing profits on a short term basis, we believe these investments in people and capital will have a favorable impact upon our sales and earnings in the future." The report shows the following comparisons: April Through Dec. 1 974 Change 1975 over 1975 1974 Net Sales $15,914,024 $18,067,971 + 13.5% 65/ Costs Exps. AL/ 15,085,125 Net Earngs. Per Share 414,449 17,314,846 +14..S% 65/ 376,625 -9.1% 66/ .69 .65 -5.8% 66/ Oct. Through Dec. Change 1975 over 1974 1975 1974 Net Sales $5,827,409 $6,400,503 + 9.8% Costs Expa. Net Earnga. Per Share 5,558,132 6,287,671 +13.1% 65/ 134,637 56,482 -58% 66/ .23 .10 -56.5% 66/ 63 Resp. Exh. 47. 64 Reflecting "an estimated gross profit of 25% for 1975 and 1974." s5 The increase in costs and expenses must be assessed in terms of the closely corresponding increase in sales. Thus, the ratio of costs to sales was 95.4 percent in 1974 and 98.2 percent in 1975; these figures include 25percent gross profit. Further according to Mills, after receiving the April 1975 unaudited statement (supra, Resp. Exh. 39), cost-cutting measures became essential to avoid the "suicidal" sales program "changes" (i.e., pay and/or incentive raises) placed into effect in February, as described. In this connection it is, however, noted that the financial reports submitted show considerably lower operating expenses in April than in March - $410,847 as against $613,443, or a diminution of $202,596 or about one-third. Further in connection with Mills' alleged cost-cutting decision was one to defer a new facility in Alabama; but, presumably, the effect of any slowing down of decentralization would have been to maintain, if not increase, the load on the Northbrook warehouse facility. Moreover, there is no necessary correlation between sales - which, indeed, increased greatly in FY 1974-75 - and the amount of work to be done in the Northbrook warehouse, nor was any such shown. According to Mills, these cost-cutting decisions were made at a management meeting held on May 13, 1975 - indeed a suspiciously strange "coincidence" considering the fact that May 13 was the very date when Jamison's union card-signing activities took place under the obser- vant eye of at least Respondent's vice president's son, Barry Fript. Such "coincidences," while theoretically possible, place a heavy strain on credulity, particularly in the frame of reference of the evidence as a whole. It is also to be recalled that a scant 2 weeks before this, on April 29, 56 See Mills' explanation, described above, in the third quarterly report, concerning substantial new acquisitions, new facilities, and new programs. Considering these, Respondent's FY 1975-76 earnings picture for the 9- month period appears to be extremely favorable even on a comparative basis perhaps in some respects better than ever before. 641 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent had thrown a profit celebration banquet for its executives and employees, at which lavish gifts had been bestowed, with no suggestion that the Company's future, fortunes, operations, or expectations were in any way on the downgrade or required belt-tightening, particularly of the nature here said to be involved. 67 This throws a further strain on the credibility of Mills' current contentions to the contrary. Weighing testimony and exhibits in totality, I could not and still cannot escape the impression that Mills' explana- tion of his alleged "economic" basis for the terminations of these particular eight warehousemen, at the particular time and under the particular circumstances shown, constitutes an elaborate pretense which simply cannot meet the light of day.68 With regard to Mills' testimony that he terminat- ed the warehousemen here because "we had six people we really did not need . . . in the warehouse," and that "at that time" of his decision to terminate the "six people," the college students - hastily introduced on the scene through Barry Fript under the circumstances shown - had "become employed and were working in the warehouse," it will of course be recalled that the green college students had been emplaced only a week before the experienced warehousemen, who had just signed up with the Union, were fired. Mills' contention that he discharged the warehousemen here because the warehouse was "over- staffed" must assuredly be regarded as made with tongue in cheek, since any "overstaffing" was due only to the hasty hiring of the college students (on their promise to vote against the Union, as shown, under the ruse of the backdated employment applications). Furthermore, it was apparent that the college students could only remain temporarily until their school session resumed, at which time they would have to be replaced; but even then Respondent did not recall the union-affiliated warehouse- men it had terminated. Finally, Mills conceded that Respondent now employs in its Northbrook warehouse no less than 23 warehousemen (18 full time and 4 part time),69 which "happens to be precisely" the same number of warehousemen as were employed there in May 1975.70 Credited testimony of various warehousemen, 7' includ- ing that of Barry Fript's roommate O'Connor testifying as Respondent's witness, establishes that not only was there no diminution but there was also an increase in the 67 I reject, as an implausible concoction, Mills' "explanation" here that the Company gave out these bonuses not because it was doing well but because it was not doing well. To the contrary, see, for example, Mills' April 29 letter to the bonus recipients, G.C. Exh. 28. " Among other things, Mills also attempted to reinfuse into the case the obfuscation, already described, concerning the Company's salesmen's training program - which, as shown, had no real relationship to its continuing need for warehousemen. Moreover, Mills conceded on cross- examination that even that salesmen's training program remained unimple- mented through at least the fall of 1975. 89 Vice President Sterling conceded during cross-examination that Respondent hired new warehousemen after the May 23 terminations here. 70 Mills' ingenuous explanation for this is that company sales have increased since May 1975. This affords a further flavor of the genre of his attempted rationalizations to cover up the real reason for the discharge of and failure to recall the warehousemen who sought to exercise rights guaranteed by Federal statute. 71 Brown, Holland, Weckler, Kevin Wessling, Keith Wessling, and O'Connor. Even Respondent's vice president and witness, Sterling, then in charge of the Northbrook warehouse, acknowledged that in June 11975), following the discharges here, overtime work was necessary in the quantity of the work required to be done in the Northbrook warehouse subsequent to as well as preceding the termina- tion of the warehousemen here. The total circumstances presented leave me wholly unpersuaded that the termination of Respondent's eight Northbrook warehousemen was for "economic" reason or any other reason than because of their protected concerted organizational activities immediately preceding their dis- charge as shown. To begin with, there is the compelling "coincidence" of their termination upon the heels of the inception of their union organizational activity. Added to this are the various other factors comprising a chain or totality of circumstances irresistibly pointing to the conclusion that their discharge was because they were attempting to organize themselves to assert their statutory right under the Act to bargain collectively with their employer. These other factors include, as shown, the fact that (I) there was no prior suggestion that they might be discharged; (2) their work was considered satisfactory enough until their organizational activities became known to their employer; (3) the employer does not claim they were discharged for work-related reasons; (4) the circum- stances, as shown, under which the green college students were hastily enlisted into the warehouse by Company Vice President Fript's son Barry just before the experienced warehousemen who were signing union cards were fired - including the backdating of their employment applications and the exaction of the commitment that they would vote against the Union; (5) there was no diminution in the quantity of work to be done in the warehouse but, on the contrary, an increase, and even necessity for overtime work after the warehousemen were discharged; (6) the comple- ment in the warehouse has again risen to the same number as before the warehousemen were discharged; (7) the discharged warehousemen have not been recalled to work, but in their place others hired, even after the return to school of the college students; (8) Respondent procured or attempted to procure jobs for some of the discharged warehousemen but only elsewhere than in the warehouse bargaining unit here; (9) Respondent's precipitate dis- charge of the college students who signed union cards; and (10) Respondent's previously established and continuing union animus (previous proceeding, supra, and as shown infra). Moreover, (11) Respondent's alleged "economic warehouse. Furthermore, Respondent President James Mills also acknowl- edged that he had to meet with the warehousemen on May 30 - on the heels of the discharges of the warehousemen here - to reassure or placate them after his receipt of their May 27 letter (G.C. Exh. 30A) in part complaining about the necessity for "overtime work" following the warehousemen's terminations here in question. The occasion for this meeting, according to Mills' own testimony, was in order to handle shipments because Mills had been informed by Vice President Sterling that the remianing warehousemen were unwilling to work overtime. Mills - further according to his testimony - informed the warehousemen (on May 30) that their refusal to work overtime "hurt the company, hurt our customers, and hurt themselves." This was within a week of the described warehousemen's terminations. There is no reason why this necessary overtime could not have been performed by the terminated warehousemen (and presumably even at lower cost by the terminated warehousemen) if they had been there, rather than on overtime by those who were left. I wholly reject Mills' labored "explanation" that the work done on overtime could not have been done by the terrmnated warehousemen (who had been terminated less thana week previously), that "explanation" as eked out on the witness stand impressing me as a convoluted "rationale" concocted during the process of testifying. 642 MEDLINE INDUSTRIES, INC. necessity" defense is utterly unpersuasive, for reasons which have been shown, including (a) Respondent's failure, prior to the discharged employees' organizational activities, to indicate it was contemplating any retrenchment among its warehousemen, but to the contrary evidencing other- wise; (b) Respondent's April 29 "best year" celebration banquet and dispensing of lavish bonuses; and (c) its financial reports, to the extent here made available, which do not support its contentions of "economic necessity" as the true reason for its summary termination of, and failure to reinstate into the bargaining unit, the particular warehousemen here involved at the particular time and under the particular circumstances here shown. The circumstances attendant upon the discharges in question have been set forth in detail because they are central to the entire case and to a rational approach of the important issue of remedy, and therefore to throw the bright glare of sunlight upon what actually took place, which frequently supplies the best clue to why it took place. An employer's - like any person's - own assertions are an uncertain litmus of his true motivations. The iron logic of the facts overcomes Respondent's contentions. The demarche of the actual events demonstrates the real reason for Respondent's termination of its warehousemen here when and how it did, and easily refutes Respondent's post facto, self-propelled assertions to the contrary. In short, it was only after the warehousemen sought to exercise their right to bargain collectively, guaranteed to them by Congress under the Act, that the necessity arose in Respondent's mind to terminate their employment be- cause, as it admits, it is opposed to unions and collective bargaining.72 Under all of the circumstances, their termina- tion was in violation of the Act, and Respondent's "explanations" here simply "fail to stand under scrutiny." N.LR.B. v. Dant, 207 F.2d 165, 167 (C.A. 9, 1953). It is accordingly found that Respondent's termination of the employment of its eight warehousemen here on May 23 and 27, 1975, was, as alleged in the complaint, because of their protected concerted activities, and was therefore in violation of Section 8(aX3) and (1) of the Act. 3. May 28-June 10: Mills writes to the terminated warehousemen as well as to those who remain; Jamison is reinstated to a nonbargaining unit job; more interrogation and renewed proscriptions against union talk a. May 28: Mills writes to the terminated warehousemen On May 28, Company President Mills wrote a letter to the terminated warehousemen. The letter (G.C. Exh. 4) expresses the Company's displeasure and unhappiness "about our situation" and "having to get rid of employees because of lack of business to support them." In no way 72 This in no way suggests that Respondent does not have the right to its beliefs. But those beliefs cannot be implemented, as here, by violating the Act through trampling on its employees' statutory rights. 73 Mills also again seemingly tries to obfuscate the issue by talking about salesmen and sales trainees - a totally different group, as shown above (supra, fns. 21 and 68). 74 No explanation is given for this transparent canard. 75 Nor for this one, particularly in view of the substantial raises does it suggest any company dissatisfaction with the work of the terminated employees - indeed, it offers to recommend them to employment elsewhere, or even to use them in its own organization - but somewhere other than in the bargaining unit - as salesmen, in States other than Illinois. And it is totally silent on the subject of its hiring of the new college students as warehousemen coincident with the discharge of the regular warehousemen, if indeed there was a "lack of business to support them" (G.C. Exh. 4); as well as totally silent on why the newly hired college student warehousemen could not have been terminated rather than the regular warehousemen. 73 b. May 29: Mills writes to the retained warehousemen On the following day, May 29, warehouseman Bradford Brown - who, it will be recalled, authored the remaining warehousemen's May 27 signed protest to Mills concerning the May 23 terminations of six warehousemen and met with Mills in his office on that subject on May 27 just before two more warehousemen were terminated - received a letter, dated May 28, from Mills, in answer to the warehousemen's May 27 protest letter (G.C. Exh. 30A). Mills' letter (undated, G.C. Exh. 31), starting out with "There was a note written by someone and signed by a number of people working in the warehouse about their concern for the wellbeing of the people who were terminated on May 23rd," goes on to state that "the people who wrote that note" were not "aware of all the facts or our feelings as to the people we were forced to let go," for which reason Mills attaches a copy of his individual note of May 28 to each such dischargee (G.C. Exh. 4, supra). Mills goes on to say, "I can assure you that terminating those people was the hardest thing we have ever had to do and was done only after a great deal of time and searching was spent to try and find some alternative to letting the people go. The truth is that unless we let the people go we not only would have had to pass up the increased wages that we paid,74 but we would also have had to make changes in our operation that would some way get us the lower costs that we need to operate 75 ... .[U]p until May 23rd we had never let anyone go for lack of work. We did so only with the greatest reluctance. The people who were not terminat- ed were the people who had been with the Company for a longer period of time than those people we were forced to let go. To terminate the long standing employees is not something that we felt that we had an option of doing ... No one has more concern about the wellbeing of everyone who works for Medline than I do." Once again, the letter 76 fails to indicate 77 why the temporary college students, who were hastily hired as warehousemen when the regular Respondent gave to the newly hired, green college students on the heels of its discharge of the experienced warehousemen. 6s Under all of the circumstances, I am compelled to regard this letter to Brown. as well as the previous day's letter to the terminatees, as having been written with tongue in cheek. Shortly thereafter, Brown quit his job with Respondent, on 2 weeks' notice after the June 23 Board election. I7 Unless through the reiterated obfuscation concerning salesmen and sales trainees. See supra, fns. 21, 68, and 73. 643 DECISIONS OF NATIONAL LABOR RELATIONS BOARD warehousemen began to organize, could not have been laid off if indeed any economic layoff was necessary.78 Also on May 29, Jamison visited the warehouse area to advise his former colleagues on "how they could continue on to protect themselves." While he was thus outside on the curb, talking to the employees during their lunchtime, Vice President Sterling approached and asked him if he could do anything for him. Jamison said no. Sterling then asked him to "stay off of Medline's property." When Jamison said he was not on it, Sterling replied, "Just make sure you stay that way." On the next day, May 30 (Friday), Respondent called a meeting of its warehousemen, at which Company President Mills addressed them, explaining to them the necessity for the warehousemen to put in overtime work, adding that the Company was "within [its] legal rights" in insisting on it and that the warehousemen could be fired for not doing so. (Remaining warehousemen had been declining to work overtime after the described termination of the other warehousemen and had even on May 27 written a letter - G.C. Exh. 30A - to Mills on that subject. The newly hired students had worked overtime that week.) Warehouseman Brown had expressed the view that the warehousemen should not have been terminated if overtime was required, and also that the newly hired college students should not be there. Mills, however, insisted on the Company's right to require overtime. Following the meeting, Brown, for example, who had been refusing to work overtime, assented to work overtime on Sterling's demand, telling him, "I guess I don't have any choice, do I?" c. Election preparations; some of the terminated warehousemen are promised or placed in jobs other than in the bargaining unit On June 6, the parties executed and the Regional Director approved a Stipulation for Certification Upon Consent Election to be held in the Northbrook warehouse on June 23. Immediately after this stipulation was entered into, attorneys for the Employer/Respondent and the Union, in the presence of Company President James Mills and his wife, as well as a Board agent, and warehousemen Jamison, Kline, and possibly others, opened a discussion - initiated by Company Counsel Fox - regarding settlement of the unfair labor practice charges, particularly the discharges of the warehousemen. According to Mills, company counsel inquired, "If we get you [Jamison] a job . . . satisfactory to [you], would [you] then be willing to drop [your] charges?"79 Since, among other things, there were disputed issues concerning who would be permitted to vote in the election,8 0 the matter of settling the unfair labor 78 As has been shown, Mills himself conceded at the hearing that the warehouse complement -- without reinstatement of the terminated warehousemen - has risen back to precisely the same number (19 full time and 4 part time) it was at prior to the terminations and the hire of the college students as warehousemen. 79 At the hearing. Mills testified he was "not certain" whether company counsel indicated such jobs would or might be other than with the Company. However, Company Counsel Fox had earlier testified here that the discussion involved the reinstatement of Jamison to a warehousejob, but that Fox stated there were no openings in the warehouse. Unlike Mills, who testified here that the discussion involved an understanding that there would be a preferential hiring of the terminated warehousemen, Fox indicated no such discussion here. practice charges was left up in the air - with, however, the Company thereafter attempting to place the terminated warehousemen (or at least some of them) somewhere other than in the bargaining unit in which the election was scheduled to be held. On June 16, union counsel wrote company counsel that he was under instructions from the Union not to withdraw "the unfair labor practice charges or any portion thereof' (Resp. Exh. 25). Thereupon, according to Company Counsel Fox, he inquired from Sterling as to the status of the Company's job placement efforts, and was informed by Sterling that Jamison had been reinstated (other than in the bargaining unit), Kline had declined a job with the Company or elsewhere, and that Chorba could not be located.8 ' Subsequently Fox arranged with the Board agent for the lawful withdrawal, on June 17 (G.C. Exh. 7, approved by Regional Director on June 19), of Jamison's unfair labor practices charge.8 2 We revert to and pick up the chronological thread again at June 6 (Friday), when the parties entered into the Stipulation for Certification Upon Consent Election and Respondent's counsel made his settlement overtures. Terminated warehouseman Jamison, the sparkplug of the unionizing activities at the Northbrook warehouse, left this meeting with the expectation that he would be hearing from Respondent or its counsel about reinstatement. On Monday, June 9, he did, when Respondent's president's aide, Chris Kriese, telephoned him that "We might possibly have a job offer for you." Jamison at once went to the plant, where he was ushered into the office of President Mills, who said he thought Jamison was "a good leader because of what [you] had done out back with [the] other employees," and offered him a choice of four jobs - none in the bargaining unit - including a warehouse-handling operation in Baltimore, Maryland, in which Jamison expressed interest and which, as then described to him as a responsible and challenging job with good future pros- pects,83 he accepted, while indicating that he could not report there until July 23 because his mother was ill and his father was away. Mills assented, stating there was a 4-6 week training period, anyway, but warned that the Company would regard Jamison as "a thief' if he did not go through with the move. Jamison accepted, on June 10 signing a written agreement (Resp. Exh. 5) denominating him a "Key Employee" with "knowledge ... of great value to Medline," to serve "indefinitely" but terminable on 30 days' notice, as "warehouse distribution manage- ment/customer service specialist," at an unspecified loca- tion or locations, with "duties as are assigned from time to time," at an annual salary of $9,000, with broad restrictive covenants stipulated to be enforceable by injunction as 80 It is noted, for example, that the Employer's Excelsior list of alleged voting eligibles (Bd. Exh. I(c)) excludes terminated warehousemen Jamison, Kline, Holland, and Weckler (as well as Virginia Lowman. discussed infra, "Remedy"). 81 The Company's job placement efforts of these terminated warehouse- men, as well as Fair, outside of the bargaining unit, are described below. "2 I.e., Jamison's charge dated May 23, 1975, in Board Case 13-CA- 14343 (G.C. Exh. 5), involving his, as well as other warehousemen's. termination. This, of course, as of that date, left intact the Union's charge in Case 13-CA-14386 which had meanwhile been filed on June 11. 1975 (G.C. Exh. I(a)). and which included Jamison's termination, among others. 83 According to Mills, this was a job "handling" the Company's Baltimore "problem" public warehouse, "setting up a program" there. 644 MEDLINE INDUSTRIES, INC. well as specific performance "surviv[ing] the termination of this Employment Agreement." On the same day (June 10) Jamison executed this agreement, he was called into the office of Mills, who asked him whether he did not think it fair not to use his job to file charges against the Company before the NLRB, and that Mills wanted to be sure Jamison would not use the new job to "screw" Mills or to charge Mills with some form of "bribery." Jamison assured him that was not his intention. Later that day (June 10), Jamison was called into the office of Vice President Sterling, who told Jamison that "There are bad sides to unions and they are not all good, and ... [you] should get the other side of the story...." Sterling thereupon displayed to Jamison a folder of news clippings, including one from the Chicago Sun-Times of June 1, 1975 (G.C. Exh. 6 and Resp. Exh. 22), captioned "Why Altman Camera's Shutting Down," with various portions marked off or underlined, including: On June 14, Altman Camera Co., the biggest camera store in the world, will close. Business has never been better. In fact, the store's owner, Ralph Altfan [sic], said sales are 22 per cent higher than last year's. Then why is the place being shut down, throwing more than 100 employees out of work? The answer seems to be that Altman is closing the business rather than allow the employees to join a union. But in announcing the decision on May 16, 2-1/2 months after a federal court ruling ordering him to bargain with the union, Altman said, "Over the years it has become an extremely difficult business to run as I feel it must be run. And now we are asked to work with new rules, new restrictions, and take on additional burdens." * * Surprisingly, few of the employees who were ques- tioned disagree with Altman's decision to close the store. A senior employee said, "I don't understand how a union can put 107 employes out of work. They're supposed to be trying to help people. And I don't blame Ralph for closing the store." * * The U.S. Court of Appeals ruled that the NLRB acted properly in ordering Altman to bargain with the union without a representational election. The NLRB found that the company had so flagrantly coerced the 84 Local 743, as herein, which the quoted article states has "30,000 members. .. the biggest Teamsters local in the country." 85 On comparative demeanor observations I prefer and accept Jamison's version of his questioning and exchanges with Sterling, as recounted above, in preference to Sterling's implausible account that it was Jamison who initiated "all" of these discussions with him: that Jamison boasted of the "very good job" he had done in organizing the warehousemen on the basis in part of information that was "not totally correct" but that he could not rectify matters since he was "a turncoat" and had lost credibility with them; employees against the union that a fair election could not be held. * J The original five Altman employees who went to the Teamsters8 4 because it is a tough union. .... But they could not have foreseen that their efforts to better their lot would end in the store closing four years later. Sterling said to Jamison, "See what the union can do? ... the place got shut down, throwing more than a hundred employees out of work .... once you get it in, there is no way you can get it out . . . . companies ... can do a lot more for their employees than any union can . . . [Don't you] agree?" Jamison finally responded that he agreed and could now see the other side of the matter. Later that day, Sterling asked Jamison "what the company's chances [are I in the coming NLRB election" and that he thought "the company would do fairly well." Jamison disagreed and said the Union would win. Sterling rejoined, "Well, we have got five college students, don't we?" When Jamison indicated doubt as well as the possibility that they would not vote, Sterling inquired, "Well, Ed Witt is definitely on our side, isn't he?" Jamison replied that Witt, as well as others, was "on the fence" and "could be swayed either way." Sterling also asked Jamison where warehousemen Franke and Edmunds stood. During the course of that week, Sterling continued to question Jamison, in Sterling's office, on the subject of where various warehousemen stood and "who was on the fence." In one such conversation, on the morning of June 12, Sterling asked Jamison about McKinley Edmunds and how he would vote. When Jamison indicated he did not believe he would vote for the Company, Sterling remarked that he could not "see how any of the black people cannot vote for the company because it was obvious that the company was much more concerned about them as people than the union would be." In another of these conversations, Sterling asked Jamison "what method [you ] would use for getting rid of the union" and what suggestions Jamison had for "preventing the Union from getting in." Jamison expressed the view that the Company should enter into a satisfactory agreement with the Union, and that the employees did not trust Company President James Mills or his brother, Vice President John Mills. Sterling also inquired of Jamison what techniques and methods he had used to get employees to associate with the Union.8 5 The complaint alleges that Respondent through its supervisor and agent Sterling coercively interrogated an employee concerning his and other employees' union and protected concerted activities. Upon the foregoing de- scribed facts, I find that these allegations have been established by substantial credible evidence upon the that he had succeeded in organizing the men by concentrating on each employee's "weakness"; that he knew he could get the Union out if it won the election; and various pseudo-psychoanalytic ruminations concerning individual "weaknesses" of particular employees and how he had exploited these to serve his own purposes in getting union cards signed. All circumstances considered, it is difficult for me to picture Jamison's using Sterling as a father-confessor in this way. Sterling also testified that Jamison indicated to him that if the Board election were held at that time the "union would win by a large majority." 645 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record as a whole, through Jamison's credited account of his interrogations by Sterling on or about June 10, 1975, in violation of Section 8(a)( I) of the Act. On the same day Jamison was called to come in about a new and different job - Monday, June 9 - most of the remaining warehousemen were having lunch on or near the warehouse loading dock, and discussing union organiza- tional matters. Present during this lunchtime discussion was Daniel LaBotz (Lebotz), an outside truckdriver (not in Respondent's employ) who made pickups and deliveries there almost every day and who frequently lunched with the warehousemen. LaBotz, a member of another union, explained how unions work and their supposed advantages. Barry Fript was also there and spoke up against the Union. The next day, June 10, Vice President Sterling approached Warehouseman Brown and asked him if he was "responsi- ble" for the discussion and the presence of truckdriver LaBotz. Although Brown was not, he nevertheless at first said yes. Sterling thereupon announced that "You cannot have those meetings for the union on company property," that Brown was "liable" for the presence of the truckdriver, that it was "contrary to company rules," and that "this [is] a very serious matter." At this juncture, Brown explained that he was unaware of any such company "rule" and that he had had nothing to do with the presence there of the truckdriver, who made deliveries there every day. Sterling, however, continued to insist that Brown was responsible for this "very serious matter." At no time previously, to Brown's knowledge, had the Company indicated that employees were not at liberty to talk with each other, or with a visitor who happened to be there, during their lunchtime, on any subject; nor had LaBotz ever been so told - to the contrary, on previous occasions he had been invited well within the warehouse area itself by Warehouse Foreman or Shipping Supervisor Summers to have coffee or a soft drink; 86 nor was there any posted sign to that effect. A week after the described incident, however, when as usual LaBotz went to pick up bills of lading from a receptacle inside the warehouse door or on Summers' desk, he was without explanation directed by Warehouse Manager Schempf to "Stay by your truck from now on ... right there" (outside of the warehouse). It was common practice for other drivers as well as LaBotz to go inside the warehouse to pick up not only shipping documents but also merchandise, since LaBotz assisted with the loading and cannot enter the van from his cab; and LaBotz observed that drivers other than he were permitted to continue to do this even after Schempf had directed him not to do so. This created problems for LaBotz, delaying him in his scheduled work while attempting indirectly to round up Summers for the purpose of getting his required bills of lading. 8 7 Commenting on the foregoing episode, Sterling insisted that it was not the prounion remarks of the truckdriver that he objected to but his mere presence on the premises having lunch with the warehousemen. I find this hard to believe. Without going into the question of Respondent's prerogative to exclude anybody from its premises, even a truckdriver there on legitimate and necessary business, no necessity has been established for Sterling's assertion of his s6 Undisputed by Summers, who was not called to testify. broad edict against lunchtime conversation among the warehousemen, even though on its premises. Furthermore, the edict in its application to LaBotz appears to have been disparately leveled against him (and the warehousemen) because it was unionization they were talking about. For reasons already referred to in connection with Sterling's similarly overbroad proscription to Jamison on May 20 (supra, III,B,I), I find, as alleged in paragraph IX(i) of the complaint, that Sterling's June 10 proscription of discus- sion and solicitation on its premises during nonworking time was likewise in violation of Section 8(aXl) of the Act. 4. June 11-18: Filing of union charges against Respondent; Respondent induces Jamison to withdraw his charges; Respondent's placement or attempted placement of terminated warehousemen, other than Jamison, in nonbargaining unit jobs or with other employers On June I the Union filed its charges against Respon- dent herein (Case 13-CA-14386) including that relating to the May 23 termination of Jamison as well as the other warehousemen in the bargaining unit. Sterling's questioning of and discussions with Jamison on June 10-12 concerning the union activities and the union sentiments of various warehousemen has already been described. On June 16 the Union filed amendments to its June 11 charges, at the same time through its counsel notifying Respondent's counsel that the charges would not be withdrawn (Resp. Exh. 25). a. June 17: Respondent induces Jamison to withdraw his unfair labor practices charge against Respondent Credited testimony of Jamison establishes that on the next day, June 17, Sterling called Jamison into his office and (after twice previously having asked or instructed him to inquire of union counsel regarding the "status" or withdrawal of Jamison's charge at the Labor Board) Sterling leveled the admonition at him, "[Don't you] think it [is] fair that [you] should withdraw [your] charge since Medline ha[s] been so nice to [you]?. . . Well, don't you think you should withdraw your charge? Can you do that?" Jamison countered that it would have no effect on the charges, but that he could accede to Sterling's request by writing a letter to the Board. Thereupon, Sterling said "Well, we can write the letter now" (emphasis supplied) and Sterling called his secretary in and dictated to her a letter for Jamison to sign, withdrawing the unfair labor practices charge which Jamison had filed on March 23 in Board Case 13-CA-14343 (G.C. Exh. 17, June 17). Sterling then telephoned company counsel that he (Sterling) had succeeded in getting Jamison to withdraw his charge. Sterling's version of the foregoing does not differ in material essence. According to Sterling, on June 17, as a result of an inquiry from company counsel as to whether Jamison had "dropped his charges" against the Company as he had agreed to do if he was rehired, he (Sterling) called R8 Credited testimony of General Counsel witnesses Brown and LaBotz. 646 MEDLINE INDUSTRIES, INC. Jamison to his office and asked him about it, to which Jamison responded that he had instructed union counsel to do so.88 According to Sterling, when he so informed company counsel, the latter advised him that the charge had not been withdrawn and that all that Jamison needed do was to write the NLRB to that effect, so Sterling's secretary typed up such a letter for Jamison's signature and mailing by Sterling's secretary. From these facts, there is no reason to believe that Jamison would have withdrawn his May 23 unfair labor practice charge against Respondent except for the de- scribed interposition of Respondent. In no way did Respondent indicate to Jamison that he need not drop the charges - quite the contrary, it was Respondent who importuned and "shamed" him into doing so. It is thus clear that on June 17 Respondent did indeed, through Vice President Noel S. Sterling, procure and induce Jamison to withdraw the unfair labor practices charge he had filed with the Board against Respondent on May 23, 1975, as alleged in paragraph IX(f) of the complaint, in violation of Section 8(a)( ) of the Act, and I so find. On or about the same day (June 17 or 18), in his office, Sterling urged Jamison to be sure to vote in the upcoming Board election, since he had as much right to vote as other terminated warehousemen, even though Jamison indicated his voting status would be challenged. Going further, Sterling questioned Jamison as to whether he had supplied or intended to supply an affidavit to the Board. When Jamison made no reply, Sterling told him, "I don't think you should cooperate with the Labor Board, force them to subpena you." Sterling also told him that warehouseman Kline was "involved in the charges" and asked Jamison whether he could "influence Doug [Kline] to withdraw his charge." Jamison replied that that was up to Kline to do. Although Sterling denied the foregoing episode, at least in part, on comparative demeanor observations within the frame of reference of the entire situation and the record as a whole, I do not believe that Jamison fabricated this episode and I credit his account that it took place. I accordingly find that, insofar as it pertained to Jamison's voting intentions and status and questioning Jamison as to whether he could persuade warehouseman Kline to withdraw "his" unfair labor practice charges, the incident constitutes yet another instance of coercive and restraining questioning and conduct toward an employee in violation of Section 8(a)(1) of the Act, substantially as alleged in paragraph IX(e) of the complaint. b. Respondent reinstates or attempts to place terminated warehousemen, other than Jamison, in jobs outside the bargaining unit The circumstances under which Respondent reinstated Jamison to a position in its employ outside of the 8 I prefer and accept Jamison's version as to this, since it is clear that Jamison had himself filed a charge, that union counsel at no time acted as Jamison's private counsel, and union counsel could not at Jamison's direction withdraw the Union's charge in the matter. 89 According to Mills, Chorba told him he preferred that. However, there is no indication or claim that Chorba was ever offered reinstatement to his formerjob. Nor have any details been furnished as to the otherjob allegedly obtained for Chorba, who did not testify. bargaining unit will of course be recalled. How did the other terminated warehousemen fare? Respondent has at no time reinstated or rehired into the bargaining unit any of the warehousemen it terminated here. However, Respondent did rehire two of the terminat- ed warehousemen, in addition to Jamison, into nonbargain- ing unit jobs (outside the warehouse), and also placed or attempted to place - or so it says - into jobs elsewhere (i.e., with another employer) some of the other terminated warehousemen. Thus, terminated warehouseman Gregory Fair - who, testifying as Respondent's witness in this case, attempted to throw doubt on the validity of the union card he signed - was interviewed, at the suggestion of Company President Mills, on the very next day after he was terminated, and offered the possibility of a job in Texas. About 2 weeks later, shortly before the election, Fair was put to work in Northbrook temporarily as a kitmaker and, also after a brief stint in place of warehouse- man Brown when the latter resigned, Fair was located in a nonbargaining unit office job in Respondent's customer service department at $175 per week, and subsequently made an office "Order Editor," where he remains. According to Fair's testimony, shortly prior to the election Vice President Sterling discussed the subject of unions with him and, after he admitted to Sterling that he had signed a union card, Sterling talked to him about his future and "where 1 could go in the company if I worked hard." Fair, who according to his testimony "never talked to Mr. Sterling about unions until after I was rehired," was subsequently placed into the $175-per-week office job. Terminated warehouseman Holland was also apparently rehired into a nonbargaining unit job at a different location in Northbrook, Illinois, doing work of a different nature than he had been doing at the Northbrook main ware- house. As for terminated warehouseman John Chorba, it is President Mills' testimony that "sometime in the early part of June" he obtained a job for Chorba away from the Company.89 It is noted that, of the eight terminated warehousemen here, Chorba is the only one who did not sign a union card. (His name also does not appear in any way on the Employer's Excelsior list, even though Respon- dent has stipulated (G.C. Exh. 2) he was in the bargaining unit on May 19, 1975.) It is further noted that Fair was the only one of the terminated warehousemen who testified as a witness on Respondent's behalf; as has been shown, Fair was rehired shortly after his discharge and remains in Respondent's employ in a nonbargaining unit job. Terminated warehouseman Douglas J. Kline was offered the prospect of various other jobs, by Mills, in June, including such seemingly esoteric possibilities as fur- skinning and ski slope cleaning as a "ski bum" in New Mexico.90 Kline pointed out to Mills that, with the 90 The possibility of an opening in kitmaking, not the kind of work Kline had been doing, with Respondent was also mentioned, but Kline expressed no interest in it - it paid only $2 per hour, in contrast to the $4 per hour to which the remaining warehousemen had been raised following the discharge of Kline and his associates and in any event no such firm offer was made and nothing came of it. 647 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exception of a possible job with Metropolitan Wire Company in Northbrook,91 he had no way of getting to any of the suggested possible jobs, and also asked Mills for assurance that he would receive the same rate of pay and would not be laid off soon in the event he was hired by Metropolitan Wire Company. Mills said he would give him that assurance but stressed that as soon as he obtained the job he was to call union counsel in the instant proceeding and instruct him to drop "his" charges here against the Company. (Up to this time, Kline was unaware he had been included in those charges.) When Kline communicat- ed with the person at Metropolitan Wire Company to whom Mills had referred him, however, Kline was told he would be paid only $3 per hour, in contrast to the $4 per hour to which Respondent's nonterminated warehousemen had been raised. When Kline communicated this to Mills' aide Kriese the next day, Kriese informed him that he had spoken to the wrong person and could start at Metropoli- tan the following day at $4 per hour. Later that day, Kline received a message from Metropolitan that there was no job for him there. Notwithstanding Respondent's failure to reinstate its terminated warehousemen to their jobs in the bargaining unit, as has already been pointed out in another connec- tion, overtime work was being required of the remaining warehousemen including the newly hired college students, all of whom received substantial pay raises; and additional warehousemen were hired until Respondent's warehouse complement reached precisely the same level as when the terminated warehousemen had been working there. 5. June 19: Threat of plant closure if Union is elected The complaint further alleges that on or about June 19 - four days before the Board-conducted election - Respondent through its supervisor and agent, Vice Presi- dent (also then in charge of the Northbrook warehouse) Sterling, faced its warehousemen with the threat of a shutdown if they selected the Union as their bargaining representative. If this is true, it would, of course, have amounted to a dire economic threat that the warehouse- men faced the prospect of losing their jobs if they persisted in attempting to exercise their right to bargain collectively - perhaps the most fundamental right guaranteed to them by the Act. Credited testimony 92 establishes that, during worktime on the Thursday before the Monday, June 23, Board election, Respondent Vice President Sterling personally distributed to warehouse employees a letter on Respon- dent's letterhead, dated that day, from himself to them. The letter (G.C. Exh. 32) states: With the secret ballot election just a few days away, we want to discuss an unpleasant, but very important subject - STRIKES. It's no secret that where there are labor unions there may be strikes. This is not to say that we would automatically have one here at Medline. 91 Metropolitan Wire Company is about a mile and a half from Kline's home. Respondent's Northbrotxk warehouse is just a few blocks from Kline's home. How do strikes happen? Too often, when a union demands something that a Company cannot or will not agree to, emotions get out of control and the next thing you know there is a picket line-a STRIKE. If a strike continues for several weeks, would it mean little or no strike benefits? Or special assessments? Ask the organizer that is trying to sell you on buying his product. Also ask him if you as a union member can ever be charged with special assessments to help support a strike of another company when at the same time you are not on strike. Who really wins a strike? The employees? NO. They lose wages and benefits that may never be recovered and, the law specifically states the "employees can permanently be replaced during an economic strike." The Union? NO. It can lose confidence of its member- ship and also do further damage while the organizers still get their paychecks. Another important subject is the fact that many companies have gone out of business after being organized by a union and being faced with unreason- able demands. In no way are we saying that this could happen at Medline but we just want you to know that this has happened and is currently happening as evidenced by the following information from the June 1, 1975 issue of the Chicago Sun Times: "On June 14, Altman Camera Co., the biggest camera store in the world, will close. Business never has been better. In fact the store's owner, Ralph Altman, said sales are 22 per cent higher than last year's. "Then why is the place being shut down, throwing more than 100 employees out of work? "The answer seems to be that Altman is closing the business rather than allow the employees to join a union. "But in announcing the decision on May 16, 2-1/2 months after a federal court ruling ordering him to bargain with the union, Altman said, 'Over the years it has become an extremely difficult business to run as I feel it must be run.' And now we are asked to work with new rules, new restrictions, and take on additional burdens. I don't even know what happened. Things just grew every time they went from one court to another. It was like Othello, where they drop the handkerchief. You know, we're not dealing with kids-we're dealing with some pretty tough people. "The 'tough people' he referred to is the union, officially the Warehouse and Mail Order Employees Union, Local 743, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. "In interviews with dozens of Altman employees, not one could be found who now publicly supports the union, even among members of the negotiating team that was bargaining with Altman. "Surprisingly, few of the employees who were questioned disagree with Altman's decision to close the 92 General Counsel witnesses Brown and Kevin and Keith Wessling, and Respondent's witness Sterling. 648 MEDLINE INDUSTRIES, INC. store. A senior employee said, 'I don't understand how a union can put 107 employees out of work. They're supposed to be trying to help people. And I don't blame Ralph for closing the store.' "Another employee said, 'We did everything we could to keep the union from getting in-we went to legal aid, the Americal Civil Liberties Union, we petitioned the NLRB- nobody would touch it with a 10-foot pole.' "That statement was made by a member of the union negotiating committee, which went through the mo- tions of bargaining after the union won its last appeal on Feb. 26. "The original five Altman employees who went to the Teamsters because it is a tough union got a tough union. But they could not have foreseen that their efforts to better their lot would end in the store closing four years later." Why does the Union continue to conceal important facts from you? What are they afraid of losing? We don't want to alarm you with the subject of strikes or plant closures-we only want to alert you. You have the right to know these facts before you vote. We hope you choose to vote for NO strikes. The best way to be sure of no strikes is to vote "NO" on election day. Sincerely, /s/ Noel Noel Sterling At no time had there been any intimation here about a strike following recognition. It is further noted that the Sterling letter quotes only excerpts culled from the newspaper clipping concerning the Altman Camera store shutdown (Resp. Exh. 22). For example, Sterling's letter to the warehousemen omits the following sentences (among others) from its quotation of the newspaper article: Employees of the store maintain that Altman and his supervisors have said repeatedly over the years that he would close the store rather than submit to unioniza- tion, and the National Labor Relations Board upheld allegations that the supervisors made this type of statement. When he was approached by a reporter for an interview, Altman said: "I'm afraid to say anything. It was things that were said that got us into this trouble. Not even things I said, but things my manager said - one of them here only three weeks." It is further observed that Sterling did not, however, expurgate the news references to Local 743 - the Charging Party here - as, among other things, "pretty tough people," while at the same time he did see fit to expurgate the news reference to that Union's "tough fight for nearly 93 It is here needless to say that no such question or choice for employees is presented on the Board's ballots. Whether it is needless to explain this to laboring warehousemen. or desirable to refrain from thus at least potentially misleading them, is quite another matter. In any) event, why put it this way to them? Board elections are not strike votes. four years on a sophisticated level against a top law firm that specializes in representing management in labor disputes" - a "fight" which, according to the news article, that Union won in the United States court of appeals as well as before the Board. References to the decisions of the Board and court of appeals and their rationales were likewise expurgated from Sterling's quotations from the news article, as apparently unworthy of the employees' consideration. After presenting the employees with this highly expurgated version of the news article, Sterling's letter (G.C. Exh. 32) concludes: Why does the Union continue to conceal important facts from you? What are they afraid of losing? We don't want to alarm you with the subject of strikes or plant closures - we only want to alert you. You have the right to know these facts before you vote. We hope you choose to vote for NO strikes.93 The best way to be sure of no strikes is to vote "NO" on election day. All circumstances considered, within the full frame of reference of this case, including the fact that Respondent has already been ordered in a previous case (also involving Vice President Sterling) to cease and desist from this kind of activity (218 NLRB 1404 (1975), supra), I am persuaded that Sterling's distribution of this letter, with its expurga- tion of the news article dealing with the shutdown of the Altman Camera store, was intended to serve as a warning to the warehousemen that they faced a like prospect and the loss of their jobs if they persisted in attempting to exercise their statutory right to bargain collectively. To be sure, Respondent's words were in a sense carefully sanitized so as to "walk between eggs" in an attempt to walk as closely as possible to the line separating the "freedom of expression" and "theoretical prediction" cases familiar to practitioners of labor law, from the statutory proviso (Sec. 8(c), final proviso) and "threats" cases. But communicative "brinkmanship" 94 such as this has its hazards. It also cannot be assessed in an evaluative proceeding such as this with "blinders" or gun-barrel vision blacking out a broad sweeping view of the peripheral spectrum of surrounding circumstances. As Judge Learned Hand had occasion to point out insightfully in N.LRB. v. The Federbush Co., Inc., 121 F.2d 954, 957 (C.A. 2, 1941): Words are not pebbles in alien juxtaposition, . . . all in their aggregate take their purport from the setting in which they are used, of which the relation between the speaker and the hearer is perhaps the most important part .... Language may serve to enlighten a hearer, though it also betrays the speaker's feelings and desires; but the light it sheds will be in some degree clouded, if the hearer is in his power.... What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart. 94 Quoted in N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 at 620 (1969). from Wausau Steel Corporation v. N.LR.B., 377 F.2d 369, 372 (C.A. 7. 1967). 649 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As the Board again cautioned in Components, Inc., 197 NLRB 163, 163-164(1972): . . . [T]he Supreme Court in Gissel Packing Co. v. N.L.R.B., 395 U.S. 575, 6164-19 (1969), articulated rigorous standards to which an employer's statements, when they constitute predictions of the effect unioniza- tion will have on the employees, must conform in order not to be found threatening.... If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on misrepresentation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that "conveyance of the employer's belief, even though sincere, that unionization will or may result in the closing of the plant is not a statement of fact unless, which is most improbable, the eventuality of closing is capable ofproof:" [Emphasis supplied.] "IT]he Board has often found that employees, who are particularly sensitive to rumors of plant closings, take such hints as coercive threats rather than honest forecasts." N.L.R.B. v. Gissel Packing Company, 395 U.S. 575, 619-620 (1969). I reject Respondent's argument that its June 19 letter and its use of the Altman Camera store shutdown in the way that it did, at the time that it did, and under all of the circumstances that it did could not have been coercive since the account had already appeared in the public press. There is no proof that the warehousemen had seen it nor that, even if they had, they in any way linked it to their own job situation, fortunes, or security; nor, of course, was there any indication that their own employer intended to make it an object lesson for them or to apply it to them, until it so indicated as it did here. Viewed in total context, as it must be and is only fair it should be, against the backdrop of aggravated unfair labor practices including the deliberate, summary discharge of about a third of the bargaining unit and its replacement with green novices pledged to vote against the Union in a crudely contrived scheme to thwart the Federal statutory labor election process, Respondent's letter takes on the true coloration which it might in other circumstances lack. That coloration, in the congeries of the total circumstances, bespeaks threat in a strident tone. While it is true that, in calling selective attention to portions of the Altman Camera store shutdown newsclipping, the draftsman of Respondent's letter was careful to include the remark that he was not saying it would happen here, neither did he say it would not happen here. The fact is that Respondent's letter was beamed at warehouse laborers, not labor lawyers - a factor properly to be considered here.95 But if Respondent's preelection letter, and its use of the Altman Camera store newsclipping excerpts, was not intended as an analogy to its own situation and to sway the employees' minds by arousing their strong economic fears, why else 95 N.L. RB. v. Gissel Packing Co.. supra, 617-620 (1969); Henry 1. Siegel Co., Inc. v. N.L.R.B., 417 F.2d 1206, 1208. 1214 (C.A. 6, 1969), cert. denied 398 U.S. 959 (1970): Wigwam Mill/, Inc., 149 NLRB 1601, 1611, 1618 (1964), enfd. 351 F.2d 591 (C.A. 7, 1965). was it mentioned, and in such detail? Particularly against the sleazy background of coercion and restraint (including a previous case somewhat along the same lines) which preceded it, including the backdated employment applica- tions of green college students hastily recruited not merely to dilute the bargaining unit but also to enable Respondent to summarily fire its trained warehouse crew, it is clear that Respondent intended and utilized the Altman Carhera store clipping for the express purpose of serving as an effective, rather than as an ineffective, economic warning and threat to its employees that the price they should be prepared to pay for electing the Union "will or may" (Gissel, supra, 395 U.S. at 619) be the closing down of the warehouse and the loss of their jobs. Why else did Respondent use the news clipping? But Congress in enacting the statute imposed no such price tag upon collective bargaining. On the contrary, it established and guaranteed the unimpeded, uncoerced, and unrestrained exercise of that right to employees as a cornerstone of national labor relations policy. By imposing on its employees the spectre of job loss if they persisted in attempting to bargain collectively, Respondent interfered with, impeded, restrained, and coerced its employees' free exercise of that right. By so doing, under the circumstances of this case, Respondent violated Section 8(a)(1) of the Act, and I so find and conclude. 6. June 20-30: The Board election and its immediate antecedents; challenged ballots and union objections On the Monday (June 23) following Respondent's foregoing Thursday (June 19) letter, with excerpts from the news account of the Altman Camera store shutdown, the Board-conducted union election was held. Also immediately prior to the election, on Friday, June 20, Vice President Sterling summoned Jamison - who, it will be recalled, had after his unlawful discharge of May 23 been reinstated by Respondent on June 9 into a nonbar- gaining unit job with allegedly bright future prospects - into his office and told him he should vote in the upcoming election, indicating that it was important in terms of Sterling's tally that he do so even if his ballot was challenged; and that Respondent would make arrange- ments to transport Jamison from the Company's national sales meeting he was then attending, back to the North- brook warehouse for the purpose of voting there.96 It will be recalled that Barry Fript, son of Respondent Vice President Leonard T. Fript, had recruited the "college students" to work in the warehouse shortly before the union card-signing warehousemen were summarily dis- charged; and that Fript had exacted from the college students, as a condition of their hire, a pledge that they would vote against the Union in the upcoming Board election. In the ensuing period prior to the election, Barry Fript kept up a running campaign in various ways against the Union, including talks with his friend and school roommate O'Connor (so testified by the latter) and the 96 Subsequently, however, Sterling, according to his own testimony, made no arrangements for Jamison to leave the Company's sales meeting he had been assigned to attend. 650 MEDLINE INDUSTRIES, INC. other college students he had enlisted into the warehouse just before the warehousemen were fired. Thus, for example, Fript took occasion to remind at least some of the college students of their prehire "obligation" to vote against the Union; as to this, Fript, testifying as Respon- dent's witness, on cross-examination first claimed to be "not sure" but then conceded that he "may have" questioned the Wessling brothers about how they were going to vote. Keith Wessling was also questioned shortly before the election by Vice President Sterling, who approached him at work and asked him, "What [is this I have] heard about [you] changing [your] mind ... on the voting," to which Wessling did not reply.97 This was followed up later the same day by Warehouse Manager Schempf, who asked him the same thing, adding "[I] thought you were smarter [or, had more sense I than that." Again Wessling did not respond.98 June 23 Board Election A Board-supervised statutory representation election under the Act was held at Respondent's Northbrook warehouse on June 23. At that election, according to the Regional Director's October 31 report (Bd. Exh. l(g)), with approximately 19 eligible voters,99 23 ballots were cast consisting of 11 valid votes (5 for and 6 against the Union) and 12 challenged ballots, sufficient to affect the election results. A retally of ballots following a stipulation of the parties resulted in an amended tally on June 26, showing 16 valid votes (5 for and II against the Union) and 7 challenged ballots,'t0 still sufficient to affect the election results. In view of this, as well as union objections to the election overlapping issues presented (which have already been considered supra) in the instant unfair labor practices proceeding, those election (representation) case issues were consolidated with the unfair labor practices issues, for hearing and determination here. For reasons to be shown (infra, VI), it is unnecessary to determine these challenges. The union objections to the election are discussed infra (ibid). On the heels of the election of June 23, which the Union thus ostensibly - subject to resolution of its objections and challenges - lost, on June 26 Jamison was informed by g9 I credit Wessling's testimony to this effect in preference to Sterling's denial, on comparative testimonial demeanor observations upon the record as a whole. 8s This incident is wholly undisputed by Schempf who, without explanation, was not called to testify. 09 This was the number on the Employer's Excelsior list. Although it included all of the recently hired "college students," it excluded all eight of the terminated warehousemen except Fair. who, as shown above, had been "reinstated" by Respondent into another, nonunit job. 0oo The ballots of Jamison, Holland, Kline, and Weckler were challenged by the Board agent because their names were not included on the Employer's Excelsior list. The ballots of Virginia Fritz, Virginia Lowman, and Susie Summers were challenged by the Union on the ground that they were not members of the stipulated bargaining unit on the eligibility date. 10i In no way was Jamison's testimony to this effect disputed by Parker who, without explanation, was not called by Respondent to testify. The requirement laid on Jamison by Parker appears to differ from Respondent's established policy as testified to by President James Mills, who swore that Respondent paid its employee's full moving expenses, with the employee signing a note to reimburse the Company in case the employee did not remain in its employ for a year after moving. There is no evidence that Parker ever told Jamison this or that such a note was presented to Jamison. 102 Thus, according to Jamison, among other things the job descnption George Parker, Respondent's corporate director and vice president in charge of marketing, that, if he wished to take the Baltimore job which Respondent had prior to this touted for him, Jamison would have to pay his own expenses for the move "to assure that I would stay in Baltimore," although after an unspecified time reimburse- ment would be in order, or that he would be required to post a bond to assure his remaining on the job or reimburse the Company for moving expenses. 10 7. July 16: Jamison files a new charge against Respondent Following Vice President Parker's announcement to Jamison about paying his own way to Baltimore if he wished to have the job Respondent had promised him there, and considering also that the Baltimore job had been considerably downgraded from what it had been touted to him to be prior to the election,' 02 on or about July 16 Jamison decided to forgo what he perceived to be the uncertainties of such a job, which had changed in character from what he had been promised before the election, far from home. Reviewing the entire picture in retrospect, he decided to file another unfair labor practices charge against Respondent (Case 13-CA-14497; G.C. Exh. l(g)), in essence renewing or reasserting his previous charge, which he alleged he had been improperly induced to withdraw, and indicating that Respondent had engaged in further unfair labor practices. That charge has likewise been incorporated into the consolidated complaint here. t03 8. Events subsequent to July 16 Events subsequent to Jamison's July 16 renewal of his charge included still further pay raises in the warehouse; 104 a technical amendment to the complaint, adding paragraph XVII alleging violation of Section 8(aX5) of the Act; the return to school, or leaving the warehouse for other reason or reasons, of some of the recently hired "college student" warehousemen; Respondent's summary discharge of re- cently hired warehousemen Keith and Kevin Wessling; 105 and, as has already been shown, the increase of the Northbrook warehouse complement to precisely the same and duties of that job were "changed by Mr. Mills." Although he had been contractually dubbed a "Key Employee" and "warehouse distribution management/customer service specialist" having "knowledge of Medline's entire operation" such as to be "of great value to Medline" (Resp. Exh. 5), and the Baltimore position had been portrayed to him as an executive-type managerial or supervisory assignment, it was now bluntly put to him - after the election - that instead of that he would himself be required to do all sorts of routine menial warehouse work without any assistance, as a sort of one-man-band warehouseman-in-residence without help of any kind. As also indicated, the requirement of posting a bond was additionally laid on him if he did not pay his own expenses. '03 Although Mills testified that some of his subordinates (who did not testify here) attempted unsuccessfully to get in touch with Jamison to ascertain why he "never came back" to move to Baltimore, there is no other indication that Respondent really did so, and Mills concedes there is no correspondence to (or from) Jamison on this matter, which Mills appears to regard as erratic behavior on Jamison's part. Mills seems oblivious to the contents of Jamison's July 16 refiled unfair labor practices charge as an explanation of why Jamison did not move to Baltimore. '04 E.g., testimony of warehouseman Witt as Respondent's witness that by January 1976 he was being paid $4.70 per hour. ioJ Keith Wessling was summarily fired in November 1975 by Ware- house Manager Schempf, who tersely ordered him to "punch out and get (Continued) 651 DECISIONS OF NATIONAL LABOR RELATIONS BOARD number it had been at prior to the discharge of the warehousemen here. On January 16, 1976, 10 days before this hearing opened, Respondent amended its answer so as to set forth the following defense (G.C. Exh. I(aa)) in addition to the general denial it had previously interposed: Respondent states as an affirmative defense that the Union is and has been engaged in discriminatory practices on the basis of race, sex, religion, national origin and alienage in regard to both employment and membership in violation of public law and policy. As a result of this conduct, the Union is not entitled to the entry of a remedial order requiring Respondent to recognize and bargain with it as sought in the Complaint herein. This amendment provoked a flurry of motions and countermotions, resulting in my essentially pretrial order on the first day of the hearing (ALJ Exh. 1), a copy of which is appended hereto (Appendix A). The result of that order and actions taken by the parties in compliance therewith was that at the conclusion of Respondent's case the affirmative defense was, on motion of the Charging Party without opposition, stricken out, thereby saving what would otherwise presumably have involved much more hearing time. C. Recapitulation We have here then, in brief summary, a situation in which approximately one-third of the warehouse employ- ees of an employer, with a Board history of unfair labor practices, attempts to organize to bargain collectively; Respondent immediately infiltrates the bargaining unit with unnecessary "new hires," consisting of hastily recruit- ed green college students, whose employment applications are backdated and from whom pledges are exacted, as conditions of their employment, to vote against the Union; Respondent in rapid fire order discharges eight of its experienced warehousemen (seven of whom had signed union cards), although their work had been satisfactory and there was no diminution of work to be done in the warehouse; after their termination Respondent required overtime work of the remaining warehousemen including the newly hired college students; and, although some of the college students have returned to school or left its employ and the size of its warehouse complement has risen to exactly the same number as it had been before the terminated warehousemen were discharged, Respondent has not reinstated or recalled into the bargaining unit any of the terminated warehousemen, but has hired others in their place. Also interlarded with the foregoing is a progression of other unfair labor practices including interrogations, unlawful proscriptions of union talk and out of the building." At a later date, Schempf told Keith Wessling - after Wessling had returned to complain to SchempFs superior, McGonigle (McGonigal, McGonical) - that Wessling was discharged for tossing a paper cup at a friend of Wesslirg's, if true a seemingly flimsy basis for discharge. As shown above, Keith Wessling had been under suspicion by Respondent of being a turncoat or of thinking of reneging on his prehire promise to vote against the Union; he had told Barry Fript a number of times that he was considenng changing his mind about voting against the solicitation even during nonworking periods, threat of shutdown in case of unionization, and inducing an employee - who was more or less simultaneously "reinstated" into a nonbargaining unit job - to withdraw unfair labor practices charges he had filed with the Board against Respondent. The intricate network of the circum- stances involved has been delineated carefully not only because of its factual complexity and the abundance of subordinate issues raised, but also because of the gravity of the offenses charged and the necessity for informed appreciation of the true flavor of the situation in relation to the important issue of remedy which remains. Before proceeding with that issue, however, upon the foregoing findings and the entire record, I state the following: CONCLUSIONS OF LAW A. Jurisdiction is properly asserted in this proceeding. B. Through the following acts, under the circumstances described and found in III, supra, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights under Section (7) of the Act, and has thereby violated Section 8(a)(1) of the Act: I. Respondent's interrogation of employees by its warehouse foreman or shipping supervisor and agent, John Summers, on or about May 15, 1975, as set forth in paragraph IX(a) of the consolidated complaint herein. 2. Respondent's interrogation of employees by its vice president, Noel S. Sterling, on or about June 10 and 17, 1975, as set forth in paragraphs IX(c), (d), and (e) of said complaint. 3. Respondent's overly broad proscription of talk concerning union organizational matters and solicitation by its employees on its premises during its employees' nonworking times, through its vice president, supervisor, and agent, Noel S. Sterling, on or about May 20 and June 10, 1975, as set forth in paragraphs IX(h) and (i) of said complaint as amended. 4. Respondent's inducing an employee to withdraw unfair labor practice charges filed with the Board against Respondent by said employee - through its vice president, supervisor, and agent, Noel S. Sterling, on or about June 17, 1975, as set forth in paragraph IX(f) of the complaint. 5. Respondent's termination of the employment of eight of its warehousemen, six (Mark Ira Jamison, Mark Kenney, Douglas J. Kline, Donald R. Holland, John Chorba, and Gregory R. Fair) on May 23, 1975, and two (Daniel J. Weckler and John A. Ford, Jr.) on May 27, 1975, as set forth in paragraphs X, XI, and XII of the complaint. 6. Respondent's threat, through its vice President, supervisor, and agent, Noel S. Sterling, on or about June 19, 1975, of plant closure if its employees selected the Union as their collective-bargaining representative, as set forth in paragraph IX(g) of the complaint. Union, and Fript had reminded him of his "obligation" when he took the job. As for Keith's brother Kevin Wessling, who in accordance with his prehire commitment voted against the Union in the June 23 election, he was likewise terminated, allegedly for unsatisfactory attendance. He had signed a union authorization card 2 or 3 weeks after the election. 652 MEDLINE INDUSTRIES, INC. C. Through its termination of its said eight warehouse- men on May 23 and 27, 1975, under the circumstances described and found in III, supra, Respondent has also discriminated in regard to the hire, tenure, and terms and conditions of employment of said employees to discourage membership in a labor organization, in violation of Section 8(a)(3) of the Act. D. As set forth in paragraphs X(b), XI(b), XII(b), and XIII of the complaint, Respondent's termination of the employment of, and failure to reinstate, said employees into their former or equivalent jobs in its Northbrook warehouse collective-bargaining unit, under the circum- stances described and found in I111, supra, has been and continues to be for the purpose and with the effect of discouraging them from becoming or remaining members of the Charging Party Union, as well as to prevent the Union from becoming and acting as their certified collective-bargaining representative, and so as to under- mine said Union's representative status and dissipate and destroy its majority standing, and to render impossible or impracticable a free and uncoerced electoral choice on their part in the statutory election procedures provided under the Act. E. Respondent's failure and refusal to recognize and bargain collectively with the Charging Party Union herein as the duly authorized bargaining representative of its Northbrook warehouse employees, at all times on and since May 15, 1975, under the circumstances described and found in III, supra, and with the purposes and effects set forth in Conclusion D, supra, has constituted a continuing violation of Section 8(aX5) and (I) of the Act, as set forth in paragraph XVII of the complaint as amended. The appropriate collective-bargaining unit is: All full-time and regular part-time warehouse employ- ees at the Employer's warehouse now located at 1825 Shermer Road, Northbrook, Illinois, including summer employees and kitmakers; but excluding clerical em- ployees, janitors, sales trainees, guards and supervisors as defined in the Act. F. The aforesaid unfair labor practices have affected, affect, and unless permanently restrained and enjoined will '°s Failure to so provide could reward Respondent for its despoliation of the bargaining unit by continuing to exclude therefrom employees who may desire to return there under union working conditions. Another reason for requiring an offer of reinstatement to Jamison is that the circumstances persuade me that his "reinstatement" outside the bargaining unit while awaiting the election, ostensibly to prepare him for bigger and better things in Baltimore, smacks of a ploy to separate him from and eventually get him far away from the Northbrook warehouse where he had been the sparkplug of the utionization movement. (His intenm earnings should, of course, be credited against any backpay otherwise due him.) There was some indication by Mills at the hearing. stated but not established, that he regards his letter of May 28, 1975 (G.C. Exh. 4), to Jamison as an offer of reinstatement. I reject this canard, since at no time was he offered reinstatement to the bargaining unit from which he was unlawfully removed; and I also reject Mills' further unsubstantiated suggestion at the heanng that he was unable to find all of the warehousemen he had discharged and, also, that they were not interested in jobs. All of the evidence here is to the contrary. Furthermore, an employer does not escape from the consequences - including the requirement of reinstatement with backpay - of violating the Act by the mere device of unlawfully discharging employees in order to break up a bargaining unit, and then offering to try to get them jobs elsewhere. Such a result would stab at the continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. G. It has not been established by substantial credible evidence that Respondent, through its vice president, supervisor, and agent, Noel S. Sterling, interrogated employees on or about May 15, 1975, in violation of Section 8(a)(l) of the Act as set forth in paragraph IX(b) of the complaint. REMEDY With regard to remedying the unfair labor practices comprising the violations of Section 8(a)(1) which have been found, the usual cease-and-desist provisions in such circumstances should be required. Regarding the termina- tions of the warehousemen comprising the 8(a)(3) viola- tions, the usual reinstatement offers with backpay should be required. In the circumstances of this case, even though, as has been shown, three of the terminated employees (Jamison, Holland, and Fair) were subsequently rehired into other jobs with Respondent, since they were at no time offered reinstatement into the bargaining unit jobs from which they were summarily ousted, I believe that, in order to vindicate both the public wrong and their private right, they should be offered such reinstatement unconditionally and I shall accordingly so provide. w06 Whether they wish to accept it is for them to decide; and any interim earnings they have received may be set off in any compliance proceeding in determining backpay, if any, due. Such backpay should be computed as explicated by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962); Respon- dent should be required to preserve and make available to the Board's agents its records for backpay computation and compliance determination. The usual notice to employees posting should also be required.'07 There remains, finally, on the matter of remedy, the important question of whether, under the somewhat aggravated circumstances of this case, a bargaining requirement should be imposed under the authority of N.LR.B. v. Gissel Packing Co., 395 U.S. 575 (1969), as urged by General Counsel and the Charging Parties. heart of the Act, and is the very thing complained about here. Insofar as concerns the appropriateness of any possibly efficacious and valid offer and acceptance of an equivalent job, as a possible offset to backpay liability - as, for example, is seemingly contended, in the instances of Fair and Holland - that may be shown in a compliance proceeding if such becomes necessary. 10i In this connection, at the hearing (but not in General Counsel's posttrial brief), General Counsel and the Charging Party Union urged that a notice be required to be posted at all of Respondent's locations. However. considering the farflung extent of its industrial empire and the comparative- ly limited geographical locale of its previous infractions against the Act as shown above (involving, it is true, its same executive, Vice President Sterling), I do not believe so wide ranging an extension of the conventional limited notice-posting requirement is as yet called for, even though the Board Chairman has recently predicted increased Board concern over the problem of recidivistic violators of its orders. (August 1976 address to American Bar Association Labor Law Section, 92 LRRM 354, 355.) 1 shall accordingly at this time limit the notice-posting requirement to Respon- dent's Northbrook. Illinois, warehouse, but with the clear warning that continued heedlessness to the Act's commands may well invite such if not more stringent remedial measures. 653 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After a previous, recent brush with the Board, Respon- dent is here again, this time on much more serious charges including its discharge of eight warehousemen in a deliberately connived attempt to break up a bargaining unit and to thwart Federal labor election processes when the warehousemen sought to assert their statutorily guaranteed right to bargain collectively. These are indeed serious charges, they go to the heart of the Act, they are in defiance of Congress, the Board, and national labor policy, they have been overwhelmingly established, and they would require strong redress even if Respondent were not an unfair labor practices recidivist.108 In N.L.R.B. v. Gissel Packing Company, supra, the Supreme Court in plain words emphasized the law of the land to be that an employer who deliberately clogs the machinery of the statutory Federal labor elections system cannot be heard to complain if his employees' representa- tion desires are determined by less reliable means such as their signed bargaining authorization credentials. As again reemphasized in strong language by the Board in Teledyne Dental Products Corp., 210 NLRB 435, 435-436 (1974), where it imposed a bargaining order without an election: We can conceive of no more pernicious conduct than that which is calculated to undermine the Union and dissipate its majority while refusing to bargain. Since the circumstances here shown were purely of Respondent's own creation, it must be regarded as the victim of the sepsis which it itself introduced into the Board's statutory fair election "laboratory" (General Shoe Corporation, 77 NLRB 124, 127 (1948)). In such a situation, Respondent may not insist for a second time upon that fair election which it rendered impossible, nor to complain if a bargaining order is issued without a second election played on a chessboard from which it has ruthlessly swept off many of the players in violation of the rules of the game. A Gissel bargaining order is singularly appropriate under these circumstances and it should be required. N.L.R.B. v. Gissel Packing Co., supra; Howard Creations, Inc., 212 NLRB 179 (1974); Teledyne Dental Products Corp., supra; 108 As has repeatedly been pointed out throughout the years and should be crystal clear by this time, discriminatory discharge "goes to the very heart of the Act" (A. J. Krajewski Manufacturing Co., Inc., 180 NLRB 1071 (1970)), and is the "surest method of undermining a union's majonty or impeding an election process" (N.L.R.B. v. Sirton Tank Company, 467 F.2d 1371. 1372 (C.A. 8, 1972). Such discharge alone warrants a Gissel bargaining order. Gissel, supra, 395 U.S. at 610 and 614; Sitton, supra. 109 It is also noted that the Union by telegram of May 14, 1975, placed Respondent on notice that it was engaged in organizing activities among its Northbrook warehousemen (C.P. Exh. 2). "o Resp. Exh. 29. "' On this date Respondent sent the Union its letter (Resp. Exh. 3) declining to recognize or deal with it. I2 It is, however, observed that Respondent's answer admits the allegation of par. Vlll(b) of the complaint that it has refused to recognize and bargain with the Union "Ic]ommencing on or about May 15, 1975" (emphasis supplied). "13 A last-ditch attempt by Respondent to withdraw its admission in its answer, and also from its January 27, 1976, trial outset stipulation (G.C. Exh. 2) again conceding the appropriateness of this unit, by applying to be relieved of that admission and stipulation, was rendered academic when Respondent moved after the hearing to withdraw that application -- a motion which I granted without opposition on April 13, 1976. (Motion and order have been incorporated into the record as ALJ Exhs. 2 and 3, respectively.) Texaco, Inc., 178 NLRB 434 (1969), enfd. 436 F.2d 520 (C.A. 7, 1971). As Respondent properly contends, however, a precondi- tion to a Gissel bargaining order is that the union had held a valid "card" majority in the bargaining unit when it demanded recognition. It is therefore essential to deter- mine whether the Union here had such a majority at the time of its recognitional demand, which was on May 15 (Resp. Exh. 2)109 and allegedly received by Respondent President Mills" 0 (if not earlier by Respondent) on May 19.tl1 In order to simplify matters," 2 determination will be made here as of each of those dates. The parties have here stipulated (G.C. Exh. 2) that at all times on and since May 15 the appropriate bargaining unit has been that set forth in the complaint (and admitted by the answer), and I accordingly so find, viz: All full-time and regular part-time warehouse employ- ees at the Employer's warehouse now located at 1825 Shermer Road, Northbrook, Illinois, including summer employees and kitmakers; but excluding clerical em- ployees, janitors, sales trainees, guards and supervisors as defined in the Act.'t 3 May 15 The parties have further stipulated (G.C. Exh. 2) that as of May 15 there were at least 26 employees t4 in the bargaining unit. The parties disagree, however, as to whether certain additional employees should or should not have been included in the unit. In order to determine whether the Union represented a majority of the employees in the bargaining unit, it is necessary to ascertain whether the employees whose status is questioned by one or the other of the parties were in the bargaining unit. As to Weckler and Ford, who signed union cards on May 14 and 15, it is the Employer who insists they were not in the bargaining unit; as to Lowman and Thurman, who did not sign union cards, it is the Union and General Counsel who insist they were not in the bargaining unit." 5 "4 Viz, Sol Belkin, Brad Brown, George Carlberg, Ted Davis, McKinley Edmunds, Greg Fair, Dave Flowers, Ben Franke, Donald Holland, Mark Jamison, Mark Kenney, Douglas Kline, John Liston, Alan Mills, David Ocampo, Guy O'Connor, Robert Putnam, Mark Roberti, John Sanders, Keith Wessling, Kevin Wessling, Ed Witt, Dennis Paul Youngs, Virginia Fritz, Steve Lambert, and Barry Fript. It is noted that these include the college students hastily installed as bargaining unit "fillers" and "diluters" under the circumstances described. Cf. Central Delivery Service of Massachu- setts, Inc., 225 NLRB 758 (1976). Cf., also, South Station Liquor Store, Inc., d/b/a Bereason Liquor Mart, 223 NLRB 1115 (1976); Children's Hospital of Pittsburgh, 222 NLRB 588 (1976). HI The Employer's prior additional insistence that Suzie (Susie) Summers and Michael Sterling (the latter not even included or mentioned in the Employer's Excelsior list) were also i, the bargaining unit was withdrawn at the hearing, as was the Union's prior insistence that Virginia Fritz was not in the bargaining unit. As appears from the parties' above January 27, 1976, stipulation (G.C. Exh. 2), the parties agree that the eight discharged warehousemen - except for Weckler and Ford, who the Employer continues to dispute were in the unit, and whose status is determined infra - were in the unit, notwithstanding their not having been included in the Employer's Excelsior list and for that reason having been challenged by the Board agent as stated in the Regional Director's October 31 report (Bd. Exh. I(g)). For some unexplained reason, warehouseman Chorba is also not included in the Employer's Excelsior list; but the parties 654 MEDLINE INDUSTRIES, INC. Weckler and Ford Respondent maintains that its warehousemen Weckler and Ford were not in the bargaining unit. I do not agree. Credited testimony 116 establishes that Weckler and Ford, high school students, entered Respondent's employ in its Northbrook warehouse in the late summer or early fall of 1974, continuing there until their summary discharge without prior intimation on May 27, 1975, shortly after they signed union bargaining authorization cards. When they were hired it was for part-time work on a regular and not temporary or seasonal basis. In no way were they told that they were being hired on a temporary basis or only during their school year. They worked in the warehouse under a succession of supervisors - Chapman, Ramirez (Ramarez), and Warehouse Foreman or Shipping Supervi- sor Summers. They worked Monday through Friday, 10 or 15 hours every week, after school. During school vacation times, they worked in the warehouse full time. Their work consisted of sweeping and removing garbage from the warehouse, as well as stocking the warehouse shelves, loading trucks, and doing other tasks performed by the full-time warehousemen. They were (like other warehouse- men) hourly paid, at $2.50 per hour, with Social Security and other taxes withheld from their pay; they were paid twice a month the same as other warehousemen, and punched the same timeclock as other warehousemen. As has previously been indicated in another connection, Weckler was approached in the warehouse by Warehouse Foreman Summers on May 15 - the day after Weckler had signed a union authorization card (after he had asked and Jamison had assured him he could not be fired for doing so; Ford similarly signed a union card on May 15 after having taken it home on May 14 to discuss it with his father) - and Summers asked him, "What is your feeling about the union," to which Weckler replied he had not yet made up his mind (although he had in fact signed a union card the day before), but that if he could make $3 an hour during the summer he would have no need for a union, whereas otherwise he might. In no way did Summers indicate or intimate that Weckler's job would not last through (and beyond) the summer. At the end of the workday on Tuesday, May 27 - not a payday - Weckler and Ford were called into Summers' office and summarily discharged. In no way had their work ever been criticized. Their school term was not even over. Although in no way were they less busy at work than before, Summers told them that "Business [is] slow," but added that they would be the first to be recalled when Respondent started hiring again. At the same time they were terminated, Respondent also had in its employ in the warehouse two other part-time high schoolers in the same category, neither of whom had signed a union card. Neither of these was discharged. Although Respondent have stipulated (G.C. Exh. 2) that he was indeed in the unit at least as of May19. Primarily of Weckler, whom I observed to be a most upstanding and persuasive witness. Although Ford did not testify, the proof. including that of Respondent's witnesses Sterling and Mills, establishes that Ford was in the same category as Weckler. "7 I have already detailed, and need not here repeat, my reasons for rejecting Respondent President Mills' incredible alleged "explanations" for the summary discharge of Weckler and Ford (II ,B.,2, supra). subsequently hired two other part-time warehouse employ- ees in place of Weckler and Ford, at no time has Weckler or Ford been reinstated or recalled. In no way was any of the foregoing testimony disputed by Chapman, Ramirez, or Summers - none of whom, without explanation, was produced by Respondent to testify. '7 Weckler's employment application (Resp. Exh. 7) con- tains the notation at the top, in red ink: "2.50 perm pt T," followed by "O.K." and initials. Upon the foregoing credited proof, I find and conclude that Weckler and Ford were regular part-time employees of Respondent in its Northbrook warehouse on May 15 and 19, 1975, as explicitly conceded by President James Mills on cross-examination, and members of the stipulated appropriate bargaining unit which expressly includes "regular part-time warehouse employees" (G.C. Exh. 2). L8 Virginia Lowman Respondent contends that Virginia Lowman should have been included in the bargaining unit. For some unex- plained reason, Respondent did not produce her to testify. Accordingly, it is necessary to look to the testimony of others, to a degree conflicting, to attempt to ascertain the nature of her work and responsibilities. Comprehensive and detailed testimony concerning the actual work and responsibilities of Virginia Lowman was provided by Douglas J. Kline, a kitmaker who was among the warehouse workers unlawfully terminated by Respon- dent on May 23. Kline demonstrated himself to be a highly credible witness with a precision of factual delivery impervious to searching cross-examination. I was accord- ingly favorably impressed with his testimony, which I consequently credit as about to be described, although the account which follows is also based in part upon testimony of Respondent's witnesses Nannetti and Fair. Kline entered Respondent's employ as a kitmaker in February 1975. Respondent's kitmakers, of which it had five when Kline started, were paid on a piecework basis. After eight or nine weeks as a kitmaker, Kline was transferred to order-picking in the warehouse, selecting and conveying merchandise for shipment. Dynacor's kitmakers assemble and pack necessary ingredients for hospital admission kits, "Pap smear" (i.e., gynecological examination) kits, thermometer kits, and "child's kits." A "hospital admission kit," for distribution to and use by hospital in-patients, consists of such items as soap, soap dish, wash basin, emesis (i.e., vomiting) basin, carafe and tumbler, mouthwash, and Kleenex. A "child's kit" is somewhat the same but includes a comb, coloring book, and crayons. Kitmakers usually obtain the necessary ingredients for these kits by writing out and handing requisitions to Warehouse Foreman Summers, who in turn us1 That their work hours and conditions fully warrant and, indeed. require them to be included in the bargaining unit, see, e.g., Multi-Medical Convalescent and Nursing Center of Towson, 225 NLRB 429 (1976); Stockham Valve & Fittings. Inc. 222 NLRB 217 (1976); L and A Investment Corporation of Arizona 221 NLRB 1206 (1975); Sears. Roebuck and Co.. 193 NLRB 330 (1971); Sears, Roebuck and Co.. 172 NLRB 1266 (1968); Booth Broadcasting Company, 134 NLRB 817. 820(1961). 655 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gives them to warehouse order-pickers; at times, kitmakers themselves obtain items directly from the shelves. Respondent's kitmaking activities are a branch of its Dynacor Division, headed by Respondent Vice President and Director Leonard T. Fript, whose second in command is Anselmo (Sam) Nannetti, Respondent's director of product development and head of the kit department. Virginia Lowman, here in question, worked directly under Nannetti, in an office which she shared with Vice President Leonard Fript's secretary, next to or near that of Nannetti, with her own desk, file cabinet, and telephone, in a different building from the warehouse, across the hall from the office of President Mills and Vice Presidents Sterling and Fript. Kline received his orders each day from Virginia Lowman, who told him - as well as the other four kitmakers - what kinds and how many kits to assemble, pack, and ship, handing them slips which they returned to her in her office near Nannetti's in the Company's executive offices in the other building, when their work assignment was completed. Lowman, who in that other building had her own desk, telephone, and file cabinet, would then see to it that completed orders were dispatched as required. Lowman also in her own handwriting maintains and makes all entries on Dynacor Division's kit control record system (Resp. Exh. 23), including hospital customer names and addresses, account numbers, sales- men's numbers and geographical locations, availability data, vendor specifications and control numbers, order control numbers, handwritten designation of locations where "to be made" when contracted out, and data including dates of receipt and issue, as well as, in certain cases (Resp. Exh. 24), cost data - all in all, forms, information, and a process which appear to involve and require a degree of books-and-records-keeping and systems sophistication seemingly usually beyond the qualifications or job specifications of a warehouse laborer. These records are based upon information supplied to Lowman by Nannetti, and are kept in the warehouse so that kitmakers may have access to them and so that, upon completion of piecework, they can be given to Lowman for pay computation purposes. In connection with her responsibili- ties, Lowman herself spent perhaps as much as half of her time in the kit assembly area (the other half in the office), usually concerning herself with kits to be stocked in the warehouse. Lowman occasionally herself worked on "special order" kits, and perhaps occasionally also on regular kit orders. Lowman assigned work to the kitmakers even to the extent of directing them to stop one kind of work and do another, telling them to "do it and get it done fast," and the kitmakers complied. When Kline needed time off for sickness, it was Lowman he contacted. No kitmaker did work or had a work role comparable to that of Lowman. Respondent Director of Product Development Nannetti conceded that up to March 1974 Lowman was a warehouse kitmaker who also handled paperwork. According to Nannetti, at that time (March 1974), however, Lowman was assigned to the corporate office area to do all of the "9 According to Nannetti, Lowman punches a timeclock, as do kitmakers. but perhaps also as do some office employees. "paperwork" on the kits, as well as to perform other corporate officework in the corporate offices, and also to "cover" for or share some of the work of Respondent Vice President Fript's secretary and Nannetti's secretary. Among other things, this entailed taking orders from Respondent's farflung sales force, and assembling compa- ny catalogs in a warehouse area with which kitmakers were in no way concerned; and also answering corporate office telephones, including two direct private lines apart from the switchboard. She also answered inquiries from custom- ers concerning deliveries and shipping. In these capacities - all still according to Nannetti - Lowman had access to corporate office files and records and was free to consult them as necessary in connection with such of her responsibilities as were unconnected with kits. And, also according to Nannetti, Lowman has continued to do essentially this until the time of this hearing, devoting about 25-30 percent of her time to office work. Her hours are 8 to 4:30, the same as kit department employees; the office secretarial help generally works from 8:30 to 5 or 5:30. Lowman was paid at an hourly rate, unlike the piecework basis of kitmakers.119 According to Nannetti, she was the only female who wore a smock in the factory, and some females in the other offices also wore smocks.'20 Finally, according to Nannetti, in June (1975) with the advent of a new female office employee, Lowman was moved to the kit area where she has her own "counter" or "table," but with no change in her functions or responsibil- ities except that she no longer answers office telephones. And although, according to Nannetti, she has never had power herself to hire, fire, suspend, lay off, recall, transfer, reward or promote, her recommendation regarding any of these would carry weight with him. Since Nannetti concedes that the nature of Lowman's work has not essentially changed since March 1975, it is difficult to understand why her work in May and June 1975, at the time of the election, did not similarly set her apart from the warehousemen and kitmakers and thus make her - since she was more allied with Nannetti and management - inappropriate for inclusion in the bargain- ing unit of rank-and-file warehousemen and maintenance workers, particularly in view of the exclusion from that unit of all "clerical employees." Respondent's own witness Gregory Fair - who, it will be recalled, was rehired by Respondent into another job shortly after his May 23 termination and had progressed well since then and is still in Respondent's employ - also testified on this subject. After his rehire, he worked temporarily in the kit department for around a week or so before the election (June). Nannetti took him there and "gave me ... to a lady ... who was more or less running the show and handling the paperwork . . . Virginia Lowman," who showed and told Fair what to do, and who was "over me" and was "[my] immediate supervisor" (Fair's testimony). At no time during his 2 weeks in the kit department did Fair see Lowman working on kits; she had a desk or table about 25 feet from the kitmaking area, where she controlled all the kit "paperwork." All kitmak- ers, including Fair, apprised her of the work they did. 1)0 Kline saw a female kitmaker also weanng a smock in the factory. 656 MEDLINE INDUSTRIES, INC. Upon the basis of the described credited testimony in the record as made, I find and determine that Virginia Lowman was not a member of the stipulated appropriate bargaining unit. While it is unnecessary to go so far as to conclude she was a supervisor, arguably she presents some of the hallmarks of one as defined under the Act, since credited testimony establishes that she exercised responsi- ble authority over others, who complied with her direc- tions, and Nannetti conceded that her recommendations along lines enumerated in Section 2(11) of the Act carried weight with him, she thereby having power "effectively to recommend" (id.) supervisory actions.'21 Even if she were not a supervisor, she was properly excludable from the bargaining unit for a number of reasons. While the stipulated unit includes "kitmakers" it contains a blanket exclusion of all "clerical employees." Lowman was not essentially a "kitmaker" - she was not even paid as such - and, if not a supervisor, was more in the nature of an advanced clerical employee, with at least a very substantial if not preponderating line of full-scale clerical and office responsibilities. She was closely linked to management,' 22 with her links to warehouse laborers being on the tenuous side and hardly more than those of a foreman, supervisor, or clerical who necessarily has contacts with them in the course of their daily work. The basic, preponderating nature of her duties set her clearly apart from the rank- and-file laboring kitmakers. Rather than being a kitmaker, she was - if not a supervisor - a seemingly high-grade, all-around aide or "girl Friday" to Respondent's executive Nannetti in the flow if not management of the Dynacor Division kit fabrication operation. There is thus no demonstrated community of interest between Lowman and the warehousemen's unit such as to warrant acceding to her employer's demand - she makes none - that she be included in the unit, since she holds essentially a different job which is much more closely aligned with her employer's interests than with those of the rank-and-file warehouse- men with which her employer insists she be included for voting purposes.'23 Finally, Lowman was not even included in the Employ- er's Excelsior list (Bd. Exh. I(d)) furnished by the Employer to the Regional Director as a list of its employees in the bargaining unit. The Employer thus itself of its own volition, knowing what it did, did not include her name upon a list of unit members which it, in association with its counsel, represented and submitted to the Board as complete and accurate. While not going so far as to say 121 In this connection, as has frequently been pointed out, it is job powers and not job titles which are controlling in determining supervisory status under the Act. "Of course, the important thing is the actual duties and authority of the employee, not his formal title." N.LR.B. v. Quincy Steel Casting Co., Inc., 200 F.2d 293. 2%96 (C.A. 1, 1952). See also International Association of Machinists, etc. v. N.LR.B., 311 U.S. 72, 80 (1940); N.LR.B. v. Patent Trader, Inc., 415 F.2d 190, 199 (C.A. 2, 1969); Square Binding and Ruling Co., Inc., 146 NLRB 206, 210 (1964), and cases cited. That any one of the powers listed in Sec. 2(1 1) of the Act, without more, is sufficient, see 25 NLRB Ann. Rep. 45 (1960); N.LR.B. v. Elliott-Williams Co., Inc., 345 F.2d 460, 463 (C.A. 7, 1965); N.LR.B. v. City Yellow Cab Company, 344 F.2d 575, 580 (C.A. 6, 1965); N.LR.B. v. Southern Bleachery & Print Works, Inc., 257 F.2d 235, 239 (C.A. 4, 1958), cert. denied 359 U.S. 911 (1959). These considerations apply even though much or most of the person's time is spent in routine production or maintenance work - not the case with Lowman. N.L.R.B. v. Browne & Sharpe Manufacturing Company, 169 F.2d 331 (C.A. I, 1948). that the Employer is now necessarily estopped from changing its position and that it is cemented to its Excelsior list, it would nevertheless seem that its own affirmative exclusion of Lowman from the unit is properly a circum- stance - in the nature of an admission later retracted or explained - to be considered and given deserved weight in the total situation. Cf. N.LR.B. v. North Arkansas Electric Cooperative, Inc., 412 F.2d 324, 328 (C.A. 8, 1969). The facts, as shown above, are not inconsistent with the position thus originally taken by Respondent itself in excluding Lowman from its own Excelsior list of bargain- ing unit members. It has not shown itself to have been wrong. The essential truth of the matter would seem to have been, then as now, that Lowman was indeed basically a "clerical employee," a category expressly excluded from the stipulated unit. Even though Lowman might have worked much of her time in the factory, that would not in itself qualify her for inclusion in the unit. So do foremen and even, at times, managers. It is the basic nature of the duties performed, rather than the physical site involved or encompassed - although, to be sure, the latter is a circumstance to be considered - which determines unit inclusion or exclusion.i2 4 All things considered, I believe that Lowman's status clearly tilts toward the clerical with ties to management, rather than toward production and maintenance with basic community of interest with rank- and-file warehousemen, and I accordingly find that she should not be included in the bargaining unit. Thurman Respondent finally insists that Roosevelt Thurman is included in the bargaining unit. Again I cannot agree. Roosevelt Thurman, in his midthirties, according to a doctor's certificate in evidence (G.C. Exh. 45) which Vice President Sterling testified was presented to Respondent "at the beginning of 1975," suffers from "severe HBP" (i.e., high blood pressure or hypertensive heart disease), appar- ently involving (according to Sterling) a "kidney problem," as well as from a form of "Anemia. Needs work-up & to be hospitalized." (G.C. Exh. 45.) Sterling also testified that Thurman's condition "had worsened," that to his knowl- edge he was hospitalized at least twice between January and May 1975, and that since at least February 1975 he had periodically been hooked up, in hospital or clinic, to a nontransportable kidney dialysis machine. 122 Cf., e.g. N. LR.B. v. Quaker City Life Insurance Company, 319 F.2d 690, 694 (C.A. 4, 1963); CFdl Steel Corporation, 196 NLRB 470 (1972); Savage Arms Corporation, 144 NLRB 1323 (1963); General Electric Company, 120 NLRB 199, 201 (1958); The B. F. Goodrich Comtpny, 115 NLRB 722 (1956); Minneapolis-Moline Company, 85 NLRB 597 (1949); Palace Laundry Dry Cleaning Corporation, 75 NLRB 320, 323, fn. 4 (1947); Continental Can Company, Inc., 74 NLRB 351, 354 (1947); Ford Motor Company, 66 NLRB 1317, 1322 (1946). 123 '[T fhe Board's pnmary concern is to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment." 15 NLRB Ann. Rep. 39 (1950). Cf. Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974); Salow, Elvin Co., 209 NLRB 833 (1974): Astronautics Corporation of America, 210 NLRB 652 (1974). 124 Cf. Winn-Dixie Stores, Inc., 153 NLRB 273, 301-302 (1965), enforcement denied in unrelated aspect 410 F.2d 1119 (C.A. 5, 1969); Tubesales, 146 NLRB 1064, 106667 (1964). 657 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although Thurman had worked as an order-picker in the Northbrook warehouse commencing in 1972, he has not worked regularly since, at the latest, the end of 1974. The last day of all that he showed up for any "work" was on March 24, 1975, for I day. The testimony of Vice President Sterling shows that when Thurman came in on that day (March 24) Sterling questioned him about whether he could work, considering his condition and need to be on the dialysis machine. Although Thurman apparently lasted that day out, he never returned, according to Sterling because of his continuing illness, and he has been replaced and removed from Respondent's work staff. The last day Thurman had "worked" prior to his I-day attempt of March 24, 1975, was on December 31, 1974, when he was at work for less than 2 hours (G.C. Exh. 44). He was allegedly - according to Respondent's own self-serving record entries, made at an undisclosed date by an undisclosed person - finally removed from its rolls "effective" May 30, 1975, because he hadprior thereto "left because of illness - unable to work at this time" (Resp. Exh. 14).125 On March 30, 1975, Respondent had written to Thurman, pointing out that he had already or again "missed 4 payrolls" - or perhaps around 2 months' work, as of that time - thus indicating his last possible regular work was as far back as January 1975. (Resp. Exh. 15. As shown above, actually it was at least as far back as December 1974.) Although in the same letter Respondent asked him, "When can we expect you to return to work," there is no indication he ever replied. Indeed, the indication is to the contrary, since a subsequent letter from Respondent to him on May 22 (Resp. Exh. 16) states he had not paid for health insurance premiums previously requested, and once more asks "when or if you expect to return to work" (emphasis supplied) - once again with no response from him. It is conceded by Sterling that he has been replaced and removed from Respondent's rolls. Notwithstanding these established facts, Respondent insists that Thurman, who did not testify, should be included in the bargaining unit. I do not agree. He is no longer a regular employee, as the stipulated unit definition requires (G.C. Exh. 2), and there is no reasonable likelihood or expectation of his return as such in the foreseeable future. Indeed, it is highly speculative whether he will return at all, and it has in no way been established that he will or that he even may. Such evidence as has been produced here strongly indicates to the contrary, that he has long since abandoned his employment with Respon- dent. He has long since even allowed his health insurance 125 Respondent's employee guide (G.C. Exh. 33) makes it plain that all absences by reason of sickness are regarded as "involuntary" or unexcused, but are allowable for not over a maximum of 30 days - a period far exceeded by Thurman. 129 It has not been shown whether or to what extent premiums were prepaid, nor what the premium period is under the policy, which appears to be a group reporting form. 127 I.e., the signed cards of John R. (Jack) Liston, John Sanders, Stephen (Steve) T. Lambert, Ben W. Franke, Mark Ira Jamison. Gregory (Greg) R. Fair, Mark (A.) Kenney, Douglas J. Kline, Donald (Don) R. Holland, George Gunnar Carlberg, David M. Ocampo. Dennis Paul Youngs, Daniel J. Weckler, John A. Ford Jr.. Edward (Ed) Michael Witt, and Bradford J. (Brad) Brown. -2a Only the Youngs and Witt union cards are challenged in Respon- dent's posttrial brief, although at the hearing additional cards were objected to and challenged on technical grounds. It is assumed from this that to lapse, even though his Employer had for a while after he stopped working continued that coverage '26 at its own expense (which he seemingly has not seen fit to reimburse). Under these circumstances, Respondent's insistence that Thurman be included in the bargaining unit is in my view misplaced, and I find and determine that he should not be. Cf. Davis Transport, Inc., 169 NLRB 557, 562 (1968), enfd. 433 F.2d 363 (C.A. 6, 1970); Sullivan Surplus Sales,' Inc., 152 NLRB 132, 155-156 (1965); The Horn & Hardart Company, 147 NLRB 654, 659-660 (1964); Taunton Supply Corp., 137 NLRB 221, 222-223 (1962). May 19 As stipulated by the parties, the only change in the bargaining unit's composition between May 15 and 19 was the addition of John Chorba, who the parties agree is properly to be included therein as of that date, thereby raising the number in the unit from 28 as of May 15 to 29 as of May 19. It is accordingly found and concluded that the appropri- ate bargaining unit here consisted of 28 employees on May 15 and 29 employees on May 19, 1975. It remains to consider whether the Union on those dates (May 15 and 19) held valid bargaining representation authorizational credentials (cards) from a majority of those 28 or 29 employees. Substantial credible evidence establishes that on May 15 as well as May 19, the Union held 16 bargaining representation authorizational cards signed by unit mem- bers; 127 but the Employer challenges 2 of those cards as invalid - namely, those of Youngs and Witt. 28 Youngs Jamison, the principal solicitor of the union cards, testified that after he had thoroughly oriented Youngs, an order-picker, concerning the supposed benefits of union affiliation on May 13, continuing into May 14, including showing him the union bargaining representational desig- nation card, which Youngs studied and indicated he wished to think about, on May 15 Youngs or warehouse- man Liston returned the signed Youngs card to Jami- son. t29 It is undisputed that the signature on the card (G.C. Exh. 20), which is dated May 15, 1975, is that of Youngs. Testifying as Respondent's witness, Youngs attempted to place a different slant on the circumstances attending his signing of the card. According to Youngs, he at first declined to sign the card "because I really was not challenges to union cards other than those of Youngs and Witt have been abandoned. In any event, they were ruled upon at the hearing and established by substantial credible evidence to be valid and efficacious bargaining designational appointments. i29 Jamison also testified that he had told Youngs that his signing would be kept confidential, indicating to Youngs that he had no cause for trepidation about signing the card, and that he also had given Youngs a copy of the Union's reassuring booklet (G.C. Exh. 27, quoted supra, fn. 15) to that effect. Jamison further testified that he also indicated to Youngs that Youngs' and another card had given the Union a majority of cards among the warehousemen; and that Jamison and his fellow warehousemen organizers wanted to be certain that the Union had such a majonty even if the recently hired "college kids" should be considered to be in the bargaining unit, as to which Jamison and his associates were uncertain. None of these circumstances reduces the efficacy of the union card signed by Youngs. 658 MEDLINE INDUSTRIES, INC. interested in any Unions" and did not want to join a union. Youngs claims that "about ten more times ... at least," later that day, while at work, Jamison, usually accompa- nied by Kenney, as well as Ocampo and Liston (other warehousemen), asked him to sign but he continued to refuse, with Jamison and Kenney asking him if he was a "company man." Youngs asserts that much the same kind of persuasion or importuning continued on the next day (May 14). On May 15, still according to Youngs, he observed the words "sold out" scrawled in various places (such as discarded boxes and shelves) including his order- picking handcart and order box. Youngs asserts that later that day, in the parking lot, when Jamison asked him why he was so much against the Union, he answered "because of Union violence," citing instances. Still according to Youngs, when fellow warehouseman Liston later that afternoon again called him a "company man," asked him to sign a card, and indicated "it is just for an election," Youngs said, "give me the G-damn card, I will sign it." A few minutes later, when Liston returned with the card, Youngs personally dated and otherwise filled it out completely in his own handwriting, and signed and returned it. According to Youngs, when he asked Jamison the next day whether he had "mailed the card yet" and Jamison replied that he had, Youngs remarked, "That is too bad." Youngs added to the foregoing account on cross- examination, testifying that a day or two later when Jamison asked him how he was going to vote, he told Jamison that it was none of his business and that he was "very tired of hearing all of the union bulls-t" and reminded him that "I signed the card," which drew the retort from Jamison that "for a guy your size, you should not have such a big mouth . . . [You'd better] get out of here or I will kick your a-." 130 Youngs also added on cross-examination that later that day he visited Company Vice President Sterling in his office, informed him tha. he had signed a union card, and asked him how he could get it back, but that Sterling told him, "That is really too bad that you did that .... [they're your] bargaining agent," at which Youngs asserted to Sterling that he did not know that and "thought it was just for an election," but that Sterling advised him there was basically no way he could get the card back. It is not claimed that Youngs at any time canceled, revoked, withdrew, or attempted to have his card invalidated or returned. (He is 23 years old and attends college.) 130 Although Jamison is shorter than Youngs, who is 5'11" and weighs around 125, Jamison is heavier. However, as observed, Jamison by no means conveys the impression of being a bellicose, fighting. or even a muscular type. 131 Youngs' testimony is inconsistent with that of Respondent Vice President Sterling, who testified that Youngs told him that Jamison had declined to get Youngs' card back for him. Youngs testified to no such thing. 132 To the same effect, see Texaco. Inc. v. N.LR.B., 436 F.2d 520, 524 (C.A. 7, 1971); N.LR.B. v. American Art Industries, Inc., 415 F.2d 1223, 1228-29 (C.A. 5, 1969), cert. denied 397 U.S. 990 (1970); International Union, UA W [Preston Products Co.] v. N.LR.B., 392 F.2d 801, 807-808 (C.A.D.C., 1967), cert. denied 392 U.S. 906 (1968); N.LR.B. v. Southbridge Sheet Metal Works, Inc., 380 F.2d 851, 855-856 (C.A. 1, 1967); International Union of Electrical. Radio and Machine Workers, AFL-CIO (S.N C. Manufacturing Comparrnv) v. N.L. R B.. concurring opinion of Justice Burger, 352 F.2d 361 at 363-364 (C.A.D.C.. 1965), cert. denied 382 U.S. 902 (1965); On cross-examination, Youngs first insisted he did not read his union card before signing it. When he was thereupon confronted with all of his own handwriting throughout the card, he claimed he read only so much of it as was necessary to fill in the blank spaces, and no other words. I find this most difficult to accept, and, after observing and assessing Youngs' embarrassed posturings and facial configurations as he delivered himself of this testimony, I do not believe it.131 After observing and comparing the testimonial demean- or of Youngs with that of Jamison, I have no hesitation in preferring that of Jamison and therefore crediting Jami- son's account over that of Youngs. As a witness, Jamison impressed me well, particularly considering the effective- ness with which he withstood a lengthy and gruelling cross- examination ranging from one day into the next. In contrast, I was not at all well impressed with Youngs, who, among other things, as indicated, uttered some testimony concerning the circumstances under which he filled out and signed his card which is unworthy of belief. Youngs' ill-concealed, smoldering rancor toward Jamison may well have colored his account of the purported events he described, which may thereby have taken on a different coloration in his mind; observing him as he testified, I had the impression that he was at least embellishing, if not creating, while he was on the witness stand. He is still in Respondent's employ and testified under its watchful eye as its seemingly willing and not disinterested witness. Furthermore, he concedes he at no time made any attempt to retrieve, withdraw, or cancel his union bargaining authorization card, which he could readily have done and which, with his education and obvious intelligence, he must have known he could easily have done. (I also have great difficulty in believing that Vice President Sterling, who was openly interested in defeating the Union, really indicated to Youngs that there was no way he could withdraw or annul his union authorization card.) The Supreme Court has had occasion to warn against acceptance of interested employees' postfacto ruminations and second thoughts, as here, concerning their alleged subjective thoughts and "intentions" at the time they signed union bargaining authorization cards, indicating that such testimony is not only suspect but inefficacious (as in the case of other written instruments) to overcome the clear language of such cards. N.LRB. v. Gissel Packing Co., Inc., 395 U.S. 575, 584, 601-609 (1%969).132 N.LR.B. v. Cumberland Shoe Corporation, 351 F.2d 917 (C.A. 6, 1965); N.LR B. v. Mid- West Towel and Linen Service, Inc., 339 F.2d 958, 963 (C.A. 7. 1964); N. LR.B. v. Stow Manufacturing Co., 217 F.2d 900, 902 (C.A. 2, 1954), cert. denied 348 U.S. 964 (1955); Joy Silk Mills, Inc. v. N.LR.B., 185 F.2d 732, 743 (C.A.D.C., 1950), cert. denied 341 U.S. 914(1951); N. LR B. v. Sunshine Mining Co., I 10 F.2d 780, 790 (C.A. 9, 1940), cert. denied 312 U.S. 678 (1941); Hedstromn Company, a subsidiary of Brown Group. Inc., 223 NLRB 1409 (1976); Marie Phillips, Inc., 178 NLRB 340 (1969), enfd. 443 F.2d 667 (C.A.D.C., 1970), cert. denied 403 U.S. 905 (1971); McEwen Manufacturing Company, 172 NLRB 990, 993-994 (1968), enfd. 419 F.2d 1207 (C.A.D.C.. 1969), cert. denied 397 U.S. 988 (1970); Levi Strauss & Co., 172 NLRB 732, 734-735 (1968), enfd. 441 F.2d 1027 (C.A.D.C., 1970); G & A Truck Line, Inc.. 168 NLRB 846 (1967), enfd. 407 F.2d 120(C.A. 6, 1969); American Cable Systems, Inc.. 161 NLRB 332, 333-334 (1966), enfd. as modified 414 F.2d 661 (C.A. 5, 1969), cert. denied 400 U.S. 957 (1970); Dubois Fence & Garden Co., Inc. 156 NLRB 1003 (1966); Gorbea, Perez & (Continued) 659 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under all of the circumstances, I find and determine upon the record as a whole, including resolution of credibility based upon comparisons of testimonial demean- or as observed, that Youngs' union card was signed, executed, and delivered by him of his own volition without duress, threat, or coercion, without any limiting statement that it was to be used only for an election or used for any purpose other than that stated on the card, and with a clear understanding on his part that it was what it plainly states it is: an authorization of the Union as his "collective bargaining agent," and that at no time has that authoriza- tion been revoked, canceled, or withdrawn. Witt Edward (Ed) M. Witt's union card - the same as others here - was given to him on or about May 13 by Jamison, who properly explained its purpose, and who received it back from him, fully filled in (with Witt even volunteering thereon to serve on the employees' union committee) and signed, on May 15. Although Jamison did not personally see Witt sign the card, it was not only placed into Witt's hands by Jamison but also returned into Jamison's hands by Witt himself. While it is undated, Jamison swore he received it back from Witt on May 15 and that he (Jamison) turned this card in with the others. The reverse side of the card bears the same official date/time receipt stamp of the Board's Chicago Regional Office as the other cards - early afternoon of May 20, 1975 (G.C. Exh. 22). Appearing as a witness for Respondent, Witt - who is still in Respondent's employ in its Northbrook warehouse - concedes that he filled in and signed the union card in question on May 15. However, he testified to vacillating, stumbling, and varying versions of the alleged circum- stances under which he executed it. His first version was that, when Jamison asked him on May 14 or 15 whether he wanted to sign the card, he told Jamison he did not know but would like to think about it and discuss it with someone. His second version - after some prodding by Respondent's counsel - was that Jamison further indicat- ed to him that "it was to obtain information about a union," 133 but also that it wasfor "representation of a union Morell, S. en C, 133 NLRB 362, 370(1961), enfd. as modified 300 F.2d 886, 887 (C.A. I, 1962). 133 This strikes me as a most improbable statement for Jamison to have made. I do not believe he made it. 134 Again the latter portion of this remark, seemingly at odds with the first portion, strikes me as most unlikely for Jamison to have said, and -- again, particularly observing Witt's discomfiture as he added this qualifica- tion - I cannot accept it. It is also observed that, after his testimony was reread to him, Witt as well as Respondent's counsel appeared to suggest the official reporter was transcnbing his testimony incorrectly a most unusual and unwarranted accusation. i35 It is observed that, even if both Virginia Lowman and Roosevelt Thurman were included in the bargaining unit, the Union would still have commanded a clear majority on both dates (i.e., on May 15, 16 of 30 employees or 53.3 percent; and on May 19, 16 of 31 employees or 51.6 percent). It is to be noted as previously mentioned in an unrelated connection (supra, fn. 17) - that the Union's May 15 recognitional/bargaining request letter set forth a differently worded bargaining unit, differing from the one stipulated here in only the following respect(s): The unit as stated in the Union's May 15 recognitional letter (Resp. Exh. 2) included only "all warehouse and maintenance employees" (which automatically included regular part-time warehouse and maintenance employees) and excluded "office employees, temporary and casual employees" (and others). The unit that was involved" (emphasis supplied). On further prodding during direct examination, Witt's third (or perhaps fourth or fifth) version was that Jamison said "it was for obtaining information about a union and representation that, you know, a union could give you and that no way it was a promise that you'd be represented by the union."' 3 4 Witt replied that he would think about it and talk it over with his brother-in-law, a union steward After discussing it with his brother-in-law, Witt signed the card the next day - according to his own testimony, after reading it. Starting as a Northbrook warehouseman at $3 an hour in February 1974, by January 1976 Witt was the recipient of progressive increases to $4.70 per hour. Under the described circumstances, there is no doubt in my mind that Witt's union card should be counted and I so find and determine. Without need to emphasize my impression of Witt as a seemingly uneasy and slippery witness anxious not to displease his employer, and perhaps unable to draw a sharp line between hard facts as they truly occurred and post facto redesign possibly prompted by current self-interest, and to that end unskillfully resorting to an allegedly defective and bleary memory, it is clear that he did sign the card after its purpose was correctly explained to him by Jamison, and after he discussed it with his brother-in-law, gave it some thought and read it over. The terms of the card are in plain language, and I believe and find Witt clearly understood them to mean what they say. His union card should be counted. See Gissell and other cases cited supra in connection with the Youngs card. The union cards of Youngs and Witt were thus properly includible in the foregoing 16 signed union cards. Accord- ingly, on May 15 and 19, 1975, the Union held valid bargaining representational authorization cards from a majority (on May 15, from 16 of 28 unit employees, or 57.1 percent; and on May 19, from 16 of 29 unit employees, or 55.2 percent) of the employees in the appropriate bargain- ing unit, and its lawful bargaining authority on their behalf has been established as of both of those dates, and I so find and conclude.' 3 5 as stated in the parties' June 6 Stipulation for Certification Upon Consent Election (Bd. Exh. I(c)) included "all warehouse employees ... including all full-time and regular part-time employees and summer employees but excluding clerical employees land others]." Each of these units is, if anything, arguably narrower and more favorable to the Union than the one alleged in the complaint, admitted in the answer, and stipulated (G.C. Exh. 2) at the hearing herein. Thus, under any of these "other" units, as well, the anrithmetic of the situation would be no less favorable to the Union and it would still have controlled a clear majonty on either of the dates in question. It is further noted that if the college students hastily hired - seemingly hired only for the summer vacation penod, but certainly (as here found) hired only as "fillers" for the purpose of unlawfully diluting the bargaining unit and to displace regular warehousemen, and on their prehire promise to vote against the Union - were excluded from the bargaining unit as the products and instruments of Respondent's connived attempt to dilute and destroy the bargaining unit, the Union's majonty on May 15 and 19 would be substantially higher. It has long been settled that employees discharged in violation of the Act, within the context and time frame of an impending statutory election under the Act, have the right to vote in a representation election. Washington Aluminum Company, Inc., 126 NLRB 1410, 1411 (1960), affd. 370 U.S. 9 (1962). That any possible subsequent loss of union nmajonty, under the 660 MEDLINE INDUSTRIES, INC. The majority predicate for a Gissel bargaining order being thus fulfilled, such an order is not only appropriate but imperative here in view of the circumstances described and found and the factors which have been discussed. Accordingly, the remedial order should so provide. Inas- much as Respondent embarked on the clear course of its unlawful conduct on May 15, 1975, and the Union's demand for recognition based upon its majority represen- tation credentials was made and refused on or about that date (as admitted in the answer), the determination is here reiterated that Respondent unlawfully failed to recognize and bargain with the Union as of May 15, 1975; and the remedy therefor should be a bargaining order as of that date. Multi-Medical Convalescent and Nursing Center of Towson, 225 NLRB 429 (1976); Kurt A. Perschke d/b/a Perschke Hay & Grain, 222 NLRB 60 (1976); Corl Corporation, A Wholly Owned Subsidiary of O'Connor Industries, 222 NLRB 243 (1976); Baker Machine & Gear, Inc., 220 NLRB 194 (1975); Trading Port, Inc., 219 NLRB 298 (1975). THE REPRESENTATION CASE As has been indicated, Case 13-RC-13712, involving the Union's challenges to certain ballots as well as its objections to employer conduct affecting the outcome of the June 23, 1974, election, is also here by consolidation. In light of the recommended bargaining order, it is unneces- sary to resolve those challenges and objections.' 36 The challenges and objections, as well as the proceeding itself, being moot, should therefore be dismissed and the election vacated. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this consolidat- ed proceeding, and pursuant to Section 10(c) of the Act, I hereby issue the following: ORDER 1 3 7 The Respondent, Medline Industries, Inc., Northbrook, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their or other employees' union membership, affiliation, sympathies, desires, voting intentions, or other protected concerted activities, so as to interfere with, restrain, or coerce circumstances shown, would not preclude a bargaining order, see Gissel, supra, 395 U.S. at 610 (1969); N.L.R.B v. Katz, 369 U.S. 736, 748, fn. 16 (1962); Franks Bros. Company v. N.LR.B., 321 U.S. 702 (1944); N.LR.B. v. P. Lorillard Company, 314 U.S. 512, 513 (1942); Gibson Products Company of Washington Parish, La., Inc., 185 NLRB 362, 364 (1970). An employer may hardly insist he has the right to retain the fruits of his own misdeed in scattering a union majority through violating the Act. Franks Bros. Co., supra at 704. 136 It is noted, however, that insofar as the challenges to ballots are concerned, as of the revised tally in the Regional Director's report (Bd. Exh. i(g)), the ballot situation stood 5 for and II against the Union, with challenges to 7 additional, unopened ballots - potentially sufficient to affect the election result. However, in view of the Union's withdrawal at the hearing of its challenge to the ballot of Virginia Fritz and Respondent's later concession that the Union's challenge to the ballot of Susie (Suzie) Summers should be sustained, it follows that the remaining 5 challenges are no longer sufficient to affect the election result, since even assuming that the Fritz ballot plus the 5 remaining ballots are all for the Union that could at best result in a tie vote of II to i . insufficient for certification. Under these employees in the exercise of any right set forth in Section 7 of the National Labor Relations Act, as amended. (b) Announcing, or placing or maintaining in effect or giving effect to, any proscription or prohibition, in violation of Section 8(a)(1) of said Act, against union or protected concerted labor organizational talk or solicita- tion on company premises during nonworking time. (c) Procuring or inducing, in violation of Section 8(a)(I) of the Act, any employee to withdraw any unfair labor practice charge filed by him against Respondent tinder the Act. (d) Threatening employees with closing or shutdown of its warehouse or business, or loss of employees' jobs, in violation of the Act, in the event its employees insist upon attempting to bargain collectively with Respondent or to select a Union or other labor organization as their bargaining representative. (e) Discharging, terminating the employment of, laying off, furloughing, suspending, or otherwise in violation of the Act altering the employment status of any employee, or threatening so to do, because he has selected or in the event he selects a Union as his bargaining representative or exercises any other right or engages in any other activity protected by the Act; or directly or indirectly so doing so as to discriminate in regard to the hire, tenure, or terms or conditions of employment of any employee because he exercises such right or engages in such activity. (f) Directly or indirectly engaging in any of the foregoing actions or activities in order to dissipate the collective- bargaining representational status of its employees' lawful- ly designated collective-bargaining representative, or for the purpose of causing its employees to discontinue or refrain from exercising their right to bargain collectively with Respondent, or otherwise so as to interfere with, restrain, or coerce its employees in the exercise of their rights under the Act. (g) Failing or refusing to bargain collectively in good faith with Warehouse, Mail Order, Technical & Profession- al Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representa- tive of its employees in an appropriate unit consisting of all full-time and regular part-time warehouse employees at the Employer's warehouse now located at 1825 Shermer Road, Northbrook, Illinois, including summer employees and circumstances. it would in any event be unnecessary to resolve any of the challenges or open any of the challenged ballots, which would therefore in any case be required to be destroyed unopened. Insofar as the union objections to employer conduct affecting the election results are concerned, as indicated by the Regional Director in his postelection report (Bd. Exh. I(g)), they overlap allegations of the complaint here already determined, that having been the reason for consolidation of the representation or election case with the complaint cases. That being the situation, those parallel objections have thus in any event been passed upon here and deemed sustained; to the extent there are additional objections not encompassed within the complaint, they were either withdrawn by the Union at the conclusion of the hearing or are moot and unnecessary to be determined in view of the disposition herein, which would be no different. 13l In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulation 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. 661 DECISIONS OF NATIONAL LABOR RELATIONS BOARD kitmakers; but excluding clerical employees, janitors, sales trainees, guards and supervisors as defined in the Act. (h) In any other manner interfering with, restraining, or coercing employees in the exercise of their right of self- organization; to form, join, or assist any labor organiza- tion; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement lawfully requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative actions, necessary to effectuate the policies of the Act: (a) Offer to the following eight employees immediate, full, and unconditional reinstatement to their former positions in Respondent's 1825 Shermer Road, North- brook, Illinois, warehouse (or, if not available, to substan- tially equivalent positions), without prejudice to their seniority and other rights, privileges, benefits, and emolu- ments, including but not limited to any and all increases in the rate of pay to warehousemen there since Respondent's termination of each of said eight employees; and make them whole for any loss of pay (including overtime, holiday and vacation pay, and insurance claims and benefits if any), together with interest, in the manner set forth in the Remedy portion of this Decision: Mark Ira Jamison Mark Kenney Douglas J. Kline Donald R. Holland John Chorba Gregory R. Fair Daniel J. Weckler John A. Ford, Jr. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, wage rate records, social security payment records, timecards, personnel records and reports, and all other records necessary to determine the amounts of backpay and other sums due under and the extent of compliance with the terms of this recommended Order. (c) Upon request, recognize and bargain collectively in good faith with Warehouse, Mail Order, Technical & Professional Employees Union, Local 743, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of Respondent's employees in the aforesaid appropriate collective bargaining unit, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed contract any understanding reached. (d) Post at its warehouse premises at 1825 Shermer Road, Northbrook, Illinois, copies of the attached notice marked "Appendix B." 138 Copies of said notice, on forms provided by the Regional Director for Region 13, after being signed by Respondent's authorized representative, shall be posted in said premises by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the consolidated complaint herein, dated October 30, 1975, be and it is hereby dismissed insofar as it alleges, in paragraph IX(b) thereof, unlawful interrogation of employees by Respondent through its supervisor and agent Noel Sterling on May 15, 1975. IT IS FURTHER RECOMMENDED that in Case 13-RC-13712 the Board issue an Order dismissing said case, including all challenges to ballots therein and Petitioner Union's objections dated and filed June 24, 1975, to conduct affecting the results of the election held therein on June 23, 1975, and vacating all proceedings held in that case including the aforesaid election. 138 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A Order on (I) General Counsel's Motion for Bill of Particulars, (2) Charging Party's Motion To Strike Amendment to Answer, and (3) Charging Party's Motion to Quash Respondent's Subpoena Duces Tecum (1) General Counsel having moved, by notice of motion dated January 22, 1976, for a bill of particulars as to Respondent's affirmative defense alleged in its amended answer dated January 19, 1976, (2) Charging Party having moved by motion served January 23, 1976, to strike Respondent's amendment to its answer, and (3) Charging Party having moved by motion served January 23, 1976, to quash Respondent's subpoena duces tecum, each motion having been on due notice, Now, after hearing argument thereon this 26th day of January, 1976, at Chicago, Illinois, and upon all the papers and proceedings heretofore had herein, and due delibera- tion having been had, it is ORDERED as follows: 1. General Counsel's motion for a bill ofparticulars (G.C. Exh. l(bb)) is granted to the following extent: A. Respondent shall within five (5) days serve upon the other parties a bill of particulars setting forth with reasonable particularity each and every respect in which it will be claimed that the Union has been and is engaged in discriminatory practices in regard to (1) employment and (2) membership on the basis of each of the following: a. b. c. d. e. race sex religion national origin alienage 662 MEDLINE INDUSTRIES, INC. The date or approximate date and place or places of each of such discrimination, as well as the person or persons engaging in such discrimination, shall also be set forth. In the event Respondent is without knowledge of any of the foregoing, it shall so state under oath, and shall within five (5) days after acquiring such knowledge furnish such data to the parties in the form of one or more supplemental bill(s) of particulars. B. In all other respects, General Counsel's motion for a bill of particulars is denied; without prejudice, however, to any application or applications General Counsel or either of the Charging Parties may make for a continuance or for such or further relief as may be proper, based upon data which may be adduced by Respondent in support of or in respect to the said affirmative defense set forth in its amended answer dated January 19, 1976 (whether such data are adduced by way of a bill of particulars, supplementary bill of particulars, or otherwise). 2. Charging Party's motion to strike Respondent's Janu- ary 19, 1976, Amendment to its answer (G.C. Exh. I(aa)) is disposed of asfollows: A. Charging Party's motion to strike said amendment as untimely is hereby denied. See NLRB Rules and Regulations, Series 8, as amended, Section 102.23. B. Charging Party's motion to strike said amendment upon the ground that it does not constitute a defense is denied, without prejudice to reassertion of said motion at a timely stage or stages of this proceeding. See Bekins Moving & Storage Co. of Florida, Inc., 211 NLRB 138 (1974); cf. N.L.R.B. v. Mansion House Center Management Corp., 473 F.2d 471 (C.A. 8, 1973). 3. Charging Party's motion to quash Respondent's subpoe- na duces tecum (G.C. Exh. l(fj)) is disposed of as follows: A. Charging Party's motion is granted to the extent of vacating Respondent's subpoena duces tecum, No. B- 154021 dated January 19, 1976, in respect to items therein numbered 3 and 9. Items 6 and 7 need not be furnished unless presently in existence in the form described in said items 6 and 7. With respect to item 8, one copy of each of the described general forms in use shall be supplied. B. With respect to the remaining items, as well as the items hereinabove modified, they may be furnished at any time up to and including five (5) days after General Counsel has rested his case-in-chief herein, unless said time is further extended by further order of the undersigned for good cause shown. So ordered. Stanley N. Ohlbaum Administrative Law Judge APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An agency of the United States Government After a hearing before an Administrative Law Judge, at which all sides had the opportunity to present evidence and arguments, the decision has been announced that we, Medline Industries, Inc., have violated the National Labor Relations Act. We have therefore been ordered to post this notice and to do what it says. The National Labor Relations Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT question you, in violation of the Act, concerning your union membership, affiliation, sympa- thies, desires, support, activities, or voting intentions. WE WILL NOT, in violation of the Act, prohibit you from talking about or soliciting membership in a Union or other labor organization, in our premises during your nonworking time. WE WILL NOT, in violation of the Act, induce or procure you to withdraw any unfair labor practice charge you have filed against us with the National Labor Relations Board. WE WILL NOT threaten that we will shut down or close our warehouse or business, or that you will lose your jobs, if you join or remain members of a Union or other labor organization, or if you persist in attempting to bargain collectively with us, or if you select a union as your bargaining representative, or because you exercise any other right you have under the National Labor Relations Act. WE WILL NOT do any of these things, or otherwise violate the Act, directly or indirectly, in order to dissipate the collective-bargaining status of your lawful- ly designated Union or other labor organizational representative, or for the purpose of inducing you to discontinue or refrain from exercising your right to act through such representative in order to bargain with us collectively. WE WILL NOT discharge, terminate the employment of, lay off, furlough, suspend, or otherwise unlawfully change the employment status of any employee, or threaten to do so, because he or she selects a union as his or her bargaining representative or exercises any other right or engages in any other activity protected by the Act; or so as directly or indirectly to discriminate against him or her in regard to wages, hire, tenure, or terms or conditions of his or her employment because he or she exercises such right or engages in such activity. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization; to form, join, or assist any labor organization; to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection; or to refrain from any and all such activities. WE WILL offer the following employees immediate, full, and unconditional reinstatement to their former 663 DECISIONS OF NATIONAL LABOR RELATIONS BOARD jobs in our 1825 Shermer Road, Northbrook, Illinois, warehouse, with full seniority and other rights and emoluments, just as if we had not terminated their employment on May 23 and 27, 1975; and we will pay each of them for any wages and benefits lost, plus interest, because of those terminations: Mark Ira Jamison Mark Kenney Douglas J. Kline Donald R. Holland John Chorba Gregory R. Fair Daniel J. Weckler John A. Ford, Jr. WE WILL, upon request, recognize and bargain collectively with Warehouse, Mail Order, Technical & Professional Employees Union, Local 743, Internation- al Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, as the exclusive bargain- ing representative of our employees in the following appropriate unit, and embody in a signed agreement any understanding reached: All full-time and regular part-time warehouse employees at our warehouse located at 1825 Shermer Road, Northbrook, Illinois, including summer employees and kitmakers; but excluding clerical employees, janitors, sales trainees, guards and supervisors as defined in the Act. All of our employees are free to join or not to join any union, or to exercise any other right under the National Labor Relations Act, as they see fit, without interference, restraint, or coercion from us in any form. MEDLINE INDUSTRIES, INC. 664