Drug Package Co., Inc.

108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Drug Package Company, Inc. and Local 505, Graphic Arts International Union, AFL-CIO-CLC. Cases 14-CA-7959 and 14-CA-8062 February 10, 1977 DECISION AND ORDER On February 13, 1975, Administrative Law Judge James V. Constantine issued the attached Decision in this proceeding. Thereafter, the General Counsel, Charging Party,' and Respondent filed exceptions2 and supporting briefs. The Charging Party also filed a brief in answer to Respondent's cross-exceptions.3 The Board has considered the record and the attached Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the rulings, findings,4 and conclusions5 of the Adminis- trative Law Judge, as modified herein. The Administrative Law Judge found that, on May 10, 1974,6 when the Union made its demand for recognition on Respondent, the Union had a valid majority in an appropriate unit.? The Administrative Law Judge further found that Respondent had committed numerous violations of Section 8(a)(1) of the Act and that those 8(a)(1) violations which he found Respondent had committed warranted the imposition of a bargaining order under the teaching of the Board's decision in Steel-Fab, Inc.s The Administrative Law Judge further concluded, however, that a strike by the Union against Respon- dent, undertaken on and after May 24, after the demand for bargaining was refused by Respondent, was an economic strike rather than an unfair labor practice strike as urged by General Counsel and the Union, and that the strikers were economic rather than unfair labor practice strikers. Lastly, the Administrative Law Judge found that Respondent had violated Section 8(a)(3) of the Act by its failure and refusal to hire George Looney, because the Administrative Law Judge found that the refusal to hire Looney was because of Looney's membership in the Union. We are in agreement with the Administrative Law Judge that the Union had an untainted majority in an appropriate unit at the time it sought recognition and that a bargaining order is appropriate here based on Herein also referred to as the Union. 2 Respondent denoted its exceptions as cross-exceptions 3 During our consideration of this case, the General Counsel filed a request for special leave to file a supplemental beef That request is hereby denied as the issues raised in the request are adequately considered in our decision herein The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty 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. 228 NLRB No. 17 those 8(a)(1) violations which the Administrative Law Judge found and the additional violation which we find below. However, consistent with our recent decision in The Trading Port, Inc., 219 NLRB 298 (1975), which issued subsequent to the Administra- tive Law Judge's Decision and which modified Steel- Fab on which the Administrative Law Judge relied, we set out below our own rationale for the issuance of the bargaining order. We further find, for reasons noted below, that the strike which the Administrative Law Judge found to be an economic strike was, in fact, an unfair labor practice strike from its inception. And we conclude, also contrary to the Administra- tive Law Judge, and for reasons noted below, that Respondent did not violate Section 8(a)(3) of the Act with respect to George Looney's employment at- tempts .9 Our analysis of this case begins with a review of Looney's employment efforts. 1. George Looney was interviewed for employ- ment on July 29 by Respondent's general manager, Kenneth Bancroft.' The interview lasted approxi- mately an hour, after which Looney was given a tour of the plant. During the course of the interview, Bancroft asked Looney if he knew there was a strike going on and Looney indicated he did. Bancroft also asked Looney if he was a member of a union; Looney indicated that he was, and, in fact, he informed Bancroft that he was a member of the Charging Party. Bancroft, according to Looney, indicated that it would be "wait and see" on his hiring Looney because of the strike. Looney also testified, however, that the best he could remember about Bancroft's hiring him was that Bancroft would not hire him because he was a union member. It is undemed, however, that, on July 31, Bancroft attempted to contact Looney by telephone; that a woman answered and stated that Looney was not in; and that Bancroft left his name and phone number and requested that Looney call him but that Looney never did. Further, it is undenied that Bancroft made two further unsuccessful attempts to contact Looney by phone on August 5 and 6. Further, on August 7, Bancroft sent Looney a letter requesting that Looney contact him regarding his employment status, but 5 In the absence of exceptions, we adopt , pro forma the Administrative Law Judge's dismissal of certain of the complaint allegations 6 All dates are 1974 unless otherwise noted 7 The unit is all production and maintenance employees employed at Respondent's O'Fallon, Missouri, facility, excluding office clerical employ- ees, professional employees, guards, and supervisors as defined in the Act. Respondent admitted the appropriateness of the unit at the hearing 8 212 NLRB 363(1974) 9 Member Waltherjoms us in this finding 10 Respondent was hiring replacements during the strike which continued through Looney's employment attempts DRUG PACKAGE CO., INC. Looney did not respond to that letter. In fact, Respondent did not hear from Looney from July 29 on. The charge which resulted in this 8(a)(3) allega- tion was filed on July 31. On the basis of the above facts, the Administrative Law Judge concluded that Respondent failed and refused to hire Looney and that his alleged failure and refusal to hire him was because Looney was a member of the Charging Party. We disagree. We note that, 2 days after the July 29 interview, Bancroft tried to reach Looney and, when he could not, left word for Looney to contact Respondent. It was Looney, however, who opted not to return Respondent's call. Then, in spite of Looney's failure to respond to the call, Respondent made three further attempts to reach Looney but was unable to contact him. Looney never did return Respondent's phone call or respond to its letter. We thus think it clear that there was no final refusal by Respondent to hire Looney but rather 11 The Administrative Law Judge found that Bancroft's failure in his initial phone call to leave a specific message that Looney should "come to Bancroft's office" rather than just call Bancroft, as Bancroft's message stated, somehow indicated that Bancroft did not want to hire a member of the Charging Party. We cannot accept this inference of the Administrative Law Judge as we discern no meaningful basis on which to predicate a discriminatory motive in a statement to have Looney call in as opposed to a statement asking him to come in . Respondent had a right to contact Looney in the manner it saw fit, and we believe the key here was that Respondent was, in fact, trying to reach Looney in furtherance of further job discussions with him. Further, in light of Bancroft's repeated attempts to reach Looney after the interview in order to continue discussions with him , we draw no inference, as the Administrative Law Judge did, that Bancroft's inquiry to Looney, at the interview, on the latter's union status indicated that Respondent was opposed to hiring adherents of the Union. We further note that the charge which yielded this complaint allegation was filed by the Charging Party on Looney's behalf on July 31 . Meanwhile, Looney refused to return Respondent's phone call of July 31 or respond to its letter of August 7. It thus appears that Looney was content to rest on the charge, filed with the Board, while not allowing Respondent the opportunity to continue further negotiations with him . In such circumstances, we will not subsidize, in the form of backpay, Looney's failure to fulfill his obligations to, at the least , respond to Respondent's attempts to reach him. And with respect to Respondent's August 7 letter, we note Looney's testimony that he thought the letter indicated that if he were "dismissed" from the Union then Respondent would talk with him further . We think this clearly was not the import of the letter (set out by our dissenting colleagues ) and we believe Respondent should not be made to bear the burden of Looney's misunder- standing of the letter. 12 While Respondent contended that the authorization cards were tainted, it did admit that the Union had secured cards from a majority of the employees in the unit. In view of this admission , the Administrative Law Judge made no determination on the specific number of cards the Union received but he did consider whether the cards were tainted , and found they were not. In affirming the Administrative Law Judge that employee Daisy Sim- mons' card was valid, we rely on the fact that the employee who actually obtained Simmons' signature on the card said only that the card was "for the union to come in" and made no statement about union initiation fees. i3 Included as 8(a)(I) violations by the Administrative Law Judge were certain statements made by Supervisor Simmons to employee Hart and certain statements made by Supervisor Bono to employee Heath . Respon- dent claims that both Hart and Heath are supervisors, however, and the Administrative Law Judge set out no facts to support his finding that Hart and Heath were employees. The record, however, fully supports the Administrative Law Judge's conclusions on Hart's and Heath's status. Employee Hart was a label cutter in Respondent 's bindery department. He did not have the power to hire or fire , or to effectively recommend such action ; he did not interview job applicants and he was an hourly paid 109 Looney himself foreclosed such resolution of the matter by failing to respond to Bancroft's invitations for a further interview and discussion.11 In such circumstances, we dismiss that part of the complaint alleging a violation of Section 8(a)(3) concerning the failure to hire Looney. 2. We agree with the Administrative Law Judge that, on May 10, when the Union requested bargain- ing with Respondent, the Union had a majority in the appropriate unit and that the majority, obtained through authorization cards, was a valid, untainted majority for those reasons the Administrative Law Judge noted.12 We also agree with the Administrative Law Judge that Respondent violated Section 8(a)(1) of the Act by the conduct and actions of its supervisors de- scribed in detail in the Administrative Law Judge's Decision.13 In addition to that conduct the Adminis- trative Law Judge found violative of the Act, we also employee who punched a tuneclock . In the past, Hart had assumed certain of Supervisor Simmons' duties but only for 2-week periods and at no increase in his pay. Hart, during that time, still spent about 25 hours per week doing a cutter's duties and he said he merely handled the day-to-day problems based on his experience. When Simmons was present, Hart did not assign work to employees nor did Simmons refer employees to Hart for work assignments. On the basis of the above, we find Hart was an employee under the Act. Employee Heath worked as a forklift operator in the shipping room under Supervisor Bono. When Bono was on vacation, Heath substituted for him for about 2 weeks. Heath made sure everyone had work to do and spent about I to 2 hours per day handing out orders in addition to his usual duties Heath is hourly paid and received no increase in pay when he substituted for Bono. When Bono was present, Heath did his regular job, did not hand out work orders, and had never been told he could make out warning slips on employees. On the basis of the above , we find Heath was an employee under the Act. Since both Hart and Heath signed authorization cards, we also conclude that their cards may be counted toward the Union's majority. So, too, may the card of employee Wilson whom Respondent also contends is a supervisor Wilson was employed in the lithography department doing layout work and his immediate supervisor was Supervisor Hufker. When Hufker went on vacation, Wilson would do most of his work. Wilson had the most seniority in the department after Hufker. There were six other employees in Wilson's section . Wilson was never told what his authority was and he was paid an hourly rate and punched a timeclock . Wilson was never given the authority to hire or fire and never recommended that anybody be replaced in his job. On the basis of the above, we find Wilson was an employee under the Act. Certain statements of Respondent's assistant district sales manager, Cooper, were found to be violations of Sec. 8(axl) of the Act by the Administrative Law Judge because he found Cooper to be a supervisor or at least part of management. Respondent contends , however, Cooper is neither a supervisor nor a part of management . Upon an independent evaluation of the record, we find Cooper is at least part of management and that his statements are attributable to Respondent . Cooper's duties included finding and training manufacturer representatives for Respondent, handling custom- er complaints, and conducting sales meetings and promotions for Respon- dent. Cooper attended management meetings with officers and supervisors of Respondent at which the strike situation was discussed in relation to its effects on production, employment, and sales. It was Cooper who informed Respondent's manufacturer representatives of the strike at Respondent and asked them during the strike to "please bear with us and hold special requests and favors to a minimum." We conclude in light of the above that Cooper is an agent of management and that his statements are attributable to Respondent. In affirming the Administrative Law Judge that Respondent Supervisor Dulle unlawfully solicited employee Michael Harris to seek the return of his card from the Union, the Administrative Law Judge's further finding that Michael Hams also told his brother that Dulle had said the brothers would (Continued) 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD find that a statement made on or about April 19 by Supervisor Eichhorn to employee Haney also violat- ed Section 8(a)(1) of the Act. In that April 19 conversation, Eichhorn, according to the credited testimony, indicated that, if the Union came in, Respondent might have to fire some employees in order to hire minority groups.14 While the Administrative Law Judge found that Eichhorn was merely stating the rights of minorities, it is clear his statement was a threat to the employees that they might be replaced by minorities if the Union entered the plant and this threat to their job security was therefore a violation of Section 8(a)(1),15 and we so find.'6 4. The Administrative Law Judge found, because of Respondent's numerous unfair labor practices, their seriousness, and their probable impact on the employees, that a bargaining order is warranted here and we agree with that conclusion. The record demonstrates that various of Respondent's agents, including Bono, Cooper, and Eichhorn, coercively interrogated numerous long-time employees concern- ing their union activities and sympathies. Further, Supervisors Bono, Simmons, and Eichhorn told various employees that their or other employees' jobs might be in jeopardy if they continued their support of the Union or if the Union got in. Supervisor Bono also threatened that Respondent might eliminate its bus service if the Union was voted in. As employee Heber indicated that there are about 22 to 25 older employees who depend on this service as their sole source of transportation to Respondent's facility, it is clear this statement had a significant impact on a number of the employees. Significant, too, was the statement of Supervisor Eichhorn that Respondent's box department, which he claimed was unprofitable, would have to be closed if the Union came in. Eichhorn told one employee that most of the people in that department were old, and that they were not really needed but that Respondent's president liked be "in better shape" if they "sent for the union signature card" is not adopted as the record does not support such a finding. 14 Black employees, especially, were mentioned in the term "minority groups 15 Certain-Teed Products Corporation, 153 NLRB 495, 507 (1965). 16 We further note that General Counsel has excepted to the Administra- tive Law Judge's sinking of certain paragraphs of the complaint which alleged further violations of Sec. 8(axl) by Respondent We find merit in part of the General Counsel's exception. The record reveals that on November 12, 1974, 1 week before the hearing in the instant case, counsel for General Counsel by the Regional Director for Region 14 amended the complaint herein by the addition of pars. 5V through 5Z, which alleged further 8(axl) violations by Respondent. At the outset of the hearing, the Administrative Law Judge, having suggested same to Respondent, sustained an objection by Respondent to this amendment. The Administrative Law Judge concluded that the amendment was untimely and sought to adduce evidence that would be cumulative should it be concluded that various of the other 8(axl) complaint allegations had merit It is to this ruling that General Counsel has taken exception. Sec. 102 17 of the Board's Rules and Regulations allows a Regional them and kept them on for that reason, rather than because of the work they performed. This, it was indicated, would change if the Union came in. Respondent's policy on layoffs was to allegedly change too, as both Supervisors Eichhorn and Bono indicated that, contrary to past practices, layoffs would take place when work was slack should the Union get into Respondent's plant. Supervisors Eichhorn and Simmons further indicated, without supporting figures, that Respondent might be forced to close entirely if the Union did get in. And, even if this eventually did not come to pass, a number of employees were told by Supervisors Eichhorn and Simmons that certain employees might be fired so that Respondent could hire black employees if the Union got in. In addition to these threats of layoff, firing, discontinuance of essential services, or plant shut- down, Respondent through various of its supervisors also encouraged employees to form an in-plant union as an alternative to the Charging Party; chided the employees that the foremen had been attempting to obtain some benefits for the employees but the employees' attempts to get a union had ruined such a possibility; attempted to have two employees request their authorization cards be returned by the Union; and promised employees that the foremen would be tougher on the employees if the Union came in. We conclude that these threats and actions of Respondent's agents described above may, of course, be presumed to have had a severe initial impact on the employees. We also conclude that the actions may be presumed to have had an impact that has destroyed the likelihood that a true picture of employee sentiment may now be obtained through the election process. Thus, Respondent's actions included not one but a series of serious threats by a number of its agents which were communicated to a number of employees on numerous occasions. The threat that Respondent might have to close, if carried Director, prior to the hearing, to amend an already issued complaint "upon such terms as may be deemed just." Sec. 102.20 of the Board's Rules then allows a respondent to amend its answer at any time prior to the hearing and the answer may also be amended at the hearing itself where the complaint has been amended . The period of time for such amendment is within such period as the Administrative Law Judge or the Board may set Clearly, however, the Board's rules contemplate such amendments to complaints, and resulting amendments to answers, as were attempted in the instant case and the Administrative Law Judge was in error in striking pars . 5V through 5Z of the complaint. However, we are unable to make an informed finding on those allegations of the complaint stricken by the Administrative Law Judge as the support in the record for these allegations consists only of an offer of proof by the General Counsel. Further, Respondent, under the terms of the Administra- tive Law Judge's ruling, was under no obligation to present any defense to these allegations. In the circumstances of this case , however, we see no need for a remand since those violations which the Administrative Law Judge found, and which here are affirmed , necessitate the issuance of a bargaining order, and the notice issued in this case adequately apprises the employees of those rights which Respondent violated. DRUG PACKAGE CO., INC. out, would have affected every employee in the unit. Certain other threats, i.e., to fire employees, to lay off employees, or to discontinue essential bus services, would have meant nothing short of complete termina- tion of employment for those employees involved. And when Respondent was not threatening complete shutdown, or loss of employment for some, it threatened employees with more onerous working conditions and indicated they had lost their chances for possible benefits because of the Union's presence. Thus we find that Respondent's actions have rendered a fair election a slight possibility at best and that the unambiguous cards validly executed by a majority of the employees in the unit represent a more reliable measure of employee desires on the issue of representation than would an election and that the policies of the Act will be best effectuated by the entering of a bargaining order at the present time. While the Administrative Law Judge recommended that a bargaining order issue in the instant case, he did so on the authority of our decision in Steel-Fab, Inc., supra. Under Steel-Fab, the Board's bargaining orders were viewed as remedying only independent 8(a)(1) and (3) violations, and thus were deemed effective only from the date of the Board's decision. In our recent decision in Trading Port, supra, how- ever, we indicated our dissatisfaction with the ap- proach taken in Steel-Fab. We noted in Trading Port that since the events which had "triggered" the bargaining duty, i.e., the unfair labor practices, had occurred much earlier, as had the employees' ex- pressed preference for union representation, a bar- gaining order, imposing the obligation only as to events occurring thenceforth as resulted in Steel-Fab, fell short of reinstating the situation as it would have been absent the employer's unfair labor practices.17 Therefore, in Trading Port, we concluded that an employer's obligation under a bargaining order remedy should commence as of the time the employer had embarked on a clear course of unlawful conduct or had engaged in sufficient unfair labor practices which undermined the union's majority status and subverted our election process. We noted that this time frame would eliminate the ill effects of dating the bargaining obligation as of the issuance of the 17 For example, a prospective bargaining order would leave unremedied any unilateral change in working conditions an employer made after the union established majority status. Is Linden Lumber Division, Summer & Co v N.L.R.B, 419 U.S 301 (1974). 19 N L R. B. v. Gissel Packing Co., Inc, 395 U.S. 575, 591-592, 614 ( 1969). 20 The first authorization cards were signed on March 21. Thereafter, on April 1 or 2, Supervisor Eichhorn told employee Menne that, by trying to get a union, the employees had ruined the attempts of the foremen to obtain some benefits for the employees, that a union had "closed down" two printing outfits and that a union would cause Respondent to "close down" because "we'd price ourselves right out of business ." The Administrative Law Judge correctly found these statements to be violations of Sec 8 (a)(1) of the Act. ill Board's decision which, in turn, had resulted in unremedied unfair labor practices. And we noted that this approach also comported with the theory behind the issuance of bargaining orders. Thus, as the Supreme Court had held, an employer may insist on a Board-conducted election when presented with a bargaining demand so long as he does not fatally impede the election process.18 However, once an employer has so impeded the election process the Supreme Court has noted that he has forfeited his right to a Board election and instead must bargain with the union whose representative status has been established through means (such as authorization cards) other than the traditional and preferred election procedure.19 The legal basis for so bypassing the election procedure is simply that the employer's own misconduct has created conditions which now preclude the conducting of a fair election. In the instant case, as described in detail, supra, Respondent's unfair labor practices commenced shortly after it learned of union activity among its employees.20 This unlawful course of conduct, which touched all of the employees at some time, continued throughout the Union's organizational attempts; its recognition demand; subsequent to its recognition demand; and into the period of the Union's strike. This illegal conduct was clearly intended to dissipate the Union's majority status, and did operate to make the holding of a fair election highly unlikely. Thus, in accord with the Supreme Court's instruction in Gissel, the valid authorization cards secured by the Union are now the most reliable measure of the employees' desires on the issue of representation and we find that the policies of the Act require that Respondent be ordered to bargain with the Union as the exclusive representative of its employees based on the authori- zation cards. We further find that Respondent's bargaining obligation began on May 10, 1974, the date the record first establishes that the Union secured a majority in the unit in the context of Respondent's contemporaneous course of unlawful conduct. Respondent was therefore dutybound to bargain with the Union as of that date.21 5. In recommending that a bargaining order was an appropriate remedy here, the Administrative Law 21 We further find that Respondent's refusal to bargain on and after May 10, 1974, violated Sec. 8(aX5) and (I) of the Act While the complaint as amended did not specifically allege Respondent's refusal to bargain as an independent violation of the Act, the complaint did allege (1) the Union was the exclusive representative (2) in an appropriate unit when it (3) sought recognition and that (4) Respondent refused to recognize the Union but instead (5) committed various unfair labor practices simultaneously with the demand. These are the necessary elements for an 8(a)(5) finding; these issues have been litigated ; and thus it is appropriate for us to find a violation of Sec 8(a)(5) of the Act in Respondent's refusal to bargain . See, e.g , Schwab Foods, Inc, d/b/a Scotts IGA Foodlmer, 223 NLRB 394 (1976). In his concurring opinion, Member Walther states that he would not issue a retroactive bargaining order in the absence of a finding that Respondent violated Sec. 8(aX5). But the aspect of providing bargaining orders to remedy (Continued) 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Judge found, however, that the strike instituted by the Charging Party on May 24, after Respondent's refusal to bargain, was an economic strike rather than an unfair labor practice strike. In so concluding, the Administrative Law Judge noted that, at the union meeting prior to the strike, the vote to strike was for "recognition and a contract." And, while noting that the picket signs were changed on May 29 to reflect an alleged change in the nature of the strike to an unfair labor practice strike, the Administrative Law Judge found that neither the strikers nor Respondent were ever informed of the nature of the unfair labor practices the Union was now allegedly protesting and therefore he found the nature of the strike had not changed from the economic strike he had initially found the strike to be. Contrary to the Administrative Law Judge, we find the strike was an unfair labor practice strike from its inception and that the strikers are unfair labor practice strikers entitled to immediate reinstatement upon application. We have already found that, on May 10, i.e., before the strike, Respondent was obligated to recognize and bargain with the Union on the basis of the Union's majority showing. This obligation Respondent did not meet and the strike for recognition was clearly prompted by Respondent's failure to do so. The Board has long held that when employees strike for recognition which should have been granted at the time they went on strike and where the employer engaged in contemporaneous widespread illegal conduct designed to frustrate the statutory scheme, and bargaining in particular, the striking employees are unfair labor practice strikers.22 Such is exactly the situation here and although the comments at the time of the strike vote related to economic demands, it was virtually impossible to resolve those demands because of Respondent's refusal to recognize the Union. For the foregoing reasons, we conclude the strike was an unfair labor practice strike.23 6. We note that the Administrative Law Judge inadvertently omitted from his proposed Order and notice numerous of the 8(a)(1) violations he found Respondent had committed, and omitted, too, from his notice, an affirmative statement by Respondent to its employees that it will bargain with the Union upon request. General Counsel and the Charging Party have excepted to these omissions and since we find merit in those exceptions the following Order and unfair labor practices where a fair election cannot be held and no demand for recognition has been made is not before us, since we are finding that Respondent did violate Sec. 8(a)(5) in this case. Hence, we see no need for responding here to Member Walther's comments concerning the time such bargaining orders will attach other than to say we disagree with him. Instead, we have set forth our position and chosen to answer him with respect to that situation in our decision of Beasley Energy, Inc, d/b/a Peaker Run Coal Company, Ohio Division # 1, 228 NLRB 93, issued this date. notice are substituted for those of the Administrative Law Judge. The Conclusions of Law and Remedy have also been changed to reflect the disposition on the various issues of this case. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce 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. An appropriate unit of Respondent's employ- ees for purposes of bargaining is a unit of all production and maintenance employees employed at the Respondent's O'Fallon, Missouri, facility, exclud- ing office clerical employees, professional employees, guards, and supervisors as defined in Section 2(11) of the Act. 4. Since May 10, 1974, Local 505, Graphic Arts International Union, AFL-CIO-CLC, has been and is the exclusive representative of all employees in the aforesaid bargaining unit for purposes of collective bargaining within the meaning of Section 9(a) of the Act and by refusing to bargain with the Union since on and after May 10, 1974, Respondent has violated Section 8(a)(5) and (1) of the Act. 5. The strike which commenced on May 24, 1974, was an unfair labor practice strike from its inception. 6. By the following conduct which interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act: (a) Interrogating its employees about their and other employees' union activities and sympathies. (b) Promising employees benefits to dissuade them from union membership or activities and to reward them for ceasing to support a union. (c) Encouraging its employees to start or form an in-plant union instead of continuing their unioniza- tion efforts for the Union. (d) Threatening its employees with discharge or closing the plant if they selected the Union as their collective-bargaining agent. (e) Seeking to have its employees retrieve their authorization cards from the Union. (f) Threatening employees with discharge and replacement by black employees if the Union got in. Similarly, we see no need to comment on our colleagues' view concerning when the bargaining obligation arises in cases where there is a hiatus between the demand and the commencement of unfair labor practices, other than to say that our positions with respect to that situation is set forth in Kroger Co, 228 NLRB 149 (1977). 22 See, e.g., National Furniture Manufacturing Company, Inc., 130 NLRB 712,725 (1961). 23 Trading Port, supra. DRUG PACKAGE CO., INC. 113 (g) Threatening employees with more onerous working conditions if the Union got in. (h) Threatening employees with elimination of Respondent's free bus service if the Union got in. (i) Threatening employees with layoffs if the Union got in. (j) Refusing to recognize and bargain with Local 505, Graphic Arts International Union, AFL-CIO- CLC, as the exclusive representative of its employees in the appropriate unit noted at paragraph 3, above. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 8. Respondent has not committed any other unfair labor practices except as noted above. ADDITIONAL REMEDY Having concluded that the strike which began on May 24, 1974, was an unfair labor practice strike from its inception, we find that it will effectuate the purposes of the Act to order Respondent, in addition to taking certain action designed to remedy the unfair labor practices found herein, to offer to all strikers who make unconditional offers to return to work immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights and privileges, and make them whole for any loss of earnings they may suffer as a result of Respondent's refusal, if any, to reinstate them, by payment to each of them of a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date on which each one unconditionally offers to return to work to the date of Respondent's offer of reinstate- ment,24 less any net earnings during such period, with backpay and interest thereon to be computed in the manner prescribed by the Board in F. W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962).25 Our dissenting colleagues would modify the exist- ing practice and commence backpay from the date of each unfair labor practice striker's unconditional offer to return to work, or the date on which work is first available for the striker, until the date of Respondent's offer of reemployment. Traditionally the Board has commenced backpay 5 days after the striker's offer to return. We believe that the 5-day period is justified as providing a reasonable period of time for employers to accomplish those administra- tive tasks necessary to the orderly reinstatement of the unfair labor practice strikers and to accord some consideration to the replacement employees who must be terminated. While there has been no published articulation of the reasons behind the 5-day rule, its adoption was not without careful consideration. At least some of the reasons behind its original adoption are obvious. Early in its history the Board determined that, if their unconditional offers to return to work were refused, unfair labor practice strikers were entitled to backpay "from the date of the refusal."26 Implicit in such orders was the recognition that there would be a time lapse between the strikers' application for reinstate- ment and the employer's action of rejecting it. Although not explicitly discussed in those early cases in these terms, it takes little imagination to realize that a recalcitrant employer would simply refuse to act upon the application and, thereafter, argue that since reinstatement had not yet been denied, backpay had not begun to run. The obvious answer was to set a time limit within which the employer would be given a chance to act affirmatively upon the reinstate- ment request. If the employer failed to comply with the Board's directive within that period, then backpay would begin to run. Thereafter, the Board began to issue orders provid- ing that backpay was to begin 5 days after the application for reinstatement.27 Why the Board chose a 5-day period rather than a longer or shorter one is nowhere explained in the Board's past decisions in which this period has been used. However, it seems clearly to have been an effort on the part of the Board to establish a reasonable accommodation between the interests of the employees in returning to work as quickly as possible and the need to effectuate that return in an orderly manner. Since that time, the Board has continued to allow employers 5 days to reinstate unfair labor practice strikers who have not yet sought reinstatement, before backpay begins to run, in recognition of the administrative difficulties entailed in reinstating large numbers of striking employees on short notice. An employer requires at least some time to effectuate the strikers' orderly return and, if necessary, to discharge the lawfully hired replacements.28 The only disagree- 24 Keystone Trucking Co., 196 NLRB 574, 576 (1972). See also Ramona's Mexican Food Products, Inc., 203 NLRB 663 (1973). 25 A majority of the Board, i.e., Chairman Murphy and Members Penello and Walther, subscribe to the above remedy and the following discussion concerning unfair labor practice strikers' entitlement to backpay. 26 See Oregon Worsted Company, 3 NLRB 36, 56 (1936); Biles-Coleman Lumber Company, 4 NLRB 679, 706-707 (1937); and Stackpole Carbon Company, 6 NLRB 171,200 (1938). 27 Tiny Town Togs, Inc., 7 NLRB 54 (1938); Electric Boat Company, 7 NLRB 572 (1938); and Republic Steel Corporation, 9 NLRB 219,403 (1938). 28 Our dissenting colleagues point to two cases, Universal Food Service, Inc, 104 NLRB 1, 16 (1953), and John Kinkel & Son, 157 NLRB 744 (1966), in which the Board rejected administrative difficulties as a basis for delay beyond the 5-day period. We continue to be of the view that administrative difficulties are not a basis for delay beyond the 5-day period. The 5-day period represents a reasonable compromise between the various considera- (Continued) 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment between us and our dissenting colleagues is whether an employer should be allowed any time for this purpose in these circumstances during which it should not incur backpay liability to the strikers. We believe that a 5-day hiatus in the backpay obligation strikes the appropriate balance between the administrative problems faced by the employer, the right of the strikers to reinstatement upon request, and the interests of the lawfully hired replacements who must be terminated to permit return of the strikers. Thus, the unfair labor practice strikers have voluntarily left their jobs, albeit in protest of their employer's unfair labor practices, and the time when they apply for reinstatement is solely within their control. On the other hand, the employer and the replacements, if any, have no such control and under the dissenting view the latter would be subject to immediate termination without notice. Obviously the time actually required to effectuate reinstatement of strikers varies greatly. In some instances the 5-day period may be more than ample and the strikers can be and should be returned to work as early as possible. In other cases, however, employers will be hard pressed to complete the orderly return within that time. Granted, an argu- ment could be made that the employer should be compelled to restore unfair labor practice strikers to work within fewer than 5 days where possible. However, such requirement would compel the parties in each case to litigate, and the Board to decide, how long a reinstatement period would be appropriate. In our judgment the costs and uncertainties entailed in such litigation would far outweigh the benefit to be derived. There is nothing to indicate that the existing approach has resulted in any substantial hardship to either unfair labor practice strikers or their employ- ers. It seems far better to retain the fixed period which is well recognized and accepted and represents a compromise between the various considerations. By doing so, stability has been added to labor relations at very little cost to the employees in terms of lost pay. Our dissenting colleagues suggest that they would require employers to reinstate unfair labor practice strikers instantaneously upon their application (with backpay to start immediately) unless the employer can establish that work is not available. We cannot imagine anything but chaos resulting from imposition of such a requirement, for both the operation of the business and the replacement employees who must be discharged. The Board's attempt to harmonize all the tions As strikers cannot assert that an employer does not need the 5 days, neither can employers assert that a period longer than the 5-day period is required. Employers are aware of the fact that at some point unfair labor practice strikers will apply for reinstatement, and after the 5-day period all of the considerations set forth in the dissenting opinion herein come into play. 29 We perceive that an employer could resent the summary nature of an conflicting interests may well have the effect of making our remedial order more acceptable to the employer 29 and to the public as an attempt to deal with the realities. Our dissenting colleagues point to the fact that, where a Board order is issued after unfair labor practice strikers have already made an offer to return which has been rejected by the employer, backpay runs from the date of the offer to return with no 5-day period allowed. However, in those instances the employer has made it clear that it does not intend to reinstate the unfair labor practice strikers. Therefore, there is no reason to permit it 5 days in order to effectuate an orderly reinstatement and the Board will not, in this circumstance, do so. The 5-day period is not to enable the employer to delay reinstatement or to obtain 5 days during which he is not required to pay backpay, but is in recognition of the practical difficulties he may face in reinstating the employees, when he is not in a position to know exactly when they may seek to return. Accordingly, in cases like this one, we shall continue to provide that backpay shall begin from a date 5 days after the date on which each unfair labor striker unconditionally offers to return to work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Drug Package Company, Inc., O'Fallon, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees about their and other employees' union activities and sympathies. (b) Promising employees benefits to dissuade them from union membership or activities and to reward them for ceasing to support a union. (c) Encouraging its employees to start or form an in-plant union instead of continuing their unioniza- tion efforts for the Union. (d) Threatening its employees with discharge or closing the plant if they selected the Union as their collective-bargaining agent. (e) Seeking to have its employees retrieve their authorization cards from the Union. (f) Threatening employees with discharge and replacement by black employees if the Union gets in. (g) Threatening employees with more onerous working conditions if the Union gets in. order such as our dissenting colleagues advocate , and in reaction thereto a request for reinstatement could be denied out of hand, whereas if given some time to reflect on the request and arrange for their return, as the 5-day period provides, the same employer might be more amenable to complying with the Board's direction. DRUG PACKAGE CO., INC. 115 (h) Threatening employees with elimination of Respondent's free bus service if the Union gets in. (i) Threatening employees with layoffs if the Union gets in. (j) Refusing to recognize and bargain with Local 505, Graphic Arts International Union, AFL-CIO- CLC, as the exclusive representative of its employees in the following appropriate unit. All production and maintenance employees employed at Respondent's O'Fallon, Missouri, facility, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in Section 2(11) of the Act. (k) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Notify Local 505, Graphic Arts International Union, AFL-CIO-CLC, that it recognizes and will bargain with it as the exclusive collective-bargaining representative of the employees in the unit described below respecting rates of pay, wages, hours, or other terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed agreement: All production and maintenance employees employed at the Respondent's O'Fallon, Missouri, facility, excluding office clerical employees, pro- fessional employees, guards, and supervisors as defined in Section 2(11) of the Act. (b) Upon application, offer immediate and full reinstatement to their former positions or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all those employees who went on strike on May 24, 1974, or thereafter, dismissing if necessary, any person hired by Respondent on or after that date, and make them whole for any loss of pay which they may suffer by reason of Respondent's refusal, if any, to reinstate them in conformity with the Decision herein. (c) 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. 30 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 31 While the General Counsel failed to include an 8(a)(5) allegation in the (d) Post at its premises at O'Fallon, Missouri, copies of the attached notice marked "Appendix." 30 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative of Respon- dent, 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. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges unfair labor practices not found herein. MEMBER WALTHER, concurring: I agree with Chairman Murphy and Member Penello that backpay for the strikers should com- mence 5 days after the date on which each one unconditionally offers to return to work and that the 8(a)(3) allegation respecting George Looney should be dismissed. I further agree with the balance of the findings and conclusions made by all of my col- leagues, including their finding that Respondent violated Section 8(a)(5) and (1) on May 10, 1974, when it refused to recognize and bargain with the Union as the exclusive bargaining representative of its production and maintenance employees. Finally, I concur in their retroactive application of the bargain- ing order to the date of the 8(a)(5) violation. However, since my understanding of the applicable legal principles differs somewhat from that of my colleagues, I have chosen to set forth my views separately in this opinion. In addition, since the current status of the law with respect to the appropri- ateness and application of both 8(a)(1) and 8(a)(5) bargaining orders is somewhat unclear, and since the legal concepts underlying these remedies are interre- lated, I have chosen to direct my attention to several troublesome issues surrounding bargaining orders even though not directly raised by the record in this proceeding. Any current analysis of the relationship between Section 8(a)(5)31 of the Act and remedial bargaining complaint, presumably in reliance upon the Board's analysis in Steel-Fab, Inc., 212 NLRB 363 (1974), I agree that, since all of the prerequisites to an 8(a)(5) finding were fully litigated at the hearing , it is entirely appropriate for us to consider that issue . American Boiler Manufacturer Association v N L R B, 366 F.2d 815,821 (C.A. 8, 1966) 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD orders must begin with the Supreme Court's opinion in N.L.R.B. v. Gissel Packing Co., Inc.32 In that portion of its Gissel opinion relating to the propriety of issuing bargaining orders as a remedy for an employer's 8(a)(5) violations,33 the Court discussed three separate fact patterns. The first involves situa- tions described as "exceptional" in which the employ- er has engaged in "outrageous" and "pervasive" unfair labor practices. The Court noted that not only was a bargaining order an appropriate remedy in such situations, but that the Board has long had a policy of issuing such orders for substantial unfair labor practices even in the absence of an 8(a)(5) violation or in the absence of a bargaining demand 34 The second category encompasses situations marked by "less pervasive practices which nonethe- less have the tendency to undermine majority strength and impede the election processes." The Court noted that when such conduct occurs in the face of a majority showing by a union-such as through valid authorization cards-then a bargaining order may be necessary not only to deter employer misconduct, but also to effectuate ascertainable employee free choice. Finally, the Court described yet a third factual pattern in which the unfair labor practices are relatively minor and will have a minimal impact on the election machinery. The Court cited with appar- ent approval the Board's claim that there is "no per se rule that the commission of any unfair practice will automatically result in a §8(a)(5) violation and the issuance of an order to bargain."35 As will be seen, the Court's opinion in Gissel was intended to reaffirm existing Board policies with respect to 8(a)(5) viola- tions and bargaining orders-not to blaze new trails. 8(a)(5) Violations and Remedial Bargaining Orders With respect to 8(aX5) violations and remedial bargaining orders, I am in complete agreement with the Board's analysis of Gissel in Trading Port, Inc., 219 NLRB 298 (1975). The Board has long held that Section 8(a)(5) is violated whenever a union's majority has been established (as, for example, through valid authoriza- tion cards) and the employer nevertheless, upon demand, refuses to bargain while at the same time 32 395 U.S. 575 ( 1969). 33 395 U S. at 610-616. 34 As discussed, infra, the Court also noted that such orders are appropriate "without need of inquiry into majority status ..: ' 395 U.S. at 613-614. 35 Citing Aaron Brothers Company of California, 158 NLRB 1077 (1966). 30 The Board's practice has always received Supreme Court approval. See N.L R.B. v. Benne Katz, etc., d/b/a Williamsburg Steel Products Co, 369 U.S. 736, 748, fn 16 (1962); N.LR.B. v P. Lornlard Company, 314 U.S. 512 (1942). 37 As discussed, infra, in such situations the date of the 8(aX5) violation committing serious unfair labor practices which thereafter prevent the holding of a free and fair Board election.36 This was the factual situation present in Trading Port and I think the Board quite properly found an 8(a)(5) violation in the employer's refusal to bargain. I also agree with the Trading Port majority that in such situations a bargaining order applied retroac- tively to the date of the violation is the only appropriate remedy.37 An 8(a)(5) violation is, after all, a refusal to bargain in situations where an obligation to do so exists. It seems entirely logical, therefore, that as part of the remedy for such a violation an employer should be required to go back and bargain with respect to those unilateral actions over which it was under an obligation to bargain at the time they were taken. As the Board succinctly stated in Trading Port, "since the employees had earlier expressed their desire for union representa- tion, the Board's prospective bargaining order [under the rationale of Steel-Fab, Inc., supra] fell short of reinstating the situation as it would have been had Respondent obeyed the law and allowed a fair election to proceed." 38 Given the seriousness of Respondent's unfair labor practices, and given the fact that they were continu- ing on May 10, 1974-the date on which the Union acquired majority support and made an unsuccessful demand for recognition-the foregoing analysis is sufficient to indicate the basis for my agreement with the majority's decision to find an 8(a)(5) violation and impose a bargaining obligation as of May 10, 1974.38 However, for the sake of completeness, there is one additional 8(a)(5) situation I would like to discuss; namely, those cases in which the unfair labor practices do not commence until sometime after the employer has refused the union's request to bar- gain.40 The Supreme Court in Linden Lumber Div., Summer & Co. v. N.L.RB.41 made it clear that an employer's mere refusal to bargain with a union which claims to hold authorization cards from a majority of its employees does not constitute a per se violation of Section 8(a)(5). One of the pillars of the Court's Linden decision was its earlier acceptance in Gissel of the Board's view that, as between authorization cards and a secret-ballot election, the latter is the preferred will always be the same as the date on which the bargaining order attaches under Trading Port; namely, "the time the employer has embarked on a clear course of unlawful conduct or has engaged in sufficient unfair labor practices to undermine the union's majority status." 219 NLRB at 301. 33 Ibld 3s As will be discussed further , infra, since all the elements of an 8(a)(5) violation are present, I would issue the retroactive bargaining order as a remedy for the 8(aX5) violation, not for the 8(aX 1) violations See also fn. 31, supra 90 See, for example, The Kroger Co., 228 NLRB 149 (1977). 41 419 U.S. 301 (1974). DRUG PACKAGE CO., INC. method for ascertaining whether a union has majority support.42 Accordingly, so long as an employer merely refuses to bargain and does not engage in conduct disruptive of the Board's election processes, it may lawfully insist that a union establish its claim through those processes.43 The Court also made clear in Linden that the legality of the employer's refusal to bargain was in no way dependent upon motive. The Court noted that while an employer "may have rational, good-faith grounds for distrusting authorization cards in a given situation," "his objection to cards may, of course, mask his opposition to unions" 44 Such factors, the Court stated, "make difficult an examination of the employer's motive to ascertain whether [the refusal to bargain] was in good faith. To enter that domain is to reject the approval by Gissel of the retreat which the Board took from its `good-faith' inquiries." 45 Assuming then that an employer which refrains from engaging in disruptive conduct is entitled-for whatever reason-to reject a union's demand for recognition based on authorization cards, what happens if at some subsequent date the employer does engage in such conduct? It seems to me that there are two possibilities. First, evidence of the subsequent unfair labor practices could be relied on to establish that the employer's original refusal was designed to acquire time within which to undermine the union's claimed majority status, and thus the refusal violated Section 8(a)(5) as of that date. The problem with this analysis is that it places the Board right back into the middle of the abandoned "good- faith" thicket of Joy Silk Mills.46 For if the motive behind an employer's initial refusal of recognition is irrelevant at the time made under Linden, why should it all of a sudden become relevant in the face of subsequent unlawful conduct?47 There is another possibility, however, and that is that, while a secret-ballot election may at one time have been a more accurate barometer of employee sentiment than authorization cards, the subsequent unfair labor practices have reversed this situation. In 42 See Aaron Brothers, supra, fn. 35 at 1078. This conclusion was accepted by the Supreme Court in Gissel, 395 U S at 602-603, and reiterated in Linden, 419 U.S. at 304. 43 There are two exceptions to the Linden Lumber doctrine. First, an employer who agrees to have majority status determined by a means other than a Board election may not thereafter breach its agreement, refuse to bargain and insist upon an election because of dissatisfaction with the results of the agreed-upon method. Fred Snow, etc d/b/a Snow & Sons, 134 NLRB, 709 (1961), enfd. 308 F.2d 687 (C.A. 9, 1962). Second, where an employer, subsequent to a bargaining demand , voluntarily undertakes to determine whether the union has majority support by conducting a poll of employees' sentiment, it "cannot disclaim the results simply because it finds them distasteful." Nation-Wide Plastics Co., Inc., 197 NLRB 996 (1972). Accord, Soil Mechanics Corporation, 200 NLRB 544, 545 (1972); Crow Inc., 206 NLRB 439, 443-444 (1973); Harding Glass Industries, Inc, 216NLRB 331 (1975) 44 419 U.S. at 306. 45 Id The Court here was referring to the "good -faith" analysis set forth 117 other words, since the unfair labor practices have precluded the holding of a fair election the authoriza- tion cards now present the most viable substitute for ascertaining the employees' sentiments with respect to union representation.48 Thus, the offending em- ployer is no longer entitled to an election. What are the implications of this analysis for the dating of 8(a)(5) violations and bargaining orders? First, for the reasons noted above, I do not think that subsequent unfair labor practices can convert an initially lawful refusal to recognize into an unlawful one. Thus, I would not in such situations date the violation and bargaining order from the date of initial demand and refusal. On the other hand, I do think that, since the unlawful conduct has rendered a free election impossible, an 8(a)(5) violation and a bar- gaining order should be issued on the strength of the authorization cards, measured from the date that the unlawful conduct began. In this regard, I am merely following the teachings of my colleagues in Trading Port: An employer, as the Supreme Court has held, has a right to an election so long as he does not fatally impede the election process [citing Linden Lumber, supra]. Once he has so impeded the process, he has forfeited his right to a Board election and must bargain with the union on the basis of other clear indications of employees' desires. It is at that point, we believe, the employer's unlawful refusal to bargain has taken place. [Emphasis supplied.]49 It follows, therefore, that when an employer's serious unfair labor practices predate or occur simultaneously with the demand for recognition and refusal, the 8(a)(5) violation and the bargaining obligation should attach as of the date of demand. Where, however, the unfair labor practices com- mence at a point sometime after the demand for recognition and refusal, the violation and the bar- gaining order should attach as of the time that "[t]he in Joy Silk Mills, Inc., 85 NLRB 1263 (1949), enfd. 185 F.2d 732 (C.A.D.C., 1950), which both the Board and Court abandoned in Gissel 46 See fn. 45, supra. 47 It is for this reason that I cannot agree with the observation of Members Fanning and Jenkins in the third paragraph of fn. 64, infra, that the Supreme Court's opinion in Gissel carries a clear implication that "later unfair labor practices would infect the legality of an earlier refusal to bargain and make that refusal to bargain unlawful." In each of the cases considered by the Court in Gissel, the unfair labor practices either existed prior to the demand for recognition or commenced immediately thereafter. Accordingly, the legal ramifications of a lawful refusal to bargain followed by subsequent unfair labor practices were not presented to, or considered by, the Court In my judgment, it is more appropriate to examine the Court's rationale in Linden Lumber rather than in Gissel as a guide to resolving this issue. 48 Cf. 3 Hofstra L. Rev 853,862 (1975); Aaron Brothers Co., 158 NLRB at 1079,fn.10. 49 219NLRB at 301. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employer has embarked on a clear course of unlawful conduct.50 The dating of the bargaining order is crucial for, should it be backdated to the date of demand irrespective of the fact that the serious unfair labor practices did not begin until sometime thereaf- ter, the employer may be required to bargain with respect to unilateral action during the interim period following the demand which was taken in a manner and at a time when it was perfectly lawful to do so. As is discussed more fully, infra, the Board lacks the statutory authority to impose such additional bar- gaining obligations upon an employer. 8(a)(1) and (3) Violations and Remedial Bargaining Orders The Board, with court approval, has long imposed bargaining orders as a remedy for certain aggravated 8(a)(1) and (3) violations.51 As the Supreme Court noted in Gissel, 52 such orders have generally been reserved for "exceptional" cases in which the employ- er has engaged in "outrageous" or "pervasive" unfair labor practices. As with 8(a)(5) bargaining orders, 8(a)(1) bargaining orders may issue only when the unfair labor practices are of "[s]uch a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had." 53 I do not consider 8(a)(1) and (5) bargaining orders to be fungible. They are entirely different remedies designed to accomplish entirely different goals. As noted, 8(a)(5) bargaining orders are intended to effectuate ascertainable employee free choice as determined through such evidence as signed authori- zation cards in situations where the employer's conduct has rendered the Board's election processes a less reliable barometer of employee sentiment. They are imposed because an employer has unlawfully refused to bargain upon request with a union which the Board finds represents a majority of its employ- ees. And if they are to remedy all of the 8(a)(5) violations found, they must of necessity be applied retroactively to the date when the bargaining obliga- tion originally attached. Section 8(a)(1) and (3) bargaining orders, on the other hand, are designed not only to remedy ascer- tainable employee free choice (in situations where the union has or at one time had majority support), but perhaps more importantly to deter employer miscon- 50 Id As the Trading Port quotation implies, the above rules assume that the union enjoys majority status as of the date of demand . If the union has not acquired maronty status, neither the violation nor the bargaining order can attach until it does so. The precise date of attachment will depend upon whether the original demand is deemed to be continuing in nature. In the second paragraph of fn. 64, infra, Members Fanning and Jenkins seem to suggest that in these cases I would not find an 8(aX5) violation. This is simply not true. I would find an 8(a)(5) violation as well as date the bargaining order from the date the employer "embarked on a clear course of unlawful conduct . .." Cf. fn. 37, supra duct.54 Such bargaining orders are not intended to remedy an employer's breach of a "bargaining obligation" because, since no 8(a)(5) violation has been found, up to the time the Board's order issues the employer has never incurred such an obligation. Given these very fundamental differences between 8(a)(5) bargaining orders on the one hand, and 8(a)(1) and (3) bargaining orders on the other, I do not think that they should be applied in the same fashion. While I am willing to apply an 8(aX5) bargaining order retroactively to the date on which the employer embarked on his course of unlawful conduct, I am not willing to do so with 8(a)(1) and (3) bargaining orders. I think they should be applied prospectively from the date of the Board's decision. The retroactive application of an 8(a)(5) bargaining order is legally justifiable because such an order is at all times supported by a preexisting bargaining obligation. This is not the case, however, for an 8(a)(1) bargaining order. When a remedial bargaining order is issued as a remedy for unusually serious 8(a)(1) and (3) violations, there is no 8(a)(5) violation, and therefore the bargaining obligation does not attach until issuance of the Board's order. According- ly, the retroactive application of an 8(a)(1) bargaining order is tantamount to either (1) finding an 8(a)(5) violation in situations where the prerequisites there- fore are not present, or (2) applying an 8(a)(5) remedy to 8(a)(1) and (3) violations. I do not think the Board is empowered to take such action because it would have the legally unsupport- able effect of requiring an employer to subsequently bargain with respect to unilateral action which it took at a time when it was perfectly lawful to do so. An example will illustrate. Suppose the employees of an employer which is experiencing economic reversals commence an organizing drive. The employer re- sponds to the drive with 8(a)(1) violations. Before the union makes a demand for recognition the employ- er-without any unlawful motive or intent-unilater- ally institutes an economic layoff as a direct result of its declining financial position. Prior to today's decision the employer's conduct would have been perfectly lawful-without a demand for recognition and without even a claim of majority status by the union, the employer would have been under no Si See, e.g., United Steelworkers of America v. NL.R.B., 215 F.2d 770 (C.A.D.C., 1967); J. C Penney Co., Inc. v. N.L.R. B., 384 F.2d 479, 485-486 (C.A.10,1967) 52 395 U.S. at 613-614. 53 N.LR.B. v. S. S. Logan Packing Company, 386 F.2d 562, 570(C.A. 4, 1967), cited with approval by the Court in Gissel, supra, 395 U.S at 614 54 See Gissel, supra at 614. DRUG PACKAGE CO., INC. 119 obligation to consult with the union prior to institut- ing the layoff.55 All this is now changed. By retroac- tively applying the bargaining order to the date of the initial 8(a)(1) violation, not only is the employer obligated to consult with the union regarding the effects of, if not the decision to institute, the layoff, but its failure to do so will subject it to backpay liability as well.56 The result of such a remedy is not to restore the status quo, but goes well beyond and imposes on the employer additional bargaining and financial obligations. The remedy thus becomes punitive in nature and beyond the authority of this Board to impose.57 In my judgment the retroactive application of an 8(a)(1) bargaining order would also represent an unwarranted and legally unsound extension of Trad- ing Port. There is little doubt that the bargaining order issued by the Board in Trading Port was an 8(a)(5) rather than an 8(a)(1) bargaining order. The 8(a)(1) violations in Trading Port began on September 1, 1973. It was on that date that the Board found Respondent "embarked on a clear course of unlawful conduct which may reasonably be deemed to have undermined the Union's majority status and to have prevented the holding of a fair election. . . ." How- ever, it was not until 3 days later on September 4 that the Union made its demand for recognition thereby fulfilling all the prerequisites for an 8(a)(5) viola- tion-valid authorization cards from a majority of employees in an appropriate unit; a lawful demand for recognition; a refusal by Respondent; and, contemporaneous unfair labor practices eliminating the possibility of a fair election. The bargaining order was dated not from September 1, but from September 4. Had the Board in Trading Port been seeking to remedy the 8(a)(1) and (3) violations through is- suance of a retroactive 8(a)(1) bargaining order, then it would seem only logical that the order would have attached on September 1 when those violations began, not 3 days later. To do otherwise would have left the Board short of its goal of "reinstating the situation as it would have been had Respondent obeyed the law and allowed a fair election to proceed." Accordingly, the fact that the bargaining order in Trading Port did not attach until after the Union had made an unsuccessful demand for recog- nition is clear evidence that what the Board was doing was remedying the Respondent's failure to abide by its 8(a)(5) bargaining obligation, not just the 55 Of course, if the layoff were discnmmatonly rather than economically motivated, the 8(a)(I) and (3) violations would be remedied through our usual cease-and-desist, reinstatement, and backpay remedies. 56 Cf., Amsterdam Printing and Lithograph Corp, 223 NLRB 370 (1976). 57 Republic Steel Corporation v. N.L.R B., 311 U.S. 7, 10-11(1940), Phelps Dodge Corporation v. N L R.B., 313 U.S. 177 (1941). 8(a)(1) and (3) violations which gave rise to the bargaining obligation. In the course of discussing the appropriateness of remedial bargaining orders, it is easy to lose sight of two very important facts. First, Section 7 accords the right of employees to refrain from union-connected activities equal status with their right to engage in such activities. Second, the Board's traditional 8(a)(1), (2), (3), and (4) remedies have historically proven effective in rectifying employer misconduct. The imposition of a bargaining order by its very nature resolves the delicate balance of neutrality contained in Section 7 in favor of the establishment of the union-employer relationship. Given this, it is important to constantly guard against permitting bargaining orders to become a substitute for already effective remedies. Prospective 8(axl) bargaining orders do not carry this danger because there is no practical way to recreate an untainted election atmosphere once it has been destroyed through serious employer misconduct. Retroactive 8(a)(1) bargaining orders, on the other hand, are duplicative of effective traditional remedies and I see no merit in imposing them in the absence of sound legal and policy reasons for doing so. As I have already noted, in my judgment, both legal and policy considerations militate against-not for-the retroactive application of 8(a)(1) bargaining orders. To capsulize, I would find an 8(a)(5) violation and issue an 8(a)(5) bargaining order retroactive to the date of the violation,58 whenever the requirements set forth in Gissel and Trading Port have been met-i.e., the existence of a union majority, a demand for recognition, denial, and the commission of unfair labor practices which prevent the holding of a free and fair Board election. When the prerequisites of an 8(a)(5) violation are absent, but the employer has nevertheless committed outrageous and pervasive unfair labor practices which have destroyed any possibility for a legitimate Board election, then I would issue an 8(a)(1) and (3) bargaining order having prospective application only. In view of the above, I agree with the majority that a bargaining order effective from May 10, 1974, is appropriate in this case. MEMBERS FANNING AND JENKINS, concurring in part and dissenting in part: We concur in the majority's findings that the Union represented an uncoerced majority of the employees when it sought, and was refused, recognition by Respondent on May 10; that Respondent violated 58 As noted earlier, the date of the violation need not necessarily coincide with the date of demand and refusal . See fn. 41, supra, and accompanying text. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8(a)(1) of the Act by various of its actions as detailed by the Administrative Law Judge and the majority ; and that Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act and may be justifiably ordered to bargain with the Union. We also agree with the majority that the strike, which began on May 24, was caused at least in part by Respondent's unfair labor practices; that it thus was an unfair labor practice strike from its inception; and therefore that the strikers are unfair labor practice strikers entitled to immediate uncondi- tional reinstatement upon proper application. With respect to our agreement that Respondent's refusal to bargain, in the context of the serious contemporaneous unfair labor practices which it committed, was itself a violation of Section 8(aX5) and (1) of the Act, we note that the Supreme Court in N. L R. B. v. Savair Manufacturing Co., 59 in describing its earlier decision in NLRB. v. Gissel Packing Co., 395 U.S. 575 (1969),60 indicated that: [t]here [in Gissel] we held that the gathering of authorization cards from a majority of the em- ployees in the bargaining unit may entitle the union to represent the employees for collective bargaining purposes, even though there has been and will be no election . . . and that rejection of that authorization by the employer is an unfair labor practice. [Emphasis supplied.161 ss 414 U.S. 270 (1973). 60 In Gissel, the Supreme Court established the definitive guidelines for the Board's issuance of bargaining orders in lieu of Board-conducted elections. 61 414 U.S. at 280. 62 395 U.S. at 610 69 395 U.S. at 610. 84 While we and Member Walther are in agreement that the Board may appropriately find that Respondent violated Sec. 8 (aX5) of the Act here when it refused the Union's demand for recognition on May 10, there is one major point of disagreement between Member Walther and ourselves upon which we would comment. Member Walther indicates that , in other situations, where there is a hiatus between a bargaining demand by a union and the commencement of unfair labor practices by an employer which warrant a bargaining order, he would date the bargaining obligation as of the date when the unfair labor practices, after demand, began, not from the date of demand. Since we believe that Member Walther, in reaching such a conclusion, has incorrectly applied the import of the Supreme Court's decisions in Linden Lumber Division, Summer A Co. v. N.L.R. A, 419 U.S. 301 (1974), and N L.R. B, v. Gosse! Packing Ca, 395 U.S. 575, we disagree with his conclusion on this point. In Linden Lumber the Supreme Court dealt with the Board's holding that an employer should not be found guilty of an 8(a X5) violation " '. . . solely upon the basis of [its J refusal to accept evidence of majority status other than the results of a Board election .' " 419 U.S. at 305. The Court held that "[t ]n light of the statutory scheme and the practical administrative procedural questions involved, we cannot say that the Board 's decision that the union should go forward and ask for an election on the 'employer's refusal to recognize the authorization cards was arbitrary and capricious or an abuse of discretion.' 419 U.S. at 309-310. Member Walther deems it to follow therefrom that when an employer does not immediately commence unfair labor practices after a demand, but waits awhile before doing so, the refusal of the demand to bargain is lawful , and cannot be found to be unlawful because of later unfair labor practices destructive of the electoral process, and he would find a bargaining obligation in such case to date only from the The situation in which the above proposition obtains, i.e., that the rejection of authorization cards offered in a demand for recognition is itself an unfair labor practice, is, according to the further instructions of Gissel, that situation in which an employer "has committed independent unfair labor practices which have made the holding of a fair election unlikely or which have in fact undermined a union's majority and caused an election to be set aside." 62 In such situations, the Supreme Court characterized a bar- gaining order as "a remedy for a § 8(a)(5) refusal to bargain."63 The situation described by the Supreme Court in Gissel is, very simply, the situation which is before the Board in the instant case and, accordingly, there is no reason for the Board not to find an independent violation of the Act in Respondent's refusal to bargain. In the context of its refusal, Respondent committed numerous unfair labor practices both before and after the Union's demand for recognition. Those unfair labor practices, as the majority finds, did render the holding of a fair election improbable and thus, as the majority finds, a bargaining order and a finding of an 8(a)(5) refusal to bargain are appropriate here. For the foregoing reasons, we agree with our colleagues' finding that Respondent violated Section 8(a)(5) and (1) of the Act by its refusal to bargain with the Union on and after May 10, 1974.64 employer's other unfair labor practices. This seems an entirely unwarranted reading of Linden Lumber. Indeed, in that case the Court concluded- "In sum, we sustain the Board in holding that, unless an employer has engaged in an unfair labor practice that impairs the electoral process , a union with authorization cards purporting to represent a majority of the employees, which is refused recognition, has the burden of taking the next step in invoking the Board's election procedure." 419 U.S. at 310 (footnote omitted). Surely, when a union meets that burden only to be met by unfair labor practices destructive of the electoral process, it is entitled then to rely on its authorization cards as demonstrating its exclusive representative status. The Employer's refusal to recognize that status is, therefore , a violation of 8(aX5), and must be found to be so, if the policy of encouraging resort to the electoral process is to be effective in "getting on with the problems of inaugurating regimes of industrial peace... ." Linden Lumber, 419 U.S. at 307. Linden Lumber did not itself involve employer unfair labor practices after a bargaining demand. But Gssueldid, and Gissel clearly indicates that, in such circumstances, the bargaining obligation springs from the date ofthe refusal to bargain. As the Supreme Court stated the relevant issue in Gissel, "Remaining before us is the propriety of a bargaining order as a remedy for a[n] 8(a)(5) refusal to bargain where an employer has committed independent unfair labor practices which have made the holding ofafair election unlikely or which have in fact undermined a union 'smajority and caused an election to beset aside" 395 U.S. at 610 (emphasis supplied). The Supreme Court did not make allowance for a "lawful" refusal to bargain, followed by some indefinite time period, after which unfair labor practices warranting a bargaining order occur. Rather, the clear implication of the Supreme Court's language indicates that later unfair labor practices would infect the legality of an earlier refusal to bargain and make that refusal to bargain unlawful. See our dissent in Elm Hill Meats of Owensboro; inc., 213 NLRB 874,876 (1974). Member Jenkins would note, as he stated in Beasley Energy, Inc., d/b/a Peaker Run Coal Company, OhioDivision # 1, 228 NLRB 93 (1977), that he would impose the bargaining obligation at an even earlier date if that were required in order to remedy unlawful conduct, this being consistent with what he regards to be the principles expressed in Trading Port, Inc., 219 NLRB 298 (1975). DRUG PACKAGE CO., INC. 121 We disagree with the majority in two respects. First, unlike the majority, we would not commence any backpay possibly owing the unfair labor practice strikers from a date 5 days after the date on which each striker unconditionally offers to return to work, but would instead run any possible backpay from the date of each striker's unconditional offer to return to work, or the date on which work is first available for the striker, until the date of Respondent's offer of reemployment. With respect to this issue of unfair labor practice strikers' entitlement to backpay, the following short history of Board decisions in this area is offered as background. It was early in its history that the Board determined that unfair labor practice strikers were entitled to backpay if their unconditional offers to return to work were refused. In Oregon Worsted Company, 3 NLRB 36, 56 (1936); Biles-Coleman Lumber Compa- ny, 4 NLRB 679, 706-707 (1937); and Stackpole Carbon Company, 6 NLRB 171, 200 (1938), the Board so ordered backpay where, as in the instant case, applications for reinstatement had not yet been made. In those cases, the Board held that, should a reinstatement application be refused, backpay would accrue "from the date of the refusal of the application to the date of reinstatement." In these early cases, there was no mention of a 5-day grace period before backpay would run if there was a refusal to reinstate an unfair labor practice striker. It appears that the 5-day grace period was first set out in Board decisions in Tiny Town Togs, Inc., 7 NLRB 54,69 (1938); Electric Boat Company, 7 NLRB 572, 596 (1938); and Republic Steel Corporation, 9 NLRB 219, 403 (1938). In those decisions, however, and, in fact, in all those decisions since which have followed the 5-day rule, there has been no articula- tion for the reasons behind the rule. While there has been no explanation for the change from the Board's first decisions, it is admittedly not an unusual practice for the Board to apply the 5-day rule in situations, such as the one in the instant case, where no application for reinstatement has yet been made by the unfair labor practice strikers. It is not, however, the invariable practice65 and we believe such practice to be in error. We note with interest that where the situation before the Board has been one where the unfair labor practice strikers have already made an offer to return which has been rejected by the employer, the Board has run backpay from the date of the offer to return 65 See, e.g., Ploof Transfer Company, Inc, 201 NLRB 828 (1973); Astro Electronics, Inc., 188 NLRB 572 (1971); D'Armtgene Inc, 148 NLRB 2 (1964). 66 See The Colonial Press, Inc., 207 NLRB 673 (1973); Courtesy Volkswag- en, Inc, 200 NLRB 84 ( 1972); Pennsylvania Glass Sand Corp, 172 NLRB 514, 537 (1968); Certified Casting & Engineering, Inc., 145 NLRB 572, 573, fn 1 until the date when an offer of reinstatement was made, with no 5-day grace period allowed.66 Further, in other cases where the Board has been aware at the time of its decision that the unfair labor practice strikers were reinstated after their offers to return to work, although the reinstatement in each case, in fact, had been somewhat delayed, the Board commenced backpay from the date of the offers to return to work rather than from 5 days from the date of the offers to return 67 In both Universal Food Service and John Kinkel & Son, the argument was made that the delay in rehiring after the offers to return to work were made was due to normal administrative and person- nel routine. However, in both cases, that argument was rejected because the Board concluded that any loss arising out of a respondent's delay in reinstating strikers was to be borne by the respondent, whose unfair labor practices caused the strike rather than by the employees who went out on strike in protest against those practices, and who fulfilled their obligation by making unconditional applications for reinstatement. The argument the Board rejected in Universal Food Service and John Kinkel & Son, supra, appears to be the only possible justification for the 5-day rule. We believe, however, that the reasons set forth in those cases for rejecting the argument are persuasive. The burden of justifying any delay in returning unfair labor practice strikers to work necessarily should be borne by the respondent whose unfair labor practices caused the strike and not by the employees who have unconditionally offered to return to work. This burden can only be met by a showing that Respon- dent did not have work available for the strikers. Thus, "it is this factor, rather than delay incident to [an employer's] office routine, consultation with counsel, or assessment of employment needs, that would shift the burden of delay in offering reinstate- ment from [an employer] to the unfair labor practice strikers. "68 The majority, however, attempts a further reason for the 5-day rule by also weighing the "interests" of the replacements for the strikers. We are intrigued by the majority's bestowing on such replacements legal "interests" which the Board has not heretofore found exist. Rather, the Board has always considered the employee status of replacements for unfair labor practice strikers as a temporary status, at best. Thus, for example, the Board has consistently found such (1963); Sew-Magic, Inc., 184 NLRB 924,936 (1970); John Kinkel .& Son, 157 NLRB 744 (1966). 67 Universal Food Service, Inc., 104 NLRB 1, 16 (1953); John Kinkel & Son, supra. 66 John Kinkel & Son, supra at 747. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replacements to be ineligible to vote in Board-con- ducted elections.69 Here, by considering that a replacement has legal "interests" in the terms of an unfair labor practice striker's reinstatement, the majority has lost sight of the fact that, where a strike is an unfair labor practice strike, the employer is "compelled under the Act to reinstate the strikers upon application even though it means discharging replacements hired during the strike [emphasis supplied ]." 70 As an employer would not be under such a duty to discharge replacements unless the strikers already had a right to reinstate- ment at the very time the replacements were hired, it is clear that the replacements have no legal interests which can now concern the Board since, in any event, they were subject to replacement by the strikers from the moment they were hired. Accordingly, the majori- ty's reliance, in upholding the 5-day rule, on the "interests" of the striker replacements is incorrect. Because the 5-day rule permits a respondent who has work available for the returning strikers to delay their reinstatement for 5 days, it thus permits such respondent to exact, with the Board's blessing, a penalty of a 5-day suspension from the striker for having exercised his right to strike. Conversely, by arbitrarily beginning backpay from 5 days after a demand for work is made, the rule penalizes an employer who may not then have work available for a returning striker. Such effects are obviously contrary to the purposes and policies of the statute we administer, and we shall no longer apply the 5-day rule. Rather, we would in all cases commence the backpay period on the date the unfair labor practice striker makes an unconditional offer to return to work and run the backpay period until the date an offer of reemployment is made by the respondent 71 This approach accords with our responsibilities under the Act and has the flexibility which the 5-day rule lacks. Our second area of disagreement with the majority is that we would affirm the Administrative Law Judge's conclusion that Respondent violated Section 8(a)(3) of the Act in its failure to hire George Looney. In affirming the Administrative Law Judge, we note that there was no valid reason for Bancroft's inquiry of Looney at the employment interview as to Loo- ney's union status and we think it clear that Ban- croft's decision after the interview to "think over" Looney's application for a few days was predicated solely on Looney's union status. In this regard, we note that Respondent had hired many replacements 69 See , e.g, Coast Radio Broadcasting Corporation d/b/a Radio Station KPOL, 166 NLRB 359, 362 (1967). 70 NLRB. v. J H Rutter-Rex Manufacturing Company, Inc, 245 F.2d 594,598 (C A. 5,1957) 11 Of course, if, after the discharge of all employees hired during the strike during the strike period and that, according to Bancroft, Respondent was in need of people with Looney's skills at the time of Looney's interview. We note that Respondent, in spite of this need, did not even offer Looney a job in its August 7 letter but rather simply asked Looney to contact Respondent again for a further interview-this after having already interviewed Looney for an hour on July 29. Respondent offered no explanation for its inability to make a decision on Looney's status in the 9 days from the time of the interview through the sending of the letter; but we find that the letter itself clearly indicates Looney's union status was the reason he had not been offered a job. The letter, from Bancroft to Looney, and written after the 8(aX3) charge had been filed, is as follows: Because of my inability to reach you by telephone, I am writing you relative to the recent charge of discrimination filed on your behalf by Local 505 at the National Labor Relations Board. The Labor Board Charge came as quite a surprise to me and evidently resulted from some discussion during your recent Employment Interview. It is our understanding that Local 505 could discipline you, a long standing member, for crossing their picket line and the potential problems that this could create for you and the Company does give pause. However, we certainly would not refuse to hire you merely because of your membership in Local 505. If you are otherwise qualified and could commit yourself into entering a permanent em- ployment relationship with us even if Local 505 decided to take disciplinary action against you, such as a fine or termination of your membership, we would be interested in discussing the matter further. If under all these circumstances you are still interested in Employment with our Company, please contact me promptly so that we may arrange another interview to explore this situation further. We believe the letter clearly shows that Respondent was attempting to use any possible problems, real or not, that Looney might have with the Union, should he accept a job at Respondent, as a basis for discouraging Looney from seeking employment with Respondent. The intraunion matters Respondent to replace the strikers, a respondent has no work for the returning striker, then, although the backpay period would run from the time of the offer to return to work by the striker, backpay would not accrue during the period when respondent had no work available for the returning striker. DRUG PACKAGE CO., INC. referred to were personal to Looney, however; were not Respondent's concern; and were an impermissi- ble basis for Respondent to attempt to dissuade Looney from seeking work at Respondent.72 In sum, viewed in the context of Respondent's admitted need for employees with Looney's skills at the time the letter was sent, we conclude that Respondent's continuing failure to offer Looney a job was because of his union status and thus in violation of Section 8(a)(3). We conclude too that, in these circumstances, Looney was not obligated to respond to Respondent's letter nor is any possible misunder- standing of the letter on his part capable of exculpat- ing Respondent since the letter itself demonstrates Respondent was raising an impermissible basis for discouraging Looney from seeking employment at Respondent. 72 Also, by indicating that it desired Looney to enter into a "permanent employment relationship" with it, in spite of any possible disciplinary action undertaken by the Union, Respondent can also be seen as conditioning Looney's employment on his giving up his right to join the strike Respondent was calling for a "permanent" employment relationship which, in context, can be read to foreclose any concerted activities by Looney not only at the present time, when Looney appeared willing to cross a picket line, but also at any time in the future when Looney might have a different desire. 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 both sides had the opportu- nity to present their evidence, the Board has found that Drug Package Company, Inc., violated the National Labor Relations Act, as amended, and has ordered us to post this notice. We therefore notify you that: WE WILL notify Local 505, Graphic Arts International Union, AFL-CIO-CLC, that we recognize and will bargain with it as the exclusive representative of the employees in the unit de- scribed below respecting rates of pay, wages, hours, or other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employ- ees employed at our O'Fallon, Missouri, facility, excluding office clerical employees, professional employees, guards, and supervi- sors as defined in Section 2(11) of the Act. WE WILL, upon application, offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- 123 lent positions, without prejudice to their seniority or other rights and privileges, to all those employ- ees who went out on strike on or after May 24, 1974, and WE WILL make them whole for any loss of pay they may suffer as a result of our refusal, if any, to reinstate them within 5 days of such applications. WE WILL NOT refuse to bargain with or recog- nize Local 505, Graphic Arts International Union, AFL-CIO-CLC, as the exclusive representative of our employees in the unit described above. WE WILL NOT interrogate our employees about their or other employees' union activities and sympathies. WE WILL NOT promise our employees benefits to dissuade them from union membership or activities and to reward them for ceasing to support a union. WE WILL NOT encourage our employees to start or form an in-plant union instead of continuing their unionization efforts for the Union. WE WILL NOT threaten our employees with discharge or plant closure to keep them from selecting the Union as their collective-bargaining agent. WE WILL NOT seek to have our employees retrieve their authorization cards from the Union. WE WILL NOT threaten our employees that they will be discharged and replaced by black employ- ees if the Union gets in. WE WILL NOT threaten our employees with more onerous working conditions if the Union gets in. WE WILL NOT threaten our employees with elimination of our free bus service if the Union gets in. WE WILL NOT threaten our employees with layoffs if the Union gets in. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in their exercise of rights guaranteed them by Section 7 of the Act. All our employees are free to become or remain, or to refuse to become or remain, members of the Union or any other labor organization. DRUG PACKAGE COMPANY, INC. DECISION STATEMENT OF THE CASE JAMES V. CONSTANTINE, Administrative Law Judge: These are two unfair labor practice cases litigated pursuant to Section 10(b) of the National Labor Relations Act, herein called the Act, 29 U.S.C. § 151, et seq. They were consolidated for the purpose of hearing. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The charge in Case 14-CA-7959 was filed on May 31, and that in Case 14-CA-8062 on July 31, 1974, by Local 505, Graphic Arts International Union, AFL-CIO-CLC, herein called Local 505 or the Union . Said charges name Drug Package Company, Inc., as the Respondent. On October 16, 1974, the General Counsel of the National Labor Relations Board, the latter called the Board herein, through the Regional Director for Region 14 (St. Louis, Missouri), consolidated said cases and issued a consolidat- ed complaint based on all said charges . Said complaint in essence alleges that Respondent violated Section 8(aXl) and (3), and that such conduct affects commerce within the meaning of Section 2(6) and (7), of the Act. Respondent has answered admitting some facts but denying that it commit- ted any unfair labor practices. Pursuant to due notice, the consolidated cases came on to be heard before me in St. Louis, Missouri, on November 19, 20, 21, and 22, 1974. All parties had full opportunity to introduce evidence, examine and cross-examine witnesses, file briefs, and offer oral arguments . Briefs have been received from all parties. This consolidated case presents the following issues: 1. Whether Respondent engaged in numerous acts forbidden by Section 8(aX1) of the Act. 2. Whether Respondent failed and refused to hire employee applicant George Looney for discriminatory reasons prohibited by the Act. 3. Whether the Union represented a majority of em- ployees in a unit which is not in question, and, if so, whether Respondent unlawfully refused to recognize it as such representative. 4. Whether a bargaining order should be entered if the Respondent's unfair labor practices are found to be serious and substantial. 5. Whether the Union's strike was caused, or prolonged, by Respondent's unfair labor practices. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. AS TO JURISDICTION Respondent, a Missouri corporation, is engaged at O'Fallon, Missouri, in manufacturing, selling, and distrib- uting drug prescription labels, drug packaging materials, and related products. During the year 1973, a representa- tive period, it manufactured and sold products valued in excess of $50,000, of which products valued in excess of $50,000 were shipped directly to points outside the State of Missouri. I find that Respondent, an employer as defined in Section 2(2), is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assertjurisdiction over Respondent in this proceeding. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the contempla- tion of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. General Counsel's Case 1. The failure and refusal to hire George Looney On July 9, 1974, Looney filled out an application for a job with Respondent and gave it to Kenneth Bancroft, who is admitted to be its general manager. Some time later Looney received a post card from Respondent inviting him to appear for an interview. He went there on July 29 and spoke to Bancroft. Bancroft mentioned that "there was a strike going on" and asked Looney if he was aware of it. (It was stipulated that the Union established a picket line on May 24 at Respondent's place announcing a "strike for recognition and contract," and that on May 29 "pickets first began to carry signs [that there was an] unfair labor practice strike against Drug Package, Inc." See G.C. Exh. 2.) During the foregoing interview Bancroft told Looney the latter's starting pay would be $6.35 an hour and that, "because of the strike" it became necessary to "wait and see" when Looney could start. In addition, Bancroft inquired of Looney if the latter was a member of the Union. Looney replied that he was. "The best [Looney] can remember was that [Bancroft ] would not hire me [Looney ] because I was a union member." Then Bancroft showed Looney "around the plant." But Looney was never hired. 2. The alleged 8(aXl) violations The General Counsel introduced evidence on this issue through numerous witnesses. A summary of the testimony adduced from each of said witnesses is set forth below. Sandor Ujhelyi, a pressman for Respondent from 1969 to May 16 or 17, 1974, had "several conversations" with Foreman Carl Eichhorn, admittedly a supervisor within the meaning of Section 2(11) of the Act, "about the Union." On the first occasion Eichhorn approached Ujhelyi and asked the latter if he attended the Union meeting and "how was the Union meeting?" Continuing, Eichhorn said that if "any union like Local 505 would get into the place, it would probably force [General Manager] Bancroft out of the business .... We are not able to compete with union shops." On another occasion, about May 10, 1974, Eichhom said to Ujhelyi that "the [Respondent ] had been trying to get us small benefits for a long time, but this union deal is starting [President] Broemmelsiek in and they can't get anything for us now . . . . It [the box department] is not profitable for the business," and it might be abolished if the Union came in. Eichhorn added that the box department was being operated at a loss because Broemmelsiek wanted to keep long term employees "of the older age" there and did not want to "kick them out on the street." Ujhelyi signed a union card on March 21, 1974. (See G.C. Exh. 3.) Norman Heberer, who worked in Respondent's shipping and receiving department under Supervisor Dulle, spoke to Supervisor Charles Bono about April 17, and was told by Bono that if the Union got in it would probably jeopardize Heberer's job because Heberer suffered from epilepsy. In this conversation Bono remarked that Respondent "would DRUG PACKAGE CO., INC. probably have to stop sending the bus," which Heberer was riding from St. Louis to Respondent's plant in O'Fallon, Missouri . It is a bus which Respondent chartered for some employees to use in getting to work because there is no adequate transportation to O'Fallon, which is approximate- ly 35 miles from St. Louis. About May 14 or 15 Bono told Heberer that if the Union got in Bono "wouldn't be able to let the fellows stand around and read the newspaper and take more time in the washroom; that he [Bono] would have to crack down" on the men and "be harder on all of the men." Bono also said that Respondent had been good to the men and that he could not understand why they were trying to get a union in the plant. Bono also told Heberer that if Heberer went to a union meeting soon to be held Heberer might lose his job and that "it may jeopardize my [Heberer's] job in some way or another." On May 7 Heberer signed a union card. (See G.C. Exh. 5.) William Hart, who worked as a label cutter in Respon- dent's bindery department under Supervisor Charles Sim- mons, was present when employee Harold Douglas "was razzing" Simmons for letting employee Jeanette Hutchins "run around and talk to everybody." Douglas "thought the union people should have equal time." Then Douglas asked Simmons what Simmons thought would happen "if this union effort fails." Simmons replied, "Well, there will be a lot of people get fired; Bill [Johnson ] will be the first to go." Later that day Simmons told Hart that if the Union got in "they would get rid of a lot of dead wood in the litho department . . . people who weren't doing their jobs." (On cross Hart added "because the litho department was overstaffed" with "deadwood" which Respondent did not need.) I find that Hart was not a supervisor within the meaning of the Act. Consequently, I find that the union card he signed on April 4 may be counted in determining whether the Union enjoyed a majority. (See G.C. Exh. 6.) Hart also saw employee Cletus Skroska sign a union card on March 21 at a union meeting. (See G.C. Exh. 7.) Another employee of Respondent, Michael Haney, a film stripper layout in the litho department, worked under Supervisor Gene Hufker. On one occasion Supervisor Eichhorn told a group including Hufker that old people whom "the company really didn't need" were working in the box department, but "if the Union came in the box department would shut down" and that "the bus service might be discontinued." Eichhorn added that "if the Union came in . . . we would soon have to close down and .. . that we would have to work with black people . . . the company . . . might have to fire people in order to hire minority groups." Continuing, Eichhorn said that President Broemmelsiek had enough money "where he would just get sick of this union thing, and . . . shut the doors." On another occasion, Supervisor Simmons mentioned to Haney that when the Union got in "a lot of dead wood would be gone." At another time, Supervisor Gary Cooper asked Haney if Haney had heard anything about the Union. Cooper also said that he had heard something about the Union and he "would sure like to get a chance to talk to the person who was behind it all and that there were other alternatives to this sort of thing." I fmd no violation of the Act in Cooper's remarks. 125 Sometime in April 1974 Supervisor Cooper asked Haney "how's the revolution going on" and recommended forming an "in-plant union as an alternative to Local 505." Further, Cooper alluded to the fact that a union "was instrumental in shutting down the Western Printing Company in Hannibal, Missouri"; and that if the Union got in Respon- dent's plant he believed that the plant would close down. About May 21 or 22 Cooper again asked Haney "how the revolution was going?" Then Cooper insisted "this was no way to go about it" and mentioned "we had a paid holiday coming up." This is not violative of the Act. Cooper again stated it "would be better for everybody concerned" to have an in-plant union. Haney further testified that Union Representative Man- tei told him personally, and mentioned at a union meeting, that the language on the Union's picket signs was changed about May 29 because "the company was trying to undermine the status of the Union" and "unfair labor practices had been filed by both parties." On March 21 Haney signed a union card. (See G.C. Exh. 8.) Haney also saw employee Kenneth Claus on April 19 sign a union card. (See G.C. Exh. 9.) Another witness for the General Counsel, Mary Tritsch, who was employed as a file clerk and order filler in Respondent's shipping room, gave testimony substantially as follows. Around early April 1974, her immediate supervisor, Charles Bono, admittedly a supervisor under Section 2(11) of the Act, asked her what she "thought of all the Union gossip that was going around the plant." I fmd this does not violate Section 8(axl) of the Act. Continuing, Bono stated that he did not understand why people at Drug Package would be discontented because he considered everyone there was fairly treated; that if the Union came in all the employees would have to work a lot harder; and that he would have to be "rough on" the employees "if we got a union." On March 26, 1974, she signed a union card. (See G.C. Exh. 10.) Tritsch also testified that on May 29 the language on the Union's picket signs at Respondent's premises was changed because, as she was told by Woody Wilson, "there would be an unfair labor practice strike now.,, Carol Ostrowski, who worked under Foreman Gene Hufker in Respondent's litho department, in mid-May 1974, asked Supervisor Eichhorn (admittedly a supervisor under the Act) what Eichhorn thought of having a union in the plant. He replied he did not think it was a very good idea. I fmd no violation of the Act at this point. Then on May 30 Eichhorn telephoned her to inquire if she was on strike. Upon receiving an affirmative answer he asked her, "Don't you think Drug Package is good to you and to your grandfather ... and ... did [you ] sign one of those white cards?" When she replied that she had so signed he requested her to obtain it, tear it up, and "come back to work," and, if she had no way of getting "back and forth to work" he would "make sure that he would get [her] to work and home." He also said, "Carol, it could be that you don't have a job with Drug Package any more." On May 9, 1974, she signed a union card. (See G.C. Exh. 11.) Wayne Menne, who worked under Foreman Gene Hufker, had "several" conversations with Supervisor Eich- horn concerning the Union. On May 10 Eichhorn told a 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD group of employees, one of whom was Menne, that he had heard that union officials were in Respondent's office asking for recognition ; that this signified "you all have enough cards signed"; that Jack (Respondent's president) had been good to Eichhom by never laying him off or anyone else ; that the box department, which was operating in the red because "there were a lot of employees over there ... would have to close" if the Union got in ; that some slow workers, such as Milber, who had two nervous breakdowns, would have to go if Respondent became unionized ; that there would be layoffs of people, although this never occurred in the past, even when business was slow; there would be layoffs of some good workers "to meet a certain quota of blacks" ; and that "there wouldn't be no more overtime." Around the first of April Eichhorn told Menne the former ..was sorry to see [the employees ] get a third party ... I guess you know [a union ] closed Mendel and Western Printing down." Continuing, Eichhorn said that although "the foremen had been working hard to try to get [the employees ] some benefits . . . now [the employees] had ruined it for them . They won't be able to get any now, Menne signed a union card on March 21, 1974. (See G.C. Exh. 12.) On cross Menne stated that Eichhorn, when he spoke, mentioned that "we might just have priced ourselves right out of the field and be forced to close" because "we were not commercial printers, and if the Union got in . . . and we have to compete with other companies who would undersell us, and that we would have to close down the door . . . commercial printing places might undersell us .... We'd price ourselves right out of business ." Also, on cross Menne testified that Eichhorn contended that the Graphic Arts Union "closed down" Western Printing in Hannibal, Missouri. Harold Douglas was employed by Respondent as a collator operator under Supervisor Charles Simmons from June 12, 1970, to May 24, 1974. About March 15, 1974, Simmons disclosed to a group of employees , one of whom was Douglas, that he did not understand why they should have a "third party to bargain" for them and that the employees "should bargain for themselves ... [by J an independent union that it would be better for [them] in the Company than a third party." Simmons added that a union would jeopardize his job as well as Douglas'. Then Simmons asked Douglas whether it was too late "to drop everything and talk to [President ] Broemmelsiek" because Simmons "didn't think the Union was fair to many because he wouldn't have any say in the union policy." I find no violation of the Act in the foregoing statement of Simmons. About a week or two later Simmons told Douglas that Respondent "would have to fire a certain percentage of the people and hire blacks if the Union got in." About May 18 Simmons told some employees, including Douglas, that perhaps the Union would do Simmons "some good because it would enable him to get rid of some deadweight .. . [such as] Bill Johnson." Continuing Simmons averred that the litho department was overstaffed and "when the Union got in they would have to be getting rid of some of the people in" it. About April 15 Simmons mentioned to Douglas that President Broemmelsiek had enough money to close the plant and live on his farm if the Union came in. Assistant Sales Manager Cooper, whom I find to be a supervisor under the Act or at least part of management, about May 16 asked Douglas if the latter "was involved with the Union." When Douglas answered that he was Cooper said that the employees "are going about this all wrong . . . that [the employees ] should have considered an independent union before [going] to extremes" such as the Union. Cooper also "foresaw" that sales would go down within 2 years [on account ] of the Union [because] .. . higher wages" would not enable Respondent to compete with other companies. Douglas signed a union card on March 21, 1974. (See G .C. Exh. 13.) Gerald Heath, who worked as a forklift operator in Respondent's shipping room under Foreman Charles Bono, was asked by Bono on about May 18, 1974, if Heath had heard about the Union and how said union was doing. Continuing Bono added that "if the Union didn't get in ... Mike Ivy and Rick Edwards would be out of a job .. . because they were trying to get the Union in so much." Bono also said he did not know if Heath signed a union card and "didn't want to know." Then Bono said that if the Union came in employees would be laid off whenever work became slack whereas now they were given other jobs during slack times ; that Respondent would have to hire colored people; and that he, Bono, would have to be a tougher boss and not permit employees to stand around and talk so much. On April 4, 1974 , Heath signed a union card. (See G.C. Exh. 16.) Although Heath was an assistant foreman I find he was not a supervisor under the Act. Heath further testified that he was informed when to take breaks when the buzzer sounded, and that "pink slips" were received by employees who took breaks or did not work at other times . The rules pertaining to said breaks and slips were posted on the bulletin board and are in the record as General Counsel's Exhibits 17-A and 17-B. Michael Harris, a bag packer for Respondent under Bob Cantrell, signed a union card at the request of John Northcutt. About May 10 Frank Dulle, conceded to be a supervisor under the Act, asked Harris if Harris had signed a union card. I credit Harris and do not credit Dulle on this issue . When Harris replied that he had (said card is in evidence as G.C. Exh. 21) Dulle asked Harris if Harris "wanted the signature card back ." Harris stated that he did and asked for the Union's address . Dulle wrote it on a piece of paper and gave it to Harris , who then wrote to the Union to return his card to him. (Said letter is G.C. Exh. 19.) Michael's brother, Nicholas, also an employee of Respon- dent, likewise wrote to the Union to obtain his card at the suggestion of Michael (see G .C. Exh. 18) as Michael told Nicholas that Dulle had said they would "be in better shape" if they "sent for the union signature card." The union card of Harris is in evidence as General Counsel's Exhibit 21 and is dated April 3, 1974. On cross Michael Harris stated that about a month before he talked to Dulle about getting the former's card back he, Harris, spoke to employee Cantrell and said to Cantrell, "I would like very much to get [my card ] back." Also, on cross, Harris testified that when Northcutt asked Harris to sign the card Hams "thought," from what DRUG PACKAGE CO., INC. 127 Northcutt told him, "that the only way the Union could come in was with an election, that signing the card wasn't a vote for the Union." I find that said "thought," without more, is insufficient to destroy the validity of Harris' card. A litho employee of Respondent, Ezra Wilson, gave testimony in substance as follows. His foreman is Eugene Hufker. Wilson signed a union card on March 26, 1974. (See G.C. Exh. 22.) I find Wilson is an employee and not a supervisor on his testimony that "Well, I spend most of my time working," that he has never recommended disciplinary action against anyone, and that Foreman Hufker decides what is a rush job or a critical job which should be done immediately. Johnnie E. Northcutt signed a union card on March 23, 1974. (See G.C. Exh. 23.) He also saw employees Michael Harris, Nicholas Harris, and Franklin Hinds sign such cards. For the card of Hinds, signed on March 25, 1974, see General Counsel's Exhibit 24. Northcutt told Mike Hams that the latter's card "would be used for recognition and possibly an election," but never mentioned dues or fees. For the card of Nicholas Harris, which was signed on March 27, 1974, see General Counsel's Exhibit 25. North- cutt told Nicholas Harris that "the card would be used for recognition and possibly an election," but Northcutt did not refer to dues or fees. I credit Northcutt on this issue. The executive vice president of Local 505, Marvin Mantel, also testified. An adequate condensation of his testimony follows. Between March 21 and May 23, 1974, said union held eight organizational meetings for Respon- dent's employees. At the close of such gatherings union authorization cards were distributed. He informed those present that the purpose of said cards was a "request for recognition from the employer . . . in the event the employer would refuse recognition to be used [for] . . . an election." On May 10 a demand for recognition was made upon Respondent. At said meetings Mantei also explained that the Union's dues are "$10 a month for the first year, regardless"; and that the initiation fee "for a journeyman is $150... for a general worker it is $50, [and] . . . for an apprentice . . . an additional $100 at the end of his apprenticeship. In an organizing effort, that there is a one standard [initiation] fee of $25 payable after one year"; and that the initiation fee "on an organizing effort was the same" whether a person had or had not signed a card. Continuing, he told them that "extension would be available [to people in the plant] should we be successful in organizing Drug Package and getting a contract for one additional year . . . and new people [who ] were hired would be treated as any other member of the organization coming under hiring." Dues "after one year [are] according to the pay scale and straight time salary less overtime." Finally, Mantei testified that at a meeting it was voted to strike on May 24 "for recognition and a contract." Later the employees were told the picket signs were changed because "we were doing . . . an unfair labor practice strike." On cross Mantei declared that he wrote schedules of both dues and initiation fees on the blackboards at nearly all the organizational meetings of the Union conducted for em- ployees of Respondent, and that at such meetings he explained that signing a union authorization card did not make an employee a member of the Union or "require them to pay any kind of dues or anything like that." At the hearing it was stipulated that employees Michael Ivy on March 21 and Joann Latinski on April 4, 1974, each signed a union authorization card. A pressroom employee of Respondent, DeWayne Max- son, gave the following testimony as a witness for the General Counsel. His supervisor is Frank Dulle. On March 21, 1974, Maxson signed a union card. (See G.C. Exh. 26.) At this point the General Counsel rested. B. Respondent's Defense Frank Dulle, Respondent's pressroom foreman, whom the answer concedes to be a supervisor within the meaning of Section 2(11) of the Act, testified substantially as follows for Respondent. He denies that he ever had any "personal dealings" or conversations with employee Mike Harris "concerning the withdrawal of [Mike's] authorization card" and insists that the following is what occurred in connection with the union card of Harris. One Saturday Cantrell told Dulle that both Mike and Nick Harris had signed union cards "under pressure," were sorry for having done so, and they wanted to know if there was anything that they could do about it. Dulle "told them what I [Dulle] would do if I [Dulle ] was in their place. He [Dulle] would ask for his card back." When Cantrell asked him "where to write for it," Dulle replied, "I guess the union hall," and gave Cantrell a piece of paper on which Dulle wrote the Union's address. Finally, Dulle denied that he ever asked Mike or Nick Harris whether they had signed a union card or that he wrote "a little letter of request to get a union card back" for either Harris. Robert Cantrell, one of Respondent's employees working under Supervisor Frank Dulle, testified for Respondent. A conspectus of his testimony follows. In early May Mike Harris announced to Cantrell that Harris would like to have his union card back. Harris so desired it because Harris declared he "was all worried about getting his card back because there were so many rumors going around through the factory." Harris feared the Union's seniority policy might cause him to be bumped. So Cantrell "got an address for him [Harris] to get his card back" after talking to Frank Dulle and receiving such address from Dulle. Cantrell was present when Nick Harris, another employee, signed a union card at employee Northcutt's trailer. Gary Cooper is Respondent's assistant sales manager. He "trains new salesmen . . . helps find new salesmen .. . handles customer complaints in the office and in the field ... works with our agents [who are] . . . manufacturer's representatives in the field." He also has constant contact with production and maintenance employees. I have found above that he is a supervisor under the Act or at least is part of management. (See also G.C. Exh. 28 on this issue. It is a letter by Cooper to sales representatives.) About mid-May 1974, Cooper asked employees Mike Haney and Wayne Menne "how the revolution was going." Each replied, "Fine." Then he asked them "what the problems were." Each then "listed the grievances, pension, wages, working conditions, holidays." So he "asked them if they had talked with their supervisor and tried to direct a line of trying to solve the problems that they had." But they replied they 128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "had tried it and they felt that their efforts were unsuccess- ful." During the aforesaid conversation he told them that the Union was "instrumental in closing ... plants" of Western Publishing in Hannibal, Missouri , and of Mendel Compa- ny. Haney questioned this and insisted that the closing of said plants could not be attributed to Local 505. Also in said conversation Cooper mentioned that "any time there are unions, there is a possibility of strikes ." However, Cooper denies he said the plant would be shut down if a union comes in, but did say that if wages were raised prices would be increased and "if our costs got too high, then, we wouldn't be competitive." Later that same day Cooper said "basically the same thing that I talked to Mike [Haney] and Wayne [Menne] about" to employee Harold Douglas , and "discussed the same things" with Douglas which Cooper had discussed above with Haney and Menne . But Cooper denies that he said to Douglas that the Company would close up if the Union came in; rather , he told Douglas that the "impact on the company of increases in wages" resulting from uniom- zation would affect its competitive position. Finally, Cooper denies he questioned Haney or Menne whether they were "involved with the Union" or whether "who other than themselves were . . . [so] involved." On cross Cooper added that in talking to Haney and Menne he did mention an in-plant union as a "third party method" of "solving grievances" and that such a union "was a possibility." He also suggested to them a "grievance type committee," as well as the "straight line method," i.e., dealing directly with management , as "a possibility." And he told them that he "would hate to see the company get into a situation that it couldn't control and this would be through a third-party arrangement whether it 's the union or someone else." Jeffrey Carl, an employee of Respondent from November 1966 to March 1974, attended six union organizational meetings. At these gatherings Union Representative Mantei told those attending "that the initiation fee would be $150 but for a place that is first being organized that $125 would be waived and that all employees would pay $25." How- ever, Mantei made "no distinction between those employ- ees who were signed before the union was voted in and those who signed afterwards." He admits he gave a different version of Mantei's words in an affidavit to the National Labor Relations Board agent, but claims he was mistaken on that occasion. See Respondent's Exhibit 4 for such other account by Carl of Mantei's statement. I find that Carl's oral testimony in this and the next paragraph should be credited. On cross Carl insisted that at said union meetings Mantei asserted that "everybody would be treated the same that was in the plant. . . currently working," that "no one should get special treatment," and that "everyone should be treated fairly to that effect . . . everybody would be treated the same . . . that was currently working . . . whether they signed a card or not"; but those not employed by Respondent "at the time the Union got in" were to pay $150. Finally, Carl testified that he signed a union card on March 21,1974. (See G.C. Exh. 29.) Charles Simmons, an admitted supervisor in Respon- dent's bindery department, testified for Respondent. An adequate abridgment of his testimony follows . Around March 18, 1974, he took part in a conversation with employees Hart, Bartelme, and Douglas after he joined them as they were talking . He "responded to what these employees were saying to each other." The "topic of the discussion" among said employees "was about the benefits at Drug Package and job security," Bartelme talking for the Company and Douglas for the Union. In the above conversation Douglas argued that a union "had more to offer than the company" At this stage Simmons pointed out that the Company's foremen "were working on getting more benefits" for the employees. Then Simmons commented to Douglas, "If you feel that way, why don't you get together with some people and talk to the company about it?" Douglas replied , "It wouldn't do any good." But Simmons claims he did not mention an "in- plant union" or that Local 505 would 'jeopardize" any employee's job. Simmons further testified that he never spoke to any employees concerning the hiring of blacks in the event Respondent became unionized, or that unionization would result in more blacks being hired, or that Respondent President Broemmelsiek had enough money to retire to his farm and close down the plant if the Union came in. And Simmons denies ever telling Haney that "dead wood would be gone if the Union came in." Continuing, Simmons declared that in the middle of April 1974, when he asked Douglas to work overtime, Simmons was "a little upset" because he "could not get Bill Johnson to work very often." At this remark Douglas commented, "The Union will help you get rid of people like that." This caused Simmons to reply that the wages which the Union was "promising the people would hurt us competitivewise on the market and that would drive up our prices . . . and we would lose customers . . . and [the company J would probably have to let some of the people go." Simmons testified that once he "might have said deadwood would go." Furthermore, Simmons also testified that if the Union came in "Billie Johnson would probably be the first to have to go." Moreover, he denies ever saying that "if the Union failed to get in people would be fired," but admits that he told some employees he "couldn't understand why they would want to get somebody else or hire somebody else from the outside when they could all get together and talk." Finally, Simmons denies he ever stated to any employees anything about blacks or minority employees if the Union came in ; and admitted that he told some employees that "the litho department [was] overstaffed and [he] would have to get rid of people if the Union came in . . . that there was some goofing off in the restroom during working hours [and ] the company couldn't stay in business retaining people like that." Respondent's general manager, Kenneth Bancroft, gave testimony for Respondent. An adequate summary thereof is recited in this and the next two paragraphs. On July 29, 1974, he interviewed George Looney, an applicant for employment who had previously filled out an application form. During said interview Bancroft asked Looney if the DRUG PACKAGE CO., INC. 129 latter was a member of Local 505. Looney answered that he was. Then Bancroft inquired whether Looney "realized the Local 505 was walking in front of the plant," and the latter replied that he was aware of this but that he had been out of work for a month and a half and had a wife and children to support. Although Bancroft discussed with Looney "the employ- ment possibility," Bancroft told Looney "I would have to think over his application, that realizing the circumstances I would have to investigate it and I would contact him in a few days." So about July 31 Bancroft "called the number on [Looney's] application," but, although Looney was not in, Bancroft left a message for Looney to telephone him. However, Looney never called. Then between August 4 and 6 Bancroft twice called Looney's home but did not succeed in reaching him. So by letter dated August 7 Bancroft wrote him, in part asking Looney, if "still interested in Employment with our Company," to contact him promptly for "another interview to explore this situation further." (See Resp. Exh. 5.) Bancroft has neither received a response to this letter nor otherwise heard from Looney since then. On cross, Ban- croft said he told Looney during the interview that Respondent "needed people with [Looney's] skills and ability," and that Respondent was hiring at the time. A supervisor within the purview of Section 2(11) of the Act, Charles Bono, testified substantially as follows. He is foreman of Respondent's shipping room. One of those working as an employee in said shipping room is Norman Heberer, a shipping clerk. About 3 weeks before the Union struck Respondent Heberer informed Bono that he had signed a union authorization card and was planning "to attend the meeting." Thereupon Bono told him "you and I owed the company a little consideration before we would think about this thing, because of our handicaps and our illnesses . . . because when [he and I ] started there, it was very hard for us to find a job anywhere else." According to Bono, he has a deformed right arm and Heberer is an epileptic. During the foregoing conversation Bono reminded He- berer that the latter did not drive on account of his epilepsy and asked him if Heberer "gave it any thought as to how he would get out to work if the bus would be discontinued, if the Union had gotten in." Bono also in said discussion admonished Heberer that if a union got in wages and benefits "were such that the company couldn't compete with other businesses, that the [work] standards would have to be stricter and that he [Bono] would have to become a [mean guy ] and see that they are enforced." Bono denies that he warned Heberer not to go to a union meeting as it might jeopardize the latter's job, or that he told employee Kay Tritsch that if the Union came in she would have to work harder and that he would be a tougher boss to work for. But he did warn employee Gerald Heath that he would be a tougher boss if the Union came in. Bono once asked employee Gerald Heath if Heath had heard anything about the Union. But Bono did not during that conversation mention to Heath that Bono or the Company would discharge any employees because of their union activities, or that any employees, such as Mike Ivy and Rick Edwards, would be discharged if the Union did not get in. But Bono did stress to Heath that if work became slack after the Union came in employees would be laid off rather than given other work in another department within the plant as had been the past practice. On May 10, 1974, Local 505 filed a representation petition in Case 14-RC-7658 to represent Respondent's employees in an appropriate unit, said unit being described in paragraph 7 of the complaint in this consolidated proceeding; i.e., Cases 14-CA-7959 and 14-CA-8062. The hearing in the RC case has been postponed indefinitely pending disposition of charges filed by Respondent against the Union in Case 14-CB-2806 and the charges being litigated in the instant proceeding. No employees who went out on strike on May 24, 1974, had returned to work as of the time the present case was heard. The foregoing recitations in this paragraph have been stipulated by the parties. Lorrine Greenwalt, an employee of Respondent, attend- ed four union meetings, at three of which Mantei presided. Mantei explained at such meetings that the purpose of union authorization cards was to obtain an election by presenting "a majority per centage . . . to Drug Package and management then should recognize the fact that this particular union wants an election." Also Mantei said that a "per centage" of the initiation fee would be paid "initially ... and there would be a remaining fee to be paid later." A strike vote was taken at a union meeting on May 23, 1974. But nothing "about unfair labor practices committed by the company" was mentioned as one of the reasons for the strike. In fact Lorrine thought "that the union officials had become fearful of Drug Package's lawyer ... it seemed like they were trying to jump the gun on something he might pull that might possibly keep them from having an election . . . ." On March 21 she signed a union card. (See G.C. Exh. 30.) Another employee of Respondent, Daisy Simmons, the mother of Foreman Charles Simmons, gave testimony for it substantially as follows. She signed a union card at the request of employee Edna Dickinson on May 3, 1974. (See Resp. Exh. 6.) About May 1 another employee, Merlene Hockman, told Mrs. Simmons "about initiation fees" that "it would be more later, after the Union got in . . . it would be $125 later . . . but it was quite a bit less ... if you signed it at the time." Mrs. Simmons did not go out on the strike which the Union called. And she neither attended any union meetings nor talked to any union officials before signing the union card. Employee Dennis 'Leffeler also testified for Respondent. A summary of his testimony ensues. He signed a union authorization card on April 4, 1974, at the request of employee Steven Hoard. (See Resp. Exh. 7.) Hoard told him the purpose of the card was "to have a vote for the Union for Drug Package . . . to have a vote at Drug Package for the Union." Additionally, Hoard also said "that if you signed the card now, and if the Union got in, it would cost more later if we didn't sign the Union card now .... If the Union got in it would be $125, and if we signed before the Union had the election, it would be $25 . . . if the Union got in that the people who hadn't signed cards already, that it would cost them more." 130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employee Mike Haney also told Leffeler, before Leffeler signed the card, that "it was the card for having an election for the Union to come into Drug Package ." And employee DeWayne Maxson told Leffeler before the latter signed the union card "if the people that hadn't signed cards, the initiation fees would be more than the people that already signed the cards . . . that if the people that worked at Drug Package hadn't already signed the cards before the Union came in, that it would cost them more than the people that had signed the cards." Employee Norman Pyeatt gave substantially the follow- ing testimony as a witness for Respondent. John Northcutt, ,.one of the pickets," told him that "those that were working in the plant would have to pay $ 125 initiation fees .. . those who had signed cards and didn't sign cards who were working there now would have to pay that ... those that are on the picket lines now only have to pay $8 when the Union comes in to the plant ." And employees Ken Thornton, while picketing, told Pyeatt that the purpose of the authorization cards "was so that they could present it to [President Broemmelsiek ] for election purposes." But Pyeatt neither signed a card nor was asked to do so by Northcutt. On April 22 Edith Crypret, another employee, signed a union card. Nina Musgrave gave it to her. Edith attended a union meeting held in April 1974. Edith was told by "different ones that [she ] worked with" that the purpose of the card was "that there was to be an election." Others who asked her to sign a union card informed her "that, too, was for the election." Some of those "different ones" mentioned above, including Nina Musgrave, told her the initiation fee "would be about $25, and then if you waited longer it would be more . . . if they got in, then . . . the fee would be more." Her card is Respondent's Exhibit 8. Carl Eichhorn, the foreman of Respondent's composition department, testified for it substantially as follows. About April 19, 1974, employee Mike Haney asked him, in the presence of employee Wayne Menne, "if [Eichhorn] thought they had enough cards" Eichhorn replied that he did not think so. Then Haney asked if Eichhorn thought that a union "was out to harm, to do harm to a firm, to harm them." Eichhorn answered he did not think so. Continuing his conversation with Haney, Eichhorn avouched that Haney asked him if Eichhorn believed that "the Union had anything to do with [Mendel Printing Company ] going out of business." Eichhorn answered that he did not believe so and that he "had heard that the parent company had been using some of their profits for their other enterprises ." In this same discourse Haney asked Eichhorn if the latter "thought, again, that the Union had put [Western Printing] out of business." He replied that he "thought the union did put them out of business." But Eichhorn denies that he told Haney or Menne that President Broemmelsiek "had enough money to give up the business and just go live on the farm." However, Eichhorn did say to "someone" that "we were working on" benefits for the employees but "if we were to meet the rates that he [the aforesaid someone] had mentioned, we would fmd it very hard to do . . . we would like to do something to overcome the higher costs . . . maybe like to have to push a little harder." And he never told any employee that if the Union came in the plant would have to close down, or that the box department would be discontinued and its employ- ees would be laid off, or that Respondent would discontin- ue bus service for certain employees , or that Respondent might have to "fire people to make room for black people." However, Eichhorn conceded on the stand that he informed employees that "foremen were trying to get more benefits for the people , but the union actions were tying [President ] Broemmelsiek hands," and that if the Union came in "Drug Package would not be able to compete [and] ... we would have to cut comers to become more competitive to stay in business." And he did ask Sandor Ujhelyi if the latter had attended union meetings or signed a card. About May 10, 1974, Eichhorn spoke to a group composed of Mike Haney, Wayne Menne, and Sandor Ujhelyi. They informed him "they had enough cards, or something to that effect ." But Eichhorn did not say to them that if the Union came in the box department would be closed. And he did not mention on this occasion that Respondent's president was "being good to some of the older employees," or talked "about sick people and slow people and what would happen to them if the Union came in," or discussed blacks coming in if the Union succeeded in organizing the plant, or that there would be layoffs and overtime would be abolished if the Union came in. However, he did on that occasion advert to the fact that "the foremen [were] trying to get more benefits for the people"; and that "the Union effort was tying the Compa- ny's hands in the seeking of benefits." Eichhorn telephoned employee Carol Ostrowoski in late May during the strike because "she is a friend." He had never called her before this . She informed him she was "not pleased with having signed the card," claiming she "did it under . . . pressure," and stated she would like to have it back. So he told her "to ask them for it back." But he denies he told her "that maybe she didn't have a job at Drug Package anymore." C. General Counsel's Rebuttal Employee Jane Smith testified that in January or Febru- ary 1974, Jenney Cooper directed her, while she was working on the speed click, to stop what she was doing and "run [another ] job [which] was a big rush." So she obeyed Cooper's command, "put the rush job on and finished it." She had no "discussions with foreman" prior to listening to Mr. Cooper. Another employee, Steven Hoard, who worked in Re- spondent's bag department, testified that he spoke to employee Dennis Leffeler about signing a union card. Hoard handed Leffeler such a card and asked him to sign it asserting that its purpose "was to authorize the Union to be [Leffeler's] bargaining agent in matters of wages, benefits, and working conditions." He also told Leffeler that "for the journeymen workers the initiation fee normally was $150, but because this was an initiation drive, that the Union was able to waiver any or all parts of the initiation fee, and they [the Union] chose to waive $125 of it. Thereby he [Leffeler] only had to pay $25." He also called Leffeler's attention that dues the first year after joining would be $10, but would be increased thereafter "according to the amount of DRUG PACKAGE CO., INC. 131 wages that you made for your normal work hours during the work week." Continuing, Hoard testified that he told Leffeler that when the Union obtained signed cards from a majority of the employees it would ask Respondent to recognize it as their bargaining agent. If such recognition was not granted then the Union would use such cards to obtain an election to be conducted by the National Labor Relations Board. Finally, Hoard insisted that Leffeler never attended a union meeting. The last witness was Mike Haney, who testified that he attended the May 10, 1974, and all the other meetings of the Union. He repeated what Mantei stated about initiation fees at union meetings, thus confirming Mantei's prior testimony on this issue. In substance, Haney contended that Mantei said the $150 initiation fee would be reduced to $25 for "everyone . . . . Regardless if they signed the card ... it would be the same for everyone, there would be no exceptions." Continuing, Haney testified that at union meetings Mantei announced that union cards "had two purposes, for recognition or an election . . . [i.e.] one purpose [was to obtain recognition, but] if the employer refused, they would go down and file an election at the N.L.R.B." D. Concluding Findings and Discussion 1. As to the failure or refusal to hire applicant for employment George Looney Upon an appraisal of the entire record I am of the opinion, and find, that Respondent has failed and refused to hire Looney, an applicant for employment, because of his membership in the Union, and that by such conduct Respondent violated Section 8(a)(3) and (1) of the Act. This ultimate finding is derived from the entire record in this case and the following subsidiary findings , which I hereby find as facts . In arriving at said findings I have credited Looney when his testimony conflicted with that of Ban- croft, Respondent's general manager. a. Respondent obtained knowledge of Looney's belong- ing to the Union when he gave an affirmative reply to Bancroft's question, during the latter's interview of Looney, whether Looney was a member of the Union. No valid reason is disclosed by the record for Bancroft's foregoing inquiry . I draw the inference that Bancroft propounded said question because Respondent , which was opposed to the Union as found elsewhere herein , was opposed to hiring union adherents especially at a time when the Union was engaged in a strike against Respondent. b. At the foregoing interview Bancroft admits he told Looney, "I would have to ... investigate [you] and I would contact [you] in a few days." Since Bancroft was unable to reach Looney by telephone a fews days later, Bancroft "left a message" for Looney to telephone him. But Bancroft never revealed at the hearing why he wanted Looney to call him . If Bancroft truly wanted to hire Looney it would seem that Bancroft's "message" to Looney would have been that Looney come to Bancroft 's office; but no such message was given. This indicates that Bancroft did not want to hire a Local 505 member, especially when considered along with Bancroft's statement to Looney at the latter's interview that "realizing the circumstances I would . . . think it over . . . [and] I would have to investigate it." c. By letter of August 7 Bancroft wrote to Looney "if still interested in employment with our Company, please contact me promptly so that we may arrange another interview to explore this situation further." (See Resp. Exh. 5.) But at the hearing Bancroft offered no explanation as to what "situation" would be "explored further." Since Respondent admittedly hired over 40 employees at this time it should have explained at the hearing why it wanted a further interview with only one of such applicants, and that one a union member at that. This is particularly significant since Bancroft testified that Respondent "needed people with [Looney's ] skills and ability," and that Respondent was hiring at the time. I draw the inference that an opening was available for Looney but his membership in the Union was the reason that such opening was not offered to him. d. Finally, I credit Looney that Bancroft during the interview caused Looney to obtain the impression that Bancroft would not hire him because he was a union member. e. Respondent in its brief vigorously urges that it could not have entertained antiunion feelings towards Looney because admittedly Bancroft showed Looney "around the plant" when the interview was terminated . But I find that this argument is not conclusive , as I believe that employers sometimes show applicants "around a plant" without intending to hire such applicants. In any event, I expressly find that Looney was not hired because he belonged to the Union. 2. As to the nature of the strike I find, on the testimony of Mantei, the Union's executive vice president, that at a union meeting it was voted to strike on May 24 for "recognition and a contract ." See also General Counsel's Exhibit 2 for the same wording on the picket signs. And I further find that a strike for recognition and a contract is not an unfair labor practice strike. It is true, and I find, that on May 29, 1974, pickets of Local 505 "first began to carry picket signs with the .. . language [thereon that the ] employees of Drug Package, Inc. are on unfair labor practice strike against Drug Package, Inc." (See G. C. Exh. 2.) The question then is whether it has been established that said strike was converted into an unfair labor practice strike beginning on May 29. I find that it was not so converted for two reasons. a. Mantei, on his own testimony, stated that after May 24 the employees were informed that the picket signs were changed because "we were doing . . . an unfair labor practice strike." But in my opinion this is insufficient, without even a brief description of the unfair labor practices against which the Union was striking, to change the purpose for which the strike was originally instituted. Not only were the strikers not informed as to what the unfair labor practices were but neither was their Employer. Patently the only definite purpose expressed for the strike, and on which the employees voted, was that it was "for recognition and a contract." Hence, there is no evidence that the strikers and the Employer were aware of what 132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD action by the Employer caused a change in the wording of the picket signs. Moreover, there is nothing in the record to indicate that the strikers and the Union abandoned the purpose of "recognition and a contract." But striking against unfair labor practices does not comprehend a strike against nonunfair labor practices . Hence, I am unable to find that a new purpose of the strike (unfair labor practices) absent evidence to that effect in the record. b. There is evidence that Mantei told some employees, such as Haney, that the language on the Union's picket signs was changed about May 29 because "the company was trying to undermine the status of the Union" and "unfair labor practices had been filed by both parties." In my opinion this fails to identify the unfair labor practices, and I so find. Hence, I further find that such failure to mention the unfair labor practices is inadequate to demon- strate to the strikers and their employer that the original purpose of the strike had been altered, especially since the 8(a)(l) unfair labor practices found elsewhere in this Decision were committed before the strike started on May 24. Since such practices occurred before May 24, it would have been a simple matter to include such conduct , as well as the refusal to recognize and bargain, in the strike vote taken at the union meetings . Failure to do so causes me to find that the strike was not caused by unfair labor practices. 3. Whether the Union enjoyed a majority in the bargaining unit Respondent's brief acknowledges that "Local 505 admit- tedly secured authorization cards from a majority in the unit . . . . Respondent contends the cards are not reliable indicators of employee free choice." In view of said admission I hereby fmd such majority without further analysis of the number of signed cards received by the Union. The question then is whether such majority is a valid one or, as Respondent contends, was obtained by methods not sanctioned by the Act. A critical analysis of the record reveals that the Union's majority is not tainted and that, therefore, it was lawfully obtained. It is true that Michael Harris and his brother Nicholas requested a return of their cards but only after Supervisor Dulle asked Michael if Michael had signed a card and wanted it back. I credit Michael on this aspect of the case. I find that Dulle improperly induced Michael and Michael conveyed to Nicholas the statement that Dulle said they would "be in better shape" if they asked for the return of their cards. And I fmd, crediting Northcutt, that nothing employee Northcutt told Michael or Nicholas taints Mi- chael's card. Nor do I find, crediting Mantei, that anything he said at union meetings about the cards invalidates them , and that his statements at such meetings pertaining to initiation fees and dues did not exceed the bounds of propriety. Cf. N. L R. B. v. Savair Manufacturing Co., 414 U.S. 270 (1973). Hence, I find that employees relying on his said statements to sign cards were not illegally or improperly induced to do so. Cf. J. C. Penney Company, Inc., 215 NLRB 24 (1974). Certain witnesses of Respondent also testified as to what Mantei declared about initiation fees and dues. Jeffrey Carl's oral testimony, which I have credited, does not indicate that employees were improperly induced to sign cards. Lorrine Greenwalt's testimony is not credited as I do not believe that Mantei at a union meeting informed employees that signed cards were being sought to present to Respondent to cause Respondent to "recognize the fact that this particular union wants an election," as she testified. In addition I do not credit her because I credit Mantei's version of what he said at union meetings. Also I do not credit Greenwalt as to what she claims Mantei said about the initiation fee as I credit Mantei's contrary testimony. And the testimony of Daisy Simmons as to initiation fees does not indicate that improper solicitation occurred to obtain her signature to a union card. I do not credit Dennie Leffeler's testimony as to what Steven Hoard and other employees told him about the cards and initiation fees because I credit Hoard's testimony on this aspect of the case. And I do not credit Norman Pyeatt as to what Northcutt and Thornton told him. One reason for not crediting Pyeatt is that I cannot believe that he was told, as he testified, that the cards would be presented to Respondent's president "for election purposes." Patently an election can be had without exhibiting a single card to an employer. Further, I do not credit Edith Crypret as to what was told her as to what the purpose of the card was and what the initiation fee would be. Accordingly, I find that the Union's majority is a valid one. See B. F. Goodrich Tire Company, A Division of the B. F. Goodrich Company, 209 NLRB 1175 (1974). I do not construe N.L.R.B. v. Stone & Thomas, 502 F.2d 957, (C.A. 4, 1974), as requiring a contrary result. 4. Whether Respondent committed any 8(a)(1) infractions Upon considering and weighing the entire record in this case I conclude, and therefore find, that Respondent committed acts, as set forth below in this subsection, which contravene Section 8(a)(1) of the Act. In arriving at said findings I have credited testimony in support thereof and have not credited testimony not consonant with such findings; but, because of the length of this Decision, it does not seem desirable to state in any detail why I credit or do not credit a particular witness. Further, credited testimony which I find does not violate the Act is not recited below. a. Foreman Eichhorn told employee Ujhelyi that if a union like Local 505 got in it would probably force Respondent out ofbusiness. At another time Eichhorn told him that Respondent's unprofitable box department might be abolished if the Union came in, thus causing "older age" employees to lose their jobs. I find that these statements amount to more than an opinion protected by Section 8(c), and that they constitute conduct proscribed by Section 8(a)(1), of the Act. b. Supervisor Bono told employee Heberer that if the Union got in this would probably jeopardize the job of Heberer, an epileptic, and would probably cause Respon- dent to stop providing a special bus which Heberer rode to work. At another time Bono told Heberer that if the Union came in he, Bono, would be "harder" on all the men. Bono also told Heberer that Heberer might lose his job if Heberer DRUG PACKAGE CO., INC. 133 went to a union meeting. I find these utterances by Bono are threats of reprisals forbidden by the Act. c. William Hart was told by Supervisor Charles Sim- mons that "if this union effort fails" a lot of people, including Bill Johnson, will be fired. Later that day Simmons told Hart that if the Union got in Respondent would get rid of a lot of deadwood in the litho department. These remarks by Simmons contravene Section 8(a)(1) of the Act, and I so find. d. Supervisor Eichhorn told a group of employees, one of whom was Haney, that if the Union came in Respondent would shut down its box department and discontinue bus service provided for "old people" employed by it. Then Eichhorn added that if the Union came in "we would soon have to close down" and President Broemmelsiek would "shut the doors." (The remainder of said conversation by Eichhorn in my opinion does not contravene the Act as it merely states the rights of minorities and blacks, and I so find.) I find that the foregoing comments of Eichhorn are prohibited by Section 8(a)(1) of the Act. At another time Supervisor Simmons told Haney that when the Union got in "a lot of deadwood would be gone." And Supervisor Cooper twice recommended to Haney an "in-plant union as an alternative to Local 505." Cooper also contended in this conversation that a union was instrumen- tal in shutting down Western Printing Company, and that he believed Respondent's plant would close down if the Union got in. I find that these remarks of Simmons are prohibited by Section 8(a)(1) of the Act. e. Supervisor Bono told employee Mary Tritsch that "if we got a union" he would be rough on the employees and the employees would have to work a lot harder. I find that this statement is a threat of reprisal contravening Section 8(a)(1) of the Act. f. Supervisor Eichhorn telephoned employee Carol Ostrowski, a striker, to ask if Carol had signed a card. Upon receiving an affirmative reply he requested her to get it back, tear it up, and return to work. He also promised her transportation if she had no way of getting to and from work, and closed with the statement, "it could be you don't have a job with Drug Package any more." I find the foregoing conversation constitutes a violation of Section 8(a)(1) of the Act. g. Supervisor Eichhorn told a group of employees, including Wayne Menne, that if the Union got in Respon- dent's box department would have to close, slow workers (tolerated by Respondent) would have to go, layoffs would be instituted although they were never used in the past when business was slow, there would be no more overtime, and some good workers would be terminated "to meet a certain quota of blacks." A few weeks before this Eichhorn told Menne that the employees, by trying to get a union, had ruined the attempts of the foremen to obtain some benefits for the employees, that a union "closed down" Mendel Printing and Western Printing, and that a union would cause Respondent to "close down the door" because "we'd price ourselves right out of business." The above statements of Eichhorn transgress Section 8(a)(1) of the Act, and I so find. i It is my opinion, and I find, that the failure and refusal to hire applicant for employment George Looney is not flagrant and, consequently, is h. Supervisor Charles Simmons revealed to Harold Douglas that Respondent "would have to fire a certain percentage . . . and hire blacks if the Union got in" and that if the Union got in Simmons would be enabled to get rid of some dead weight [such as] Bill Johnson . . . [and] some of the people in" the litho department. At another time Simmons informed Douglas that Respondent's presi- dent had enough money to close the plant and live on the latter's farm if the Union came in. I find that the foregoing declarations by Simmons infringe Section 8(a)(1) of the Act. i. Assistant Sales Manager Cooper asked Harold Doug- las if Douglas was involved with the Union. Upon receiving an affirmative response Cooper commented that this was "all wrong" and that the employees should have considered an independent union rather than going to "extremes" such as Local 505. This conversation of Cooper contravenes Section 8(a)(1) of the Act. However, the remainder of Cooper's remarks to Douglas are protected by Section 8(c) of the Act as they merely constitute an opinion as to how sales would be affected in the event the Union obtained higher wages. j. Foreman Bono asked employee Heath how the Union was doing and added that if the Union did not get in employee Ivy and Edwards would be out of a job because they were very active on behalf of the Union. Continuing, Bono added that if the Union got in employees would be laid off when work became slack, although they were not so laid off in the past; that Respondent would have to hire colored people; and that he would be a tougher boss. I find that said statements by Bono infringe Section 8(a)(1) of the Act. k. Employee Michael Harris was asked by Supervisor Dulle whether Harris had signed a union card and, when Harris replied that he had, whether he, Harris, wanted it back. Since Harris then stated he did want it back Dulle wrote the Union's address on a piece of paper for Harris. Dulle's said conversation caused Harris to suggest to his brother, Nicholas, to get his, Nicholas', union card back. I find that Dulle's said conversation with Michael Harris violates Section 8(aXl) of the Act; but I further find that Nicholas' requesting in writing to have his card returned was not proximately caused by Dulle, so that such action by Nicholas does not amount to a Section 8(a)(1) violation by Dulle. 5. Whether a bargaining order is appropriate under the circumstances of this case By committing the 8(a)(l) violations, but not the 8(a)(3) violation,' found above I fmd that Respondent "commits independent and substantial unfair labor practices disrup- tive of election conditions, ..." See N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 591 (1969); N.L.R.B. v. Walgreen Co., 509 F.2d 1014 (C.A. 7, 1975). And I further find that Respondent's said unfair labor practices are extensive and pervasive and that the "possibility of erasing the effects of [such] past practices and of ensuring a fair election . . . by the use of traditional remedies, though insufficient to require a bargaining order absent an election in which the Union obtains a majority. 134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD present, is slight and that employee sentiment once ex- pressed through cards would,on balance,be betterprotect- ed by a bargaining order,..." See Gissel, supra at 614-615. Also, I expressly fmd that a bargaining order is necessary to repair the unlawful effect of those unfair labor practices, that said practices have created an atmosphere in which a free and fair election cannot take place, and that the risks that a fair election might not be possible are too great to disregard the desires of employees already expressed through cards obtained validly from a majority of such employees. See Gissel, supra at 615. Hence, I fmd that a bargaining order is the only appropriate remedy for the Respondent's conduct. Steel-Fab, Inc., 212 NLRB 363 (1974). 6. Who should be included in the bargaining unit The parties have been unable to agree on the status of William Hart, Gerald Heath, and Ezra Wilson. On the basis of their description of their duties I find that each is an employee within the meaning of Section 2(3) of the Act, and, therefore, should be included in the bargaining unit. Virginia L. Mutert, who signed a union card , wrote to the Union approximately 3 weeks after the strike began on May 24 requesting that her card be returned to her. I find that notwithstanding this she remained in the unit. Since the Respondent has stipulated that the Union had obtained signed cards from a majority of those in the unit I find that said majority has not been affected by her said request, although I further find that her card may not be counted in ascertaining the Union's majority on and after the date when the Union received her said request. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, found to constitute unfair labor practices, occurring in connection with its operations described in section I, 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY As Respondent has been found to have engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take specific affirmative action, as set forth below, designed to effectuate the policies of the Act. In view of the finding that Respondent discriminated against George Looney in not hiring him when he applied for work, it will be recommended that Respondent be ordered to offer him a job for which he is qualified, without prejudice to any seniority and other rights and privileges he would have acquired as such employee. It will further be recommended that Looney be made whole for any loss of earnings suffered by reason of the discrimination against him. In making Looney whole Respondent shall pay to him a sum of money equal to that he would have earned as wages from the date he should have been hired to the date a proper offer of employment is made to him, less his net earnings during such period. Such backpay, if any, is to be computed on a quarterly basis in the manner established by F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent per annum calculated accord- ing to the formula set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). It will also be recommended that Respondent preserve and, upon request, make available to the Board or its agents, all pertinent records and data necessary to aid in analyzing and determining whatever backpay may be due. Finally, it will be recommended that Respondent post appropriate notices. The pervasiveness and substantiality of the 8(a)(1) infractions found above "strike at the heart of the employee rights safeguarded by the Act." Cf. L. E. Johnson Products, Inc., 179 NLRB 67, fn. l (1969). Accordingly, I shall recommend a broad Order to prevent further infraction of the Act by Respondent in any manner. See R. & R. Screen Engraving, Inc., 151 NLRB 1579, 1587 ( 1965). Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Respondent is an employer within the meaning of Section 2(2), and is engaged in commerce as defined in Section 2(6) and (7), of the Act. 3. By unlawfully interfering with, restraining, and coercing its employees , as found herein , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily failing and refusing to hire George Looney, an applicant for employment, thereby discouraging membership in the Union, a labor organiza- tion, Respondent has engaged in unfair labor practices condemned by Section 8(a)(3) and (1) of the Act. 5. An appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment is that described in paragraph 7 of the complaint, and the Union has represented a majority of the employees therein at all times material. 6. By refusing to recognize and bargain with the Union on and after May 10, 1974, when the Union represented a majority of the employees in the unit mentioned in the preceding paragraph , at a time when it engaged in substan- tial and pervasive unfair labor practices, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the Act. DRUG PACKAGE CO., INC. 135 7. The foregoing unfair labor practices affect commerce within the contemplation of Section 2(6) and (7) of the Act. 8. The 8(a)(1) violations found herein constitute serious and substantial practices disruptive of conditions which would permit the holding of a fair and free election and warrant the imposition of an order directing Respondent to recognize and bargain with the Union as the exclusive representative of the employees comprising the unit found appropriate herein. 9. Respondent has not committed any other unfair labor practices as alleged in the complaint. [Recommended Order omitted from publication.]