Pope Maintenance Corp.

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pope Maintenance Corporation and Retail Clerks International Association Local 1063. Cases 10- CA-11556, 10-CA-11590, 10-CA-11663, 10-CA- 11778, and 10-RC-10526 February 22, 1977 DECISION, ORDER AND DIRECTION BY CHAIRMAN MURPHY AND MEMBERS FANNING AND PENELLO On August 24, 1976, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceeding. Thereafter, General Counsel, Charging Party, and Respondent filed exceptions and support- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Pope Mainte- nance Corporation, Warner Robins, Georgia, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DIRECTION It is hereby directed that the ballots of J. E. Dennis, D. E. Holland, K. S. Barnett, C. G. Mouldin, J. F. Tillman, E. D. Cassidy, J. S. Dell, and Martin Durden be opened and counted and that an amended tally of ballots be served on the parties. Thereafter, the Regional Director shall proceed in the manner set forth by the Administrative Law Judge in his Deci- sion. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 554 (1950), enfd . 188 F.2d 362 (C.A 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. 2 The Administrative Law Judge found that Respondent is an employer within the meaning of the Act In doing so, he failed to specifically deal with Respondent's contention that the Air Force ordered Respondent to reduce one department by five manpower spaces. This ability of the Air Force to require a reduction in positions is some indication of control However, in the absence of any Air Force authority to determine which employees are to 228 NLRB No. 20 be affected and what is to happen to these employees (transferred, laid off, etc.) this factor, even when taken into consideration with the other factors herein, does not warrant rejection of the Administrative Law Judge's findings. The Administrative Law Judge dates the bargaining order from October 4, 1975, the date on which the Union , having a majority, requested recognition, and on which he found "the unfair labor practice campaign commenced." However, Respondent did not commence unfair labor practices until October 6, 1975. In accordance with Trading Port, Inc., 219 NLRB 298 (1975), and The Kroger Company, 228 NLRB 149 (1976), we date the bargaining order from October 6, 1975. Member Fanning would affirm the Administrative Law Judge's October 4 dating of the refusal-to-bargain finding, the date the Union requested Respondent to recognize and bargain with it. 3 Since Hawk's warning slip was destroyed by Respondent, it is unneces- sary to order it expunged from his record as the General Counsel requests. We do not find it necessary to pass on the validity of the cards signed by Michael Williams, David McLeod, Harold Thompson, and Herman Denson, since the Union would still have a majority. In the absence of exceptions, we adoptpro forma the Administrative Law Judge's rejection of six cards. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On October 7, 1975, Retail Clerks International Association Local 1063, hereinafter called the Union or Petitioner, filed with the Regional Director for Region 10 of the National Labor Relations Board a charge (Case 10-CA- 11556) alleging that Pope Maintenance Corporation, hereinafter called Respondent or the Employer, by various acts and conduct violated Section 8(a)(l) of the National Labor Relations Act, as amended. On October 21, the Union filed with the said Regional Director a second charge (Case 10-CA- 11590) alleging that Respondent violated Section 8(a)(1) and (3) by discrimination against three employees, Howard Umberger, Winfred Davis, and Marie McClinton. On November 25, 1975, the Union filed a third charge (Case 10-CA-11663) alleging that Respondent violated Section 8(a)(1) and (3) of the Act by failing and refusing to reinstate unfair labor practice strikers after an unconditional offer to return to work on November 22,1975. On January 9, 1976, the said Regional Director , on behalf of the Board's General Counsel, ordered the three cases consolidated and issued a complaint and notice of hearing alleging the violations charged in the three cases. Respondent duly filed its answer admitting the jurisdictional facts but denying that the Board has jurisdiction over Respondent's enter- prise and denying the commission of any unfair labor practices. On November 13, 1975, the Union filed with the said Regional Director a petition seeking an election among certain employees of the Employer at the Robins Air Force Base, the unit in which the alleged unfair labor practices took place. After a hearing, the Regional Director issued a Decision and Direction of Election, pursuant to which an election by secret ballot was conducted on January 6, 1976, among the employees in the unit found appropriate in his decision. Thereafter, the parties were served with a correct- ed tally of ballots showing that, of approximately 137 eligible voters, 40 valid votes were cast for the Petitioner and 40 against the Petitioner, and there were 56 challenges and 1 void ballot. The challenges were obviously sufficient to affect the results of the election and are accordingly determinative thereof. On February 11 the Petitioner filed POPE MAINTENANCE CORPORATION timely objections to the election, on February 12 the Employer filed timely objections, and on February 13 the Petitioner filed timely amendments to its objections. On the issues joined by General Counsel's consolidated complaint and Respondent's answer the matter came on for hearing before me at Robins Air Force Base at Warner Robins, Georgia, on February 9, 1976. All parties were present and represented by counsel and had an opportunity to call and examine witnesses and to adduce relevant and material evidence. On February 12, 1976, the General Counsel rested his case. At this time I was apprised of the status of the representation matter and was informed that the Charging Party had filed an additional charge alleging a violation of Section 8(a)(5) of the Act. Accordingly I declined to proceed further with the case unless and until the General Counsel was prepared to assure me that he would not move to reopen the matter for the purpose of consolidating either the representation matter or the additional charge with the matter then under litigation. The General Counsel, of course, was unable to make such a representation and I adjourned the matter sine die. On February 11, 1976, the Charging Party filed with the Acting Regional Director another charge, Case 10-CA- 11778, alleging that Respondent refused to bargain since on or about October 4, 1975, with the Union as a majority representative of its employees in an appropriate unit. On April 22, 1976, the Acting Regional Director issued another complaint alleging that Respondent violated Section 8(a)(5) by refusing to bargain collectively with the Union and additionally violated Section 8(a)(1) by various threats contained in a letter to all employees dated February 2, 1976. On April 23, 1976, Respondent answered the com- plaint denying the commission of any unfair labor practic- es. On April 30, 1976, the Regional Director issued a supplemental decision in the representation matter finding the Employer's objections to be without merit and overrul- ing them in their entirety and ordering that a hearing be held to resolve the issues raised by the 56 challenged ballots and by petitioner's Objections 2, 3, 4, 5, 8, and 9 which are in part coextensive with the conduct alleged as violative in the complaint in which hearing had already commenced. In the same document the Regional Director ordered that the hearing on the representation matter be consolidated with the hearing in Case 10-CA-11778.On the same day counsel for the General Counsel moved me to consolidate the cases already opened with the two new cases and to reschedule the hearing. I granted General Counsel's motion to consoli- date and ordered the hearing to resume at Robins Air Force Base on June 7, 1976. On that date all parties were again present and represented by counsel. The hearing continued until June 14, 1976, at which time, all parties having presented all of their evidence, the hearing closed. On June 23, 1976, I received from Respondent a motion to dismiss Cases 10-CA-11556, 11590, and 11663 on the grounds that under the decision of the Board in Teledyne Economic Development Company, 223 NLRB 1040 (1976), the Board lacks jurisdiction.' By teletype on June 24, I reserved ruling on Respondent's motion until my decision I Although the motion addressed itself only to the three original cases, I assume that it was meant to extend to all five of the cases now before me 327 on the merits. The General Counsel and Respondent filed briefs. Upon the entire record in this case and in consideration of the briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Georgia corporation with an office and place of business located at Robins Air Force Base, Warner Robins, Georgia, where it is engaged in the maintenance and repair of aerospace ground equipment for the United States Air Force under a contract with the United States Government. Respondent annually performs services for the United States Government valued in excess of $50,000. The majority of the stock of Respondent prior to July 1, 1976, was owned by Johnny Pope; the remaining stock was owned by members of the Saxon family which was Respondent's predecessor contractor in the instant unit. B. B. Saxon and two of his sons were apparently employed by Respondent as managerial employees and, in addition, to some extent acted as a guarantor of Respondent in its financial affairs. The contract under which the work involved in this matter was performed was between the United States Air Force and the Small Business Adminis- tration (hereinafter SBA). SBA subcontracted the entire contract to Respondent under what is referred to as an 8(A) subcontract, part of SBA's drive to help disadvantaged persons secure a place in the business world.2 Under the contractual relationship between Respondent and SBA prior to calendar year 1976, Respondent was expected to have a counselor or advisor, expert in the field in which it proposed to operate. This position was filed by B. B. Saxon. After Respondent's performing for about 2 years under Saxon's guidance, SBA required Respondent to divest Saxon of ownership in Respondent as well as responsibility for Respondent's fiscal affairs. This change was to have taken place on July 1, 1976. In order to retain the assistance of SBA in securing contracts it is necessary for Respondent to keep SBA apprised of its financial affairs and to submit annually a job plan which it proposes to follow for the forthcoming year. In the fall of 1975, SBA evidenced to Respondent satisfac- tion with its progress. Because of the interest of the Federal Government in encouraging businesses such as Respondent, the contract to which it is a subcontractor is negotiated rather than bid on a competitive basis. As Respondent became more viable in its business endeavors it was expected to and did bid for other contracts in its line of work. Five such bids have been submitted to the Air Force, none of them successful, but Respondent is performing at least one small janitorial contract in Little Rock, Arkansas. Respondent contends that because of the substantial control exercised over its performance of its contract by the Air Force and by SBA it is precluded from exercising the necessary independent judgment to effectively bargain in good faith with the Union within the meaning of the Board's decision in Teledyne Economic Development Compa- 2 Johnny Pope qualifies under sec . 8(A) as a disadvantaged person apparently because he is part Cherokee Indian 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ny, supra. The General Counsel does not agree. I believe that the instant case is completely distinguishable on its face from Teledyne and that the case is governed rather by N.LR.B. v. E. C. Atkins & Company, 331 U.S. 398 (1947), cited by Member Fanning in his dissent in the Teledyne decision. In Teledyne, the Board isolated and recited 18 factors which convinced the panel majority that, in that instance, the employer was left with too little scope to enable it to bargain collectively within the meaning of the Act. I shall discuss each of these 18 factors and compare them with the status of Respondent in the instant case. 1. In Teledyne the employer was paid on a cost-plus- fixed-fee basis. That is to say, all expenses, including management, supervision, wages, and purchasing costs were reimbursed to the employer and a fixed fee unrelated to its costs was paid it for the successful management of the enterprise. In the instant case, Respondent is paid at a fixed hourly unit price for all work performed by it at the request of the Air Force. The Air Force estimated the workload in terms of hourly units and negotiated with SBA a unit price at which the various tasks would be performed. Thus, if Respondent, by increasing its efficiency, were able to perform the tasks in less time than the Air Force estimate, or for a lower wage, the difference would accrue to Respondent as profit. Up to 80 percent of the work performed by Respondent under the contract was of such a repetitive nature that a standard number of hours had been established for each job. The remaining 20 or more percent of the work is negotiated on a job-by-job basis by negotiators employed by Respondent with negotiators employed by the Air Force. Respondent's negotiators of mechanics' attempt to secure the greatest amount of time to be alloted to the performance of the task while the Air Force apparently attempts to cut it as low as possible. Some of the established standards are very profitable to Respon- dent, others are probably equally unprofitable, as with any business in the private sector. Respondent thus is able to achieve greater or smaller profits by the success of its day- by-day negotiations and by the efficiency with which it has the work performed as well as by the wages it pays its employees, supervision, and management. 2. In Teledyne, the Department of Labor (DOL) sup- plied all facilities and equipment. In the instant case the Air Force supplies some of the physical facilities and certain heavy equipment; Respondent supplies most of the tools, some rolling stock, and an off-base office and garage facility at its own expense. It has the option of renting or buying equipment and, in fact, most of its heavy equipment is rented from a corporation owned by one of the Saxons, as is its off-base facility. All parts and supplies for the repair and maintenance of the aerospace ground equipment on which Respondent works are either supplied by the Air Force or are purchased for the Air Force by Respondent, which is reimbursed. 3. The contract in Teledyne required prior DOL approv- al of the selection and retention of top management. In the instant case, other than the SBA rule regarding the ownership of Respondent's stock, there is no apparent or contractual control over either the selection or retention of top management. 4. In Teledyne, DOL promulgated the position descrip- tions and established the qualifications for all personnel. In the instant case the contract recites, but does not require, a "representative number" and classification of personnel for daily maintenance providing for foremen, a purchasing agent, quality control inspectors, a truckdriver, mechanics, and mechanics' helpers with various amounts of experience in the specific electrical or mechanical jobs needed. There are no specific descriptions other than terminology such as "three mechanics with a minimum of 3 years experience in air-conditioning." No control is exercised over the qualifi- cations other than the requirement that persons operating Government-owned Vehicles on the Air Force base, must have Government drivers' licenses and are given 3 days after they are hired to obtain them, and persons operating contractor-owned vehicles on the airbase must have state drivers' licenses. 5. In Teledyne, DOL regulated the number of employ- ees in each classification . In the instant case, other than its recitation of a representative number of personnel required, there is no contractual requirement. The contract provides also for various personnel who are to be considered part of the overhead, an indirect expense for which the Govern- ment will not separately reimburse the contractor. This includes materials stockroom employees and supply em- ployees, as well as clerical personnel. 6. The DOL established the salary range for all posi- tions in the Teledyne case. In the instant case, the only provisions with regard to salary are that Respondent must pay minimum hourly wages according to a register of wage determinations under the Service Contract Act promulgat- ed by the Department of Labor. In this regard, Respondent is no different from any other Government contractor. These wage determinations established a floor, but a contractor may pay anything over these figures that he chooses or finds necessary. 7. Teledyne's fringe benefits in both kind and number and the amount available to pay them were fixed by its contract with DOL. In the instant case, as with wages, only the minimum requirements are prescribed by the Depart- ment of Labor and any additions thereto may be negotiated by Respondent. 8. Similarly, with shift differential rates, Teledyne was controlled by the DOL. Here no shift differential rates are provided in the unit price, but the contractor is free to pay anything necessary to man the shifts. The contract specifi- cally provides for a "swing shift" which, it is anticipated, would do about at least 20 percent of the work. However, the record reveals that Respondent has been operating not only with a swing shift but with a midnight shift or owl shift, as it is known. 9. Teledyne was limited in the vacation and holidays it could pay by contract with DOL. Pope has no limitations other than a floor of 6 holidays and I or 2 weeks' vacation established by the Department of Labor. There is no provision that would limit Respondent in granting addi- tional holidays or vacations. 10. In Teledyne, the employer was required to hire only at the minimum rate. In the instant case, the employer can hire at any rate at which he can find employees, at or over the minimum rate. POPE MAINTENANCE CORPORATION 11. Teledyne was required by contract to employ up to 5 percent of the number of enrollees who had stayed with the program over 6 months . No such provision is to be found in Pope's contract. 12. Teledyne was required to recruit unemployed per- sons over the age of 55 wherever possible . There is no such provision in Pope's contact. 13. Teledyne was required to train its employees in accordance with DOL policies . In the instant case, other than requiring drivers' licenses as mentioned above, and requiring 1 hour of flight line training for all employees whose work takes them to the flight line, there are no provisions for training employees. 14. Teledyne was required to operate 24 hours a day, 7 days a week . There is no real difference in the instant case where Pope is required to operate whenever the base hours and shifts are operating. 15. Both Teledyne employees and Pope employees are required to undergo a security check although the security check for Teledyne was prehire and that for Pope appears to be conducted after their hire. 16. The Department of Labor establishes the number of employees that Teledyne may hire and may affect a reduction in force if necessary . In the instant case, the Air Force has established a "representative number" of em- ployees and, by withdrawing work or adding additional functions to Respondent, may make it necessary for Respondent to hire or discharge employees in order to maintain its work on the one hand or its profit on the other. 17. In both the Teledyne case and in the instant case, periodic vouchers and reports are required of the contractor by the contracting agency. 18. The Department of Labor project manager evalu- ates the staff performance of Teledyne employees. In the instant case, the Air Force inspects the facilities which the contractor has had put at his disposal and is required to maintain and evaluate the inventory of parts and supplies which Respondent maintains for the Air Force , but there is no evidence of any evaluation of the performance of Respondent's employees, except in one instance where Respondent had attempted to have lower paid employees do the work of higher paid employees without success. In this case, the Air Force, upon notification that the work was falling behind schedule, required the contractor to increase the number of employees on the job. A consideration of the points of similarity and points of difference between the instant case and the Teledyne case reveals that in the instant case Respondent has consider- able freedom to negotiate with a union selected by its employees concerning most of the terms and conditions of employment commonly found in labor-management con- tracts. That Respondent is free to negotiate about wages is readily revealed by the fact that one group of its employees have been working on an incentive basis and earning from $14,000 to $20,000 annually, while other employees have unsuccessfully sought to be placed on an incentive basis and earn straight hourly salaries . Respondent's records which have been placed in evidence reveal that persons with the same job titles are not always paid the same rates. I find that Respondent is an employer within the meaning of the Act and is within the Board's jurisdiction. IT. THE LABOR ORGANIZATION INVOLVED. 329 It is admitted and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. ISSUES AND ALTERNATIVES The basic issue which must be determined is whether or not Respondent must recognize and bargain with the Union. The bargaining order herein may result from either of two courses . First, the representation case ; the challenges are presently determinative . In the event the challenges having been determined the Union loses the election, the next question to be faced is whether the objections are substantiated by the evidence. If I find that they are not, we must follow the second course, which is to determine whether the unfair labor practices alleged were committed and, if they were, whether they were of such a nature that they destroyed the laboratory conditions under which the Board requires that its elections may be held, and had such a substantial and lasting effect that a valid election cannot be conducted. In this event, an order to bargain may issue, assuming that the General Counsel has proven that a majority of the employees authorized the Union to repre- sent them at sometime material to the proceeding. A determination of the representation case requires first the determination with regard to the challenges. Forty ballots were challenged by the Union as those of unfair labor practice striker replacements and thus not valid. Those challenges are determinative of the issue . Thus, in order to determine the results of the election , we must determine first whether the unfair labor practices alleged to have been committed prior to the strike were in fact committed, and second whether Respondent's commission of these unfair labor practices caused the strike , which thus became an unfair labor practice strike . The parties have stipulated that the 40 employees whose ballots were challenged as those of unfair labor practice striker replace- ments are not to be considered eligible voters in the event the strike is found to be an unfair labor practice strike. Accordingly, in order to determine the primary issue, the election, we must first determine the secondary issue, whether the unfair labor practices were committed, and to this we shall first turn our attention. IV. THE UNFAIR LABOR PRACTICES A. Background In the unit found by the Board to be appropriate Respondent has employees in eight different sections or divisions. The overhead division had 2 employees, the supply division 6 employees, quality control division 7 employees, the paint shop 7 employees , the A & B shop 16 employees, the electric shop 2 employees , the trailer shop 5 employees, the nonpower shop 16 employees , and the pickup and delivery section, known as Category C or simply Cat C, 46 employees. Respondent's contract is for the repair, maintenance, and modification of aerospace ground equipment (AGE) located at the Air Force Base. The A & B shop is also known as the periodic inspection and major repair shop for powered equipment. The nonpower shop performs the same functions on equipment 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that is not powered or motorized. The pickup and delivery section (Cat C), using motorized vehicles known as tugs furnished by the Air Force as well as rolling stock furnished by Respondent, performs the function of moving equip- ment on and off the flight line and to the shops where they are repaired and back as well as between shops; they also apparently have the function of moving parts and supplies handled by Respondent from one place to another. According to the testimony of Johnny Pope, all work has to be specifically approved by the Air Force before it is performed. Some equipment is periodically inspected and small repairs made to it. Most of the employees in the A & B shop are paid incentive wages. Most of the other employees are paid a flat hourly rate. At the time the Union commenced organizing, the A & B shop was supervised by Henry Perryman, the paint shop by Will Dale, the electric shop by Floyd Walker, the nonpower section by Clyde Reynolds, and the pickup and delivery by Lester C. Perkins. Jerry L. Graham, the secretary-treasurer of Respondent, was the project manager; James Graham was the vice president; and Johnny J. Pope, the president of Respondent. Gilbert Gann was the personnel manager and purchasing agent. Carlton Wallace was the chief of quality control and was also the assistant project manager. The managerial hierarchy also included B. B. Saxon, a director of the corporation and consultant thereto, and Robert Saxon, one of his sons, the assistant secretary-treasurer. Another son, Billy Saxon, appears to have taken an active part in the management of the concern . He is the president of the company from which Respondent leases its rolling stock and other equipment. The supervisory hierarchy also contains various leadmen who are admittedly supervisors. Prior to September 17, 1975, it does not appear that any employees of Respondent were represented by any labor organization . On that date employee Robert Miller had a meeting at his home at which Union Representative Ellis addressed the employees. A second meeting was held a week later and two union agents were present. The Union distributed cards and commenced active campaigning with the first meeting. By October 4, the Union, believing that it had a majority of the employees signed up, met with President Pope at a motel and demanded recognition. Pope answered that he did not know anything about unions and was not prepared to respond to their demand , suggesting that he had to talk with the other principals of his Company before making any response. He then asked what the organization would cost, and was informed by Union Representative Bums that it was impossible to say what it would cost until the parties had negotiated a contract. Pope also asked whether he could get a nationwide contract that would cover him wherever he operated because he had bid on a job in California and had been unable to win the job because he was nonunion . Bums answered that this was beyond his ability but that when a bargaining relationship had been established at the Warner Robins facility he would contact international officers with a view to negotiat- ing a nationwide contract. The meeting apparently came to an amicable conclusion, with Pope stating that he needed to talk to his associates and agreeing to meet again the following week. Immediately after their meeting with Pope, Union Representatives Seidenfaden and Burris went to the union hall of the United States Government Employees' Union, where a third union meeting was held, attended by about 30 employees. The following night Pope met with the other principals of the Company in Atlanta and on Monday, October 6, returned to Warner Robins with an attorney who has represented them ever since. On October 7, Attorney Capron telephoned Union Representative Burris and informed him that he had been retained to represent Respondent and that Respondent rejected the Union's demand for recognition and suggested that the Union file a petition for a Board-conducted election. On October 8, the Union held another meeting at the union hall at which time the union agents informed the employees of the difference between an economic strike and an unfair labor practice strike and stated that, in their opinion, statements made by Foreman Lester Perkins, as well as other action taken by Respondent, were unfair labor practices. The Union took a strike vote at this time and it passed unanimously , but no arrangements were made to commence a strike. Also on October 8, the Respondent received from the Union a letter stating that Robert Miller was working on the Union's behalf organizing among the employees. Miller was promptly called into the office of Respondent and informed that he was not exempt from the rules and that he was not to organize except on his own time. By October 10, Respondent realized that it had a serious problem with one of its supervisors, Foreman Perkins, who was openly coercing and restraining employees and had been guilty of much of the bad feeling among employees that led to the formation of the Union. On October 10, 1975, Respondent posted a notice which said in essence that no one would be fired for signing a union card, and assured the employees that card signers were not obligated to support the Union and anybody could make mistakes. On October 10, Winfred Davis, an employee of the trailer shop, was called into the office and informed that because of a cutback in the number of trailers that were going to be assigned to the trailer shop each day he would be laid off. The General Counsel contends that the layoff of Davis was because of his union adherence. On or about October 10, Jerry Gann, an employee who had signed a union card (whose father is Gilbert Gann, at that time the personnel manager and purchasing agent of Respondent), commenced circulating a petition to the Union to revoke the authorization cards signed by employ- ees. He was assisted in this endeavor by another employee, Cassidy, who does not seem to have signed a union card. Several incidents resulting from the activities of Jerry Gann are alleged by the General Counsel to be violative of Section 8(a)(1) of the Act. Respondent's interviews of all of the supervisors and many of the employees revealed one specific gripe that appeared to be very strong, i.e., the attitudes and actions of Supervisor Perkins with regard to the employees at Cat C, and other employees who came in contact with Perkins in their work. Accordingly, Perkins was called into the office and warned to moderate his demeanor, and all supervisors were advised to make no POPE MAINTENANCE CORPORATION 331 personnel changes of any nature, including shift transfers, discharges, or warnings, without consultation with top management . Perkins was also required to "apologize" to the employees under his supervision. His apology amount- ed to a statement, in essence, that if he had done anything offensive he was sorry and that he would try not to offend them in the future. On October 14 or 15, another speech was delivered by Jerry Graham in which he discussed with the employees the fact that they seemed to have a lot of gripes, including a gripe that some supervisors and leadmen have been "overbearing, abusive and have attempted to interfere with the private lives of employees." Jerry Graham stated in the speech that top management would not tolerate any interference with what employees do on their own time and that they did not approve of the overbearing attitude or improper language of some supervisors but suggested that the employees try to put themselves in the supervisor's shoes and realize what a tough position the supervisor is in. Graham suggested that the leadman or supervisor, being human, is sometimes going to say or do something that is not right but it is probably a mistaken attempt to make a joke or just plain bad temper from being under all that pressure. It usually would not mean anything and the supervisor would forget all about it. He then suggested that if the employee really had a gripe there was no law that said he could not go over the supervisor's head or to another leadman or supervisor to complain about it. When Perkins heard this speech, he resented it as an attempt to undercut his supervisory authority and proceed- ed to implement a large scale shift change among the employees under his supervision without consultation with top management. The following day, October 15, Perkins complained bitterly to Jerry Graham that he felt he had been undercut by Graham's speech to the employees. Graham, Pope, and Attorney Capron became aware of the shift change that Perkins had ordered. Accordingly, Perkins was discharged and a notice was posted on all the bulletin boards stating in essence that a former supervisor may have made threats to certain employees indicating that they would be discharged if the employees signed union cards, that the Employer had no way of knowing whether the threats were made, but if they were made they were without authorization or approval and were contrary to the express instructions given the supervisors . The notice requested all employees to notify management immediately of any further threats from anyone relating to the Union. Many of the employees viewed the discharge of Perkins with suspicion. He had apparently announced that he would quit on various occasions in the past and had been retained on each occasion. On October 16, the Union met again. On this occasion, the union agents read to the employees from what the employees deemed to be a lawbook, actually a publication of the Board, the distinction between an unfair labor practice strike and an economic strike and the protection afforded unfair labor practice strikers under the Act. They then recounted what the Union deemed to be the unfair labor practices theretofore committed by Respondent and particularly those committed after the strike vote of October 8. On the completion of his presentation the union agent called for a second strike vote which carried; picket captains and picketing assignments were worked out in detail and the employees were told that they would be notified when the strike was to start. The Employer had been advertising since October 9 for employees in all categories, in anticipation of a strike and had interviewed many prospective employees who were prepared to cross the picket line. This was well known to Respondent's employees, particularly to those in Cat C, because Perkins had announced to various of the employ- ees that he had interviewed prospective employees who were going to replace the union card signers. The strike commenced on October 17. Arrangements had already been made by Respondent to set up a reserved gate and this was done immediately. On October 22, the Union sent to Attorney Capron another demand for recognition and bargaining and on October 24 Capron answered that the Employer continued to doubt that the Union represented an uncoerced majority of the employees in any unit and declined to meet and bargain until the Union was certified by a Board-conducted election. On November 20, the Union addressed a letter to Johnny Pope in care of his attorney stating that the Union felt that the nature of Respondent's unfair labor practices had been sufficiently brought to the attention of the public and offering unconditional reinstatement at noon on November 22 on behalf of 48 named employees. When the employees arrived at the offices of Respondent on November 22 at noon, they were given papers to sign and told that they would be recalled when vacancies occurred. On November 24, Respondent posted a notice on each of the bulletin boards used by Respondent's employees, stating that no replacements would be fired to make room for strikers and that the employees had abandoned the strike. By the time of the election on February 6, some but not all of the strikers had been reinstated although , as Respon- dent adhered to its policy of not discharging strike replacements, many were reinstated to jobs other than those that they held before the commencement of the strike. The General Counsel, and the Union in its objections, particularly objected to a letter sent out to all employees except those that the Company proposed to challenge at the election which was received on the Wednesday preceding the Friday election which, according to the Union, con- tained material misrepresentations and was obviously received too late for the Union to answer. B. Discussion and Conclusions 1. The 8(axl) allegations The General Counsel alleges that Respondent violated Section 8(a)(l) of the Act on at least 24 occasions by interrogating its employees concerning their union mem- bership, activities, and desires and those of other employ- ees. The General Counsel contends that these interroga- tions took place against a background of union animus demonstrated by other unfair labor practices including threats of retaliation and promises of benefit coupled with 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's campaign to induce or cause the employees to reject the Union. It is clear that Respondent's reaction to the demand for recognition immediately became concentrated in an effort to estimate the strength of the Union with regard to both the number and identity of the union followers among the employees of Respondent. Johnny Pope's first reaction on returning from the meeting of October 4 at which the Union demanded recognition was to call together as many of his supervisors as he could reach late Saturday after- noon, and interrogate them as to any knowledge they might have of the extent of union interest in their various sections. When Pope returned from Atlanta on October 6 with his lawyer, the quest for information became carefully orga- nized. Each supervisor was interrogated about his knowl- edge of the employees' union activities, about any grievanc- es that the employees might have, and about the identity of the union supporters under their supervision . Then, accord- ing to Pope's testimony, the supervisors were warned not to commit unfair labor practices because of the danger that the employees would go on an unfair labor practice strike, which Respondent was well aware would put it in a difficult situation. The supervisors were also told that as supervisors they were expected to campaign on behalf of the Company. They were to report any incidents involving the Union to the Company and, while they should never ask an employee directly how he felt about the Union or how anyone else felt about the Union, they could express personal opinions. A list of supposed union supporters was put together which included Sherman, Edgar Godfrey, Gary Hawk, Dean Bramlett, Robbie Miller, Bill Bray, Judy Walker, and others. At subsequent supervisors' meetings, the list of union supporters was filled out and, in the words of Supervisor Deems, the list was fairly accurate; although there were a few mistakes in his own department, he found it was very close. Although, according to Pope's testimony, he told those supervisors whom he could contact on the night of October 4 not to take any kind of action or talk to any employees about a union or discuss it until he could get some assistance from the other principals of the Company, his interrogation of the supervisors apparently touched off a fact-finding expedition on the part of all the supervisory employees. The most militant ofthe supervisors apparently was Lester Perkins, foreman of the largest grouping of employees and a man of formidable presence who had already managed to infect his subordinate supervisors and employees with apprehension at his vagrant and bad- tempered demeanor as a supervisor. Perkins paid some heed to his instructions not to directly ask questions about the Union but approached his employees with what he apparently deemed to be subtlety. For instance, Ronald Sherman reported that Perkins asked him twice on October 6 whether there was anything he wanted to talk about and, when the first time Sherman answered that there was not, Perkins responded, "Its going to be a long cold winter." The second time, when Sherman declined to answer, Perkins told him that if the Union came in Respondent would have to shut down. Perkins asked Sherman why he had done this to him, obviously assuming from Sherman's demeanor that he had signed a union card . He followed the same course with employee Traynor whom he asked what his gripes were and stated that he could not understand his joining the Union after all that Perkins had done for Traynor. He suggested to Traynor that he should get his card back. In the presence of the two employee dispatchers, Perkins remarked to "Tiny" Morgan, one of his leadmen, "There's going to be a shift change and the Company has a list of union supporters and they will be replaced." The following day Perkins told Traynor that Respondent had a list of card signers and that he had better get his card back or he would be fired. Ronald Sherman was present. The same day Perkins asked David Sherman whether he had signed a card. Sherman told him, in essence, that it was none of his concern and Perkins suggested that he should write a letter to retract his card if he had signed one. He then asked Sherman whether his brother, Ronald, had signed a card and was again informed that it was none of his concern. Betty Reynolds and Judy Walker, subordi- nates of Perkins, were informed together by him that there was going to be a shift change, that the girls would have to wear uniforms, and that Respondent was going to get rid of the whole damn crowd and replace them with new people because "it will never be the same again." After talking with David Sherman, Perkins went to his brother, Ronald Sherman, and told Ronald that David was getting his card back from the Union along with about eight other employ- ees and warned Ronald Sherman that the employees would all be fired if they did not do the same. Perkins brought Leadman Mike Graham to Bramlett, one of his employees, and Graham asked Bramlett how Leadman Deems felt about the Union and what he had said to Bramlett about it .3 The following day, October 8, according to the testimony of Edgar Godfrey, an employee under Perkins' supervision, Perkins said that he had interviewed 12 people that morning and was going to use them to replace those who had signed union cards . He also told Leadman Mike Graham in the presence of employees Godfrey and Walker that any union supporter who committed any violation, no matter how small, should be fired. In the interval between the closing of the hearing in February and its reopening in June, Lester Perkins died suddenly. On February 4, 1976, an affidavit was taken from Perkins apparently by Attorney Capron, which I received in evidence over the objection of the General Counsel. Although the affidavit deals generally with the subject matter of the union campaign and of Perkins' ultimate discharge, inter alia, it contains no contradiction of any of the testimony adduced by the General Counsel. That Respondent knew of the allegations concerning Perkins' activities cannot be doubted; the affidavit was taken during the week before the hearing opened. I credit the testimony of the witnesses whose accounts revealed the incidents set forth above connected with Perkins. Other supervisors practiced a technique that was just about as effective as Perkins' direct action and perhaps more so. This technique consisted of raising the question of 3 Mike Graham is the son of James Graham , Respondent's vice president. POPE MAINTENANCE CORPORATION 333 the Union, either by the direct approach stating that the supervisor was campaigning for the Company, or indirectly by asking the employee if there is anything he wanted to talk about and leading the conversation around to the Union. For instance, in such a conversation on October 6 or 7 Jerry Graham, who generally denied asking any employee whether he wanted the Union, in a conversation with Danny Holland, an employee, asked him why he wanted the Union. This left Holland with no direct available answer that would not disclose his feelings. Holland also testified that Jerry Graham warned him that if the Union came in he would not enjoy his breaks as he was then doing. During a similar conversation, Betsy Hayes reported that Jerry Graham said to her that the Union would not do her any good and asked her what her problems were, presumably expecting to be able to tell from her answer whether she was a union supporter. Homer Ridley reported that Clyde Reynolds on October 7 used the same ploy, by asking Ridley why he wanted the Union. When Ridley responded affirmatively, Reynolds asked him if he had been to any meetings and made his "pitch" that the Union would not do the employees any good. By October 8, Respondent had a very good idea of the effect that Perkins was having on their campaign. Jerry Graham, making his campaigning rounds came to employ- ee Godfrey, one of Perkins' group, and in the course of the conversation asked Godfrey what gripes he had. Godfrey mentioned his problems with Perkins and Graham said, "Well you have to overlook Perkins, it's his way." On the same day, according to the testimony of Betty Reynolds, Jerry Graham came to her and told her he was campaigning for the Company. Reynolds, in the course of the conversa- tion, stated that she had not gone to meetings or talked to any union representatives, whereupon Graham said, "I presume then that you haven't signed a card." These are known as statements with a hook and are widely used by employers during their antiunion cam- paigns. Respondent's counsel, attempting to refresh the recollection of one of his witnesses, a supervisor, asked whether in the briefing he was given by counsel there was any mention of "a hook." The supervisor answered in essence, "Oh yes you told me not to ask any questions." The device enables supervisors and managerial employees including almost all of the supervisors in the instant case to take the witness stand and fairly truthfully give their general denials and testify that they did not ask employees about their union adherence. The General Counsel contends that this device is unlaw- ful. Respondent, reciting that inasmuch as no questions were asked and no overtly coercive or threatening state- ments were made, contends that the interrogations, if such they be, were harmless and not violative of Section 8(a)(1). I agree with the General Counsel that this type of interroga- tion under the circumstances here is violative of Section 8(a)(1). Perkins had been freehanded with his threats and with information that Respondent was interviewing people with the intention of replacing union supporters, as well as 4 Leadman Dale must have felt that he brought his technique to the peak of perfection when he said to employee Richard Rowland that he would not want to hear about the Union unless Rowland wanted to tell him and Rowland did not have to tell him if he did not want to. Dale first evaded examination about this conversation , then denied that there was any such conversation I credit Rowland that Respondent was keeping a list of union supporters. I find that against this background of coercive statements and threats the interrogations are violative of the Act.4 Additional examples of the use of the technique were plentiful. Supervisor Perryman asked employee Traynor what his position was with regard to the Union. Perryman denied asking anything of this nature but said that he might have said, "I can't see why anybody wants to join the Union." Valeski, an employee, testified that Supervisor Dale, a week before the strike began, asked him how he felt about the Union and whether he would strike. Dale denied asking Valeski how he felt about the Union but admitted that he had asked him if he would strike. Richard Mace testified that Jerry Graham asked him, on or about October 10, why he wanted the Union. Umburger testified that his supervisor, Wallace, asked him on or about October 6 what he felt about the Union. Wallace denied asking any employee any questions about the Union and I have no doubt that this interrogation, too, consisted of a statement with a hook rather than a direct question. On October 9, employee Arlerenzo Smith was asked by Reynolds what he thought of the Union and whether he thought the Company would pay more if there was a union. Reynolds denied any conversation whatsoever with Smith and generally denied questioning any employee. I believe that there was a conversation, but there is some doubt in my mind whether a direct question was asked rather than a statement with a hook. 2. The antiunion petition Jerry Gann signed a union card but shortly thereafter changed his mind. He stated that without discussing it with any supervision, including his father, he determined that he would draw up a letter seeking a return of his card.5 Jerry Gann liked his letter so much that he talked it up with his fellow employees and wrote it in the form of a petition that was ultimately mailed to the Union with 12 signatures, including that of Jerry Gann. The General Counsel attempted at the hearing to amend the complaint to include allegations that Respondent violated Section 8(a)(1) by the actions of Jerry Gann and Dean Cassidy in attempting to get antiunion petitions signed by employees. I denied the motion at the time and on full record I find that there is enough evidence, considering the record as a whole, to have warranted granting the motion. However, in view of the fact that it could not be said to have been litigated, I shall make no findings with respect thereto. The General Counsel contends that Respondent violated Section 8(a)(1) and (3) by giving warning slips to employees Bramlett, Hawk, Miller, and Bray. On or about October 8, Perkins issued warning slips to Bramlett or Hawk. The warning slips were ambiguous but referred to "interfering with other employees." Both Bram- lett and Hawk, requested to sign the warning slips, declined, asking to what Perkins had reference. Perkins refused to tell them and the warning slips went into their S Conceivably he might have gotten the idea from Lester Perkins, who, as early as October 7 and perhaps October 6 , was suggesting to the employees under his supervision that they should retract their cards 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD files. Later Perkins told Bramlett that he would tear up the warning slip that he had given Bramlett . After Perkins was discharged, Deems said to Bramlett, "I don't know why I gave it to you but don't do anything wrong again." Hawk testified that Pope asked him why he wanted the Union and Hawk answered, because of Perkins. Hawk asked Pope about his warning slip. Pope answered that the warning was for giving an employee, Dorsey, a union card on working time at the sandblast area. Both Bramlett and Hawk denied at the hearing engaging in any union activity on company time. Respondent made no effort to prove that they had done so. With regard to Bramlett, I find that Deems' statement, after he was relieved of the shadow of Perkins' supervision, that he did not know why he gave Bramlett a warning slip, indicates that Respondent had no good reason for issuing the warning slips other than to coerce Bramlett in his union activities. With regard to Hawk, in the absence of evidence that Hawk violated any valid rule of Respondent, there is no justification shown for the warning slip. I think the inference is clear that Perkins, having identified both Bramlett and Hawk at the supervisors' meeting of October 6 as union supporters, issued the warning slips 2 days later for discriminatory reasons. It is notable that Pope's statement to Hawk that his warning involved his giving Dorsey a union card on working time at the sandblast area involves a certain onesidedness in Respondent's reaction to the obvious and open campaigning at the sandblast area of Dean Cassidy who admittedly spent lengthy periods of time either trying to talk employees into signing his antiunion petition or attempting to embarrass employees because they could not convince him of the need for a union. That Respondent knew Cassidy was so engaged appears clear in considering the testimony of Homer Ridley that Supervisor Clyde Reynolds delivered him to Cassidy to be talked to about withdrawing his union authorization and accordingly must have known what Cassidy was up to. As to Miller and Bray, they were given warnings signed by Clyde Reynolds that state as follows: "Mr. Miller [Bray] was informed that if he was observed interfering with Pope Maint. employees on company time that he would be terminated." Each of the warnings bore the acknowledge- ment that the employee refused to sign it. Reynolds stated that he was informed by Jerry Graham that he was to prepare the counseling slips and was not personally aware of the reason for them. No evidence that Miller or Bray engaged in organizing activities on company time was adduced by Respondent, nor, if one considers the text of the warning notice, is there any indication that they did. Miller and Bray confronted Reynolds with the question of what they were being warned about and asked to whom they were supposed to have talked. Reynolds refused to state anything further than if they talked to any employee on company time they would be fired. When Miller pointed out that sometimes they had to talk to other employees pursuant to their duties and asked whether Reynolds meant talk about the Union or anything, Reynolds merely repeated, "If you talk to any employee on company time you are fired." I conclude that the warning slips given to Miller, Bray, Bramlett, and Hawk were given for no other reason than to coerce them with regards to the exercise of their rights guaranteed under Section 7 of the Act and violated Section 8(a)(l) of the Act. Employee John Dillard applied for a vacation on October 3, 1975. On the morning of October 6, Mike Graham, the leadman, told Dillard that his vacation was canceled "until this mess is over." Later the same day, in the presence of a group of employees, Dillard again asked Mike Graham if his vacation had really been canceled because of union activities and Graham answered that it had been. The following morning Perkins also told Dillard that his vacation had been canceled because of union activities. Respondent admits that Dillard's vacation was canceled but adduced testimony that thereafter on October 16, after Perkins' discharge, Gilbert Gann, who succeeded Perkins as the foreman of Cat C, told Dillard that he wanted to get Dillard's vacation straight and stated that it was his understanding that Dillard could not get his days straight. He gave Dillard another application which Dillard filled out and signed. The vacation, on the initial request, was to commence October 13 and on the second request, dated October 16, was for the period from October 20 until October 27. The original vacation request shows that the vacation was approved for 40 hours by Perkins but disapproved by Pope. Pope testified that he disapproved it because he knew there was a threat of a strike and he disapproved it until he could get a feel of the labor force in the local area. Thereafter, the day before the strike began Respondent approved the request. I conclude that the original disapproval of the vacation request violated Section 8(a)(1) of the Act, as did the announcement by Mike Graham in the presence of half a dozen employees that it was disapproved because of the union activities. It is noteworthy that on October 6, when the vacation request was disapproved , Respondent had little or no reason to expect a strike; it was not until October 8 that the first strike vote was taken. It was not until the afternoon of October 7 that the telephone conversation between Attorney Capron and a union representative took place which Respondent contends gave rise to its fear of a strike. I do not credit Mike Graham's testimony that on the second occasion when Dillard asked him if he had his vacation canceled because of union activity Graham explained, "It had not been canceled but it had been postponed or more or less in a holding status due to the fact that the Company had been threatened with a strike and the Company wanted to keep all available personnel . They didn't know who was going to leave and who was going to stay and they needed all available personnel to support the air craft ." Aside from the fact that Mike Graham's testimony completely lacks the ring of authenticity, it is at complete variance with the testimony of all of the employees present who testified at the hearing. On October 7, on the occasion when Mike Graham interrogated Bramlett about Leadman Deems and his reaction to the Union, according to the testimony of Bramlett, Graham also said that if the Union were to come in the employees could get worse than they were getting and said something about the union representative having POPE MAINTENANCE CORPORATION 335 told Pope's lawyer that he did not give a damn about the employees, he just wanted the union dues. On this occasion Graham also told Bramlett that he did not want to know, but if Bramlett had signed a union card he could get it back by signing some kind of petition. On the same day, Perkins drove Bramlett out to the flight line and en route told him that he (Perkins) had been over to the main office interviewing people for jobs and that Saxon had a chartered plane with 80 people coming over from Texas if the employees were to go on strike. Mike Graham was asked by Respondent whether he recalled having a conversation with an employee in which an antiunion petition was discussed. He answered that it was brought up between Bramlett and himself when he was talking with Bramlett. He testified that Bramlett said he did not know whether to believe what he was told by the supervisors of the Union and was not sure which way to go. He told Bramlett it was up to him which way he wanted to go; it was his decision whether he wanted to stay with the Company or go with the Union and he did not want to persuade him either way. I take it from Graham's initial answer that the withdrawal of Bramlett's card somehow came up in the conversation, but his account of the conversation gives no clue. The conversation as Graham reported it would indicate the exercise of a neutrality, surpassing that expected of him by Respondent and inconsistent with Graham's later testimo- ny as to what he said in all of the conversations he had with employees. I credit the testimony of Bramlett and find that Respondent violated Section 8(a)(1) by the threat of worsened working conditions, by urging Bramlett to withdraw his union card, and by interrogating Bramlett. According to the testimony of Anthony DelGiorno, a driver, he had been attempting to get a promotion to the position of mechanic and during the week of October 13 asked Supervisor Harold Thomas about it. Thomas told him that he would not get a mechanic's job if he was out on strike, but he would become lead mechanic if he stayed when the other employees went out on strike. This was reiterated several times during the week immediately preceding the strike. When the strike commenced on October 17, DelGiorno did not walk out and Thomas came to him and congratulated him and told him he was going to be the new lead mechanic. He took DelGiomo to Johnny Pope and told Pope that DelGiorno was going to stick with the Company and was a good mechanic, whereupon Pope called the personnel office and told them not to hire a mechanic because they were promoting DelGiorno to mechanic status. The General Counsel produced a person- nel action report dated October 17 showing the promotion of DelGiorno from truckdriver to mechanic with a consid- erable raise in pay. Thomas' story is considerably different. He testified that DelGiorno approached him about a mechanic's job and stated that if he could be made a mechanic he would not take an active part in the Union. Thomas answered that he could not make a promise like that but took him to the two Grahams and his attorney who told DelGiorno that it was against the law, there were no openings, they could not make openings for him, and that it could not be done. He testified that DelGiorno went on strike after that. Thorias made no mention of the fact that DelGiorno had in fact been promoted on the first day of the strike. Thomas is not particularly credible as a witness . On cross-examination when he was asked whether he had attended supervisors' meetings and whether he had been instructed to report back to the Employer with information concerning the Union, he denied any such instructions, although the record is clear that such instructions were given and followed. Jerry Graham testified that Leadman Thomas came to him and said that DelGiorno would stay with the Company if they could give him a promotion. DelGiorno was not present. Graham told Thomas that Respondent was "scared and ignorant as to what [the Union] could possibly do to us and so we knew we couldn't make any promotions so we denied it." He testified that a vacancy as a mechanic was filled with new hires and company transfer but DelGiorno remained as he was, that he was not sure whether DelGiorno was promoted later or at all. On cross- examination Jerry Graham testified that DelGiorno did not get a promotion but, because he did not walk out with the first group of people, paperwork was being processed for a higher position on his return to work on Monday. I credit DelGiorno. His story is generally consistent and his demeanor on the witness stand credible, especially when he was confronted on cross-examination with questions about a telephone call that he had not reported to the General Counsel because of his friendship with Leadman Thomas. I believe that Thomas in fact suggested to DelGiorno that if he struck he would lose any opportunity in the future to become a mechanic again but that if he did not go out on strike he would be promoted, which is exactly what happened. I believe that statements of Thomas to DelGior- no that he would lose his chance to become a mechanic if he went on strike violated Section 8(a)(1) of the Act. I do not agree that his promotion when he did not go on strike can be shown to be a violation; clearly Respondent, faced with the choice of promoting a man already experienced as a mechanic or trying to hire a new mechanic to cross the picket line, would have promoted DelGiorno and I find nothing coercive in this action. DelGiorno also testified on redirect examination after Respondent brought up the matter of the telephone call that Thomas told him that he had been informed by the Company that if the Union came in the Company would not be able to pay union wages and would have to "fold." I consider Thomas' testimony that, asked by DelGiorno whether he thought the Union would come in, he answered that he "did not feel it would unless the company felt the Union desires completely fell . . . a union put on a strike to put the contractor in a position to where they would have to yield to their desires and I said, I don't believe that the union will just fold up, the union desires like that, I don't think that will happen." Thomas then explained that he meant that he did not believe "that the company would fold up to union desires." I consider this testimony beyond belief and I conclude that it was contrived by Thomas to somehow include the words "company" and "fold" but use them in a different light. I conclude that this statement by Thomas as reported by DelGiorno violates Section 8(a)(1) as a threat that Respondent will close in the event of organization. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the day before the strike commenced, David Sherman told his leadman , Tiny Morgan, that he would like to talk to management. Morgan took him to the Company's main office where he met with James Graham, Jerry Graham, and Pope. Sherman testified that he told Pope that the reason he had signed a card was not to put him out of business and James Graham answered him saying that if the Union came in the Company could not meet its demands and would have to fold. They talked about Perkins and Sherman said that Perkins really did not do anything to him personally other than threaten him about discharge for signing a card. Graham then said that he had a list of employees and asked Sherman if he knew in Cat C which were hardcore union. Sherman said he thought he knew quite a few of them that were hardcore and called a few names off, including his brother, DelGiorno, Maddox, Hayes, Wingo, Gatliff, and probably Tim Elder, July Walker, Malcolm Lee, Ken Garnet, Blake Smith, and Nathaniel Adams. He further stated that the only one he thought might change her mind was Patricia Kemp (who did not go on strike). Sherman told James Graham that there was a union meeting that night and that while he did not know which way he was going he would like to go to the union meeting to hear what they had to say. James Graham said he did not object to it but if Sherman went he could get in touch with Graham and let him know if anything important came up at the meeting about the strike. At this point Jerry Graham intervened and told James Graham that he should not ask that, but Sherman said that he would do so. Sherman later called James Graham and told him that there was going to be a strike and what had taken place at the union meeting. James Graham testified that he was in an office with Jerry Graham when someone from Cat C came in and stated that Sherman wanted to come to the office and talk. They invited him to come up. Sherman came into the office and started to say something and Jerry Graham said, "David, you understand we're not allowed to solicit or encourage any information relative to the Union." Sherman answered that he understood that and went on to tell that there was going to be a union meeting and that he wanted to call James Graham after the meeting and report to him. He also said that his brother and other people were putting a great deal of pressure on him to join the Union and he was scared to death. Jerry Graham testified that he and James Graham were sitting at their desks when David Sherman came into the office and said he had some things that he wanted to report. Jerry Graham interrupted him and told him they could not ask him anything, they were not going to tell him to do anything, and whatever he did was on his own, whereupon Sherman continued to relate that there was going to be a union meeting that night and he would report after the meeting by telephone to James Graham. He testified that James Graham at the end of the conversation again reminded Sherman that anything he did was of his own free will. David Sherman impressed me as an honest and ingenu- ous young man who was chiefly concerned with continuing to retain his job or if that job became impossible getting another. He was very literally caught in the middle. One of the early card signers, he was easily smoked out by Perkins on October 6 and was the recipient of some of Perkins' threats that people who did not retract their union cards would lose their jobs, and Perkins' recommendation that if he had signed a card he should write a letter to retract it. He followed the recommendation and wrote a letter, then he heard that Jerry Gann had a better letter and sought him out and copied his. He sent the letter and the following day also signed Jerry Gann's petition. Sherman attended the meeting of October 8 at which the first strike vote was taken and which unanimously carried and then, fearing unem- ployment because of the strike, consulted with an old friend, the owner of another business for whom he hoped to go to work, asking his friend what he should do. The friend firmly advised him to have nothing to do with the Union and Sherman again changed his mind. By October 16 he was still undecided and apparently was appalled that Perkins had been discharged, blaming complaints that he had made about Perkins in some part for the discharge. In this frame of mind, he determined to talk with top management as Pope and Jerry Graham had suggested in their speeches and individual interviews with the employ- ees. I find that Sherman addressed himself immediately to Pope, expressing his dismay at Perkins' discharge and saying that he did not expect that result from his complaints and told Pope why he wanted to join the Union in the first place. James Graham answered him with a statement that Respondent could not meet the union demands and would have to go out of business, to which Sherman, even more dismayed, blurted out that he did not want to put Pope out of business; that was not why he signed a card. At this point, Graham, who had a list of the employees and obviously believed that Sherman was now firmly in Respondent's camp, asked him to detail the employees who were hardcore union advocates and would go out on strike if a strike were called. Sherman named a number of employees including his brother and then, going whole hog, said that he was going to a union meeting that night. James Graham immediately said that if he went to the meeting he should let them know if anything important took place, such as a strike vote. Jerry Graham interposed his state- ment that James Graham should not ask that and James Graham said to Sherman that he did not have to call him. Nevertheless, Sherman said that he would do so and did, giving Graham a full report on the unanimous strike vote and stating that he still had not made up his mind whether to go on strike. David Sherman actually did not go on strike until October 20, 3 days after the strike began. I have recounted above the versions of David Sherman and Jerry and James Graham. I credited Sherman that Pope was there, but Pope gave no version of this meeting and Leonard (Tiny) Morgan, who was called as a witness on another subject, was not asked about the incident at all. I believe that David Sherman was telling the truth to the best of his recollection and I credit his story. I find that by the threats and interrogations directed to him Respondent violated Section 8(a)(l) of the Act on October 16, 1975. James A. Dennis testified that on October 16 he was sitting in the quality control office with Supervisor Wallace when employee Holland came in and said to Wallace that he had told him that if he had ever made up his mind about POPE MAINTENANCE CORPORATION 337 the Union he would inform Wallace because Wallace asked him to do so . He had made up his mind and he was going to support the Union . If the Union went on strike he would go with it. Wallace answered that that was his prerogative, that he could do whatever he saw fit and then turned to Dennis and said, "Denny, how do you feel about the Union?" Dennis answered that his feelings were the same as Holland's. He was in support of the Union and if they went on strike he would go with them . This is obviously an 8(a)(1) violation. I credit Dennis. Wallace denied any conversation with either Dennis or Holland in which the Union was mentioned and stated that he did not do any campaigning among the people in his unit because he considered that they were all too mature to have anything to do with the Union and that he was very much surprised when three of his employees went out on strike. I discredit Wallace. Testifying on another subject, he stated categorically that he had no conversation with Horace Ivy, a Government negotiator, about any of the testimony at the hearing on the day before Ivy testified. Ivy, called to testify in rebuttal , testified that he was telephoned by Wallace who attempted to tell him about the testimony concerning Ivy's participation in the Umberger incident referred to below . I credit Ivy who has no ax to grind in this matter and discredit Wallace in what I consider to have been a deliberate lie. While some doubt is cast upon the Dennis Holland incident by General Counsel 's failure to recall Holland in rebuttal after Wallace denied the conver- sation , the fact that I find Dennis credible and Wallace incredible satisfies me that the incident took place as Dennis reported. 3. The transfer of Mane McClinton Marie McClinton was the purchasing clerk for Respon- dent, working with and under the direct supervision of Gilbert Gann at the time he was purchasing agent for Respondent. She was an early union supporter although she was at no time in the unit in which the election was conducted. On October 6, according to McClinton's testimony, B.B. Saxon came into the office where McClin- ton and Gann were sitting and closed the door behind him and asked McClinton what she thought about people trying to form a union . She told him it depended on what they wanted and he said that some information had leaked out of the office and it had to be either Gann or McClinton that was responsible . McClinton answered that it was she, it was not Gann, and Saxon asked what information she had given the Union. She said that she had given the names and titles of the top officials of Respondent . Gann went on talking about a strike in Texas and asked her if she remembered the strike. She said that she did not. Gann said that when the employees went on strike in Texas they kept the work going and they would do it again at Warner Robins. If necessary they would fly people in from Texas and have them on standby. He suggested that the people that had signed union cards should have come to him instead. If they wanted something they could have talked to him . He asked McClinton if she signed a union card and she acknowl- edged that she had, whereupon Gann expressed his dismay that she had signed a union card and said that his son had signed one because he had been told that it was to get rid of Perkins. Saxon walked out of the office and came back with Jerry Graham, the project manager , and started question- ing her. She got upset and asked if there was any way she could get her card back. Saxon left the office and returned and said that Attorney Capron said that the only way she could get her card back would be to write a letter to the Union because they would have to have her signature. She asked Saxon to use the telephone to call the representative in Atlanta and get her card back. He agreed. She called and talked to Union Representative Seidenfaden , who told her he was going to be in town that night and would talk to her then. He also asked her why she was crying. She told Seidenfaden either to send back her card or to tear it up and Jerry Graham in the background told her not to let him tear it up, to have him mail it to her. Seidenfaden said that he would talk to her when he was in town that evening. The following day Pope came to McClinton and asked her what the employees were trying to do getting the union in there. She asked him if he was trying to say that they were wrong. He said, "no," but he thought she had signed a union card for the purpose of trying to get back at him or hurt him. She denied that she was trying to hurt anyone and Pope told her that he guessed they would have to put her in another office handling another contract that Respondent was temporarily administering. He then wondered how many people at the other office had signed up . McClinton shrugged her shoulders and he left. McClinton also testified that Gann started talking during the afternoon of October 6 saying that he was worried all weekend because the union representative had contacted Pope and he was afraid that if the Union got in it would hurt a lot of people. He also said that if the Union got in the incentive people would lose their incentive pay and there was no way that the Company would be able to pay sick leave or annual leave. Gann's testimony is considerably different. He testified that Saxon came into his office with Jerry Graham and, addressing himself directly to Gann , said he was extremely disappointed, he had placed the utmost confidence over the period of their acquaintenance , and he expressed displea- sure and disbelief that material and information that was available only in his office had been released to outside personnel. At this point McClinton interrupted and said, "Mr. Saxon I've got to tell you that Mr. Gann didn't tell anyone anything. I gave the union the personnel roster and all the information they have." At this, Saxon addressed himself to McClinton and said, "Marie, you mean to tell me that after I have given you a job in San Antonio and then saw you had ajob here when you moved to Warner Robins that you would still betray our confidence and confidential information to outside personnel in this office." Marie responded, "Yes, sir, and I feel terrible about it, I had no intention of hurting you or anyone else." She said , "I wish there was some way I could make it up to you ." She asked Saxon if there was any way she could get her union card back. Jerry Graham testified that Saxon said that he was going to ask Gann about the information getting out from Gann's office and that he accompanied Saxon into Gann's office. Saxon confronted Gann and specifically stated that some- body in the office had betrayed the Company and he 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wanted to know who. Gann paled and asked Saxon what he was talking about, whereupon McClinton got up in tears and said, "I did it, I did it, I did it." She immediately wanted to know if there was any way she could withdraw the things that she had done and Jerry Graham walked into the next office and asked Attorney Capron what to do and quoted Capron as saying she could can and request it to be returned. She requested her card be returned. The conflict between McClinton and Gann as to what she said and what information she admitted giving to the office is very interesting. Gann's testimony is certainly not supported by that of Jerry Graham, who preceded him on the witness stand . On cross-examination Gann admitted that there was nothing in the affadavit that he gave to the National Labor Relations Board during the investigation stages of the case that Marie had admitted giving the personnel roster to the Union. Accordingly, at some time after Gann signed his investigative affidavit and before he testified, this information occurred to him. The General Counsel alleges that Marie McClinton was discharged on October 15, 1975. In fact she was not discharged but was transferred , within Respondent's em- ploy, to the janitorial contract facility that Respondent was temporarily performing. When the strike began, she went out on strike. The General Counsel argues that the McClinton transfer was clearly a pretext, but he does not argue in what regard it was pretextual . McClinton went on strike and apparently has not been reinstated to that or any other job. I do not fmd that McClinton's transfer was a discharge. It is true that Respondent lost the janitorial contract after January 1976. The contractor who took over that contract continued all the employees formerly on Respondent's payroll and presumably McClinton would be working there yet but for Respondent's failure to reinstate her after the strike. Additionally, at the time of the transfer Respondent was actively bidding for the janitorial contract with, I would assume, some expectation of being the successful bidder since it had been asked to take over the contract by the Air Force. Much was made at the hearing of the issue whether or not McClinton was a confidential employee, and she certainly was not within the Board's definition. She was a purchasing clerk and worked directly for the purchasing agent who was incidentally the personnel manager of Respondent at the time. Another girl in the office was the personnel clerk and probably the only employee of Respondent in the confiden- tial status prior to the strike. I agree with the General Counsel that after the October 6 incident Respondent deliberately attempted to build the appearance of confiden- tiality around McClinton's job, but the record reveals no evidence that her job was in any way confidential prior to October 6, other than the instructions by Pope given the summer preceding the union organization that no informa- tion of any kind was to be given out from the Respondent's offices by anyone. Nevertheless, while she was not a confidential employee, the physical establishment in which she worked rendered it impossible for Respondent to operate with an avowed union sympathizer in the office without the danger that any matter discussed in the office would be made available to the Union. I do not think it was unreasonable for Respondent to give McClinton a unilater- al transfer at no reduction in earnings to another job to get her out of the office during the union campaign and I fmd no violation in its doing so. With regard to various 8(axl) statements alleged to have been made by various persons to McClinton, I fmd that the evidence is insufficient to sustain the General Counsel's burden of proof. I am not convinced that McClinton was wholly truthful in her testimony. I specifically consider her testimony with regard to her failure to do the EEOC reports that were admittedly part of her job to lack candor. On the other hand, I do not find Gann or Jerry Graham any more credible. I wondered when I heard Gann's testimony whether Respondent wanted me to believe him or Graham. Respondent's brief convinces me that it is Gann's testimo- ny that Respondent wants me to believe and I fmd Gann's testimony intrinsically inconsistent. Accordingly, since there is no testimony concerning the incident that I trust, I shall dismiss any allegations relating thereto. 4. The discharge of Winfred Davis Winfred Davis was an employee in the trailer shop. On October 10, Clyde Reynolds explained to Davis that the trailer shop had a cutback on the work from 10 trailers a day to 6 and that he would be laid off because they had too many employees. Respondent proved that in early October the number of trailers scheduled to go throuthe trailer shop was reduced by the Air Force. James Graham testified that Respondent had no alternative but to release Winfred Davis and indeed that he was kept 5 days longer than he would otherwise have been while Respondent tried to find a place for him because of Respondent's fear of being charged with an unfair labor practice in discharging him. Jerry Graham testified to the same effect and testified that no one was hired for any job for which Davis was qualified between October 6 and 10. Indeed, the record reveals that with the exception of four truckdrivers hired on October 2 and 3 no employees other than a janitor, a purchasing agent, and a supply clerk were hired during the month of October prior to the strike. Similarly, the record reveals that, other than Davis' termination, the only terminations taking place in October prior to the strike were those of Umberger, an inspector-negotiator; Lester Perkins, the Cat C supervisor; and Berry Hill, a supply clerk. The General Counsel apparently contends that , by discharging Davis and retaining Valesky who had less seniority, Respondent evidenced that Davis' discharge was discriminatory. How- ever, in the first place, there is no evidence that Respondent normally followed seniority. In the second place, Valesky testified that he had been laid off, probably around the end of September, from his employment in the trailer shop and on the same day ran into Supervisor Reynolds in a bar at lunchtime and Reynolds told him that there was an opening in the paint shop if he wanted to go back to work. Accordingly, at the time of Davis' layoffin the trailer shop, Valesky was employed at the paint shop. Respondent presented evidence that it did not customarily transfer employees so as to lay off by seniority and it appears that the least senior man in the trailer shop was Davis. I fmd insufficient evidence on the record as a whole to support the General Counsel's allegation that Davis' discharge was POPE MAINTENANCE CORPORATION violation of Section 8(a)(3). Accordingly, I shall recom- mend that the complaint be dismissed with regard thereto. 5. The discharge of Umberger Howard Umberger was a negotiator-inspector. In that capacity it was his duty to negotiate with negotiator- inspectors hired by the Air Force concerning repair work to be done on the equipment handled by Respondent, to inspect the equipment after the repair work was done to determine that it had been successfully accomplished, and to "sell" the equipment back to the Air Force in a repaired condition. On or about October 8, Air Force Inspector Ivy received work order requests initiated by Umberger on two pieces of equipment that had already been partially repaired, sug- gesting additional repairs. Ivy went out to the equipment and noted that some of the work that was to have been accomplished had not been completed. In addition he agreed with Umberger that the additional work was necessary. He called Umberger to accompany him to the equipment, pointed out the work that was not completed, and made a sarcastic reference to the alleged shortcomings of the quality control of Respondent, i.e., of Umberger. Umberger retorted, apparently with heat, that he had not yet approved the work, it was not in a condition to be returned to the Air Force, and he had initiated work before returning it to the mechanic for completion. Ivy continued to ride Umberger and the discussion became angry, culminating in Umberger retorting that he did not give a damn whether the equipment was fixed or not. Ivy's recollection was that Ivy threatened to go over Umberger's head to Wallace and Umberger retorted that he did not give a damn if he did. At any rate, Ivy reported the incident to his supervisor, Newman, who mentioned it to Wallace. Wallace immediately reported it to top manage- ment and a few days later, when everyone was at work, all the participants in the dispute were called together along with the project manager, Jerry Graham. Ivy repeated his story, Umberger admitted that he had used the expression that he did not give a damn whether the equipment was fixed, and he was forthwith discharged. The General Counsel contends that the discharge was violative and presented the evidence of Jimmy Holland and James Dennis, each of whom had made similar statements during the course of negotiations in the past and on each occasion were complimented by Wallace for vociferously and energetically negotiating on Respondent's behalf. Ivy and Newman both testified that they had no anticipation that their report of the incident to Wallace would lead to Umberger's discharge.6 Newman testified that at an umemployment compensation hearing he had stated that a statement such as that made by Umberger was "intolerable." Johnny Pope and Jerry Graham both testi- fied that Newman presented the matter to them as an intolerable incident. It is notable that the testimony of both of them was characterized in this respect by leading by counsel. Newman did not so testify. 339 The entire incident presents a clear picture of a pretext discharge and I would have no hesitation, especially in view of the hyperbolic testimony of Pope, Graham, and Wallace about the incident, in finding a violation except that there is no evidence on the record from which I can infer that Respondent had any reason to believe that Umberger had anything to do with the Union. Umberger testified that he was asked by Graham whether he had signed a card or what he thought of the Union and that he had given an ambiguous answer from which one would not normally have inferred that he was a union supporter. Although he signed a card, there is no evidence that Respondent had any knowledge of that fact. His name was not among those listed by Supervisor Deems as having been on Respon- dent's list of union supporters. He was discharged on October 15, prior to the incident when David Sherman informed Respondent's management as to all the union supporters that he knew. Company knowledge is a neces- sary element in the finding of a pretextual discharge. Inasmuch as it is completely lacking in this record, as far as I can see, the General Counsel has failed to support the allegation and, accordingly, I shall recommend that it be dismissed. 6. The nature of the strike The General Counsel contends that the strike was caused by the unfair labor practice of Respondent. Respondent's defense is threefold. In the first place, Respondent denies that any unfair labor practices were committed. In the alternative, Respondent contends that if any unfair labor practices were committed and they would have to have been those committed by Perkins and that Respondent disassociated itself from and repudiated this misconduct. Finally, in any event, the strike was undertaken solely for the purpose of recognition, and unfair labor practices had nothing to do with its initiation or continuation. I have found that Respondent committed various unfair labor practices not only by the activities of Perkins but by the activities of many, if not most, of the supervisors and management representatives. With regard to the alleged repudiation, Respondent contends that, by the speeches made by its representatives and by representations made to employees by management that employees had a right to join the Union if they chose and would not be discharged for so doing, the employees were sufficiently apprised of their rights and reassured with regard thereto. Further, on October 15, Perkins, certainly the most offending supervisor, was discharged and a notice was posted on all employee bulletin boards signed by Johnny Pope, James Graham, and Jerry Graham. The notice states as follows: It has come to our attention that a former Supervisor may have made threats to certain employees indicating that they would be discharged if such employees signed cards for the Union or attended union meetings. We have no way of knowing whether these threats were made. If they were made, they were without our 6 Umberger had been employed by Respondent as an inspector -negotia- tor for only 6 weeks at the time. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD authorization or approval and were , in fact, contrary to our expressed instructions . All employees, union or not union, have no reason to be afraid of discharge as long as they do their jobs and don't interfere with the work of others. Employees have the right to sign cards and not sign cards to attend or not to attend union meetings. Threatening employees because of these activities is against the law. Moreover, we believe that such threats are unnecessary and counter productive. We believe that employees should be able to realize that representation by the Union is not in their own best interests, and that they would vote against representation in any secret ballot election. Such threats only disrupt morale, and would not in any event influence and (sic) employee's vote since no one, including the company or the union, would know how an employee voted. All employees are hereby requested to notify us immediately in the event they received threats of any kind, from anyone, based on their union sentiments or lack thereof. We want employees to make their decision based on thefacts, and not on threats or promises. At the same time Respondent published another notice, apparently on the same bulletin board, that states as follows: Several employees have asked whether they should attend the union meeting apparently scheduled for Thursday night to hear a "big gun" from the union. All employees, not otherwise scheduled to work , have the right, protected by law and respected by the company, to sign a card or not sign a card, and to attend union meetings or not attend union meetings. In short this is entirely up to you whether you attend the meeting or not. In making that decision, however, you should take two facts into consideration: 1. You will probably be subjected to a great deal of pressure by the union officers and by others in atten- dance to sign a union card or to reaffirm previous cards. We have already heard unconfirmed reports that some employees who have changed their minds have been threatened by other employees. 2. We get the feeling that support for the union has weakened noticeably in the past week. If only a few of you show up, the union will understand you do not need the union to solve your problems. However, any significant attendance, even out of curiosity, will encourage the union to increase its efforts to disrupt our operations. If you do so go, ask "the big gun"just three questions: 7 Salant & Salant, Incorporate4 92 NLRB 417 ( 1950), and cases there cited , Livingston Shirt Corporation, et al , 107 NLRB 400,403(1953); Whyte Manufacturing Company, Inc, 109 NLRB 1125, 1128-30; Fleetwood Trailer 1. Is he willing to guarantee, in writing, that the union would give you a better deal than you have now? (the fact is that the union can't promise you other people's money). 2. Isn't it true that if employees strike in support of the union's demands, they can be permanently replaced by new employees and put in a status like a layoff? (the fact is that this is the law laid down by the Courts). 3. Isn't it true that Mr. Robert B. (Gene) Burris of the union promised us and our lawyer that the company could pretty much write its own ticket if it signed up the union without going through an election? (the fact is that the union doesn't give a damn about you-only your dues money, and knows that it would l lose an election after you thought about it. After you've asked these questions and gotten the facts we believe you'll tell the union you're not interest- ed-so the union can get back to its own business of trying to find jobs for all the former A&P and W.T. Grant employees who believed that the retail clerks union offered "job security." Respondent, citing Board decisions in Okidata Corpora- tion, 220 NLRB 144 (1975); Cosomodyne Manufacturing Company, 150 NLRB 96 (1964); Springfield Garment Manufacturing Company, 152 NLRB 1043 (1965); W. J. Ruscoe Company, 166 NLRB 618 (1967); and The Powers Regulator Company, 149 NLRB 1185 (1964), contends that it was not responsible for the statements of Perkins. Respondent also cited Hoerner Boxes, Inc., 137 NLRB 1487 (1962), and Holmes Foods, Inc., 170 NLRB 376 (1968), to support its argument that the Employer did all that was necessary to disassociate itself from the acts of Perkins and prevent them, and accordingly Respondent is not responsi- ble for them. The line of cases to which Respondent refers is a long one and the Board has explicated the factors to be considered with considerable detail in the various cases cited below.? The Board has held that a respondent may relieve itself of reliability or coercive conduct by effectively repudiating such conduct, but to be effective the repudiation must be timely, adequately publicized, unambiguous, and there must be no proscribed conduct after the publication of such repudiation. Applying these tests to the instant case , the unfair labor practices committed by Perkins commenced on or about October 6, the date on which the first speeches were made by Respondent's officers (on which Respondent in part relies in its argument that it has effectively disavowed any unfair labor practices it may have committed ). The unfair labor practices however continued on October 7, 8, 9, 10, and thereafter through October 16. During this period of time, according to Respondent's evidence, some of which is credible, Respondent kept voicing its assurances that employees had a right to join the Union or not as they saw fit and had a right to go to union meetings or not as they saw fit. By the time of the published notices that accompa- nied the discharge of Perkins on October 15, the employees Co., Inc, 118 NLRB 1355,1356 ( 1957); Austin Powder Company, 141 NLRB 183 (1963), enfd. 350 F.2d 973 (C.A. 6,1965); Hart Beverage Co., Inc., d/b/a Pepsi-Cola Bottling Co., of Sioux City, lown 170 NLRB 441(1968). POPE MAINTENANCE CORPORATION 341 must have become somewhat cynical with the constant interference and coercion on the one hand and the constant attempted repudiation on the other. Nevertheless, the notices of October 15 were timely, after any unfair labor practices that had taken place on or before that date and certainly appear to have been adequately publicized inasmuch as they were placed on all of the bulletin boards to which employees normally looked for notices from Respondent. However, considering the ambiguity of the October 15 notices, as in the Austin Powder case cited above, it seems debatable whether the notices were suffi- ciently unambiguous, inasmuch as they made no reference to specific acts or statements and merely retracted any statements reflecting on the right of employees to join a union. Nothing in any of the speeches or either of the notices deals, for instance, with the specific threats that Respondent would go out of business if the Union came in or that the applicants whose interviews were being widely publicized were to be used to replace card signers. There is no mention in any of the "disavowals" of Respondent's coercive attempts to solicit employees to sign withdrawals of their authorization cards or of the coercive impact of the issuance of written warnings to employees Godfrey, Hawk, Brady, and Robert Miller. Nor is any mention to be found of the threats implicit in statements made to employees that Respondent had a list of employees who favored the Union or who had signed union authorization cards, which in fact it did have, and which, coupled with the threats and other coercive activity, was clearly designed to further threaten employees. I find therefore that the notice was insufficiently unambiguous to relieve Respondent of liability for the coercive conduct of its supervisors. Finally, as I have pointed out, proscribed conduct continued after each publication of the alleged repudiation up to the time of the strike. As the Board said in Salant & Salant, supra, "An employer is not only under an obligation to remain neutral after posting a neutrality notice but to see to it that such policy is enforced. He cannot fulfill his duties under the Act merely by issuing instructions requiring compliance of the Act. His obligation extends to making any such instructions effective." Here, as in Salant, the policy of neutrality enunciated by Respondent was honored almost entirely in the breach. I find that Respondent's enunciations of its neutrality against the background of unfair labor practices, which Respondent admits it discovered as early as October 6, was, if anything, counterproductive in repudiating the miscon- duct of management and supervisory personnel. The constant reiteration leads to exactly what was evidenced by the testimony of Martin Durden, adduced by Respondent. Durden testified that he asked employee Holland on October 16 why the employees would go on strike after Perkins was fired. Holland answered that he considered it a trick, Perkins was probably just on vacation, and the Employer was trying to set the Union up. I find that Respondent's attempt to repudiate and relieve itself of the consequences of the unfair labor practices committed prior to the strike was unsuccessful and I reject this defense. Finally, Respondent contends that the strike was actually an economic strike and that calling it an unfair labor practice strike was a pretext on the part of the Union. The record is clear that the Union was, from the inception, prepared to call a strike to gain its ends. In the telephone conversation between Burris and Capron on October 7, Bums evidently threatened to let Respondent count the Union's majority on the street, as the saying goes. On October 8, at the union meeting, however, Burris carefully explained to the employees the distinctions between an economic strike, both from the standpoint of its effect, i.e., the protection of strikers' jobs, and from the standpoint of what was necessary to gain that protection. The assembled employees discussed the various activities of Respondent among which I have found numerous violations. On that date a strike vote carried, but no attempt was made by the Union or the employees to implement it. Respondent had immediate notice one way or another of the strike vote, as is evidenced by the fact that the following day advertisements appeared in local newspapers seeking strike replacements. I have no doubt that Respondent also knew that the vote was to conduct an unfair labor practice strike. Respondent could at that time have stopped committing unfair labor practices and effectively repudiated its past coercive conduct, but it did not do so. On the contrary, employees who continued to complain specifically about the activities of Perkins were told that they should consider the pressure under which Perkins was working and remember the kind of person he was and not take them too seriously. No real attempt was made to repudiate Perkins' unfair labor practices except the general statements that Respondent was not violating the law and had informed its supervisors that they should not. The unfair labor practices continued and on October 14, in the speech that caused Perkins to make the complaint that led to his discharge, Respondent again made no move to repudiate Perkins' activities. On the contrary, as Respondent points out, the speech was generally supportive of Perkins and made no attempt to disavow the statements he had made. After Perkins' termination, no announcement was made to the employees that he had been terminated because of his persistent commission of unfair labor practices and Respondent's notice simply referred to him as a former supervisor. Accordingly, inasmuch as the unfair labor practices contin- ued through October 16, and the Union held a meeting again on the evening of October 16 to discuss the situation, the Union and the employees had no reason to believe that the unfair labor practices would cease. They again dis- cussed the unfair labor practices and again took a vote on whether to strike. The vote carried and this time the Union went out on strike. Respondent adduced evidence, some of it direct and some hearsay, that individual employees, sought out and asked why they were striking, gave various reasons other than the formalistic "We are striking in protest of Respon- dent's unfair labor practices." The police chief, for instance, testified that he asked an employee, who apparently was carrying a picket sign saying that the Union was protesting Respondent's unfair labor practices, why they were striking 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the employee said that they were striking for a contract.e The rule is clear and longstanding that a strike that is caused in whole or in part by an employer's unfair labor practices in a protected unfair labor practice strike. Respondent's contention here really is that , assuming that it committed unfair labor practices , and I found that it did, because the Union and the employees wanted recognition and because the employees had been advised correctly that unfair labor practice strikers were protected , the employees engaged in a sort of a mock unfair labor practice strike solely to put economic pressure on Respondent . To this end, Respondent adduced testimony that union agents talked in terms of calling an unfair labor practice strike and then going back to work, thus displacing all of the strike replacements, then calling another unfair labor practice strike and going back in again and thus making it impossible for Respondent to hire replacements. Respon- dent appears to have missed the point that once the Union called off its unfair labor practice strike, initially displacing the replacements, all Respondent would have to do would be to cease committing unfair labor practices and the Union could not mount another unfair labor practice strike. Thus, the device would be completely within the control of Respondent. Pope's employees, because of the advice and instructions of the Union on this issue, were probably more sophisticat- ed than employees normally become in a strike situation. They knew what protections were afforded an unfair labor practice striker and were prepared to take the Union's word for the fact that the actions of Respondent were unfair labor practices. Accepting this knowledge, they were able to make an intelligent assessment of the effect of such an unfair labor practice strike on Respondent . There is no rule that an unfair labor practice striker loses his protection if the strike has an economic effect on his employer. It is that very economic effect that hopefully may cause the employ- er to cease committing unfair labor practices . Nor do I know of any rule that requires that employees, in order to be afforded the protection of unfair labor practice strikers, must be ignorant or naive and believe that they are striking only to notify the public of Respondent's unfair labor practices or to protect themselves against them. The public has a right to protection against an employer's unfair labor practices and it appears to me that Congress, the Board, and the courts have fashioned the protections for an unfair labor practice striker with an eye to discouraging the commission of unfair labor practices by employers. I find that the employees herein were on strike because of the unfair labor practices. I see no evidence from which I could infer that they would have gone on strike if there had been no unfair labor practices . If there would not have been a strike but for unfair labor practices, I conclude that the unfair labor practices had at least a causal relationship to the strike and the strike was therefore an unfair labor practice strike. s I infer nothing from the failure of the police chief to recall the legend on the picket sign, which does not support Respondent's argument , or from his ability to recall the statement of the picket , which arguably does. The police chief was present at the picket line in order to direct that it be stopped because the Union had not received permission from the city of Warner Robins to picket. V. THE REPRESENTATION PROCEEDING We are now in a position to determine the representation proceeding to the extent that it is possible by decision. The Union's petition was filed November 13, 1975, while the unfair labor practice strike was continuing. The matter went to hearing and a decision and direction of election issued January 7, 1976, pursuant to which an election by secret ballot was conducted on February 6, 1976. The Regional Director's supplemental decision reveals that the parties were served on February 9 with a corrected tally of ballots showing that of approximately 137 eligible voters 40 cast ballots for the Petitioner , 40 cast votes against the Petitioner, 56 cast challenged ballots, and I cast a void ballot; the challenges are obviously determinative. On November 20, the Union sought reinstatement on behalf of all strikers and Respondent declined to reinstate them to the extent that it refused to make room for them by discharging strike replacements . At the hearing, the parties agreed that the challenges to the ballots of strike replace- ments must be sustained if the strike is found to be an unfair labor practice strike and I have so found. According- ly, the challenges to the ballots of the following persons, all challenged as unfair labor practice strike replacements, are sustained.9 J. C. Albert M. M. James G. is.. Allman L. W. McGee R. R. Bixler M. M. McGuorik J. G. Black M. C. McLendon J. M. Blackman Joseph Miles J. L. Brooks M. Miles R. D. Brooks J. D. Minter M. A. Burke R. A. Odum R. G. Champion J. B. Powell K. L. Clifton R. J. Ramshur Marvin Cook C. P. Reuter T. E. Edwards Freddie Sallette W. Evans D. L. Sanders J. W. Frazier, III B. A. Sellers Jerry Garrett J. S. Selph Rock Gorman J. R. Spears R. D. Hardman J. B. Thomas R. L. Harper A. B. Todd J. C. Howell B. L. W. Tolliver Virdell R. Young The Union withdrew its challenges to the ballots of J.F. Tillman, E. D. Cassidy, J. S. Dell, and Martin Durden. The parties stipulated that at the time of the election Tommy Daniska was a supervisor and agree that the challenge to his ballot should be sustained. The parties stipulated that Marie McClinton was not at any time a member of the appropriate unit and, accordingly, the challenge to her ballot should be sustained. The parties stipulate that Walter 9 As a threshold issue, Respondent contends that the strikers' participa- tion in picketing which violated Sec. 8(bX7) estops them from claiming the protection of the Act and further that they are not entitled to reinstatement. This argument depends entirely on the strike being found to be a recognition- al strike. I found it to be an unfair labor practice strike and the argument is rejected. POPE MAINTENANCE CORPORATION 343 Eberhard, Tim Elder, James Holland, and Wesley Mathe were ineligible to vote on the day of the election and, accordingly, the challenges to their ballots are sustained. Respondent withdraws its challenges to the ballot of J. E. Dennis, D. E. Holland, K. S. Barnett, and C. G. Mauldin. Remaining is a challenge to the ballot of Joe Ray who was challenged by the Board agent in accordance with a telegraphic order to challenge the ballot of the fire and safety monitor. The parties agreed that Ray was not eligible to vote on the grounds that he does not have a substantial community of interest with employees in the unit and, accordingly, this challenge shall be sustained. I have found that Winfred Davis and Howard Umberger were dis- charged prior to the filing of the petition and the record does not sustain General Counsel's contention that they were discriminatorily discharged. Accordingly, the ballots cast by those two persons will not be counted and the challenges are sustained. As a result of the stipulations and agreements between the Employer and the Union, eight ballots are to be opened and counted. The ballots of J. E. Dennis, D. E. Holland, K. S. Barnett, and C. G. Mouldin were challenged by the Employer, and those of J. F. Tillman, E. D. Cassidy, J. S. Dell, and Martin Durden were challenged by the Union. I recommend that these eight ballots be opened and counted and an amended tally of ballots served on the parties and that, in the event the Union shall prevail after these ballots are counted, a certification issue to the Union. In the event the revised amended tally of ballots shows that the Union did not get a majority of votes cast, a consideration of the objections is the next relevant step.lo The Union objected that Respondent engaged in objec- tionable conduct by threatening plant closings, threatening employees with wage and benefit reductions, misrepresen- tation of material facts, threats of loss of employees' jobs, the act of refusing to reinstate employees on and after November 22, and a general allegation of interference, restraint, and coercion of the employees. I have considered no activities of Respondent that took place after the filing of the petition. The only such activities before me are the failure of Respondent to reinstate the replaced strikers on their demand and a letter dated February 2 which the parties stipulated was not received until Wednesday, February 4, by the Union. The Union contends that it did not receive the letter in time to answer and argues that the letter made material misrepresentations. The General Counsel argues that the letter violates Section 8(a)(1) in various respects. I shall deal with that later. The General Counsel's contentions are embodied in the Union's objec- tions also. First, with regard to the unfair labor practice strikers, it has long been held that an employer has the duty to reinstate unfair labor practice strikers upon their uncondi- tional request for reinstatement, Respondent, however, argues that even if unlawful conduct precipitated the strike the policy of automatically requiring immediate reinstate- ment to unfair labor practice strikers should not be followed here. Respondent admits that the case law does not support it, but, citing the decision of the Third Circuit Court of Appeals in United Steelworkers ofAmerica, AFL- CIO-CLC [The Dow Chemical Company] v. N.L.R.B., 530 F.2d 266 (C.A. 3, 1976), in which the circuit court stated, "We perceive fundamental developments in national labor policies since Mastro 1956 and Arlan's 1961, that should have commanded the Board's attention," Respondent argues that a balancing of the property right of Respondent with the organizational rights granted to workers prior to the Laidlaw decision" may have required reinstatement of unfair labor practice strikers, whereas, since Laidlaw, the striker does not lose his status as an employee and is entitled to reinstatement as vacancies occur. Furthermore, in the instant case, the strikers have been held to be entitled to unemployment compensation benefits from the date of their offers to return to work. Respondent argues that it still is required to take the same risk of guessing wrong on the resolution of the issue whether the strike was caused by its unfair labor practices since it is responsible for the backpay from the date of the offer to return to work, is not entitled to credit for unemployment compensation benefits paid, and could not afford to incur the significantly greater expense necessary to man its job with interim replacements. I feel that the rule with which we are dealing requires something more than a balancing of the Employer's financial well-being with the employees' right to strike, which essentially is what Respondent is calling on us to do. Twenty-five years ago those of us engaged in the adminis- tration of the Act thought that we would work ourselves out of a job when the word had sufficiently gotten around that employees had a right to join unions and that employers had a duty to bargain with the unions that their employees joined. We were naive. Now 40 years after the passage of the Wagner Act we are still dealing with employers committing the same unfair labor practices that led to the Wagner Act and employees need the protection no less now than they did in 1936. I reject Respondent's argument in this regard. With respect to the letter of February 2, the General Counsel contends that the letter threatened employees with wage and benefit reductions if the employees selected the Union, threatened them with loss of jobs, and threatened to close the facility if the Union were selected. The Union contends, in addition, that the letter contains misrepresen- tation of material facts which it did not have an opportunity to counter because it received the letter so late. The letter, a four-page typewritten document addressed "Dear employee" and signed by Johnny J. Pope, James M. Graham, and Jerry L. Graham, is divided into two sets of arguments; first, what was involved in the election and, second, what was not involved. What was not involved in the election, according to Respondent, was (1) that the strikers' return to work would not be any faster or slower as a result of the election and it ends with the statement "if the Union did win the election all it could do is ask the Company to bring the strikers back immediately. If the Company did not want to do it the only thing the Union could do would be to call another strike." Respondent had 10 It will be recalled that the Employer's objections were dismissed in 11 The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99 their entirety by the Regional Director, and the dismissal was sustained by (C.A. 7, 1969), cert. denied 370 U.S. 920 (1970), and N.L.R B. v. Fleetwood the Board Trailer Company, Inc., 389 U.S. 375 (1967). 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD already made it clear that it did not want to bring the strikers back immediately and guaranteed the replacements that they would not be displaced in order to make room for the union employees. The letter ignores the legal effect of the fact that the strikers are unfair labor practice strikers who must, as a matter of law, be called back immediately but nevertheless it is a truthful statement that the result of the election will not effect the ultimate disposition of the strikers. (2) The election would not bring any automatic wage increase. Respondent warned that a union victory could result in a reduction of wages or benefits. Respondent argued that it has a firm, fixed, prepriced Government contract with negotiated increases based solely on cost increases allowed by the Government and that it is locked into its agreement and cannot pass on increased cost in the form of higher prices. The letter states, "Since the Company is only barely breaking even on the contract now, it is highly unlikely that we could or would agree to any increase. But a union victory could cost the Company money in lost efficiency, and in the time, effort, and money involved in negotiating and administering the contract. The Company is allowed to take these costs into consideration and to propose a reduction in wages and benefits as long as it pays the wages and benefits by the Department of Labor." 12 (3) The election, whichever way it went, would not bring back any supervisors fired for failure to comply with company policy. In the discussion of issues that are involved in the election, the first point Respondent made was that employ- ees might be forced to join the Union, arguing that, because the land occupied by the Air Force was formally ceded to the Federal Government by Georgia, the Georgia right-to- work law did not necessarily operate. The argument ended with the following statement: In short, your paycheck might legally be cut in two by automatic mandatory dues payment because as far as the law is concerned we are not in Georgia. We know the Union will ask for this because when this all started they told us that the only thing they were interested in was dues money. The second point was stated as: "Inability to take your gripes privately to your supervisor or to senior management is involved," and makes the statement that when the Union is the bargaining representative the law requires the Company to allow a union representative or shop steward to be present when an employee wants to talk about a job- related problem even though the employees do not want the Union there. The third point was a further argument on the Compa- ny's alleged inability to pay a raise, stating that the contract presently in force was negotiated, but the next one would have to be bid competitively and suggested that if the Union came in the Company might not be able to bid competitively and get the contract. This argument was 12 This argument, and the following arguments, are directly contradictory to the position taken by Respondent in its argument regarding the jurisdiction of the Board and reveal Respondent's acknowledgment that, indeed, wages are not fixed by the contract with the Air Force but provide scope for negotiation. carried on with a further argument that the Union would not help them operate more efficiently but would cause them to operate less efficiently. Respondent pointed out that wages were based on minimum rates established by the Department of Labor directly and indirectly by the law of supply and demand and prevailing rates in the area. Accordingly, the only variable was efficiency; therefore, since they could not work as efficiently with a union, their self-interest would seem to indicate that they should vote against the Union. This is a rather typical campaign letter, filled with half- truths, surmises stated as truths, and truths stated as surmises. Read carefully it is not explicitly coercive, read carelessly or with a minimum grasp of the somewhat technical language in which it is written, which is obviously what Respondent gambled would happen, it could be considered coercive. It appears to be an excellent example of its genre, containing the maximum coerciveness couched in unexceptionable language, every phrase of which has sometime or another been found protected campaign propaganda by some court. I find no violation in it. A. Conclusion I conclude that the election must be set aside based on Respondent's conduct in failing and refusing to reinstate the unfair labor practice strikers on their demand, and I so recommend. B. The General Counsel Requests a Bargaining Order The General Counsel, relying on the Board's decision in Trading Port, Inc., 219 NLRB 298 (1975), and the Gissel case,13 contends that whether or not the union is found to have won the election 14 a bargaining order should issue based on the fact that the employer's unlawful conduct was "outrageous" and "pervasive" so that a bargaining order is the only available effective remedy for substantial unfair labor practices or that the employer's conduct was marked by less pervasive unfair labor practices which, nevertheless, still have the tendency to undermine majority strength and impede the election processes. Basic to the issuance of a Gissel order must be a fording that the Union, at some time relevant hereto represented a majority of the employees in an appropriate unit. For this purpose, the General Counsel introduced authorization cards signed by employees to indicate that a majority of the employees, in the unit found by the Board in the represen- tation matter to be appropriate therefor, had authorized the Union to represent them for purposes of collective bargain- ing. The General Counsel introduced 72 cards. Two of the cards, signed by Marie McClinton and Wesley Mathe, will not be considered; the parties stipulated that McClinton was outside the unit and that Mathe was a strike replace- ment. Accordingly 70 cards remain. Respondent specifical- ly attacked 22 of the cards and generally attacked all the 13 N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). 14 In view of my conclusions with regard to the challenges, it could go either way. POPE MAINTENANCE CORPORATION 345 others on the ground that widespread misrepresentations, fraud, and improper representations taint most of the others. First, let us consider the 22 cards directly attacked. Respondent attacks the cards of Donald Venable, Paul Hanks, Kenneth Dorsey, and Luther Slaton on the ground that Robert Miller, who solicited their cards, informed them, in part, that those who did not sign a card may have to pay union dues while those who did sign cards would be excused from that obligation. I have considered carefully the testimony upon which Respondent bases its argument and there is no mention therein of union dues whatsoever. Under examination by Attorney Capron, Miller testified that he had no clear recollection of exactly what he told the four persons, but, if he had been asked about initiation fees, he had stated that the card signers would not have to pay initiation fees if the Union did not come in, but nonsigners who wished to join the Union at a later date, after the Union was in, would "perhaps be required to pay an initiation fee." This is an unexceptionable statement and has nothing to do with any promise to relieve card signers from the payment of union dues. These four cards will be counted. Respondent contends that the following cards should not be counted because the signers were all told that the only purpose for signing the card was to get an election: Michael Williams Clarence Thompson David McLeod Jerry Gann William Williams Lionel Godfrey James Tabor D. I. Boone Gregory Gaines Michael Williams signed a card on September 29 at his home. He had been given the card by Tim Elder and stated that he already knew everything about the card before he signed it. He was told that it wasjust whether or not he was interested in joining the Union, it was nothing permanent, it was just whether he was interested. Asked on cross-exami- nation, "Did he say anything about getting an election or anything like that," Williams answered, "yes, he explained all that." Then, asked "Did he tell you the only purpose of signing the union card was to get an election, that you would not be obligated in any way?" he answered "right." I consider that his answers on cross-examination indicate that Williams knew the purpose of the card. Why the General Counsel did not object to the duplicitous question on which Respondent relies I do not know, but in the face of Elder's denial when he was asked if he said anything about an election to any of the employees to whom he handed cards, "Not that I can recall," the card signed by Williams is a clear and an unequivocal authorization to the Union to represent him, and I am willing to accept his testimony that he knew what he was signing. I shall count the card. David McLeod testified that he was handed the card he signed by employee Rollen, who said that it was to have the Union represent the employees and bargain. McLeod testified that he read the card. In answer to the question, "Did he say anything about getting an election?" McLeod answered, "He said there was no obligation on the card, it was just to see if they could get a majority and then they would hold an election." Q. The only purpose of the card was to get an election? A. Yes. On the basis of this exchange Respondent wishes me to reject the card. This employee testified that he read the card and that he was told that the card was to have the Union represent the employees and bargain. If, although I doubt it, the person who gave him the card said that the only purpose was to get an election, he must have spoken inconsistently, but the question and answer did not attribute that statement to Rollen, or to anyone, and it appears to have been answered from the viewpoint of what McLeod thought the result of signing a card would be, rather than what he was told. I shall count McLeod's card. William Williams testified that he read the card before he signed it. He was given the card by Douglas Maddux. On cross-examination he was asked the following question: "Mr. Williams, what did Mr. Maddux tell you was the only purpose for signing the card." There was no objection to the question and Williams answered, "Was to get enough people in so they could vote for a union to hold an election." Attorney Haas again tried to nail the point down by starting a question "the only purpose was to. . . ." An objection was raised, whereupon Haas then asked, "Mr. Williams, did the fellow worker, Mr. Maddux, state the only purpose for you signing the card was to get enough cards to have an election." The answer was "right." Maddux had testified the same day, but was not asked about this conversation and he was not recalled. In the absence of any contrary evidence, although I consider that Respondent's inquiry was improperly addressed to Wil- liams, I shall accept his testimony at face value and reject the card. James Tabor testified that he was asked to sign a card by Robbie Miller, who told him to sign it for better working conditions. In answer to leading questions, Tabor answered that he was told that the only purpose of signing a card was to get an election and to get free health insurance, dental insurance, and eye insurance paid for by the Union. Tabor testified that he asked Arlerenza Smith and "Buba" Davis to sign cards and told them the same thing he was told. Tabor also testified that he read the card before he signed it and that he signed it at the first union meeting. No other account of the statements made at the first meeting was similar to the account that Tabor gave of that meeting. I do not credit Tabor. His testimony when he was recalled to the witness stand as Respondent's witness is inconsistent with the testimony that he was told that the card was only for the purpose of having a union. It appears that what he heard that was most impressive to him was that somehow job security was involved and better wages and working conditions. I shall count his card. Respondent's brief argues that the card of Gregory Gaines must be excluded. There is no Gregory Gaines; however, Respondent's page citation refers to the testimony of Gregory Garner. Garner testified that he signed his card at the meeting of October 8 and that he was told that the card was to bring a union in so that the employees could have better rights and better money. Asked "Was anything said about an election?" he answered, "They said if we got up to so many that we could have an election." This is a far 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cry from any statement that the only purpose of the card was to get an election. He read the card before he signed it. I shall count it. Clarence Thompson testified that he signed a card at the request of some employees during breaktime. He said they were talking about union cards and their significance. They were talking about job security, holidays, more holidays than they got, and that they said that the Union would have more benefits, sick days, or medical care, "something like that," He could recall them saying nothing else, they did not go into detail about the purpose of the card. In response to the question "Did they tell you why you should sign a card?" Thompson answered, "He said if we had enough cards signed that we would have an election for the Union." He also testified he did not read the card before he signed it. Again the evidence is clearly contrary to Respondent's assertion that Thompson was told that the only purpose for signing a card was to get an election. I shall count his card. Jerry Gann, who was one of the leading lights of the antiunion movement, stated that he signed a union card at the request of several day shift employees who were pushing for the Union and all of whom asked hun to sign. He testified that they said they needed to have enough people in the Company to sign cards so that the Union could come on in and that they could have an election and there would not be much to it then once there was an election and the Union won. "It would be just more or less a matter that Pope would have to bargain with them." He was then asked whether he reconsidered that decision and this is his answer: "Definitely after hearing talks from Pope Mainte- nance officials, management, I found out that we were wrong about what we were thinking, about the manner we were getting paid and different things like that so of course I wanted to get my card back from them." It appears to me that Gann's second answer fairly well nullifies his first. Apparently what he was told and discussed concerned the manner in which he was getting paid and things like that, rather than having an election. Even his initial statement does not say that the only reason for signing a card was to get an election. I shall count his card. Lionel Godfrey testified that he signed his card at the first meeting at Robert Miller's house, and that the union agent said that "after we signed the cards and they were counted, if there was a majority an election would be held." Godfrey was present at various union meetings and went on strike on October 17. He was never asked to give an account of the union meeting other than the leading questions ad- dressed to him in his cross-examination. Other employees present at the first union meeting gave a fuller account of the statements of the union agent, indicating that he spelled out that the alternatives were to seek recognition, and, if recognition was not granted, to seek a card check or a union election in that order. I credit them and find that Godfrey was not informed that the sole reason for signing a card was to get an election. I shall count his card. D. I. Boone testified that he signed a card at the request of Richard Rollen a week or two before the strike. Rollen approached him and said "that they was trying to get enough cards so that they could have an election for the Union." Boone signed the card. He recalled nothing else that was said to him, if anything, and he does not recall whether he read the card. Rollen testified that he asked Boone to sign a card and Boone did not sign it, but wanted to know more, so he talked with other people, and the next day asked for a card to sign. Rollen testified that he did not know who Boone talked to and he did not know enough about the card to tell Boone anything about it. He testified that he said nothing about an election. Boone was not asked whether he talked to any other employees about the card. He signed it on September 25, 1975, after the second union meeting, but he had attended neither of the first two union meetings. Under all the circumstances, I shall not count the card of D. I. Boone. John Morgan testified that Tommy Peavy "just more or less throw'd" a card in front of him and asked him to sign it because they "needed enough names where they could have an election to see about being represented by a union." Peavy testified that he could have made such a statement. I credit Morgan. I will not count the card. Michael McDowell testified that he signed a card at the request of Tim Elder who told him they were wanting to get a union in and trying to get people to sign cards to get a union representative to come down and talk to them. Elder testified that he did not recall saying anything about an election and denied saying anything about getting enough employees interested so that the Union would come down and have a meeting. He obviously did not recall much of what he did say. I do not credit McDowell. He signed his card on October 8, 1975, by which time I am sure no one working for Respondent was unaware of the fact that union agents had been present to talk to people for well over a week. The fact that Elder could not recall what he said to McDowell gives no reason for excluding the card. I shall count it. Timothy Elder testified that Glenn Smith, Glenn Maul- din, and Nathaniel Adams handed him their cards already signed. He did not recall seeing them sign their cards and, as I stated above, his testimony reveals that he has very little recollection of what he said to them. Respondent contends that these cards must be excluded. I see no reason why they should be and I shall count them. Harold Thompson testified that he got a card from an employee but did not recall from whom, and that the employee asked him if he would sign the card, that the card did not mean that he would be forming a union or anything, or that he would be joining a union, but it was to get a representative to talk with the employees, to make a speech. Thompson testified that he read the card before he signed it. The card was dated October 1. Union representatives were present at the time. Accordingly, I conclude that Thompson misunderstood what was said to him. In any event, I see nothing in his testimony to indicate that the sole reason given him for signing a card was to have a union representative talk to the employees and, presumably having read the card, he knew what he was signing. I shall count his card. Larry Preast testified that he signed a card at the request of Robert Crummey who told him that employees were trying to get a union on base. They needed some cards to be signed for the Union. Apparently, Preast came to the conclusion that Crummey was talking about the Union representing Federal employees on the base, with which POPE MAINTENANCE CORPORATION 347 Preast had no complaint. Apparently his wife thought that Crummey was talking about the credit union on base. Preast cannot read, but signed the card and Crummey took it with him. In a proceeding of this sort, cards are used as the best available objective evidence that, at the time they were signed, the signer meant to authorize the Union to bargain in his behalf. While there is no substantial evidence that Larry Preast was the victim of any misrepresentation concerning the card, it is prefectly clear from his testimony that his illiteracy made it impossible for him to know what was on the card, and his complete misunderstanding of the statements of Crummey led him to believe he was signing a card for a union other than the Retail Clerks Union involved herein. Under these circumstances, I shall not count his card. Rollen testified that John Gray said he wanted a union and "all I did was ask him if he wanted one, and he signed the card and filled it out and signed it." Gray testified that Rollen told him he had to sign a card or lose his job, and refused to read the card to him. Rollen was not called in rebuttal after the testimony of Gray, and did not deny the statements that Gray alleges that he made. Accordingly, I shall credit Gray and reject the card. Herman Denson testified that he signed a card on September 20, and it is obvious that he was at the union meeting when he signed it. He testified that the union official told him "that the card would more or less serve as information, not really, you know, I wasn't obligated in any respect just by signing the card." Nothing else was said in reference to the card. The several accounts of the union meeting of September 20 at Robert Miller's house make it clear that a great deal more was said about the card than reported by Denson. Nothing was said in any of the evidence that I have considered substantial that militates against my consideration of the card as a valid memorial of the card signer's intentions when he signed it. Nothing in Denson's testimony reveals that he was coerced or that misrepresentations were made to him. I shall count his card. C. Conclusion With Regard to the Authorization Cards I conclude that the General Counsel adduced 65 valid cards signed by employees employed by Respondent at the time of the Union's demand for recognition on October 17. Of these cards, 64 had been signed prior to the initial demand for recognition on October 4. The parties stipulat- ed to a list of employees on Respondent's payroll as of October 4. It contained 105 names and does not contain the name of Larry Preast. Accordingly, it appears that there were 106 persons in the unit at the time; 54 cards represent a majority, 64 cards well over a majority. D. Unit The Union's demand in its October 22 letter spelled out a unit of all full-time and regular part-time employees, excluding seasonal and casual employees, janitorial em- ployees, officers, management personnel, guards, and supervisors as defined in the Act. Respondent argues that it was entirely within its rights in refusing recognition because the unit was inappropriate, and, indeed, contrary to Board policy. Accordingly, Respondent refused to bargain. Attor- ney Capron, in his October 24 letter to the Union refusing to bargain, makes no mention of the impropriety of the unit, but states, on the contrary, that the Employer continued to doubt that the Union represented an un- coerced majority in any appropriate bargaining unit. At the hearing on the petition, according to the Regional Direc- tor's Decision and Direction of Election, the Employer moved to dismiss the petition on the ground that the unit was inappropriate since it did not contain the requisite statutory exclusion of office clerical employees. The Re- gional Director pointed out that there is no statutory exclusion of office clerical employees nor is their unit placement in any way mandated by provision of the Act. The unit spelled out in the Regional Director's decision, identical with the unit alleged to be appropriate in the General Counsel's complaint, includes all full-time and regular part-time employees employed by Respondent at its aerospace ground equipment and repair operations at Robins Air Force Base, including parts tracers, company vehicle mechanics, forms clerks, Category C dispatchers, incentive mechanics, and inspector/negotiators, but ex- cluding office clerical employees, professional employees, janitorial contract employees, and fire and safety monitor, guards, the assistant chief of quality control, and all other supervisors as defined in the Act. Although Respondent, during the hearing, indicated that it was going to contest the unit at least with regard to the negotiators, it did not do so in its brief, and I assume that it has chosen not to do so deliberately. There is no evidence on the record from which I would find any variance appropriate in the unit as spelled out in the complaint. Accordingly, I find that unit appropri- ate for purposes of collective bargaining. E. Conclusion With Regard to the Bargaining Order The General Counsel contends that a Gissel order is warranted in this case, contending that the Employer's unlawful conduct was outrageous and pervasive so that a bargaining order is the only available effective remedy for the substantial unfair labor practices. Respondent contends that a bargaining order is not called for herein, pointed out that in the election the Union had half the ballot votes counted and the passage of time would sufficiently have dulled the recollection of the employees of any unfair labor practices that Respondent may have committed, although Respondent denies having committed any, so that a fresh election could now be conducted. I find that in the instant case the widespread interroga- tion, the many threats of reprisals and threats that the plant would be closed down or the contract be lost by Respon- dent, and the failure of Respondent in violation of Section 8(a)(3) to reinstate the unfair labor practice strikers, together with the solicitation of employees to withdraw their union authorizations and the solicitation of employees to discuss their grievances with management, as well as the issuance of reprimands to employees because of their union activities, all together at least have a tendency to undermine the Union's majority status. I find, indeed, that they were so pervasive and outrageous that a bargaining order should issue. It is not enough to say that in spite of Respondent's 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practices half of the votes cast were for the Union. Clearly, well over half of the employees signed union authorization cards and wanted the Union on October 4, when the antiunion campaign commenced. Under all the circumstances here, I shall recommend that a bargaining order issue. VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the business of Respondent as set forth 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 obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW benefits and that Respondent would cease its business if the Union were selected; by soliciting grievances from employ- ees with the express or implied promise that they would be remedied; by promulgating and informing employees that they would be discharged for soliciting employees to join the Union at any time on the premises used by Respondent; by soliciting employees to sign a petition to withdraw their union cards ; by creating the impression of surveillance of employee union activities; and by telling employees that it had a list of union supporters and card signers and that it knew which employees had signed authorization cards, Respondent interfered with, restrained, and coerced em- ployees in the exercise of their rights guaranteed in Section 7 of the Act in violation of Section 8(a)(1) of the Act. 9. Respondent has not been shown to have violated Section 8(a)(3) and (1) in certain particulars spelled out in the Decision above. 1. Pope Maintenance Corporation is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Retail Clerks International Association, Local 1063 is a labor organization within the meaning of Section 2(5). 3. All full-time and regular part-time employees em- ployed by Respondent in its aerospace ground equipment and repair operations at Robins Air Force Base, including parts tracers, company vehicle mechanics, forms clerks, Category C dispatchers, incentive mechanics , and inspec- tor/negotiators, but excluding office clerical employees, professional employees, janitorial contract employees, the fire and safety monitor, guards, the assistant chief of quality control, and all other supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since October 4, 1975, the Union has been the duly designated representative of the employees in the unit described above within the meaning of Section 9(a) of the Act. 5. Since October 4, 1975, and at all times, Respondent has failed and refused to recognize and bargain collectively with the Union regarding the wages, hours, and working conditions of its employees in the unit set forth above. 6. By failing and refusing to bargain collectively, Respondent has violated Section 8(aX5) and (1) of the Act. 7. By issuing written warnings to employees Gary Hawk, Lionel Godfrey, George Bray, and Robert Miller, and by failing and refusing to reinstate the unfair labor practice strikers who applied for reinstatement on Novem- ber 22, 1975, and thereafter, Respondent discriminated against employees because of their membership in and activities on behalf of the Union, and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid and protec- tion in violation of Section 8(a)(3) of the Act. 8. By the activities set forth in paragraphs 5, 6, and 7, above; by coercively interrogating its employees concern- ing their and other employees' union activities ; by threaten- ing employees with discharge, more stringent enforcement of company rules, cancellation of their vacations, loss of REMEDY Having found that Respondent has committed acts in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the purpos- es of the Act. The General Counsel suggests that under the circumstances set forth above, whether or not the Union prevails in the representation case , a bargaining order should issue. The General Counsel cites no authority for this proposition and I know of only one case where it has been done. In my opinion, Respondent has demonstrated by its activities set forth above a comprehensive rejection of the principle of collective bargaining and has committed the many unfair labor practices found in an attempt to delay, as long as possible, the ultimate day when it would have to negotiate with the Union as the collective-bargaining representative of its employees. Normally in cases of this nature the Board issues its certification and waits to determine whether the Respondent will then bargain in good faith with the union as the representative of its employees. If, after an appropriate time has elapsed, the respondent refuses to bargain or fails to bargain in good faith, the union then is expected to file a new charge alleging a violation of Section 8(a)(5) and this whole weary course resumes. Respondent thus frequently gains as much as 2 to 5 years before it has to comply with the law. Even with an immediate bargaining order, the employees, who signified almost a year ago that they wanted representation, must continue to wait while the Board and courts wind their weary way through this prolonged litigation.15 I fmd merit in the General Counsel's request that I recommend to the Board that, whether the Union wins the election or not, a bargaining order issue in this matter. All issues that would ultimately be presented in a refusal-to- bargain case testing its certification are presently ripe for decision. I see no warrant for adding another year or two of potential litigation to the burden the employees presently bear. 15 The record contains a letter signed by Johnny J. Pope in which he gave as his opinion that the representation matter would not be resolved for 2 or 3 years. POPE MAINTENANCE CORPORATION 349 I have found that Respondent violated Section 8(a)(3) and (1) by issuing written warnings to four employees. Two of these warnings, issued by Supervisor Perkins, may have been destroyed. I shall recommend that all four warnings, if they are presently in existence, be removed from the personnel files of the four employees concerned and any record of them expunged from Respondent's books and records. I further recommend that Respondent notify each of the four, in writing, that the warning has been expunged from his record. I deem this necessary in view of the response of Respondent's counsel, when the matter was brought up during the hearing in this matter. The record reveals that some of the unfair labor practice strikers were reinstated to their old jobs, some to other jobs or other shifts or both, and some not reinstated at all. I shall order that all strikers shall be reinstated to the job and shift they formerly held immediately before the strike and on the same shift. If the jobs they held are no longer in existence, they shall be reinstated to substantially equivalent jobs on the same shifts. If a job is occupied by a strike replacement, he shall be discharged if necessary. Backpay shall be paid each of the strikers, commencing on November 22, 1975, until reinstatement in accordance with this Order, and shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Respondent's Charges of "Prosecutional Misconduct" Respondent contends that the cases, including the representation case, should be dismissed on the ground that public confidence in Board procedures would be dimin- ished by the actions of union and Board representatives "suggesting (to at least one employee) subordination of these officials and where the Board representatives engage in conduct violative to the letter and spirit of Board procedures." Respondent's motion is based largely on testimony adduced from Working Leadman Dean Cassidy concerning an alleged incident in a motel involving counsel for the General Counsel and union agents. The testimony of Cassidy is memorialized in his evidence given at the hearing. I declined to permit contradictory evidence offered by the General Counsel and the Union, and I declined, further, to permit various counsel to this proceeding to litigate before me the somewhat unsavory dispute fomented by Respondent's counsel adduction of Cassidy's evidence in the hearing, on the ground that this was not the proper forum for complaints against the General Counsel's activi- ties nor those of Respondent's counsel. Respondent's argument in support of its motion dredges up every bitter complaint that 2 weeks of tense litigation gave rise to, but made no showing of any manner in which Respondent's case may have been harmed or the General Counsel's case aided by the activities he decries. Without some clear showing of harm, I can conceive of no reason why these I6 In the event some reviewing body were to determine that I should have considered this issue, I shall state that based on his demeanor in testifying, and on the bias and prejudice so clearly displayed throughout his testimony, even without cross-examination on the issue or countervailing evidence, I would not credit Cassidy's story concerning the motel incident 17 In the event no exceptions are filed as provided by Sec. 102.46 of the cases should be dismissed, leaving Respondent's employees without remedy for these serious unfair labor practices committed and without a bargaining agent they so clearly wanted. I reject Respondent's argument.16 Upon the foregoing findings of fact, conclusions of law, and the entire record in this case, and pursuant to Section 10(c) of the Act, I make the following recommended: ORDER 17 The Respondent, Pope Maintenance Corporation, War- ner Robins, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to bargain with Retail Clerks International Association Local 1063 as the collective- bargaining representative of the majority of its employees in the unit consisting of all full-time and regular part-time employees of Respondent at its aerospace ground equip- ment and repair operations at Robins Air Force Base, Warner Robins, Georgia, including parts tracers, company vehicle mechanics, forms clerks, Category C dispatchers, incentive mechanics and inspector/negotiators, but exclud- ing office clerical employees, professional employees, janitorial contract employees, the fire and safety monitor, guards, the assistant chief of quality control, and all other supervisors as defined in the Act. (b) Coercively interrogating its employees regarding their and other employees' union activities; threatening employ- ees with discharge, more stringent enforcement of company rules, cancellation of vacations, loss of benefits, and that Respondent would cease its business if the Union were selected; soliciting grievances with the express or implied promise that they would be remedied; promulgating rules and informing employees that they would be discharged for soliciting employees at any time on the premises used by Respondent; soliciting employees to sign a petition to withdraw their union cards; and creating the impression of surveillance of employees' union activities by telling em- ployees that it has a list of union supporters and card signers. (c) Discriminating against employees for engaging in union activities by issuing them warning notices and threatening to discharge them if they continue such activities. (d) Discouraging membership in and activities on behalf of Retail Clerks International Association Local 1063 or any other labor organization, by discriminating in regard to hire and tenure of employment of Respondent's employees or by discriminating in any other manner in regard to any term or condition of employment, in order to discourage or interfere with membership or activities therein, and particu- larly by failing and refusing to reinstate unfair labor strikers immediately upon their unconditional request. Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order shall, as provided in Sec. 102.48 of the Rules and Regulations be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.18 2. Take the following affirmative action designed to effectuate the purposes and policies of the Act: (a) Upon request, recognize and bargain collectively with Retail Clerks International Association Local 1063 as the exclusive bargaining representative in the appropriate unit described above. (b) Physically expunge from its records warning notices or counseling slips addressed to employees Gary Hawk, Lionel Godfrey, George Bray, and Robert Miller and expunge any record of the issuance of such warning notices, and mail, to each of the four named employees, a letter advising him that the warning notice and any records thereof has been expunged from his personnel file. (c) Reinstate each of the employees named below to the job he or she held before the strike , or, if that job no longer exists, to a substantially equivalent job, discharging if necessary any strike replacement holding such job. James A. Dennis James E. Dennis Edgar L. Godfrey Anthony J. Del Giorno Gary Hawk Ronald S. Sherman Timothy M. Elder Robert M. Crummey Jimmy L. Holland George W. Bray Bessie Hayes Betty Reynolds James Fobbs Juan Arms Douglas Traynor Rita A. Miller David E. Sherman John Abel, Jr. Glenn Mauldin Malcolm L. Lee Glenn B. Smith Kenneth S. Barnett Walter E. Eberhart Mike Wingo Johnny it Meadows Kenneth Dorsey Wesley Mathe John F. Dillard Arlerenzo Smith Homer Ridley Gerald Moore Billy T. Quinn Tommy Peavy Michael D. Bramlett Nathaniel J. Adams Robert M, Miller Richard H. Mace Doug E. Maddux Judy Walker Danny E. Holland Hazel Gatliff Walter C. Valasky Marie McClinton (d) Make whole the above-named employees for any loss of pay they suffered as a result of Respondent's failure to offer them reinstatement pursuant to their unconditional offer of November 20, 1975, to return to work. Backpay shall be computed from November 22, 1975, to the date on which each named employee shall have been reinstated to the job he or she held before the strike, or, if that job no longer exists, to a substantially equivalent job, in the manner set forth in the section of this Decision entitled "Remedy." (e) Post at its office and place of business copies of the attached notice marked "Appendix." 19 Copies of said notices, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted immediately upon receipt thereof, and be maintained by Respondent for 60 consecu- tive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the complaint, insofar as it alleges violations not found above to have occurred, be dismissed. The Disposition of the Representation Case Case 10-RC-1056 was consolidated for the purpose of hearing, ruling, and decision with the other cases herein, with the provision that the representation case be trans- ferred to and continued before the Board in Washington, D.C., and that the provisions of Section 102.46 and Section 102.69 of the Board's Rules and Regulations shall govern the filing of exceptions. My findings of fact and recommen- dations are set forth above . I recommend that the eight challenged ballots, the challenges to which I overrule, be opened and counted and a revised tally of ballots issue, and that, in the event the revised tally of ballots shows that the Union prevailed, a certification shall issue, and that, in the event that the revised tally of ballots shows that the Union did not prevail, the election shall be set aside on the Petitioner's objection and that the representation case be dismissed and a bargaining order issued, in accordance with my findings in the unfair labor practice case. is In view of the widespread and fulsome nature of Respondent's unfair labor practices, I deem a broad order warranted. 19 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice and to keep our word about what we say in this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through a representative of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any and all these things. WE WILL NOT do anything that interferes with these rights. POPE MAINTENANCE CORPORATION 351 WE WILL NOT fail or refuse to bargain collectively with Retail Clerks International Association Local 1063 as the exclusive bargaining representative of our em- ployees in the appropriate unit consisting of all full-time and regular part-time employees employed by us at our aerospace ground equipment and repair operations at Robins Air Force Base, Warner Robins, Georgia, including parts tracers, company vehicle mechanics, form clerks, Category C dispatchers, incentive mechan- ics and inspector/negotiators, but excluding office clerical employees, professional employees, janitorial contract employees, the fire and safety monitor, guards, the assistant chief of quality control, and all other supervisors as defined in the Act. WE WILL NOT coercively interrogate our employees concerning their or other employees' union activities. WE WILL NOT threaten our employees with discharge, with more stringent enforcement of company rules, with cancellation of their vacations, with loss of their benefits, and that we would cease our business if the Union were selected. WE WILL NOT solicit grievances from our employees with the express or implied promise that they would be remedied. WE WILL NOT promulgate rules and inform employ- ees that they would be discharged for soliciting employ- ees at any time on our premises. WE WILL NOT solicit employees to sign petitions to withdraw their union cards. WE WILL NOT create the impression of surveillance of employees' union activities by telling our employees that we have a list of union supporters and card signers and that we know the names of the persons who signed union cards. WE WILL NOT fail and refuse to reinstate unfair labor practice strikers upon their unconditional request for reinstatement. WE WILL NOT give warning notices or counseling slips to the employees for engaging in union activity protect- ed by the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights, guaranteed by Section 7 of the Act. WE WILL upon request, recognize and bargain collectively with Retail Clerks International Associa- tion Local 1063 as the exclusive collective-bargaining representative of our employees in the appropriate unit described above. WE WILL physically expunge from the personnel records of Gary Hawk, Lionel Godfrey, Robert Miller, and George W. Bray any warning notices or counseling slips relating to their union activities and WE WILL expunge from our records any mention of such warning notices or counseling slips, and WE WILL further, by letter, advise each of those four named persons that we have done so. WE WILL reinstate each of the following named employees to the job he or she held before the strike, or, if that job no longer exists, to a substantially equivalent job, discharging if necessary any strike replacement, and WE WILL make them whole, with interest, for any loss they suffered as a result of our refusal to reinstate them on their request of November 20, 1975. James A. Dennis James E. Dennis Edgar L. Godfrey Anthony J. Del Giorno Gary Hawk Ronald S. Sherman Timothy M. Elder Robert M. Crummey Jimmy L. Holland George W. Bray Bessie Hayes Betty Reynolds James Fobbs Juan Arms Douglas Traynor Rita A. Miller David E. Sherman John Abel, Jr. Glenn Mauldin Malcolm L. Lee Glenn B. Smith Kenneth S. Barnett Walter E. Eberhart Mike Wingo Johnny R. Meadows Kenneth Dorsey Wesley Mathe John F. Dillard Arlerenzo Smith Homer Ridley Gerald Moore Billy T. Quinn Tommy Peavy Michael D. Bramlett Nathaniel J. Adams Robert M. Miller Richard H. Mace Doug E. Maddux Judy Walker Danny E. Holland Hazel Gatliff Walter C. Valasky Marie McClinton POPE MAINTENANCE CORPORATION