Lee Office Equipment

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lee Office Equipment and General Sales Drivers, De- livery Drivers and Helpers Local Union No. 14, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 31- CA-5684 November 8, 1976 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On May 27, 1976, Administrative Law Judge Rich- ard D. Taplitz issued the attached Decision in this proceeding. Thereafter, General Counsel filed excep- tions and a supporting brief. Respondent filed cross- exceptions, a supporting brief,' and a brief in opposi- tion to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order except as modified herein. Although the Administrative Law Judge found that Respondent unlawfully refused to bargain with- in the certification year and recommended that Re- spondent be ordered to bargain, he stated that a de- certification petition filed by the employees is to be considered timely even if it is filed before Respon- dent's unlawful labor practice is remedied. We agree with his finding that in all the circumstances herein the certification year need not be extended for a spe- cific period of time, but we reject his recommenda- tion that a decertification petition is to be considered timely even if filed before Respondent has complied with the Order to bargain issued herein. Respondent unlawfully discontinued bargaining with the Union. That unfair labor practice must be remedied if the employees' right to engage in Section 7 activities is to be guaranteed. If a filing of a petition were permitted before Respondent remedied its refusal to bargain, our remedy would be wholly ineffective. Accord- ingly, we shall order Respondent to take the affirma- tive action of bargaining in good faith upon request of the Union and that the Board's usual rules and policies shall apply to such petitions as may be filed. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Lee Office Equipment, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Delete-the second sentence from paragraph 2(a) of the recommended Order. 2. Substitute the attached notice for that of the Administrative Law Judge. 1 Respondent's request for oral argument is hereby denied as, in our opinion, the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 2 We adopt the Administrative Law Judge's conclusion that Respondent has failed to establish that the certified representative engages in discrimina- tory practices against women , blacks, or other minorities whom it represents without passing on whether the existence of such practices could constitute a defense to the refusal -to-bargain allegation involved in this proceeding APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to meet, negotiate, and bargain in good faith with General Sales Driv- ers, Delivery Drivers and Helpers Local Union No. 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representa- tive of our employees in the following bargain- ing unit: All driver-warehousemen employed by us at our facilities located at 330 East Charleston Boulevard and 950 East Sahara Avenue, Las Vegas, Nevada, excluding all other employ- ees, including office clerical employees, sales employees, guards, watchmen and supervisors as defined in the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL, upon request, meet , negotiate, and bargain in good faith with said Union, as the exclusive bargaining representative of our em- ployees in that unit. LEE OFFICE EQUIPMENT 226 NLRB No. 129 LEE OFFICE EQUIPMENT DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was heard at Las Vegas, Nevada, on February 12, 13, and 18, 1976. The charge was filed on October 28, 1975, by General Sales Drivers, Delivery Drivers and Helpers Local Union No. 14, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union. The complaint issued on Novem- ber 24, 1975, alleging that Lee Office Equipment, herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended. Issues The primary issues are: 1. Whether Respondent violated Section 8(a)(5) and (1) of the Act by refusing to meet and negotiate with the Union which had within the previous year been certified by the Board as the collective-bargaining representative of certain of Respondent's employees, and, if so: (a) Whether Respondent was justified in its refusal to bargain on the ground that the Union discriminated against blacks, women, and Spanish-surnamed individuals, or (b) Whether Respondent was justified in its refusal to bargain by reason of the Union's suggestion to employees that they engage in violence, the Union's threat of violence directed to an employee, or the Union's loss of employee support 2. Whether Respondent refused to bargain with the Union by conditioning negotiations on the Union's giving an equal voice at the bargaining table to employees who were not designated as the exclusive collective-bargaining representative. 3. Whether Respondent undermined the Union and by- passed it as the exclusive bargaining representative by soli- citing employee sentiment concerning their support of the Union. 4. Whether a bargaining order is appropriate. All parties were given full opportunity to participate, to produce relevant evidence , to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and Respondent. On the entire record I of the case and from my observa- i The transcript of the first 2 days of hearing is of extremely poor quality The General Counsel has filed a motion to correct the transcript which requests that 185 separate changes be made The motion has been marked G C. Exh 8 and has been added to the original General Counsel exhibit file The accuracy of the changes is not questioned and the motion is granted In its brief, Respondent argues that the inaccuracies and misquotations are so great as to preclude any type of motion for correction of transcript The brief states " Respondent asserts that the state of the transcript is a denial of its right to a fair record and that it is a further reason for a dismissal of the charge of [sic ] a new hearing " While I agree with Respondent that the transcript of the first 2 days of the hearing leaves much to be desired. I do not believe that a dismissal of the complaint or a hearing de novo is warrant- ed The reporter's primary difficulty was with accurately recording counsel's arguments and my rulings with regard to matters of law Those arguments 827 tlon of the witnesses and their demeanor, I make the fol- lowing: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent, a Nevada corporation with its office and principal place of business in Las Vegas, Nevada, is in the business of selling office supplies and furniture directly to retail customers. Respondent annually purchases and re- ceives goods valued in excess of $50,000 directly from sup- pliers located outside of Nevada and annually derives gross revenues in excess of $500,000. The complaint alleges, the answer admits, and I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. [I. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Events 1. Background Respondent employes a number of drivers and ware- housemen 2 On February 18, 1975, the Union filed a peti- tion for an election among Respondent's employees in that unit. The election was conducted by Board agents on April 11, 1975. The tally of ballots showed that of approximately 10 eligible voters 6 votes were cast for the Union, I vote was cast against the Union, and there was I challenged ballot. On April 21, 1975, the Union was certified as the exclusive representative of Respondent's employees in the unit in question. Respondent and the Union met to negoti- ate on May 30, 1975. They met again on three occasions in July and two in August 1975. The last meeting was on September 30, 1975 By that time Respondent and the Union had reached agreement on some issues, but no final agreement had been achieved There have been no meet- ings since that date. have to a large degree been repeated in the briefs and they, as well as my legal conclusions , can be fully evaluated on review The exhibits contain documentary materials that are not affected by the poor transcript With regard to the testimony of witnesses . the transcript was either accurate or sufficiently intelligible that it was susceptible to correction through a motion to amend The General Counsel's extensive motion to correct the transcript has been granted and Respondent has not seen fit to file such a motion in its own behalf In sum, I find that the testimony and therefore the underlying facts relating to the case were reported with sufficient accuracy to allow full and reasoned findings for a decision 2 The complaint alleges , the answer admits , and I find that the following bargaining unit (which is the unit involved in this proceeding) is appropriate for the purpose of collective bargaining within the meaning of Sec 9(b) of the Act All driver-warehousemen employed by Respondent at its facilities lo- cated at 330 East Charleston Boulevard and 950 East Sahara Avenue Las Vegas, Nevada, excluding all other employees, including office clerical employees, sales employees, guards, watchmen and supervisors as defined in the Act 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Dambro's meeting with employees Robert Dambro is the president and a business agent of the Union. He was involved in the Union's organizational campaign with Respondent's employees and was primarily responsible for dealing with the employees. In June or July 1974 he conducted a meeting at the union hall that was attended by seven of Respondent's employees. Dambro told the employees that there was an impasse between the Union and Respondent, that Respondent was stalling, and that there was nothing the Union could do. Dambro also told them that: "It had been known in his last 20 years of experience in representation-representing the Union in different parts of the country that sometimes to make peo- ple come around we can fix their cars up, slash some tires, pull wires, break windows and the like." 3 conversation with Woolf. Dambro said that the letter would not do Woolf any good and he asked Woolf to write another letter rescinding it. Woolf replied that it was not his decision to make and that he would confer with the other employees. Dambro told Woolf that if they did not change their minds and management found out what was going on they would be walking the streets. Dambro also told Woolf, "Make up your mind. Get these guys going. Let's get this thing on the road or I'll have your ass." A negotiation session had been scheduled for September 30, 1975. On September 29, 1975, Dambro called Woolf on the telephone. Dambro told Woolf that he wanted the em- ployees to forget the letter and get back with the Union so that the Union could represent them. Dambro also asked Woolf to get the other employees to change their minds. Dambro said that if Woolf or the other employees did not change their minds Dambro would have his "ass." 5 3. The letters of resignation and Dambro's response On some undisclosed date Woolf wrote the Union say- ing that he and other employees did not want the Union to represent then t.' On August 15, 1975, Thomas W. Collier, one of the employees in the bargaining unit, wrote to the Union as follows: This is to inform Teamsters Local No. 14 that I do not desire to be represented in anyway by this union. I will represent myself. I do not believe that the union can accomplish anything for me through an outside union representative that I do not already have in my right to deal directly with the company where I am em- ployed. Collier told Respondent's president, Jerry Lee, about that letter. On September 16, 1975, Leslie Lentz, Daniel Cash, and Gordon Woolf, all of whom were employees in the bar- gaining unit, signed and sent to the Union a letter which read as follows: Effective this date, we subject employees, wish to resign membership in Teamsters Local 14. Also, please forward our certification/registration papers we filled out in early February, 1975, to this store. We wish to no longer be represented by your local! A copy of that letter was given to Respondent. Within a week after the September 16, 1975, letter, Dambro had a 3 These findings are based on the credited testimony of Gordon Woolf, one of Respondent's employees who was present at that meeting Dambro, in his testimony, denied making any such statements Neither the General Counsel nor Respondent called any other witnesses to testify concerning this incident As between Woolf and Dambro I unhesitatingly credit Woolf Woolf, while he was on the stand , impressed me as a candid conscientious witness with a good memory Dambro, on the other hand, in his testimony, was often evasive His demeanor on the stand was such as to inspire a complete lack of confidence in his veracity Woolf also creditably testified that he was surprised by Dambro's state- ments and in his opinion the other employees were equally surprised This finding is based on the credited testimony of Woolf The letter was not offered in evidence 4. The September 30, 1975, meeting Sometime before the negotiating meeting that was sched- uled for September 30, 1975, Woolf told Respondent's president, Jerry Lee, that the employees did not want the Union to represent them. Lee replied that if Woolf and the other employees wanted to watch a meeting he would make arrangements for them to do so. He told Woolf that the employees could take time off without pay to watch the negotiations. About 10 minutes before the September 30, 1975, meet- ing was scheduled to begin, Woolf together with employees Cash, Lentz, and Clifton Gee 6 were near the conference room where the meeting was to take place. They spoke to Raymond Bohart, the managing director of the Federated Employers of Nevada, Inc. Bohart represented Respondent at negotiations. Woolf, speaking for the three employees, said that he did not want the meeting to go on or the Union to represent them. Bohart told Woolf that he had no alternative but to go into the meeting but that he would attempt to let the employees express their views at the meeting. They all went into the conference room. At the September 30, 1975, meeting the Union was rep- resented by Dambro and by Union Secretary-Treasurer Delmar Seleska. Bohart and Respondent President Lee were present for Respondent. Woolf, Cash, Lentz, and Gee were also there. Seleska was the chief spokesman for the Union and Bohart was chief spokesman for Respondent. Bohart called the meeting to order and said that the em- ployees who worked for Respondent were there to observe the negotiations and that the employees had asked for an opportunity to speak. Bohart then gave a brief outline of what had transpired so far in the negotiations and asked to hear from the employees. Seleska said that the employees were there to see what was going on but that if they had 5 These findings are based on the credited testimony of Woolf Dambro, in his testimony, denied saying that he would have Woolf 's "ass" Dambro admitted some aspects of the conversations , denied other parts, and claimed that other remarks were also made I credit Woolfs version of the conversa- tions and I do not credit Dambro's testimony concerning conversations with Woolf that are inconsistent with Woolfs testimony 6 Woolf, Cash, and Lentz were employees in the bargaining unit Gee had worked for Respondent but at that time he was not on Respondent's payroll because of a medical problem LEE OFFICE EQUIPMENT 829 anything to say there should be a break or a caucus. Bohart repeated that he would like to hear from the employees and Seleska answered that the employees were not there to speak or to take part in the negotiations. Seleska then brought up some contract items that had not been re- solved. Bohart again said he would like to hear what the employees had to say and Seleska repeated that they were not there to speak. Woolf made a comment to Seleska with regard to being allowed to speak and Seleska told him to speak when he was spoken to and that Seleska would tell him when to speak. Seleska told Bohart that they should get on with the items that needed to be resolved and Bo- hart repeated that he wanted to hear from the employees. Seleska said that he was there to speak on their behalf. Bohart stated that he was not refusing to negotiate but he just wanted to hear from the employees. Bohart also said that he would not continue unless the employees could be heard from. Seleska replied that there was no sense in stay- ing there if Respondent was not going to negotiate and he started to leave the table. Woolf looked at Dambro and said, "Now, you son-of-a-bitch, don't you call me at home anymore." Seleska, who was standing at the time, told Woolf not to talk to Dambro that way. Woolf stood up and said that he would talk any way he felt like. The two men were about 2 feet apart and both had raised their voices. Dambro stepped between them and Bohart asked Woolf to be seated. Seleska and Dambro left the room.7 The complaint alleges that Respondent refused to bar- gain with the Union commencing on or about September 30, 1975. On September 30, 1975, Respondent employed four employees in the bargaining unit. They were Woolf, Cash, Lentz, and Collier. All four had sent letters to the Union asking that the Union not represent them. At the time of the hearing all four of those employees were still working for Respondent but one had been placed in a dif- ferent bargaining unit. In addition a fifth employee had been hired. sented by Teamsters Local 14 for the purposes of col- lective bargaining. This position was brought to my attention vividly during our meeting of September 30 in my office at which time concerned employees at- tended a regularly scheduled negotiation session and were denied by the Local Union an opportunity at the bargaining table to speak. Prior to this September 30 meeting, I was approached by a spokesman for these employees who indicated to me on behalf of the em- ployees that they did not desire the negotiations to continue since they had withdrawn their support and authorization to the Local Union. Although such a request did not alter the obligation under the Certifi- cation dated April 21, 1975, in N.L.R.B. Case No. 31- RC-3112, I did attempt, as you are aware, to at least hear the employees out during the course of the meet- ing. However, during the meeting when you and Mr. Dambro of the Local Union refused to proceed with the negotiations upon my insistence that we hear from the employees and did, in fact, walk out of the negoti- ation meeting leaving Management representatives and concerned employees at the bargaining table, it became clear at that point that the Local Union no longer had the authority in this matter to act as the bargaining representative. Therefore, in view of the posture taken by the Union in walking out of this meeting, I must respectfully decline your request to resume negotiations in this matter. Seleska, once again, wrote to Bohart on October 20, 1975, requesting the immediate commencement of negotia- tions. Bohart replied by letter dated October 24, 1975, in which he stated that Respondent's position was fully stated in the October 13, 1975, letter and had remained un- changed. On October 28, 1975, the Union filed the charge in the instant case. 5. The subsequent correspondence On October 6, 1975, Seleska, on behalf of the Union, wrote to Respondent's representative, Bohart, requesting the immediate commencement of negotiations. Bohart re- sponded by letter dated October 13, 1975, as follows: In response to your October 6, 1975, letter in which you requested immediate commencement of negotia- tions with Lee Office Equipment, we have reviewed this matter very carefully with respect to determining an appropriate course of action. As you are aware, those employees employed by Lee Office Equipment have orally and in writing indicated to the Local Union their desire to no longer be repre- 7 These findings are based on the credited testimony of Lee who had a detailed recollection of what occurred His testimony was corroborated in substantial part by the testimony of Woolf and Bohart The substance of that testimony was also corroborated in large measure by the testimony of Seleska and Dambro. I believe that Seleska was somewhat evasive and less than candid in his version of what occurred at that meeting To the extent that the testimony of Seleska and Dambro differs from that of Lee, I credit Lee B. The Union's Membership and Officers-Data Related to Blacks, Women, and Spanish-Surnamed Individuals The Union's office is in Las Vegas, Clark County, Ne- vada. Data compiled by the comprehensive health plan- ning agency of Clark County, Nevada, which agency is located in Las Vegas, Nevada, establishes that the total population of Clark County, Nevada, was 350,520 of whom 37,856 (10.8 percent of the total population) were black and 19,279 (5.5 percent of the total) were Spanish- Americans.8 Other data compiled by the same agency es- tablishes that approximately 50 percent of the total popula- tion were female. The Union's current membership consists of between 1,050 and 1,100 members The Union maintains between 6,000 and 7,000 ledger cards. The ledger cards indicate the current members and also people who were members at one time but became inactive for such reasons as leaving the area or going onto a withdrawal card. In addition, the s The chart from which these figures were taken is dated 1974 and states, "Data was gathered and projected from the Economic Opportunity Board of Clark County, the Nevada State Employment Dept, Clark County School District, The Indian Center, the Nevada Association of Latin Ameri- cans and the 1970 census " 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union records contain about 8,000 applications for mem- bership. Some individuals apply for membership when they are sent out to work by the Union. Others who have a job come to the Union and fill out an application card. Seles- ka, who has been the Union's secretary-treasurer since 1968, testified that he knows of no situation where anyone's application for membership has been rejected. There is no evidence in the record to dispute that assertion and I credit his testimony in that regard. There are more application cards than ledger cards because some individ- uals after they sign an application do not get the job they sought or they leave town. In such situations, ledger cards are not opened for those individuals but their application cards are retained. The application and ledger cards do not indicate an individual's race nor do they show the individual's sex or national origin except to the extent that the name itself might indicate such matters. There are about 65 females and about 40 blacks who are members of the Union.' There were between 1,050 and 1,100 active members in the Union. Using the figure of 1,075 members of the Union, it appears that about 6 per- cent of the Union's membership were female and about 3.7 percent were blacks. That compares with statistics in Clark County, Nevada, generally, which show that of the total population about 50 percent are female and 10.8 percent are black.10 The only evidence in the record concerning the number of union members who have Spanish surnames is the testimony of Dambro that at least 20 Spanish-sur- named members of the Union i' are under his jurisdiction as business agent. There are three business agents in all. If it is assumed that the other two business agents had equal numbers under their jurisdiction, there would be in all about 60 Spanish-surnamed individuals who were union members. That would be 5.6 percent of the total union membership. Five and one-half percent of the total popula- tion of Clark County were Spanish-surnamed individuals. If that assumption of 60 Spanish-surnamed individuals is used, then it would appear that Spanish-surnamed individ- uals are not underrepresented in terms of union member- ship with relation to the total population. If the assumption is not used, then there is a failure of proof in the record to establish whether or not Spanish-surnamed individuals are underrepresented. In either case, there is no statistical base for mounting an argument that the Union discriminates in its membership policies against Spanish-surnamed individ- uals. In the absence of any other evidence of such discrimi- nation, the question of discrimination in membership against Spanish-surnamed individuals need not be consid- ered further. The Union does not have an apprenticeship program. 9 Dambro testified without contradiction that there were about 65 or more women and at least 40 blacks Though Dambro did qualify the num- bers he gave by using such terms as "at least" and "or more." he also averred that his figures were "close to it" and he couldn't give an exact figure I find that the above numbers do indicate the order of magnitude of individuals in those categories 10 It is noted that it has not been established that the Union's membership is drawn from the Clark County area or that the Clark County area coin- cides with the fob market in which the Union represents employees "Initially Dambro testified that the number was at least 15 or 20 He then averred that the number was at least 20 Seleska creditably testified that he does not know of any action of the executive board or the officers to recruit blacks for membership. The Union has seven officers. They are secretary-trea- surer, president, vice president, recording secretary, and three trustees. The Union's executive board is comprised of those seven officers. All but the three trustees are full-time paid union officials. The trustees are union members who are employed by employers having collective-bargaining relations with the Union. Six of the seven officers were nominated and elected by the union membership at special meetings. The seventh, a trustee, was appointed by the ex- ecutive board to fill a vacancy. Seleska creditably testified that since he became secretary-treasurer in 1968 there has only been one woman and one black on the executive board. From 1968 to 1972 Darlene Sharp was recording secretary and as such she was on the executive board. A black, Levi Byrd, is presently on the executive board. Seles- ka creditably testified that he did not know of any individ- ual with a Spanish surname who had been on the executive board. The Union employs three business agents. They are ap- pointed by the secretary-treasurer. Seleska creditably testi- fied that since he assumed office in 1968 there have been no blacks, women, or Mexican-Americans as business agents. Seleska also creditably testified that he selects busi- ness agents on the basis of ability. Seleska also creditably averred that the Union has 35 to 40job stewards of whom 4 or 5 are black and about 5 are women. He averred that he was not sure with regard to Spanish surnames. C. Violence Against Other Employers About 3 years before the date of the instant hearing, the Union was organizing another employer named Telly Meats. During that organizational drive, vehicle tires were flattened, sugar was put in gas tanks, and damage was done to vehicles. In March 1973, the Union engaged in a 6-week strike against employers in the alcoholic beverage industry. Dur- ing the strike, one of the employers, DeLucca Importing Company, suffered major vandalism. Windows were bro- ken, display racks were destroyed, wallpaper was torn from the walls, desk tops were ripped off, calculators were de- stroyed, and the premises were completely gutted. Jerry Lee, president of Respondent, was aware of the destruction that took place because he was called in to replace the furniture. Another struck employer, Costello Beverage, suf- fered the destruction of its front windows and an attempt- ed fire bombing. A bullet was fired through the front door of the office building occupied by Bohart, the representa- tive of the struck employers. At another struck employer, Costello, there were some fire bombings and the brakes of a rail car were released so that the car rolled away. The front door of another struck employer, McKesson Liquor, was destroyed. At still another struck employer, Las Vegas Distributing, vehicles were followed and harassed and there was blocking of access to the company plant. Struck employer Bonanza Beverage and all the other struck com- panies suffered flattened tires and general harassment of individuals who were trying to make deliveries. LEE OFFICE EQUIPMENT 831 In August 1973, the Union engaged in a 2-month strike against another employer, Preferred Sales. During the strike, company vehicles were damaged, the tires on the car of an employee who came to work were slashed, and three company cars had their engines destroyed after "coke" syr- up had been poured into the gasoline tanks Subsequently two striking employees were convicted of damaging a vehi- cle. Those employees were not shop stewards, business agents, or officers of the Umon. While denying all responsibility for any violence, Dam- bro acknowledged that during the alcoholic beverage in- dustry strike he drove by DeLucca Importing and saw bro- ken windows. He also acknowledged that while driving by Bonanza Beverage he saw a few flat tires. While driving by on a third occasion, he saw some fire trucks at a struck plant. D. Analysis and Conclusions 1. The legal framework Respondent refused to negotiate or bargain with the Union at the meeting of September 30, 1975, and thereafter has refused to meet with the Union. That refusal to bargain cannot be justified by Respondent's insistence that the em- ployees be heard from before bargaining commenced. Re- spondent had no legal right to insist, as a condition to future bargaining, that the employees have such an oppor- tunity. If there were any doubt as to Respondent's inten- tion with regard to bargaining, it was removed by the letter of October 13, 1975, from Respondent's representative, Bo- hart, to the Union which stated, "I must respectfully de- cline your request to resume negotiations in this matter " The Union was certified as the exclusive representative of Respondent's employees in the unit in question on April 21, 1975. Respondent's refusal to bargain began on Sep- tember 30, 1975, which was 5 months and 9 days after the certification. On September 30, 1975, there were four em- ployees in the bargaining unit, all of whom had notified the Union in writing that they did not want the Union to rep- resent them. However, an employer may notjustify a refus- al to bargain within the certification year (1 year from the date of certification) on the ground that its employees no longer desire representation. In Ray Brooks v N L R B, 348 U.S. 96 (1954), the Supreme Court approved the Board's policy that a certification must be honored for a reasonable period, usually 1 year, in the absence of "un- usual circumstances." 12 In that case, the Union was certi- fied after it won by an eight-to-five vote A week after the election, and a day before the certification, 9 of the 13 employees signed a letter to the Employer stating that they did not want representation by the Union. The Employer refused to bargain with the Union, and the Supreme Court held that the refusal violated the Act. In Holly Farms Poul- try Industries, Inc., 189 NLRB 663 (1971), enfd. 460 F.2d 312 (C.A. 4, 1972), the Board cited Ray Brooks v. N. L.R.B, 12 Unusual circumstances were found in at least three situations, such as dissolution or defunctness of the union , schism , with substantially all the members and officers of the certified union transferring their affiliation to a new local or international , and radical fluctuation to unit size within a short time supra, and held: "It is thus well settled that absent `special circumstances,' which clearly are not present here, a union's continued majority status is conclusively presumed to exist for 1 year following certification." In Cocker Saw Company, Inc, 186 NLRB 893 (1970), enfd. 446 F.2d 870 (C.A. 2, 1971), the Board adopted the Decision of a Trial Examiner which held in part: Many cases, Ray Brooks among them, present the situ- ation in which employees quickly repented of their choice of bargaining representative. The Board's long- standing position, sustained by the Supreme Court in Ray Brooks, is that such defections cannot unseat a bargaining representative within a year of its certifica- tion, because the need for stability in industrial rela- tions outweighs for that period the countervailing principle of self-determination. Thus, I find that the Union's loss of support among the employees it represented was not such an "unusual circum- stance" as to justify Respondent's refusal to bargain within the certification year. There remains to be considered, however, whether "un- usual circumstances" justifying a refusal to bargain within the certification year exist because of racial or other dis- crimination practiced by the Union; violent activity by the Union; or misconduct by the Union directed against Re- spondent or Respondent's employees. Consideration must also be given to whether any of such matters justify the withholding of a bargaining order. 2. The issue of racial and other discrimination Respondent asserts as an affirmative defense that the Union discriminates against blacks, women, and Spanish- surnamed individuals, and argues that a bargaining order would be inappropriate. Respondent has the burden of es- tablishing its affirmative defense. No evidence was intro- duced on the subject other than statistics relating to the numbers in those categories in Clark County and the num- bers in those categones-in the Union. As is set forth above there is no statistical base established by the record to mount an argument that the Union discriminates against Spanish-surnamed individuals with regard to its member- ship. Respondent did establish that 10.8 percent of the population of Clark County was black as compared to about 3.7 percent of the union membership which was black; that about 50 percent of the total population was female as compared to about 6 percent of the Union's membership which was female; that of the 7 officers of the Union (which 7 officers comprise the executive board), at least since 1968, there was only I black executive board member (which person is presently on the executive board) and only I female (which person was on the executive board from 1968 to 1972); that there are 3 union business agents and that at least since 1968 there have been no blacks, women, or Mexican-Amencans as business agents; and that of the 35 to 40 job stewards there are about 4 or 5 who are black and about 5 who are female. In Mansion House Center Management Corporation, 190 NLRB 437 (1971), enfd. in part and remanded in part 473 F.2d 471 (C.A. 8, 1973), the Board ordered an employer to 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain after rejecting an offer of proof which turned on the asserted fact of racial imbalance in the union's mem- bership. The Board noted that the offer of proof did not allege that the union had denied membership to any appli- cant on the grounds of race. The Eighth Circuit Court of Appeals denied enforcement of the Board's Order and re- manded the case to the Board to allow the company to give further proof. The court held that "constitutional limita- tions on the Board's process require recognition of a charge of racial discrimination as an appropriate ground of in- quiry where a union's representative capacity is ques- tioned." The court also held that the Board erred in testing the discrimination charge solely on the question whether any nonwhites had been refused membership, and found that admission policies of the union and all other relevant considerations deserved full scrutiny. The court also stated at 474: On the other hand, it should be clear that a refusal to bargain based on a union's alleged racial discrimina- tion must not rest on pretextual grounds. The law in this area needs to be more fully developed by the Board. Prophylactic procedures may be needed by the Board to deter pretextual refusal to bargain with an authorized unit on the alleged grounds the union is practicing discrimination in its membership. We leave this for the Board to work out. In United States v. Ironworkers Local 86, 443 F.2d 544, 551 (1971), the Ninth Circuit Court of Appeals gave guidance in the use of statistical evidence for proving violations of the Civil Rights Act of 1964. That court held that by show- ing a small black union membership in a demographic area containing a substantial number of black workers a plain- tiff raised an inference that the racial imbalance was a re- sult of discrimination and the burden of going forward with the evidence shifted to the accused. The court went on to point out: "as in the case with all statistics, their use is conditioned by the existence of proper supportive facts and the absence of variables which would undermine the rea- sonableness of the inference of discrimination which is drawn." In that case there were specific instances of dis- crimination proved in addition to the statistical evidence. In Bekins Moving and Storage Co. of Florida, Inc, 211 NLRB 138 (1974), a majority of the Board held: [I]t seems clear to us that this Board cannot constitu- tionally certify a labor organization which is shown ... to be engaging in practices such as excluding per- sons from membership on the basis of race, alienage, or national origin, which, if encouraged by a certifica- tion, would put us in the constitutionally indefensible position of knowingly furthering those practices which are prohibited by both constitutional and statutory provision. The Board has heard oral argument and is in the process of considering a number of cases involving Mansion House and Bekins issues.13 Careful consideration must be given 13 Trumbull Asphalt Co, Inc, Case 25-RC-5719, Bell & Howell Company, 220 NLRB 881 (1975), Handy Andy, Inc, 228 No 59 (1977), and Murcel Manufacturing Corp, Cases 10-CA-10122, 10-CA-10152, 10-RC-9502 where it is alleged that the public policies set forth in one statute nullify statutory rights granted by another law. More definite guidelines will no doubt be forthcoming in the future. However, even if the Board does ultimately hold that statistical proof of an imbalance in the racial makeup of a union's membership is sufficient per se to establish a prima facie case of discrimination and that such proof shifts the burden of going forward to the anion, I do not believe that the facts in this case warrant a finding that the Union discriminates against blacks or other groups.14 No inference can be drawn from the statistics with re- gard to blacks, women, and Spanish-surnamed individuals who are or who are not officers, business agents, or shop stewards of the Union. The numbers are simply too small to make accurate inferences based on statistics. In addi- tion, one of the seven members of the executive board is a black, and from 1968 to 1972 there was one woman on the executive board. With only three business agents, there is no basis for making a statistical analysis. ,With regard to the shop stewards, there were a number of blacks and women. A major statistical imbalance is shown with regard to blacks and women in the Union's membership and the numbers are large enough to be meaningful." The Union represents employees working in industries in the jurisdiction of the Union and these employees are hired by the employers and not the Union. The Union does not have an apprenticeship program so it does not feed em- ployees into the industry through that means. Some indi- viduals apply for membership in the Union when they are referred to work by the Union, but others apply for mem- bership when they find a job on their own. There is no evidence that the Union runs an exclusive hiring hall under which all employees enter the industry through referral from the hall. Thus, the Union does not control all the hiring. Indeed, the employees of Respondent were all em- ployed before the Union began its organizational drive at Respondent's premises. 16 In Grants Furniture Plaza, Inc. of West Palm Beach, Fla., 213 NLRB 410 (1974), the Board considered the impact of proffered evidence in a situation much like the instant case, holding: Nor do we find sufficient to warrant a hearing the evidence offered in the form of statistics purporting to show that the labor organization seeking certification here has a membership in which certain minority groups appear in numbers less than the population ra- tio of such minorities to the total population in the area in which this labor organization operates. No evi- dence was proffered here to show that the Petitioner, through a hiring hall or other means, exercises any control whatsoever over the racial, sexual or ethnic 14Cf Hawkins Construction Company, 210 NLRB 965 (1974) 15 It is noted that the statistics on the population of Clark County are keyed to the general population rather than to the numbers of blacks, wom- en, and Spanish-speaking individuals in the work force 16 Respondent, who is claiming that the Union discriminates based on a statistical showing, employed only four employees in the bargaining unit at the date it refused to bargain and all of those employees had names indicat- ing that they were male See Bell & Howell Company, 213 NLRB 407 (1974) LEE OFFICE EQUIPMENT 833 composition of those who enter the work force and, thus, those who are or may become its members. In the absence of such evidence we must assume that the employers in the area exercise the true control over the selection of the work forces, and that only after the employer selection process has been effective do em- ployees normally either voluntarily seek membership in the union or, in some instances , do so as required under the terms of a valid union-security agreement. Without passing, therefore, in this case, upon the appropriate weight to be given statistical data as to the racial or ethnic composition of the Union's member- ship in a setting wherein evidence is offered to show either that the Union controls or substantially influ- ences access to employment, or deliberately restricts access to its own membership rolls, we conclude that it would be improper to draw any inferences of union propensity for discrimination on the sole basis of such statistical evidence in the instant setting . We therefore conclude in agreement with the Regional Director that this statistical evidence standing alone is insufficient to warrant the holding of a hearing. Accordingly, as we find the evidence insufficient to disqualify the Petitioner from receiving a Board certi- fication, and as the Petitioner has received a majority of the valid votes cast, we shall certify the Petitioner as the collective-bargaining representative of the employ- ees in the unit found appropriate herein. I believe that the principles set forth in the Grants Furni- ture Plaza, Inc., case are controlling in the instant case. In addition , in the case in issue , there is credible evidence by Seleska, who was secretary-treasurer of the Union since 1968, that he knows of no situation where anyone's appli- cation for membership had been rejected. There is nothing in the record to suggest that the Union is selective in hand- ing out union "books" or that such "books" are the key to obtaining employment. The Union does not maintain an apprenticeship program and therefore does not funnel indi- viduals into the job market through that means. In short, the evidence in the record does not establish that the Union discriminates against blacks or others. 3. The violence against other employers As is set forth in detail above, a number of incidents of violence occurred while strikes or an organizational drive by the Union were taking place. The bulk of that violence occurred in 1973 and there is no indication of any violence occurring within the last 2 years. Any complaint alleging such violence would have been long barred by the 6-month statute of limitation contained in Section 10(b) of the Act. The last such incident took place more than 6 months be- fore the charge in the instant case. There is no evidence in the record to establish that agents of the Union engaged in the violence or that the Union was responsible for such violence. In June or July 1975, Union President and Business Agent Dambro did talk to employees of Respondent about the efficacy of van- dalism in bringing an employer around, but that remark was made years after the violent incidents described above and there is no evidence in the record that Respondent's employees or the Union engaged in any vandalism directed against Respondent. I do not believe that Dambro's re- marks can be taken as an admission that the Union was responsible for the past violence. While there is much to raise suspicion, there is an absence of proof to establish that the Union engaged in acts of violence against other employers." 4. Dambro's remarks to employees and to Woolf In June or July 1974, after telling seven of Respondent's employees that there was an impasse between the Union and Respondent, that Respondent was stalling, and that there was nothing the Union could do, Dambro told the employees that: "It had been known in his last 20 years of experience in representation-representing the Union in different parts of the country that sometimes to make peo- ple come around we can fix their cars up, slash some tires, pull wires, break windows and the like." Dambro's remark constituted a direct unequivocal inducement of the em- ployees to engage in acts of vandalism against Respondent. On September 16, 1975, Woolf and two other employees wrote to the Union saying that they no longer wanted the Union to represent them. Within a week after that date, Union President and Business Agent Dambro told Woolf to get the employees to change their mind and said that if Woolf did not do so, he (Dambro) would have Woolf's "ass." On September 29, 1975, Dambro again said that if Woolf did not get the employees to change their minds he (Dambro) would have Woolf' s "ass." Viewed in the light of " Even if such responsibility had been established , there would be a seri- ous question whether Respondent could rely on the Union's pre-10 (b) con- duct as a defense to a refusal to bargain Cf North Bros Ford, Inc, 220 NLRB 1021 (1975), in which the Board held Section 10(b) of the Act confines the issuance of unfair labor practice complaints to events occurring during the 6 months immediately pre- ceding the filing of a charge and has been interpreted by the Supreme Court to bar finding any unfair labor practice , even though committed within that period , which turns on whether or not events outside that period violated the Act Bryan Manufacturing Co 3 The Court, holding that maintenance and enforcement of a contract more than 6 months after recognition of a minority union did not violate the Act, relied in part on the legislative history indicating that Congress specifically in- tended Section l0(b) to apply to agreements with minority unions in order to stabilize bargaining relations Noting that labor legislation tra- ditionally entails compromise, the Court observed that the interest in employee freedom of choice is one of those given large recognition by the Act as amended But neither can one disre- gard the interest in "industrial peace which it is the overall purpose of the Act to secure " 4 The Board, in light of Bryan, has since held that Section I0(b) is appli- cable to a refusal -to-bargain defense that the bargaining relation was unlawfully established 5 3 Local Lodge No 1424, IAM, AFL-CID [Bryan Manufacturing Co I v NLRB , 362 U S 411 (1960) 4 Id at 428, citations omitted 5 Barrington Plaza and Tragnrew, inc, 185 NLRB 962 (1970), en- forcement denied on other grounds sub nom Tragnrew, Inc, and Con- solidated Hotels of California v N L R B, 470 F 2d 669 (C.A 9, 1972), Roman Stone Construction Company, and Kindred Concrete Products. Inc, 153 NLRB 659, fn 3 (1965) 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dambro's prior statements concerning vandalism, I find that Dambro's remark about having Woolf' s "ass" consti- tuted a threat of violence directed against Woolf. The Board has long held that it will not order bargaining with a union that disregards the peaceful legal processes provided in the Act and instead resorts to violent tactics. However, all union misconduct is not of such a nature as to require the withholding of a bargaining order. The Board has refused to require bargaining where a union was re- sponsible for a campaign of violence directed against an employer. Union Nacional de Trabajadores (The Carborun- dum Company of Puerto Rico), 219 NLRB 862 (1975);18 Jo- seph H. Bliss, d/b/a Artcraft Mantel and Fireplace Co., 174 NLRB 737 (1969); Laura Modes Company, 144 NLRB 1592 (1963). However, in cases where the union's misconduct was less widespread or pervasive, the Board has granted the usual bargaining remedy Thus, in United Mineral & Chemical Corporation, 155 NLRB 1390 (1965), enforcement denied in pertinent part 391 F.2d 829 (C.A. 2, 1968), the Board granted a bargaining order even after the union had engaged in four or five instances of serious misconduct on a picket line during a 65-day strike. The Board held that the violence occurred in the heat of picket line tensions and did not appear to be part of a plan of intimidation. In World Carpets of New York, Inc, 188 NLRB 122 (1971), enforcement denied in pertinent part 463 F.2d 57 (C.A. 2, 1972), the Board also granted a bargaining order in the face of union violence, holding that the misconduct was not of such an extreme nature as to require the withholding of such an order. 19 In the instant case there is no proof that the Union en- gaged in violence of any kind. The Union's inducement of the employees to engage in acts of vandalism and the Union's threat of violence to Woolf was not followed by any acts of vandalism or violence.20 When Respondent re- fused to bargain with the Union, it did not cite the Union's misconduct as a reason for its refusal to bargain. Indeed, there is no evidence in the record to indicate that Respon- dent even knew, at the time it refused to bargain, about the Union's remarks to employees or the threat to Woolf. The Union's misconduct should not be condoned and the Union is put on notice that it has drawn near that line at which its bargaining rights can be vacated. However, I do not believe that the Union's misconduct in the instant case is so far-reaching or egregious that Respondent's refusal to bargain should be permitted. I therefore find that on and after September 30, 1975, Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union. As is set forth below, however, I shall consider all of the above factors in tailoring a remedy that is appropriate to the particular facts of this case 5. The other allegations of 8(a)(5) conduct keyed to the September 30, 1975, meeting Paragraph 10(b) of the complaint alleges that Respon- dent violated Section 8(a)(5) of the Act at the September 30, 1975, meeting by conditioning its negotiation of a col- lective-bargaining agreement on the Union's giving an equal voice at the bargaining table to the employees. Re- spondent did insist at the September 30, 1975, meeting that the employees be heard from. At that time Respondent knew that they had renounced the Union and it is reason- able to believe that Respondent thought the employees would speak against the Union. However, those facts do not establish that Respondent was requiring that the em- ployees have an equal voice at the bargaining table. Paragraph 10(c) of the complaint alleges that Respon- dent violated Section 8(a)(5) of the Act at the September 30, 1975, meeting by soliciting employee sentiment con- cerning their support of the Union, thereby undermining the Union. Respondent did insist that the employees be given an opportunity to speak and in that sense it did soli- cit employee sentiment in a situation where Respondent had knowledge that the employees were against the Union. However, I do not believe that a separate violation should be found based on either paragraph 10(b) or (c) of the complaint. Respondent did refuse to bargain with the Union at the September 30, 1975, meeting. It is likely that Respondent sought to have the employees speak in an at- tempt tojustify its anticipated refusal to negotiate with the Union. As found above, such an attempt at justification was unsupportable and I have found that Respondent did unlawfully refuse to bargain with the Union. However, nothing is to be added by a separate finding of violation based on Respondent's request that the employees state their views, particularly where, as here, the Union had pre- viously engaged in the misconduct set forth above and all the employees in the bargaining unit had, before the meet- ing and before any unfair labor practice on the part of the Employer, withdrawn their support from the Union. I shall therefore recommend that paragraphs 10(b) and (c) of the complaint be dismissed IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I. above, have a close, inti- mate, 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. 18 In that case there were massive acts of violence, and the Board vacated an outstanding certification 19 See also Ramona 's Mexican Food Products, Inc, 203 NLRB 663, 685 (1973) 20 In United Mineral & Chemical Corporation, supra, and World Carpets of New York, Inc, supra, the Second Circuit Court of Appeals disagreed with the Board with regard to the degree of union violence that would warrant the withholding of a bargaining order However, in both of those cases. violent conduct did occur THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. Having found that Respondent refused to bargain in vio- lation of Section 8(a)(5) and (1) of the Act, on and after LEE OFFICE EQUIPMENT September 30, 1975, by failing and refusing to meet and negotiate with the Union as the exclusive representative of its employees in the aforesaid appropriate unit, I recom- mend that Respondent be ordered to meet, negotiate, and bargain in good faith with the Union as the exclusive repre- sentative of its employees in that unit. In the usual case in which an employer refuses to bar- gain within a certification year, the Board orders that the initial period of certification be construed as beginning on the date the company commences to bargain in good faith. That extension of the certification year is required to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the pe- riod provided by law. Bell & Howell Company, 220 NLRB 881 (1975), and cases cited therein, Central Missouri Elec- tric Cooperative, Inc, 222 NLRB 1037 (1976). However, this is not the usual case and I do not recommend an ex- tension of the certification year. A union should be given ample time for carrying out its mandate on behalf of its members. Ray Brooks v. NL.R.B., supra On the other hand, employees have the right at appropriate times to se- lect or reject a bargaining agent. Under the statute, em- ployees may not have a second election within 1 year, and under Board law they may not have an election when an outstanding collective-bargaining contract bars such an election There is no contract bar in the present case. The initial election took place on April 11, 1975, and more than a year has now passed. In the circumstances of this case, the interest of the Union in having a full year of bargaining is in conflict with the interest of the employees in selecting or rejecting their bargaining representative. If the employ- ees, under the circumstances of this case, do not want to be represented by the Union, it would be inappropriate to force such representation on them by extending the certifi- cation year and thus foreclosing an employee petition for an election. In balancing the interest of the Union and the interest of the employees, the following factors must be considered: the Union engaged in serious misconduct di- rected toward those employees by inducing them to engage in acts of vandalism against Respondent and by threaten- ing one of those employees; after that improper conduct, all of the employees in the bargaining unit notified the Union that they no longer wanted the Union to represent them; and the employees' renunciation of the Union was not attributable to any misconduct on the part of Respon- dent and it occurred well before Respondent refused to bargain with the Union The employees' renunciation of the Union did not justify Respondent in subsequently re- fusing to bargain, because the renunciation occurred with- in the certification year. However, the employees engaged in no misconduct and the certification year is now over. Under all those circumstances, I believe that the employees should be permitted, if they choose to do so, to file a decer- tification petition with the Board. As is set forth above, I have recommended that Respondent be ordered to bargain with the Union. I further recommend that the employees be permitted, if they see fit to do so, to file a timely decerti- fication petition.21 It is still further recommended that if It Such a petition is to be subject to the usual contract -bar rules of the Board As the Respondent and the Union have both engaged in misconduct. 835 such a petition is filed, accompanied by a sufficient show- ing of interest, Respondent's duty to bargain be suspended until such time as the Union is recertified by the Board as the exclusive bargaining agent of the employees in the ap- propriate bargaining unit. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act 3 All driver-warehousemen employed by Respondent at its facilities located at 330 East Charleston Boulevard and 950 East Sahara Avenue, Las Vegas, Nevada, excluding all other employees, including office clerical employees, sales employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4 At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5 By failing and refusing on and after September 30, 1975, to meet and negotiate with the Union as the exclusive bargaining representative of the employees of Respondent in the aforesaid unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6 By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, there- by engaging in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. Except as set forth above, the General Counsel has not established by a preponderance of the credible evi- dence that Respondent violated the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 Respondent, Lee Office Equipment, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall- 1. Cease and desist from: (a) Refusing to meet, negotiate, and bargain in good faith with General Sales Drivers, Delivery Drivers and Helpers Local Union No. 14, International Brotherhood of as the employees have not engaged in any misconduct, and as all of the employees in the bargaining unit at the time of the refusal to bargain had renounced the Union such a petition is to be considered timely even if it is filed before Respondent's unfair labor practice is remedied 22 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board , the findings. conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of its employees in the following bargaining unit: All driver-warehousemen employed by Respondent at its facilities located at 330 East Charleston Boulevard and 950 East Sahara Avenue, Las Vegas, Nevada, ex- cluding all other employees, including office clerical employees, sales employees, guards, watchmen and supervisors as defined in the Act. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Upon request, meet, negotiate, and bargain in good faith with said Union, as the exclusive bargaining represen- tative of its employees in the unit described above. How- ever, nothing contained in this Order is to be construed as requiring Respondent to bargain with said Union after a timely decertification petition is filed with the Board with a sufficient showing of interest unless said Union is recerti- fied by the Board. (b) Post at its Las Vegas, Nevada, facilities copies of the attached notice marked "Appendix." 23 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 31, after being duly signed by its authorized represen- tative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 31, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that those allegations in the com- plaint as to which no violations have been found are hereby dismissed. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "