John G. Merkel & Sons, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD John GC. Merkel & Sons, Inc. and Teamsters Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 4-CA-8287 September 20, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On April 26, 1977, Administrative Law Judge Norman Zankel issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, a motion for oral argument and a motion to strike General Counsel's answer to Respondent's exceptions and brief. The General Counsel filed an answer to Respondent's exceptions and brief.' 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,2 and conclusions of the Administrative Law Judge, to modify his Remedy, 3 and to adopt his recommended Order, as herein modified.4 The Administrative Law Judge found that Respon- dent refused to recognize and bargain with the Union on October 27, 1976. We agree with this finding. 5 In fashioning his remedy, however, the Administrative Law Judge found that Respondent should be required to bargain retroactive to October 22, the date on which he found the Union obtained authorization cards from a majority of the employees in the unit. Inasmuch as the Union did not until October 26, 1976, request recognition and bargain- ing, which was refused on October 27, 1976, and all of Respondent's other unfair labor practices are remedied by our Order herein, we find that Respon- dent was obligated to bargain as of October 26, 1976, the date of the demand, and should be required to recognize and bargain, upon request, with the Union as of October 26. Trading Port, Inc., 219 NLRB 298, 301 (1975), Taylor Bros., Inc., 230 NLRB 861 (1977).6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, John G. Merkel & Sons, Inc., Wilmington, 232 NLRB No. 12 Delaware, its officers, agents, successors, and assigns, shall take the action set forth in the said recommend- ed Order, as modified herein: 1. Delete the last sentence in paragraph 2(d). 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent's motion for oral argument is hereby denied because the record, the exceptions, and the briefs adequately present the issues and positions of the Parties. The motion filed by Respondent requesting the Board to strike the General Counsel's answer to Respondent's exceptions and bnef is denied as lacking in merit. 2 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. 3 In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. I In his remedy, the Administrative Law Judge provided for a 5-day grace period after a striker applies for reinstatement before the obligation attaches to the Company to offer such a striker reinstatement to his former job, or to a substantially equivalent position. While Chairman Fanning and Member Jenkins have recently expressed their view, in dissent, that they would no longer grant this grace period but would, with certain limitations, require an employer to reinstate unfair labor practice strikers upon application for reinstatement, they acknowledge that, until such time as the majority view approving this practice changes, they are institutionally bound by this position. See Drug Package Company, Inc., 228 NLRB 108 (1977). 5 In adopting this finding, we do not adopt his statements concerning the necessity for an employer to have a good-faith doubt of a union's majority status for it to insist on a Board-conducted election. Linden Lumber Division, Summer & Co. v. N. LR.B., 419 U.S. 301 (1974). 6 Chairman Fanning adheres to his interpretation of N.LR.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969), as expressed in his dissenting opinion in Steel-Fab, Inc., 212 NLRB 363 (1974), that in these circumstances a violation of Sec. 8(a)5) occurs as of the date the respondent refuses to recognize and bargain with the majority representative of its employees. Donelson Packing Co., Inc. and Riegel Provisions Company, 220 NLRB 1043 (1975). See also his partial concurrence in Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977), and Member Jenkins and his partial concurrence and dissent in Drug Package Co., 228 NLRB 108 (1977). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had the opportunity to present evidence, it has been decided that we violated the law. We have been ordered to take certain steps to correct our violation and have been ordered to post this notice. We intend to carry out the order of the National Labor Relations Board and abide by the following: We notify you that the National Labor Relations Act gives all employees these rights: To engage in self-organization 140 JOHN G. MERKEL & SONS To form, join, or help unions To engage in collective-bargaining through a representative selected by you To act together for collective-bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT, by discharge, layoff, or any other similar actions, discriminate against any of you because of your union activities. WE WILL offer Joseph W. Campbell and Michael E. Kulesza immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without loss of seniority or other rights and privileges; and wi WILL pay to each of them all moneys lost as a result of our discrimination against them. WE WILL reinstate all employees who engaged in the strike which began on October 27, 1976, to their former jobs within 5 days after each striker makes an unconditional application to return to work. WE WILL NOT unlawfully question any of you about your union activities. WE WILL NOT deal directly with you about your wages, hours, and other conditions of employ- ment after you have duly selected a labor organization as your collective-bargaining agent. WE WILL NOT promise you any benefits in order to discourage your choice of a union to represent you. WE WILL NOT refuse to recognize and bargain with Teamsters Local 115, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all the employees in the unit found appropriate as described below. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of any or all of the rights described at the beginning of this notice. WE WILL, upon request, recognize and bargain collectively in good faith with Teamsters Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, as the exclusive collective-bar- gaining agent for your wages, hours, terms and conditions of employment, and all other matters appropriate for collective bargaining; and if agreements are reached, WE WILL put them in writing, if requested, and will sign that written document. The appropriate unit for collective bargaining is: All truckdrivers, warehousemen, and repair- men employed by John G. Merkel & Sons, Inc., at its 807 North Union Street, Wilming- ton, Delaware location, excluding all other employees, inside and outside salesmen, office clerical employees, guards, and super- visors as defined in the National Labor Relations Act, as amended. JOHN G. MERKEL & SONS, INC. DECISION STATEMENT OF THE CASE NORMAN ZANKEL, Administrative Law Judge: This case was heard before me on February 7, 8, and 9, 1977, at Wilmington, Delaware. The charge was filed on October 27, 1976,1 by Teamsters Local 115, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (hereinafter the Union), and alleged that John G. Merkel & Sons, Inc. (hereinafter the Respondent), had engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (hereinafter called the Act). On December 22, the Regional Director of Region 4 of the National Labor Relations Board (hereinafter called the Board) issued a complaint alleging that Respondent unlawfully terminated the employment of its employees, Joseph W. Campbell and Michael E. Kulesza; interrogated employees concerning their union activities; and refused to bargain collectively in good faith with the Union. At the hearing, the complaint was amended to allege that Respondent, in addition, unlawfully unilaterally dealt with its employees and that a strike in which its employees had been engaged since October 29 was initiated and prolonged by the aforesaid unfair labor practices and those who participated in that strike are unfair labor practice strikers. The Respondent filed a timely answer which denied the commission of any unfair labor practices, and orally amended its answer at the hearing to deny the allegations of the amendment to the complaint. All issues, including those encompassed by the amendments, were fully litigated at the hearing, to the extent of presentation of surrebuttal evidence by Respondent; all parties were represented by counsel and were afforded full opportunity to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to engage in oral argument. Subsequent to the close of the hearing, timely briefs were submitted by the General Counsel, Respondent's counsel, and counsel for the Union and have been duly considered. Upon the entire record in this case, and from my observation of the witnesses and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony," 2 1 make the following: All dates are in 1976 unless otherwise stated. 2 Universal Camera Corporation vN. L R. B., 340 U.S. 474, 496 (1951). 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS AND CONCLUSIONS I. JURISDICTION Respondent is a Delaware corporation with a principal place of business at 807 North Union Street, Wilmington, Delaware, where it is engaged in the wholesale distribution of medical and surgical supplies and equipment. Annually, Respondent's gross volume of business exceeds $500,000 in value and, during the same period of time, it purchases and receives goods and services at its Wilmington location having a value in excess of $50,000 directly from points outside of Delaware. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties admit, the record reflects, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. SEQUENCE OF EVENTS 3 The allegations of the complaint emanate from efforts of Respondent's warehouse employees, including the job classifications of warehouseman, driver and repairman, to organize on behalf of the Union.4 Sometime during the summer of 1976 the warehouse employees discussed possible unionization among themselves, but had no particular labor organization in mind and the discussions were more or less "casual." More specific plans were developed on or about October 15 when Kulesza received a telephone call from a clerical employee of the Union who advised Kulesza that authorization cards and accompany- ing literature would be mailed to him. (Kulesza's phone number had been given by Campbell, according to prior arrangements between Kulesza and Campbell, to a friend of Campbell who was a union member.) On October 18, Union Representative Jeff Smith phoned Kulesza to inform him the cards were in the mail and, on October 21, Kulesza received them in the mail and saw them for the first time after he returned home from work that evening. The following day, October 22, Kulesza distributed the cards at approximately 8:30 a.m., together with a booklet I The facts contained in this section are a composite of testimony of various witnesses presented by both the General Counsel and the Respondent which are either not in conflict or unrefuted. As will be developed hereinbelow, wherever there are conflicts in the testimony between witnesses of the General Counsel and those of Respondent, I deem each General Counsel witness more reliable than any of Respondent's witnesses, based on my observation of their forthright demeanor and the logical consistency of their narrations. By contrast, the record reflects evasiveness and contradictory testimony among Respondent's own wit- nesses which will be further explicated herein. It is noteworthy that all witnesses, except the alleged discriminatees (Kulesza and Campbell), Union Representative Joseph Yoeman, and Respondent's vice president, William F. McHugh, were sequestered throughout the hearing. 4 The appropriateness of this unit for collective-bargaining purposes is a subsidiary issue herein which will be discussed in connection with the refusal-to-bargain allegations. I One of these cards and booklets was for Drobinski to give to Campbell who was not present at the time. Campbell's absence will be further related hereinbelow within the discussion of his termination. I Although Osborn testified he had not been present during the distribution, based on his testimony as a whole (as will be discussed entitled "The Union and You," to warehouse employees who were grouped in the vicinity of the coffee machine. The employees who received that material are George Tulowiecki, Eddie Crespo, Paul Deptula, Charlie Miller, Stephen Surowiec, and two cards and booklets were given to Frank Drobinski.5-Warehouse Supervisor Dale Osborn (an admitted supervisor), was present during this distribu- tion. 6 Later, on October 22, Campbell was discharged, and Kulesza laid off, by McHugh. 7 On Monday morning, October 25, Frank Dennis, Respondent's customer service manager (an admitted supervisor), reported to McHugh it was rumored there might be a union meeting at or about 10 a.m. McHugh questioned warehouse employee Paul Deptula concerning the rumor.8 The next day, Yoeman, together with union counsel, Richard Syre, visited the Respondent's premises and conferred with McHugh. Yoeman delivered a letter requesting recognition and also a recognition agreement.9 Yoeman told McHugh that the Union enjoyed majority status and offered to show McHugh the authorization cards signed by the warehouse employees. McHugh then took the cards, examined them, noted that the cards of Campbell and Kulesza were included, and commented they were no longer employed by Respondent. Yoeman and McHugh discussed the termination of Campbell and Kulesza; then Yoeman asked McHugh if he recognized, as a result of his examination of the authorization cards, that the Union represented a majority of the employees. McHugh responded that he did not doubt the Union represented a majority,' ° but said he could not sign the recognition agreement because he would have to consult with Merkel who was not present that day. Yoeman advised he would return to Respondent's premises the next day. On October 27, Yoeman did again visit Respondent's facility and spoke with McHugh, who delivered a letter from RespondentI declining recognition, and orally told Yoeman that Respondent would not recognize the Union. The result of this conversation was immediately reported to Campbell and Kulesza (and apparently to the other warehouse employees), whereupon picketing and a strike began with all of the card signers participating. Initially, hereinbelow) I do not credit his denial, especially in view of the uniformity of contrary evidence provided by Kulesza, Tulowiecki, Crespo, Miller, and Drobinski. Deptula did not recall whether Osborn was present, and Surowiec was not questioned concerning it. I The events surrounding, and details of, these terminations will be separately discussed below in sec. IV. s This incident is alleged to be violative of Sec. 8(a)(1) and will be further discussed below. 9 The letter and recognition agreement are in evidence as G.C. Exhs. 8(a) and (b), respectively. An error in the transcript was noted and corrected. 'o Based on the credited testimony of Yoeman. I do not accept Respondent's effort to implicitly refute this version because (I) McHugh himself did not explicitly deny he issued such an acknowledgement; (2) McHugh admitted he used words to that effect relative to the requested unit; (3) McHugh admitted he "shuffled" through the cards, thereby confirming he engaged in the card check; (4) there is a total absence of evidence that McHugh expressed any doubt as to the authenticity of the cards; and (5) McHugh acknowledged he knew Yoeman delivered "six, seven, eight" cards to him. " Resp. Exh. 4. 142 JOHN G. MERKEL & SONS the picket signs carried by the strikers bore the legend "On strike, Teamsters Local 115-Unfair discharges." After the instant complaint had been issued, the words "Unfair discharges" were changed to "Unfair labor practices." The strike and picketing continued uninterruptedly to, and through, the instant hearing. On October 29, Norman Chipman, a salesman of Respondent, engaged some of the strikers in three conver- sations, and also spoke with Merkel.' 2 There is no dispute that Chipman sought, through these separate discussions, to arrange a face-to-face meeting between the strikers and Merkel. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Union Activity of Campbell and Kulesza'3 In addition to the union activities of Campbell and Kulesza described above in section III, the evidence reflects the following: (I) During the summer, particularly after softball games. Kulesza and various other warehousemen discussed among themselves possible unionization. (2) About the middle of October, both Campbell and Kulesza told Deptula they had "made contact" with the Union. (3) Sometime during the summer, while driving to a job with Drobinski (he and Campbell were repairmen), Campbell asked Drobinski whether he was interested in union representation. (4) In mid-September, Campbell spoke with other warehouse employees concerning unionization during lunch hours and before and after work. (5) In late September, Campbell discussed the Union with Chipman away from Respondent's premises, and twice with salesman Lawrence Dager in Respondent's repair shop. (6) In September, when Stephen Surowiec was Camp- bell's supervisor, Campbell asked Surowiec his union sentiments. B. Respondent's Knowledge of Union Activity As noted, Respondent claims it had no knowledge of union activity until 3 days after the terminations. Accord- ing to Campbell, his oral inquiry of Surowiec in September took place in the repair room at Respondent's premises. Surowiec, though a witness on other matters, did not testify at all about this particular conversation. It is undisputed that Surowiec was warehouse supervisor prior to Osborn, who acceded to that position on October II1. Although Surowiec testified he had been informed in late August that his performance as a supervisor was unsatisfactory, no evidence was adduced to indicate that an interim ware- house supervisor was to be, or had been, appointed. Thus, I conclude, by virtue of Surowiec's uncontested supervisory status during September and Campbell's uncontradicted 12 The activities of Chipman are alleged as a violation of Sec. 8(a)(l) and (5) and will be separately discussed below. 13 Based on the testimony of Campbell. Kulesza. and other employees Deptula. Drobinski, and Chipman who testified on behalf of the General Counsel. Although Respondent disputes its knowledge of the union activity. it presented no evidence to controvert the evidence that such activity conversation with him, that Respondent had direct knowl- edge of union activities of its employees, and of Campbell in particular, sometime in September. 14 According to Campbell, Respondent exhibited its knowl- edge of the union activity (and also received confirmation of its existence) during a conversation between him and Osborn on October 13. Campbell testified that, on that day, Osborn approached him in the repair shop and said he understood "you guys want to start a union." 15 Campbell responded, "Yeah, we're thinking about it," and Osborn is then supposed to have said, "Well, I started unions at other places. They're not hard to start." Additionally, Drobinski testified that on October 22, shortly after Kulesza distribut- ed authorization cards and the Union's pamphlets at the coffee machine, Osborn remarked to Drobinski privately, "I see the books were passed out. If you fellows get in, I could make more money." Osborn (a witness on behalf of Respondent) was not asked, during his direct examination, to specifically refute these comments attributed to him by Campbell and Drobinski. During Osborn's cross-examina- tion, when asked about his alleged statements he testified he could not "off hand" recall making them. I find Osborn to have been totally evasive and deliberately confusing on this subject matter as evidenced by the following transcript excerpt, and from the fact that the entire background of relevant information did not come forth from him until after he had been cross-examined twice. Q. (by Mr. Kelly) You know Frank Drobinsk;. don't you? A. Yes, I do. Q. Do you remember telling him that you helped two other unions get in plants where you worked before? A. Offhand, no. Q. Not offhand, think a little bit. A. No, I can't think of any circumstances where I would say that. Q. Did you ever tell anybody that if the union got in, you would make more money, and the men would make more money, or words to that effect? A. I can't remember saying words to that effect. However, it may have been overheard in the conversa- tion with someone else. On recross-examination, Osborn did state that he had previously held membership in three union in other shops and "helped" those unions organize and, in response to questions from the bench, said he had distributed union literature elsewhere an an "organizer." Of prime signifi- cance in assessing Respondent's claimed ignorance of union activity (and the relative weight to be accorded the testimony of Campbell and Drobinski as opposed to Osborn) is the preponderance of credible evidence (dis- cussed above in sec. Il1)16 wvhich indicates Osborn was within the immediate proximity of Kulesza's distribution of occurred as descnbed by the General Counsel's witnesses. Respondent contends it first became aware of these activities on October ?S i4 Warren Chateau Hall, Inc.. 214 NLRB 351 (1974). 5 This statement is not alleged to constitute a violation of the Act as creating an impression of surveillance of union activities. 1s See fn. 6, supra. 143 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cards and pamphlets on October 22. This fact lends support to the General Counsel's claim (through Drobin- ski's testimony) that Osborn actually remarked that he observed the distribution and he might ultimately gain some financial benefit. In view of the forthright and directly undenied testimony of Campbell and Drobinski concerning Osborn's alleged comments revealing his awareness of union activity; Osborn's evasive responses and the mutual corroboration of the sequestered witnesses who described Osborn's presence at the time of distribu- tion, I conclude that Osborn indeed orally said that he was aware of the union activity prior to the terminations, as contended by the General Counsel. This knowledge is imputable to Respondent. Accordingly, I find that Respon- dent had knowledge of union activity among its employees in general, and by Campbell and Kulesza in particular, before they were terminated.17 C. Campbell's Discharge Respondent interposes a two-fold defense to Campbell's discharge. First, it is asserted that he was terminated because of a planned reduction in force necessitated by economic conditions in the warehouse; and, second because he was insubordinate. s I. The economic defense McHugh testified that, in the third week of September, he and Merkel decided to lay off a warehouseman and a repairman from the warehouse and that Campbell and Kulesza were selected because each was, according to Respondent's policies,19 the least senior employee in his particular job classification. Respondent admits no notice of the alleged impending layoffs had been given either Campbell or Kulesza. Respondent presented documentary evidence,20 a trade association report containing the financial performance of participating industry employers (Respondent participat- ed) for 1975 (the Respondent's fiscal year) which shows: Range of Common Experience WAREHOUSE & DELIVERY EXPENSES: Warehouse salaries & wages Truckdrivers' wages Freight, express, parcel post, etc., on mdse. shipped Other whse & delivery expenses Total whse & delivery expenses Your Figures 3.10Z 21/ .99% .89% .12% 5.09% Relatively High 1.92 0.53 1.39 0.34 3.87 Average 1.62 0.28 1.19 0.29 3.35 Relatively Low 1.03 0.15 0.88 0.23 2.77 According to McHugh, the association report demon- strated that in the other categories of operations enumer- ated the Respondent was "fairly well in line with the industry." Thus, the layoffs were conceived to reduce Respondent's costs of its warehouse operations which the above-quoted abstract from the report reveals was consid- erably in excess of even the highest costs among the other industry employers. It is noteworthy that similar financial surveys had been received by Respondent for the years 1973 and 1974 and 17 The General Counsel and Charging Party, in their postheanng briefs, urge the utilization of the so-called small plant doctrine to make an inference of Respondent's knowledge of union activity from such circum- stances as the size of the employee complement, the notorious manner of solicitation, and conversations not discussed hereinabove. I agree that the totality of the record evidence would permit me to infer Respondent's knowledge pursuant to Board Ford, Inc., 222 NLRB 922 (1976), Tayko Industries, Inc., 214 NLRB 84 (1974), and Wiese Plow Welding Co., Inc., 123 NLRB 616 (1959)., but find it cumulative and unnecessary to do so. In Respondent claims that Campbell, together with Kulesza, had been scheduled for layoff on or about October 22, but that, while Kulesza had in McHugh admitted that, as a result of those earlier reports, Respondent "knew for several years that we were certainly over-expensed in the warehouse" and "had an inefficient warehouse operation." According to McHugh, Respondent embarked on a program to make its warehouse operation more efficient. The first phase, originated in August 1975, was to construct a more efficient physical facility. That task was completed in March 1976. The next step was to recruit a more experienced warehouse supervisor who, incidentally, would be higher paid than his predecessor. This was accomplished through the employment of Osborn fact been laid off on that date, Campbell was discharged due to his insubordination. 19 There is some doubt whether Kulesza or Deptula was the least senior warehouseman because Kulesza had been a full-time employee longer than Deptula, but Deptula possessed an earlier hiring date when working as a part-time employee. In view of my disposition of the economic issue, this dispute needs no resolution. It is agreed that Campbell was the least senior repairman. 20 Resp. Exh. 8. z2 The stated percentages are of total sales. 144 JOHN G. MERKEL & SONS on October 11. Thus, McHugh explained the layoffs of Campbell and Kulesza were but the next step in the cost reduction plan. As further support of its position, Respon- dent offered evidence which shows that on December 31, 1975, the total full-time employee complement in the warehouse was 31, that by October 22, 1976, it had increased to 33, and on December 31, 1976, was once again 31; and that neither Campbell nor Kulesza was replaced. On superficial examination of Respondent's evidence and explanations, one might well conclude that there is merit to its claimed need to effect layoffs. However, there is substantial record evidence to reveal that this defense cannot withstand detailed security. This controverting evidence consists of contradictions not only from credited General Counsel witnesses but also between Respondent's own witnesses, admissions by Respondent's witnesses, and the logical inconsistency of the events as depicted by Respondent. Thus, McHugh testified that the statistical report which led to the decision to lay off was received in August, while Merkel testified the report was received in March or April. Another glaring contradiction is observed between the testimony of Merkel and McHugh who both stated that, on the day Osborn was hired, they told him Kulesza and Campbell were scheduled for layoff, whereas Osborn testified it was not until 3 days later that he was apprised of Campbell's and Kulesza's names. In the face of these inconsistencies alone, compared to the constancy of General Counsel's witnesses, I would be justified in disbelieving Respondent's assertions that the financial report was the basis for the terminations and that the decision to lay off Campbell and Kulesza had been made in September. However, there exist additional evidentiary reasons to negate the economic defense. For example, though McHugh steadfastly claimed Respondent needed to reduce warehouse costs, he admitted "we had in mind a contemplated offset of the additional warehouse cost ... not so much a savings, but to offset. We just didn't want to increase warehouse expenses by $10,000. We had to compensate for that."2 2 McHugh further admitted that, prior to the alleged layoff decision, no computation had been made to determine whether the layoffs would, in fact, effect some sort of cost reduction. Such an admission vastly diminishes the claimed thrust of economic necessity for, if the real reason for the layoffs was to achieve cost reduction, it is reasonable to assume that some effort would be made in advance to ascertain whether the layoff would produce the intended result. Further reducing the defense's validity is the admitted fact that no prior notice of the layoffs was given, although the decision purportedly had been made at least 3 weeks before the occurrence. Thus, what remains is the uncanny coincidental fact that the terminations were effectuated on the very day that union cards and literature were openly distributed at Respondent's premises. Still another factor militates against Respondent's eco- nomic defense. Campbell testified he had been "schedule" to attend a seminar on October 27 where one of Respondent's customers, Burdick, was demonstrating equip- ment. A serviceman was required to make necessary 22 The additional cost referred to is associated with Osborn's hiring (emphasis supphed) adjustments should equipment fail during the demonstra- tions. Campbell recalled he and Dean Miller, a salesman of Respondent who was to attend the seminar, spoke with McHugh on October 20 or 21 and Miller suggested Campbell also attend the seminar. When testifying, McHugh simply denied that Campbell had been "sched- uled" to attend the seminar, and Miller (who testified principally on the appropriateness of the unit) was not asked whether he suggested Campbell's attendance to McHugh. Miller did testify he was not aware whether or not Campbell had been so assigned. In view of my prior conclusions that where testimony conflicts I credit the General Counsel's witnesses, I find that the seminar discussion occurred as described by Campbell, especially in view of McHugh's self-serving denial without further explanation. In any event, whether or not Campbell had been formally scheduled to attend the seminar is of no consequence. What is relevant to the Respondent's claim that the layoff was afait accompli is the absence of evidence to show that McHugh declined Miller's suggestion and the failure of McHugh to announce that the suggestion was futile because Campbell was scheduled to be laid off in I or 2 days. Finally, there appears an element of irrational conduct related to the selection for layoff, as described by Respondent. The above-quoted abstract of the warehouse cost statistics shows that Respondent's truckdrivers' wages were .99 percent of sales. This sum, when compared with the percentages of truckdrivers' wages in the three categories of "Range of Common Experience," shows that Respondent was on the "extremely high" side of the industry in drivers' wages. Despite this clear observation, no evidence was adduced by Respondent to show that it even considered the layoff of any drivers. I do not seek, by this observation, to intrude upon managerial decisionmak- ing for there may have existed valid reasons not to reduce the driver force. Nonetheless, I find the failure to demonstrate that the subject had even been contemplated by Merkel and McHugh casts suspicion upon the bonafides of the alleged layoff decision. Upon all the foregoing, I conclude that Respondent has not sufficiently established its claim that it had a justifiable economic need to terminate Campbell on October 22. Even assuming such a need existed, I conclude that the credible evidence does not support that Campbell's (or Kulesza's) layoff was planned in advance, based on that need, as Respondent contends. 2. The insubordination Respondent contends Campbell was involved in a series of incidents within the final 10 days of his employment which warranted converting the alleged planned layoff to a discharge. Summarized, the alleged infractions are: a. On October 12, when Osborn informed Campbell and Drobinski that the repairman would have to note thei- 145 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absences in a logbook, Campbell exclaimed to Osborn, in Drobinski's presence, "Not that fucking shit again!"2 3 b. Campbell made illegible entries in the log on October 12 and 18.24 c. On October 18 or 19, Campbell said to Dennis, in the hearing of other employees: "You're dumb-stupid-I'm smarter than you." d. On October 22, Campbell neglected to log out a personal absence. Respondent asserts the accumulated effect of the above items of alleged misconduct led to the conversion of Campbell's planned layoff to a discharge, but McHugh testified that the immediate cause was the October 22 failure to log the personal time.25 Institution of the log was McHugh's idea to further Respondent's need to become more efficient. The log's unquestioned advantage is to permit a repairman to be contacted while in the field to relay instructions for the next job, thereby obviating the need for travel to the shop to receive those instructions in person. On the cover of the log were five numbered instructions as to its use.26 The third paragraph deals with entries for personal time and reads: If you leave early for personal reasons - whatever the nature - you must also sign and explain your destination. It is undenied that, on October 21, Campbell told Osborn that he had to take his daughter for treatment at a hospital the next morning and would report to work late on October 22, and that Osborn granted the time off. According to Osborn, he again explained the purpose of the log to Campbell on October 22 (having already done so on October 12) and advised him to account for his personal absence in the log upon his return.27 Prior to leaving work on October 21, Campbell informed Drobinski that he would report late the next day and that he had so advised Osborn and received permission. Before reporting to work on October 22, Campbell took his daughter to the hospital and reported to work at or about 10:30 a.m. He did not sign the logbook on returning2 8 and, at 10:40 a.m., he and Drobinski left for a field job. By that time, the log had been returned and both men signed out, as prescribed. McHugh testified he had looked for Campbell between 8:30 and 10:30 that morning. The sequence of events as to whether McHugh looked at the log before or after Osborn told him Campbell would be reporting late is not clear, but what is certain is that, after Campbell and Drobinski signed out for their job and left the premises, McHugh 2'1 There is a dispute whether Campbell also alluded to the need for a union when he made this remark. In view of my findings and conclusions of Respondent's knowledge of union activities, I deem it unnecessary to resolve this dispute. 24 The October 18 entry was raised as an example of misconduct at the hearing for the first time, and again is discussed in Respondent's brief as such. That date, however, did not appear in Campbell's termination notice dated October 22. See G.C. Exh. 5. 25 McHugh testified: "[lit was his lack of, omission of an entry on the day of discharge that infuriated me that he did not log down the personal time ... we have had enough crap out of him over this log." 2" Resp. Exh. 2. 27 I do not credit this version of Osborn: first. because it is inconsistent noted Campbell had not "logged" his personal absence and, according to McHugh, Merkel and he discussed the incident at lunch that day and decided that Campbell would be discharged rather than laid off. Campbell admitted not logging his personal leave that day, explain- ing his failure to do so was due to his understanding that Osborn's granting of the time off the previous day did not require any further action by Campbell. Regarding Respondent's assertions that the illegible entries contributed to the decision to discharge Campbell, McHugh testified that Osborn brought him Campbell's first entry of October 12 and complained that Campbell had written illegibly. McHugh agreed and, according to him, orally reprimanded Campbell on October 13, warning him McHugh would not tolerate "his insubordinate nature." Campbell, on rebuttal, denied such a reprimand. Osborn, interestingly, testified that although he reported both that Campbell's log entry was illegible and also his profane comment of indignation2 9 at having to sign the log, Osborn himself "shrugged it (the remark) off being the reaction of someone who was not happy with the implementation." In these circumstances, I credit Camp- bell's denial that he was warned about being insubordinate. Even if McHugh's account was credited, he admitted that he observed Campbell's handwriting had improved prior to October 22,3° and further stated that he did not take this improvement into consideration on October 22 when he and Merkel decided that Campbell should be discharged. Assuming Respondent had a legitimate concern for maintaining accurate time and location accounts of its repairmen, I nonetheless conclude that reliance upon Campbell's omission to log in his personal time on October 22, and upon his poor handwriting, as a cause for discharge is misplaced and totally exaggerated. First, as noted above, it is admitted Campbell's handwriting improved, yet this fact was given no weight when considering his discharge. Campbell was a highly skilled and trained employee whose skills were unique to the trade. Moreover, McHugh himself acknowledged that Campbell had been an acceptable worker. Additionally, the record reveals that Campbell, at no time, refused to sign the log, and this was true even when he expressed dismay (on October 12) at having to do so. It stretches credulity to believe that in the total context of this case one's poor handwriting could be a valid cause for discharge. That Respondent was straining to support this aspect of its defense is observed by its addition, at the hearing, of the illegible entry of October 18, an action which I deem to be an afterthought inasmuch as Campbell was not advised of it at the time of his discharge. with par. 3 of the log instructions which require signing out when leaving after already having been at work; and, second, because it would have been more reasonable to request Campbell to note his anticipated and excused absence on the day permission was granted to take personal leave. This procedure would have been more consistent with the purpose of the log. Even if I credited this instruction as Respondent asserts, it was impossible to comply, for the credible evidence indicates the log was not available for signing at the time Campbell reported for work on October 22. 28 Drobinski credibly testified that McHugh had taken the logbook away. 29 See subpar. (a), supra. 30 Indeed, Respondent pointed to only one other entry, October 18, which is claimed illegible. 146 JOHN G. MERKEL & SONS As to Campbell's failure to log his personal absence on October 22, 1 find his explanation for not signing to be plausible. Having been instructed that the purpose of the log was to be able to locate the repairmen to advise them of further assignments, it is not unreasonable to assume that use of the log was intended only after having reported for work and then absenting oneself. That this assumption is valid may be seen from the language of log instruction three itself, which begins: "If you leave early for personal reasons," (emphasis supplied). Thus, Campbell knew his absence from work had been excused in advance by Osborn. His absence between 8:30 and 10:30 on October 22, therefore, was not a situation in which he had to leave early. Moreover, it is noted that Campbell did sign out at 10:40 in accordance with the instructions. At best, therefore, I perceive the cause of McHugh's "infuriation" when observing Campbell had not logged his personal time was a mere misunderstanding of the instructions which rationally would require clarification - perhaps a warning - but certainly not discharge. Accordingly, I find neither Campbell's illegible handwriting nor his failure to log his personal time valid cause for discharging him in the instant circumstances. 3' There are yet two matters relating to insubordination to consider, for either of them, under appropriate conditions, might constitute sufficient grounds for discharge. The first is Campbell's admitted use of profane language on October 12 toward Osborn. Although not explicitly contended to constitute insubordination, Campbell's termination notice refers to the October 12 outburst as "caustic remarks you made to your supervisor .... " As indicated above, Osborn, to whom the comment was made, "shrugged" it off. If, as McHugh testified, he actually reprimanded Campbell on October 13 after having been informed of the remark by Osborn, it is clear that, at least on that date, McHugh did not consider Campbell's utterance so egre- gious as to cause his discharge. No severe action was taken that day, nor were Campbell's words even mentioned by McHugh who spoke only of the illegible October 12 entry. As noted, I have not credited McHugh's testimony of the alleged October 13 warning. Whether or not there was such a warning given Campbell, the fact remains that, if a valid cause for discharge based on improper language existed, it remained in existence from October 12 until October 22 without action. I find this delay suspicious. The second incident is the demeaning language purport- edly used toward Dennis who recounted that, at the coffee machine where several employees had congregated on the morning of October 18 or 19, he and Campbell were engaged in conversation. Campbell agreed that he had a discussion with Dennis on the day in question. They presented diverse accounts of what was said as to irrelevant matters. Both agreed, however, that the discussion turned to the fact that Respondent paid mileage to Campbell. Dennis' version of the alleged demeaning comment was that Campbell said, "You're dumb-stupid-I'm smarter :~ This is especially true when considering that the record reflects that a driver, Charles Miller, suffered no discipline whatsoever when, in April, one of Respondent's trucks in his control was stolen as a result of Miller's failure to remove the keys while he left the truck unattended. Thus. by Respondent's own demonstrated standard for discipline, these reasons asserted for the discharge of Camphell are inadequate. than you," while Campbell testified he only said "You're just being dumb,"3 2 in response to Dennis commenting that Campbell was angry because of the (log) book. Dennis claimed he was "pretty upset and a little mad" over Campbell's remarks because he had been addressed in such a manner "in front of a lot of people ... who work for or under me." Dennis testified he reported the incident to McHugh that same day. The record reveals that McHugh did not discuss the matter at all with Campbell. Campbell's notice of termination does not at all allude to this incident. Conceding Campbell called Dennis "dumb" and "stu- pid," and that in certain circumstances such words uttered to supervisory personnel constitute conduct warranting discharge, I conclude they do not justify Campbell's discharge herein. These insults were known to McHugh at least 3 days prior to the discharge, but no disciplinary action whatever was taken. If Campbell's conduct was so heinous as to merit termination for misconduct, then the failure to impose such discipline immediately remains unexplained. In this connection, I find McHugh's failure to so much as discuss the Dennis incident with Campbell both belies Respondent's claim that Campbell had been warned on October 13 and also reveals how little the claimed insubordination actually related to the discharge, it being the second alleged incident of so-called insubordination within a week. Indeed, it was not until the hearing before me that there apparently was any official cognizance of the Dennis incident, for it was not stated as a reason for the discharge prior to that time. In such circumstances, I conclude that this incident could not have been a reason for Campbell's discharge. In sum, I find that neither the profanity toward Osborn nor the insults toward Dennis provide sufficient basis for Campbell's discharge. D. Kulesza's Layoff As noted hereinabove, Kulesza was given no notice prior to his layoff on October 22. As with Campbell, Respondent contends the layoff was part of the planned reduction in force, motivated by economic necessity. No extensive discussion or analysis is necessary to resolve the issue of Kulesza's termination. In view of the foregoing discussions concerning Kulesza's extensive and overt union activity, the Respondent's knowledge of that activity, the invalidity of the economic defense, and the various credibility resolutions, I conclude that Kulesza's layoff was not prearranged due to economic necessity. One incident not heretofore described, involving Kules- za, is of significance to my conclusion. It is undenied that he gave a union authorization card to Stephen Surowiec who, as will be demonstrated below,3 4 was a supervisor or, at least, had interests more aligned with management than with unit employees. This fact persuades me, when viewed together with previously mentioned evidence, that Respon- dent obtained direct knowledge of Kulesza's participation 12 In view of my conclusions, this variation need not be resolved. 33 See Alamo Express, Inc.. Alamo Cartage Company, 200 NLRB 178, 184 (1972); Dunclick, Inc., 159 NLRB 10. 15 (1966). 34 See discussion of Surowiec's status. infra. Ultimately, Surowiec declined to sign the card, announcing he could not do so because he was "part of Management." 147 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the Union's organizing efforts immediately before laying him off. Accordingly, I find there is strong evidence that the layoff was motivated by other than economic consider- ations. E. Summary In evaluating Respondent's defenses to Campbell's discharge and Kulesza's layoff, due consideration has been afforded the unrefuted economic analyses in evidence and to the testimony of Respondent's witnesses to the effect that it was engaged in a long-range and protracted undertaking to make its warehouse operations more efficient. I have also considered the notorious character of the union activity, the fact that the terminations occurred on the same day as the in-plant solicitation, the gravity of Campbell's alleged misconduct and the disparate treatment accorded him compared to Miller, the relative credibility of witnesses and demeanor while testifying, and the record as a whole which, as will be shown below, indicates unlawful interrogation of an employee and other efforts to under- mine the Union. A fair assessment of these factors convinces me that the terminations of Campbell and Kulesza were motivated by unlawful considerations. Even assuming the validity of the economic defense, the terminations would be violative of the Act,35 and I find it pretextual. I have found that the credible evidence indicates Respondent's direct knowledge of Campbell's and Kules- za's union activities. Assuming, arguendo, this is not the case, the record as a whole permits an inference of such knowledge, based upon the various conversations about unionization among the employees initiated by Campbell and Kulesza, the in-plant distribution of union cards and literature, and the small size of the employee group involved.36 The discharge of leading union advocates is a classic and effective method of undermining organizational efforts. 37 Herein, Respondent terminated the two most active prounion employees. Upon all the foregoing, I conclude that Respondent's asserted reasons for the terminations are but a subterfuge to disguise its unlawful motivation. Accordingly, I find that Campbell's discharge and Kules- za's layoff on October 22 were discriminatory, and in violation of Section 8(a)(3) and (1) of the Act. F. The Alleged Interrogation of Deptula As indicated above in section III, after Dennis advised McHugh of the rumors of a union meeting on October 25, McHugh spoke with Deptula. Thus, during that afternoon Deptula was called into McHugh's office. No one else but the two of them was present. Deptula testified that (1) McHugh said he heard "nasty rumors about a union being formed" and asked Deptula whether he "heard anything 3. HowardJohnson Company. 209 NLRB 1122. 1131 (1974). :16 Heath International, Inc., 196 NLRB 318, 319 (1972); Weise Plow Welding Co., Inc., supra at fn. 17. 37 N.L.R.B. v. Longhorn Transfer Service, Inc., 346 F.2d 1003, 1006 (C.A. 5. 1965). :, At the time of the October 25 discussion with McHugh, Deptula was a warehouseman working a full-time schedule. His status will be further discussed in sec. G. I. a. infra. about it," (2) Deptula responded he had heard some "talk about it," (3) McHugh then asked whether Deptula signed anything, (4) Deptula exclaimed it was "against the law" for McHugh to ask that question, and (5) McHugh said a union would not benefit Deptula because of his part-time status. Respondent concedes that there was a discussion between McHugh and Deptula but that the discussion was friendly, innocuous, and isolated. Respondent asserts that the discussion resulted from Merkel's and McHugh's effort (after hearing from Dennis there might have been a union meeting scheduled earlier that day) to determine whether Respondent's premises were to be improperly used and production disrupted, and Deptula was selected because of Respondent's belief his "temporary" status 38 would re- move Deptula from being involved or concerned with, or invited to, the union meetings. Thus, McHugh admitted he asked Deptula "if he was aware of... any such union meetings going on" and, after Deptula responded he had heard about it, McHugh asked "if he had been approached on this." According to McHugh, the conversation ended as soon as Deptula commented that the questioning was unlawful. As to the content of the conversation, McHugh did not expressly deny he asked Deptula whether he had signed a union card. Additionally, McHugh's account of the words used was general and vague, compared with that of Deptula. For these reasons, and consistent with my earlier conclusions as to the relative reliability of witnesses, I find the text of the conversation to be as related by Deptula. Respondent claims the interrogation was not unlawful because it inspired no fear and occurred in an atmosphere free of employer hostility and discrimination. I disagree. While it is true that not all inquiries concerning whether employees heard any talk about union activities constitute a violation of Section 8(a)(1)39 it is equally well settled that the Board will examine the surrounding circumstances to determine the legality of such inquiries. Respondent urges the application of the tests applied in Blue Flash Express, Inc., 40 to resolve the instant issue. I find that authority inapposite herein, for that case involved systematic polling of employees to determine the extent of employee support for a union. In my opinion, the standards established by the Board in Blue Flash, as revised in Struksnes Construc- tion Co., Inc., 41 do not apply to other types of interroga- tion. I view McHugh's interrogation to require Deptula to disclose his union sentiments without communicating a valid purpose and giving assurances that Deptula would be free of reprisal as the latter type of interrogation which is clearly unlawful.4 2 This is so notwithstanding that the conversation was pleasant and nonthreatening, as Respon- dent asserts. 43 Additionally, as I have found that the terminations of Campbell and Kulesza on October 22 were unlawful, I 39 Ontario Knife Company, 191 NLRB 388 (1971). - 109 NLRB 591 (1954). 41 165 NLRB 1062, 1063(1967). 42 Blackman-Uhler Chemical Division-Synalloy Corporation, 220 NLRB 52, 56-57 (1975); Phillips Industrial Components, Inc., a wholly-owned subsidiary of Phillips Industries, Inc., 216 NLRB 885, 888 (1975); Abex Corporation-Engineered Products Division, 162 NLRB 328, 329(1966). 43 Monroe Manufactunng Company, Inc., 220 NLRB 62(1972). 148 JOHN G. MERKEL & SONS conclude that the interrogation of October 25 was conduct- ed in an atmosphere pervaded with illegality. The locus of interrogation was the office of a high-ranking management official and no assurance that reprisals would not result was provided by McHugh.44 In this context, I conclude that McHugh's interrogation of Deptula tends to interfere with the free exercise of rights guaranteed to employees in Section 7 of the Act. Accordingly, I find that Respondent unlawfully interrogated Deptula, as alleged in the com- plaint, in violation of Section 8(a)(l) of the Act. G. The Alleged Refusal To Bargain The General Counsel contends that Respondent violated Section 8(a)(5) of the Act by: (1) refusing recognition, on October 27, after having determined that the Union represented a majority of its employees in the warehouse unit; and (2) undermining the Union's representative status on October 29 by seeking to meet directly with the striking employees and making promises of benefits to them. Inasmuch as certain facts relating to these issues are narrated in section III, above, they will not be recapitulat- ed hereinafter, except where necessary for a cogent comprehension of events. 1. The allegation that recognition was declined a. The appropriate unit The complaint alleges that all truckdrivers, warehouse- men, and repair department employees, excluding all other employees, salesmen, office clerical employees, guards, and supervisors as defined in the Act constitute an appropriate unit for collective-bargaining with Respondent. Although considerable evidence concerning the functions of each of Respondent's employees' job classifications was adduced at the hearing, Respondent (during the hearing) simply made a bare contention that the unit was inappropriate. For the first time, in its brief, Respondent explained its contention rests upon the single fact that "Outside Salesmen should have been excluded, but the Inside Salesmen should definitely have been included because of their interchange with warehousemen and drivers, and community of interest, and common supervision." Thus, I deem the issue to be resolved herein does not precisely involve a challenge to the appropriateness of a warehouse unit but, rather, to the unit placement of inside salesmen.45 Therefore, and because there is no evidence herein that any labor organization seeks to represent any of Respondent's employees in a broader unit than alleged and requested by the Union herein,4 6 in accord with the Board authority which has held similar warehouse units appropriate in wholesale establishments,4 7 I find the unit sought to be appropriate. With respect to the inside salesmen, the record reflects that they are supervised by Dennis, 4? whereas Osborn supervises the employees classified as warehousemen, 44 See Allied Printing Corp.. 202 NLRB 1045, 1053 (1973). 45 All parties agree to the exclusion ofoutside salesmen. 46 See G.C. Exh. 8(a). 41 Pacific Abrasive Supply Co. a subsidiary of the Carbarundum Company, 182 NLRB 329. 366-338 (1970); Garrett Supply Company, a Division of Garrett Corporation, 165 NLRB 561 (1967); Amarillo Hardware Company. warehouse clerks, truckdrivers, and repairmen. The inside salesmen regularly are assigned to work in a store attached to Respondent's warehouse areas (there are three ware- house areas, adjoining one another), but the assigned work areas of warehousemen, drivers, and repairmen are throughout the warehouse areas. The inside salesmen obtain customer orders by telephone and in person when customers visit the store. On occasion, the inside salesmen walk into the warehouse areas to pick merchandise off the shelves. If the items are too bulky or heavy, a warehouse- man would "pick" the material for the inside salesman. The inside salesmen sometimes help customers carry goods to their automobiles. Warehousemen sometimes visit the store area to pick up returned rental goods which they carry into the warehouse areas and set on storage shelves. The inside salesmen themselves also, from time to time, replace rental goods directly to the warehouse shelves and may also take material to the shipping area (located in the warehouse) for wrapping. The warehousemen regularly will pick goods off the shelves and storage bins in the warehouse areas and deliver them to the shipping area by means of carts (sometimes also used by inside salesmen) and handtrucks. The inside salesmen, warehousemen, truckdrivers, and repairmen all are salaried, work from 8:30 a.m. to 5 p.m. daily, and receive overtime pay when appropriate. They all are entitled to participate in the group life insurance and blood bank benefits which are also available to all other of Respondent's employees who qualify. Although the inside salesmen wear shirts and ties while at work, the employees regularly assigned to the warehouse areas wear uniforms provided by Respondent. There is no evidence that the inside salesmen substitute for any warehouse employees or vice versa. Upon all the foregoing, I conclude that any contact by the inside salesmen with the warehouse employees is but incidental and subsidiary to their principal duty in communicating with Respondent's customers. The visits by the inside salesmen to the warehouse to obtain merchan- dise are merely an adjunct of properly servicing a customer who has personally appeared at the Respondent's premises or otherwise expediting the delivery function, and are a minimal part of their regular and basic duties. In view of this, and the factors of separate supervision and work stations, I do not agree with Respondent that the evidence warrants the conclusion that inside salesmen interchange, or share a community of interest, with the warehouse employees. Thus, I find that the inside salesmen should be excluded from the unit found appropriate herein.4 9 I, therefore, find the following unit appropriate for purposes of collective-bargaining: All truckdrivers, warehousemen and repairmen employed by John G. Merkel & Sons, Inc. at its 807 North Union Street, Wilmington, Delaware location, excluding all other employees, inside and outside Inc.. and Buildng and Mechanical Supply Company. Inc., 148 NLRB 48, 50 (1964). 48 The transcript incorrectly reads "Frank Hennessy" at one place. This error is hereby corrected so that the name will appear as "Frank Dennis." 4" Garrett Supply Company, supra. at fn. 46. 149 DECISIONS OF NATIONAL LABOR RELATIONS BOARD salesmen, office clerical employees, guards and supervi- sors as defined in the Act. b. The Union's majority The General Counsel contends that when the Union requested recognition by its October 25 letter and October 26 conversation with McHugh it, in fact, enjoyed support from a majority of employees in the unit found appropri- ate, and that such support was also demonstrated by the fact that a majority of such employees participated in the strike which began on October 27.50 To support his position, General Counsel offered 10 signed authorization cards, received into evidence without objection.5' In addition, the record reveals the possibility that the following individuals were on Respondent's payroll on October 22, and possibly in jobs which were (or may have been) located within the warehouse areas; Stephen Surow- iec, listed as temporary warehouse clerk; Frank P. Dennis and Brian Dennis (sons of Frank R. Dennis, customer service manager) also listed as temporary warehouse clerks; John G. Merkel IV (Merkel's son), a temporary employee; and William F. McHugh (McHugh's son), another temporary employee. None of these five individu- als signed authorization cards. If each of the foregoing employees were included in the unit, its maximum size would have consisted of 15 employees. Because I have already found that Campbell's and Kulesza's terminations were discriminatory, their cards will be counted in the calculation of the majority52 and in the determination of the size of the unit. Thus, I conclude (without, at this point, determining the status of the five employees who did not sign cards) that, on October 22, the Union possessed a majority of 8 cards evidencing employee support in a unit no larger than 15 employees and, thus, as alleged in the complaint, did represent a majority of the employees in the unit. Even if the cards of Campbell and Kulesza were not counted, the Union nevertheless would have demonstrated support from 6 of the 10 employees I find hereafter to actually comprise the unit. Although Respondent has not advanced any argument in its brief pertaining to the unit placement of any of the five employees not signing cards, I find it necessary to resolve those matters in order to refine the size of the unit and to make more meaningful and to clarify the extent of the bargaining order which shall be recommended below. Stephen Surowiec: The General Counsel and the Union would exclude Surowiec from the unit as a supervisor. While Respondent did not address itself to Surowiec's status in its brief, it is clear from the evidence adduced through McHugh at the hearing that Respondent would argue to the contrary. As indicated above, Surowiec was listed on the payroll records for October 22 as a temporary warehouse clerk. As previously noted, he preceded Osborn as warehouse supervisor. After Osborn assumed his 50 In view of my findings, below, that the majority existed on October 22, I will not deal with the theory relating to striker participation. l Eight cards were dated October 22, from Jerry Anuszewski, Joseph W. Campbell, Paul Deptula, Norris W. Drobinski, Michael E. Kulesza, Charles R. Miller, William W. Purse, and George Tulewiecki. Two cards were dated October 25, from Emilio M. Crespo and Bruce A. Young. 52 Pacific Tile and Porcelain Company, 137 NLRB 1358, 1365-66 (1962); Sioux City Brewing Conpany, 85 NLRB 1164, 1166 (1949). position, Surowiec had been told by Merkel and McHugh how to instruct other warehouse employees to perform their work and to direct the other employees to assist him when appropriate, and Merkel and McHugh have com- plained to him at times production was low. Also, after Osborn was hired, Surowiec's former pay was not changed and he testified he considered himself the assistant warehouse supervisor.5 3 Bruce Young, a warehouse clerk, credibly testified that the performance of his work, and that of three other warehouse employees, is scrutinized by Surowiec, who correct them when required, and that Surowiec assigns and reassigns jobs to them as necessary. There is no evidence that Surowiec can hire or discharge employees, nor make effective recommendations thereon, nor impose discipline upon the four employees whose work he oversees. Although the issue is not free from doubt, I conclude that the record as a whole contains sufficient evidence of the exercise of independent judgment and responsible authori- ty to warrant Surowiec's exclusion from the unit. Thus, I find Surowiec to be a supervisor within the meaning of the Act. 54 Frank P. Dennis and Brian Dennis: General Counsel and the Union would exclude these individuals, while Respon- dent took no apparent position. Each of these employees is a high school student who has worked only 2 hours a day and during school vacations since the summer of 1976. Each performs menial warehouse tasks', each receives less pay than the other warehouse employees and none of the fringe benefits accorded to others. Although each of these individuals' working 2 hours per day suggests the possibili- ty they are regular part-time employees who should be included in the unit, in my opinion the fact that they apparently perform "menial" tasks dissimilar from the other warehouse employees during the winter months, do not share in the wages and other fringe benefits with the others, and are classified as temporary employees indicates that the Dennis brothers do not maintain such a communi- ty of interest with the other employees to warrant their inclusion in the unit. Accordingly, they are excluded. 55 John G. Merkel IV and William F. McHugh: No party discussed the status of these individuals in posthearing briefs. This omission is attributed to the fact that, though their names were mentioned during McHugh's testimony, the payroll records for October 22 did not list them as employees on that date. The record reveals only that each is the son of Merkel and McHugh, respectively; that the younger Merkel is a high school, and the younger McHugh a college, student; and that each only worked during summer months. The record does not reveal what positions they may have held, nor the nature of their work. On this 53 It will be recalled when Surowiec declined to sign a union card, he told Campbell and Kulesza he was part of management. 54 Broyhill Company, 210 NLRB 288, 294 (1974); Essex Wire Corporation, 188 NLRB 397, 403 (1971). s5 Fisher Controls Company, 192 NLRB 514, 515 (1971); Greenfield Components Corporation, 135 NLRB 479 (1962), affd. 317 F.2d 85, 88-89 (C.A. 1, 1963); Massachusetts Institute of Technology (Lincoln Laboratory), I 10 NLRB 1611, 1613 (1954). 150 JOHN G. MERKEL & SONS record, I find they should be excluded from the unit as casuals, even if they had worked in warehouse positions.5 Finally, the status of Deptula is in doubt, the General Counsel and Charging Party desiring his inclusion while the Respondent takes no formal position except by virtue of its claim that the October 25 interrogation was harmless, in part because Deptula was but a temporary warehouse employee and his status is identical to the Dennis brothers.5T The evidence indicates Deptula first worked for Respondent in 1970 and 1971 while in high school, working during the summer and school vacations. He then attended college and worked similar schedules until June 1976, when he informed Respondent of his intention to work on a full- time basis for at least a year or until he could accumulate sufficient funds to attend graduate school. Since June 1976, Deptula did, indeed, work a full-time schedule, performing the normal functions of a warehouseman, but he was not entitled to share in the fringe benefit programs. This is apparently due to a policy of Respondent granting entitlement only to an employee after working for a year on a full-time basis. Despite Respondent's characterization of Deptula as a temporary employee, it is clear that he had been retained in Respondent's employ until October 27 when the strike began and he went on strike. This is a period beyond which Deptula previously had worked before returning to school. Inasmuch as the record reveals he functioned as a warehouseman up to, including and beyond October 22, and no definite terminal date of his employment had been fixed, I find Deptula is properly included in the unit.5 8 Upon all the foregoing, my earlier computation of the Union's numerical majority notwithstanding, I now alter- natively find that the unit found appropriate herein consisted of a total of ten employees, and that the Union enjoyed a majority of eight on October 22 and a majority of ten on October 26 when it made its oral recognition request. c. The request and refusal to bargain As set forth in section III, above, there is no dispute that, on October 26 Yoeman requested, in writing and orally, Respondent to recognize the Union and to bargain with it in the appropriate unit; that McHugh took at least eight authorization cards from Yoeman and examined them, even commenting that the cards of Campbell and Kulesza were among them; and acknowledged the existence of a majority. The next day, recognition was declined, orally and in writing. I find, based on the facts relating to the events of October 26 and 27 recited in section IIl, as summarized immediately above, that the Union requested recognition on October 26 and Respondent declined that request on October 27, and that the request was made for an appropriate bargaining unit. f6 Mission Pak Company, 127 NLRB 1097 (1960). It is, of course, possible that either or both might also be excluded by virtue of their family relationship to Merkel and McHugh but, because the record contains insufficient facts to make such a determination. I do not deal with it. 57 It is paradoxical that, for unit purposes. Respondent would diminish Deptula's status, but for determining whether Deptula or Kulesza would d. Summary General Counsel contends that Respondent's refusal of the recognition request, coming when it had no good-faith doubt of the Union's majority and after having engaged in the 8(aX3) and (I) violations found hereinabove, consti- tutes a refusal to bargain in violation of Section 8(a)5). Respondent, on the other hand, pleads its right to require the Union to prove its majority status through the statutory representation machinery privileges the failure to grant recognition herein. Both parties cite N.LRB. v. Gissel Packing Co., Inc.,59 as authority for their respective positions. The Board, in Gissel, held the employer violated Section 8(a)(5) when, without having a good-faith doubt of majority employee support for union representation, the employer discharged union adherents in violation of Section 8(a)(3) and committed other acts of coercion and intimidation of employees in violation of Section 8(a)(1). The Board based its conclusion as to the lack of a good- faith doubt on the fact that the employer had committed substantial unfair labor practices during its campaign to resist unionization. The Supreme Court upheld the Board's 8(aX5) finding and issuance of a bargaining order based on a showing of the majority through authorization cards, although recognizing (as Respondent herein would have it) that the preferred and most commonly traveled route to representation is by means of a Board-conducted election. The Court, in so holding, considered the employer's protestations that authorization cards are inherently unreliable indicators of employee sentiments, but found "where an employee engages in conduct disruptive of the election process, cards may be the most effective - perhaps the only - way of assuring employee choice." 60 I find Respondent's reliance upon the Gissel decision misplaced, because it presumes the absence of employer misconduct herein. I have found that Respondent evinced severe antipathy toward the organizational efforts of its employees and engaged in activity which could not avoid the consequences of both dissipating and undermining the Union's majority status, and also rendering impossible the conduct of a fair election. Even if it were concluded that no 8(aX3) or (1) violations were committed, I would find the refusal of recognition on October 27 to constitute a refusal to bargain, for it is only where an employer has a good-faith doubt of the purported majority that it may rightfully invoke the Board's election processes as a defense. Herein, it cannot be said the Respondent entertained such a good-faith doubt of the Union's majority status because McHugh examined the cards and acknowledged their number without doubting their authenticity. Good-faith doubt is rendered irrelevant to the instant proceeding, however, because of the have been laid off, Deptula's status assumed a considerably more permanent tenor. 58 Horizon House 1, Inc., 151 NLRB 766, 769 (1965); Textile Workers Union ofAmerica, 138 NLRB 269, fn. 3 (1962). 59 395 U.S. 575 (1969). 8o Id at 602. 151 DECISIONS OF NATIONAL LABOR RELATIONS BOARD existence of the virtually contemporaneous discriminatory terminations and unlawful interrogation. 61 Accordingly, I find that, by refusing to recognize and bargain with the Union on October 27 as the collective- bargaining representative of the employees in the unit found appropriate herein, the request for recognition having been predicated upon a clear majority of unambigu- ous cards; and by having engaged in conduct violative of Section 8(a)(3) and (1), the Respondent also has refused to bargain in violation of Section 8(a)(5).62 2. The alleged unlawful activity of October 29 Although there is no dispute that Chipman attempted to bring the strikers and Merkel to an in-person confrontation (as described in sec. III, above), there is disagreement on the content of the specific conversations and as to Chipman's authority to act for Respondent. The General Counsel contends that Chipman, as Respondent's agent, undermined and derogated from the Union's representa- tive status by telling the strikers Merkel would meet directly with them (without the Union), telling them they could form an in-plant labor organization, and promising them other benefits. Respondent denies Chipman was its agent and that any promises were made. Chipman claimed he initiated the series of conversations with Merkel and the strikers on October 29, while the General Counsel suggests doubt of this assertion. I do not consider this issue crucial to a determination of the allegation of illegality. It is uncontested that Chipman engaged Campbell, Drobinski, and Crespo who were stationed on the picket line in three conversations relevant to the instant allegation. The scenario is hazy with respect to what was said during each of the separate meetings, but a composite of the testimony of the participants provides the following description of what transpired. Chipman asked the strikers whether they would meet with Merkel. They responded they felt there would be no harm to such a meeting. Chipman then spoke to Merkel in his office, reporting the strikers' sentiments and, according to Chip- man, Merkel met the suggestion with favor and told Chipman, "if they had to have a union, they could have their own union with their own officials." Chipman further credibly testified that Merkel said he had no "hard feelings" against Campbell and Kulesza and would see if he could return all strikers to work; he further told Chipman that he (Merkel) wanted to know whether the strikers wanted better benefits or more money, comment- ing he could not afford to pay union wages. Additionally, Merkel told Chipman he wanted to learn why the strikers were picketing. Chipman reported to the strikers that Merkel would speak with them, but not on Respondent's premises; that the strikers should choose the location; that Campbell and Kulesza would be back to work; 63 that the l' The Daf Corporation, d/b/a Hoffman Bros.., 188 NLRB 319, 323-324 (1971). 62 N.L.R.B. v. Gissel Packing Co., Inc., fn. 58, supra, Trading Port. Inc., 219 NLRB 298 (1975); Kelly Transfer, Inc., 214 NLRB 329 (1974). For the language of the cards herein, see G.C. Exhs. 2, 6, and 7(a)-7(h). 83 Based on Campbell's testimony which is credited because Chipman testified he told the strikers that Merkel advised him that Merkel would like to see all the strikers back to work, and because Crespo confirmed he heard Chipman make such a remark while speaking with the pickets. contemplated meeting must be held with no union representative present;64 that the strikers would receive paid medical benefits and a pay increase; and that the strikers could start their own union and elect officers. Merkel testified that he expressly informed Chipman he could make no promises, but admitted he was curious as to the reason the employees were on strike.5 The strikers met among themselves on the picket line and informed Chipman they rejected the proposal to meet because of the condition that the meeting take place without a union representative. Merkel was advised of the rejection by Chipman. Inasmuch as the strikers were informed no meeting could take place in the presence of a union representative and they could form another organization among themselves, I conclude that Respondent undermined the Union's repre- sentative status. The suggeston that all strikers would be returned to work and that greater benefits might ensue, I find to constitute direct bargaining with the strikers, implicitly soliciting their abandonment of the strike and return to work. I have already found that the Union was entitled to exclusive bargaining rights at the time of the October 29 discussions. Thus, any such direct discussions clearly derogate from that authority. Before imputing responsibility for the above conduct to Respondent, however, it is necessary to determine Chip- man's status during these events. Respondent submits that Chipman was not Respondent's agent. It is clear that Chipman was not a supervisor of Respondent and, though in Respondent's employ at the time of the conversations, was not a member of the bargaining unit found appropriate herein. General Counsel contends that Respondent's culpability for Chipman's conduct on October 29 derives from Merkel's participation, direction, and encouragement, and attendant adoption and ratification. As indicated above, it is not absolutely clear whether it was Chipman or Merkel who initiated the series of conversations. Nonethe- less, Merkel admitted he told Chipman he was "kind of curious why they're (the strikers) out there." I conclude this remark provided the impetus for the resulting discussions. Moreover, the subject matter and the conditions imposed for the contemplated meeting were suggested by Merkel, who expressly requested Chipman to relay Merkel's thoughts and obtain the strikers' responses. I am impressed that the facts reveal more than a passive participation by Merkel, for Chipman had at least two (and possibly three) conversations with him; and it is clear the strikers were aware that Chipman was relaying messages from Merkel to them. I conclude that the facts demonstrate Chipman had been cloaked by Merkel with ostensible authority to deal with the strikers that day and, having in mind that even at the hearing Respondent did not contend Chipman's activities 64 Based on Campbell's testimony which is credited because I find Merkel evasive on this subject, acknowledging he did tell Chipman he did not want Yoeman present but claiming the remark was not to be construed to apply to any other union official. Merkel, however, admitted he was not so explicit with Chipman and did not ask Chipman to convey that qualification to the strikers. 65 I find the facts to be as stated in the body of this Decision, hereinabove, based upon the corroboration of Campbell's narration provided by Crespo. 152 JOHN G. MERKEL & SONS had been disavowed (only the substance of his actions is disputed), I find the evidence sufficient to hold Respondent liable for those actions. 66 In summary, having concluded Respondent is responsi- ble for Chipman's October 29 discussions with strikers, I find that Respondent, by implicitly urging the strikers to repudiate the Union 67 and by engaging in direct bargain- ing with them,68 engaged in conduct violative of Section 8(a)(5) of the Act. H. The Alleged Unfair Labor Practice Strike As noted above in section III, the strike began as soon as the October 27 meeting between Yoeman and McHugh ended. The record shows that each of the ten employees6 9 who signed authorization cards had been, up to the hearing dates, on strike and participated in the picketing at Respondent's premises since the strike's inception. All the testimony as to the reason for the strike is to the effect the employees were protesting the termination of Campbell and Kulesza and the subsequent refusal to bargain. The picket signs' legend confirms that testimony. Accordingly, I conclude that the sole causation for the strike is Respondent's unfair labor practices found herein, and find that it is properly characterized as an unfair labor practice strike,70 and that the participants in it are unfair labor practice strikers, for whom appropriate remedial action will be recommended. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the Respondent's operations described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, it will be recommended that Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. It having been found that the Respondent discriminato- rily terminated Joseph W. Campbell and Michael E. Kulesza on October 22, 1976, in violation of Section 8(aX3) and (1) of the Act, the Order will provide that the Respondent offer each of them immediate and full reinstatement to his former job or if such position no " See Teledyne Dental Products Corp.. 210 NLRB 435, 441 (1974). and cases cited therein. 67 Ramona's Mexican Food Products, Inc., 203 NLRB 663, 682 (1973). 6R Medo Photo Supply Corporation v. N.LR.B., 321 U.S. 678, 683-684 (1944); Emily Tweel Jacobs, Russell Jacobs, and Emil Tweed d/h/a L. Tweel Importing Co., 219 NLRB 666, 672 (1975). General Counsel urged in his brief that the direct bargaining and promises of benefits are also independent violations of Sec. 8(aXI).) find the combined effect of pars. 12 and 13 of the complaint suffice to permit such a finding and, inasmuch as the facts upon which this contention is based were fully litigated at the hearing. I find this conduct to constitute a violation of Sec. 8(aX )) of the Act. See Merchandiser Press, Inc., 115 NLRB 144 (1956). longer exists, to a substantially equivalent position, without prejudice to his rights and privileges, and to make each whole for any loss of earning he may have suffered as a result of the discrimination by payment of a sum equal to that which each normally would have earned, absent the discrimination, from the date of the discrimination to the date of Respondent's offer of reinstatement, with backpay and interest computed in accordance with the Board's established standards contained in F. W. Woolworth Company, 90 NLRB 289 (1950); Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Since I have also found that the strike which commenced on October 27, 1976, was an unfair labor practice strike, the Order will further require the Respondent, 5 days following the strikers' unconditional application to return to work, to offer each such striker who has not yet then been reemployed immediate and full reinstatement to his former job, or to a substantially equivalent position, without prejudice to the seniority and other rights and privileges previously enjoyed by each such striker, and discharge, if necessary, any replacements in order to provide work for such strikers. It having been found that the Respondent interfered with, restrained, and coerced employees in violation of Section 8(aX)(1) and (5) of the Act by having interrogated Deptula and by making promises of benefits to the strikers and having bargained directly with them, the Order will require the Respondent to cease and desist from such activity. The General Counsel contends that the unfair labor practices herein require a bargaining order under the principles laid down in Gissel,T7 and that the effective date of such an order be October 22, 1976, according to the rationale of Trading Port, Inc.7 2 In Gissel, the Supreme Court sustained the Board's authority to issue a remedial bargaining order in cases where unfair labor practices which have been committed are such as to make a fair election an unlikely possibility. The Court defined two situations where entry of such an order would be appropriate. The first is in those exceptional cases which are marked by "outrageous" and "pervasive" unfair labor practices; 73 and the second is in "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process." 74 On the other hand, the Court imposed a third type of situation where a bargaining order would not be warranted; namely, where "minor or 69 See fn. 50, supra, for their identities. 70 General Drivers and Helpers Union, Local 662, International Brother- hood of Teamsters, Chauffeurs, Warehouseman and Helpers of America, (1962). [Rice Lake Creamery Co.] v. N.LR.B.. 302 F.2d 908 (C.A.D.C. 1962). cert. denied 371 U.S. 827 where at 911 it was said: "1I IF an unfair labor practice had anything to do with causing the strike, it [is] an unfair labor practice strike." 7I See fn. 58. supra. 72 219 NLRB 298. 73 395 U.S. at 613. 74 Id at 614. 153 DECISIONS OF NATIONAL LABOR RELATIONS BOARD less extreme unfair labor practices" would have a "minimal impact on the election machinery." 15 Respondent herein, apparently assuming the righ- teousness of its cause, did not address itself to the scope of a possible remedy, while the General Counsel contends that the activities of Respondent "necessarily and irrevoca- bly affected the employees' choice concerning their selection of a bargaining representative," and the Charging Party claims those activities "preclude the holding of a fair election." The timing and combination of those activities of Respondent which I have found unlawful persuade me that, as soon as it became aware of the overt demonstration by the employees (Kulesza's card and pamphlet distribu- tion) of what previously had been mere discussion, Respondent embarked in a studied and integrated program designed to frustrate unionization. Only several hours after the card and pamphlet distribution, the two leading union proponents were terminated. I conceive of no other activity by an employer which is more outrageous and pervasive than such an action taken against employees during the height of their exercise of their rights established in Section 7 of the Act.76 Respondent, however, was not content with this. On the very next workday (the terminations were on Friday), Respondent, feigning ignorance and expressing concern for an uninterrupted production schedule, admittedly interro- gated an employee to secure more current information concerning the employees' exercise of their protected rights; then, without a scintilla of good-faith doubt rejected an authentic request for recognition, ironically claiming the statutory election process for itself; and finally, bypassed the Union by seeking to deal directly with the employees who, by then, were on strike to protest the unfair labor practices known to them, and enticing them to give up their allegiances to the Union by promising them benefits. This unlawful course of conduct reached and affected every one of the unit employees. In this frame of reference, I find it virtually inescapable that Respondent's unfair labor prac- tices meet both postulates of the Gissel doctrine which declare that recourse to traditional Board remedies would not be sufficient to rectify the detrimental effect upon the employees' rights. Accordingly, having found that the Respondent has violated Section 8(a)(5) and (1) of the Act by refusing to recognize and bargain collectively with the Union, the Order will require the Respondent to recognize and bargain collectively, upon request, with Teamsters Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, concerning wages, hours, and other terms and conditions of employment of the employees in the appropriate collective-bargaining unit. Moreover, I have concluded that Respondent's unfair labor practices clearly undermined the Union's majority status and, in view of my findings that the Union achieved majority status on October 22, 1976,77 I deem it proper that the Order require the bargaining to be retroactive to that date, pursuant to '5 Id at 615. 17 See Pinier Bros., Inc., 227 N LRB 921 (1977). 77 See fn. 50 which shows that eight authorization cards had been signed on that date. Also refer to accompanying text in this Decision. the Board's Trading Port decision, and I will so recom- mend.7 8 Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the basis of the above findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. John G. Merkel & Sons, Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 3. By terminating the employment of Joseph W. Campbell and Michael E. Kulesza on October 22, 1976, because they were engaged in union activities, Respondent discriminated against employees in violation of Section 8(a)(3) and (1) of the Act. 4. By interrogating Paul Deptula regarding union activities, Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(I) of the Act. 5. By dealing directly with striking employees and making them promises of benefits on October 29, 1976, Respondent refused to bargain with the Union in violation of Section 8(aX5) of the Act and interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 6. The appropriate collective-bargaining unit of Re- spondent's warehouse employees is: All truckdrivers, warehousemen and repairmen employed by John G. Merkel & Sons, Inc. at its 807 North Union Street, Wilmington, Delaware location, excluding all other employees, inside and outside salesmen, office clerical employees, guards and supervi- sors as defined in the Act. 7. Effective October 22, 1976, the Union has been, and at all times since has remained, designated as the majority representative, for purposes of collective bargaining of the employees in the appropriate bargaining unit described above. 8. By refusing to recognize and bargain with the Union on October 27, 1976, Respondent failed to bargain collectively in good faith in violation of Section 8(aX5) and (I) of the Act. 9. By the unfair labor practices found to have been committed, Respondent made the conduct of a fair election among the Respondent's employees in the above-described unit an unlikely possibility and the imposition of a remedial bargaining Order requiring Respondent to recog- 78 Also see Beasley Energy, Inc., d/b/a Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93 (1977). 154 JOHN G. MERKEL & SONS nize and bargain with the Union for those employees is warranted. 10. The strike which commenced on October 27, 1976, is, and has been at all times material herein, an unfair labor practice strike. II. Each striker who participated in the aforesaid unfair labor practice strike is an unfair labor practice striker. Upon the above findings of fact, conclusions of law, the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 79 The Respondent, John G. Merkel & Sons, Inc., Wilming- ton, Delaware, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging, laying off, or otherwise discriminating against employees in regard to hire or tenure of employ- ment, or any term or condition of employment because they engage in union or protected concerted activities. (b) Coercively interrogating employees concerning their union activities. (c) Dealing directly with employees, in derogation of the representative status of their Union. (d) Promising benefits to its employees in order to encourage them to withdraw their support from their collective-bargaining representative. (e) Refusing to recognize and/or refusing to bargain with Teamsters Local 115, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative in the unit described above, in section VII, paragraph 6. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of their Section 7 rights, except to the extent that such rights might be affected by a lawful agreement in accord with Section 8(aX3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: 79 In the'event no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommend- ed 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. (a) Offer immediate and full reinstatement to Joseph W. Campbell and Michael E. Kulesza to their former jobs or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make each whole for any loss of pay or other benefits suffered by reason of the discrimina- tion against each in the manner described above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Reinstate the unfair labor practice strikers as provided above in the section entitled "The Remedy." (d) Recognize and bargain collectively and in good faith, upon request, with Teamsters Local 115, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining agent of the employees in the appro- priate unit referred to above in section VII, paragraph 6, and, if agreement is reached, reduce such agreement in writing, if requested, and sign in execution thereof. The bargaining prescribed by this Order shall be conducted retroactive to October 22, 1976. (e) Post at its location at 807 North Union Street, Wilmington, Delaware, copies of the attached notice marked "Appendix." 80 Copies of said notice, on forms provided by the Regional Director for Region 4, after being duly signed by Respondent's authorized representa- tive, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 4, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. so In the event the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 155