Idaho Pacific Steel Warehouse Co., Inc.

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Idaho Pacific Steel Warehouse Co., Inc. and Local No. 483, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca, Independent. Case 19-CA-8181 and 19-CA- 8275 December 16, 1976 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER Member Walther disagrees with his colleagues' conclusion that Respon- dent violated Sec. 8(aXl) of the Act by rescinding its employees' gas purchase privilege as he finds this action was contemplated prior to the Union's advent at Respondent's plant and that Respondent was privileged to undertake this action when it did 2 Although we agree with the Administrative Law Judge's finding that Respondent violated Sec 8(aX5) by refusing to bargain with the Union, we do not rely on Joy Silk Mills, Inc v N L R B, 185 F.2d 732 (C.A.D C , 1950), cert denied 341 U.S. 914 (1951 ), for that conclusion Instead, we rely on our holding in Fred Snow, Harold Snow and Tom Snow, d/b/a Snow & Sons, 134 NLRB 709, enfd 308 F.2d 687 (C A. 9, 1962), and related cases cited by the Administrative Law Judge APPENDIX On August 27, 1976, Administrative Law Judge Henry S. Sahm issued the attached Decision in this proceeding. Thereafter, the Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in response to Respondent's exceptions and in support of the Administrative Law Judge's Decision. 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, fmdings,l and conclusions of the Administrative Law Judge and to adopt his recommended Order,2 as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Idaho Pacific Steel Warehouse Co., Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, as so modified: 1. Substitute the following for paragraph 2(b) and reletter the following paragraphs accordingly: "(b) Make whole all unit employees for any loss of earnings suffered as a result of the withholding of the scheduled wage increases with backpay computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the attached notice for that of the Administrative Law Judge. i While we agree with the Administrative Law Judge that Respondent violated the Act in its inquiry of an employee whether he would cross the picket line in the event of a strike, we note that it was Respondent's agent, Robert Land, who made that statement, not Respondent 's agent, Evans, as the Administrative Law Judge found. 227 NLRB No. 50 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which both sides had the opportu- nity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and we intend to abide by the following. WE WILL bargain, upon request, with Local No. 483, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, Independent, as the exclusive bargaining representative of all employees in the unit de- scribed below, and shall embody in a signed agreement any understanding reached. The bar- gaining unit is: All production employees, maintenance em- ployees, truckdriving employees, and ware- house employees employed at 5320 Emerald Street, Boise, Idaho, excluding technical employees, office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. WE WILL NOT question you about your union activities, membership, or sympathies. WE WILL NOT threaten you or discriminate against you in any way if you should sympathize with or join a union, nor will we promise you any benefits if you should have nothing to do with the Union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights under Section 7 of the Act. WE WILL repay you what we owe you when we rescinded the wage increase we gave you in your October 31, 1975, paychecks. IDAHO PACIFIC STEEL WAREHOUSE CO., INC. IDAHO PACIFIC STEEL WAREHOUSE CO. 327 DECISION STATEMENT OF TILE CASE - HENRY S. SAIJM, Administrative Law Judge: This consoli- dated case was heard at Boise, Idaho, commencing on March 16 and concluding on March 17,1976.1 The original charges were filed by the Union on November 21 and 24 and January 12, 1976, and the complaint issued on February 117, 1976. The primary issues are whether the Respondent Company during` an organizational campaign violated 'Section 8(a)(1) and ,(3) of the National Labor Relations Act, as amended, by allegedly promising its employees the reinstitution of a pension program; threaten- ing its employees with both reduced benefits and loss of all benefits if they selected the Union herein; informing them that a scheduled wage increase was being withheld because of their union activities; interrogating employees with respect to their union activities and their willingness to cross a picket line; discontinuing the Company's former practice of allowing employees to purchase; at a discount at company tanks, gasoline for their personal autos; =and discontinuing a Christmas bonus in 1975 which it had given to its employees in 1970, 1971, 1973, and 1974. Respondent denies that any of such acts,"conduct, and violations of Section 8(a)(1) and (3) enumerated above '"to the extent they existed, were in any manner done for the purpose of interfering with the rights of employees protect- ed by the Act." In addition, Respondent denies any promises or threats were made or reprisals taken against its employees for their union activities. The complaint, in addition, alleges that the Charging Party Union, Local 483 of the Teamsters, has represented Respondent Company's production, maintenance, ware- house„ and truckdriver employees since October 31, by virtue of authorization cards signed by a majority of said unit employees which was certified on November 3 by the Idaho Department of Labor -and Industrial Services which conducted a cross-check of employees, union card signa- tures against the Company's payroll records. Since, that time, alleges the complaint, the Respondent Company has repudiated its recognition of, and has refused to bargain with the Union, all in violation of Section 8(aX5) of the Act. Thus, the General Counsel claims that the Company by its refusal to recognize the Union as the exclusive bargain- ing representative of said unit employees, notwithstanding the Idaho Labor Department's cross-check poll which it announced -showed that a majority of the unit employees had signed union authorization cards, thereby committed an unfair labor practice within the meaning 'of Section 8(a)(5). Respondent, however, denies this, contending that it never at any time agreed to be bound by the card check inasmuch as the Union never represented a majority of said employees and, furthermore, it would never recognize the Union without the Board first conducting an election under its auspices. Briefs were filed by the parties on April 19, 1976. Upon the entire record2 in this case, including the briefs, and from observation of the demeanor of the witnesses as they testified, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION INVOLVED Respondent, an Idaho corporation, is engaged in the wholesale distribution of steel and steel products at its plant located at Boise, Idaho. During the "past "12 months Respondent, in the course and conduct of its business operations, sold and shipped steel products in excess of $50,000 from Boise to points outside Idaho. It is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) ofthe Act. Local No. 483, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, is a labor, organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES Section - 8(a)(1) _ The Union initiated an organizational campaign among Respondent's production, maintenance, warehousemen, and truckdriving employees. At a meeting on August 24, Roy Corson, the Union's business agent, obtained the signatures of , five employees on Teamsters authorization cards for the eventual purpose of having the Union represent them in collective-bargaining negotiations with their employer, Idaho Pacific Steel Warehouse Company, Respondent herein. On October 29, the, Union by, Roy Corson, business agent, mailed the following letter to Claude Bailey, vice president/general manager of Respondent: We have set aside the complete days of November 13 and November 14, 1975, to start our negotiations with you on the new contract for Idaho Pacific Steel After meeting - with 'the employees and taking their contract proposals we respectfully submit a copy of these proposals to you. We would suggest the first meeting to be held in our office on November 13, 1975 at 10:00 A.M. Corson telephoned Bailey on October 30 with respect to recognition and negotiations and during this conversation Bailey agreed with Corson's suggestion that they meet with officials of the Idaho Department of Labor on the following day. The following letter was then written, dated October 30, addressed to W. C. Hoop, deputy director of the Idaho Department of Labor, which was signed by Bailey and I All dates herein refer to 1975 unless otherwise indicated 2 Errors in the transcript have been noted and corrected. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Corson and to which were attached the signed union cards of five of its employees.3 The letter reads as follows: It is agreed mutually by Teamsters Union Local #483 and Idaho Pacific Steel Warehouse Company that the Idaho Department of Labor and Industrial Services conduct a cross check of the signed Bargaining Card signatures, against the Company payroll records. We further agree to have this card check done on October 31, 1975 in the offices of Idaho Pacific Steel Warehouse Company located at 5320 Emerald St., Boise, Idaho, at 10:00 A.M. At this meeting on October 31, W. C. Hoop, the deputy director of the Idaho Labor Department, explained to Corson and Bailey, according to the testimony of John Jones, an official of the department, that "the purpose of cross check was to verify whether Teamsters Local 483 had sufficient [employee] signatures to be the sole bargaining agent." The check revealed that a majority of the unit employees had designated the Union as their bargaining agency for the purpose of collective bargaining. Bailey testified that while he and Corson, the union official, were meeting on October 31 at the Idaho State Department of Labor offices to participate in the cross- check, they disagreed as to whether one of the employees should be included in the unit, whereupon Corson threat- ened that, if Bailey did not agree to omit this employee from the bargaining unit, the Union would picket the Boise plant and Respondent's Portland, Oregon, plant, where- upon he acceded to Corson's demand and the cross-check proceeded under the auspices of the Idaho Labor Depart- ment. When the results were announced and the Idaho Labor and Industrial Services issued a certification on November 3, the state officials, testified Bailey: "shoved a piece of paper in front of me indicating they had made the check and I signed it and that was about it." Bailey's denial is not credited that he never intended to recognize or negotiate with the Union as the employees' bargaining agent even though they had a "majority of the signatures.... I intended-we were talking about votes and who had the right of voting privileges and I intended this should be an election." Bailey continued that Corson never informed him that "the results of this card check could replace an election." Moreover, it strains one's credulity to believe Bailey's testimony that the state officials never explained to him that the Company "would be bound to recognize the Union as the bargaining agent if they in fact were shown in the card check to have the majority." On the contrary, incredibly asserted Bailey, all the state officials told him was merely that a majority of the employees "had signed these cards." 4 By letter dated October 29, Corson, the union official, mailed the following letter to Bailey which reads as follows: Teamsters Union Local 483 has been duly Authorized by the majority of your employees, to represent them in negotiations for the purposes of obtaining a Collective Bargaining Agreement on their Wages, Hours and Working conditions in the following Unit: s s t s s Any Discrimination or reprisals directed against any of these employees, will cause this Teamsters Union Local #483 to engage in any or all legal and economic recourse to protest their rights guaranteed them by the Federal Government, Under Section 7 of the National Labor Relations Boards rules and regulations, to Join this Bona Fide Labor Union. We hereby, request that Negotiation on the terms and conditions of a collective Bargaining Agreement Com- mence at the earliest possible date. We suggest that the first meeting be held in the offices of This Local Union, located at 208 North 16th St., Boise, Idaho, on the 4th day of November 1975, at 10:00 A.M. If this time, place or date is of an inconvenience for you, please telephone the under- signed and mutually convenient arrangements will be made. On November 10, Attorney Fields wrote the following letter on behalf of the Respondent Company: This will respond to your letters of October 29, and November 6, 1975, to Mr. Claude Bailey of Idaho Pacific Steel Warehouse Co., requesting negotiations for a collective bargaining agreement. As attorney for Idaho Pacific Steel Warehouse Co. in this matter, I hereby advise you that the employer has a good faith doubt as to whether you in fact, duly represent a majority of its employees. Idaho Pacific Steel Warehouse Co., therefore, cannot recognize you as the bargaining agent of said employees unless and until you are so certified following a secret ballot election conducted by the National Labor Relations Board. To facilitate such an election, we have forward- ed to the N.L.R.B. today an employer petition for election. Lest there be any misunderstanding, I am aware of the so-called "Certificate of Representation for Bar- gaining Agent" issued by the director of the Idaho Department of Labor & Industrial Services. Our posi- tion is (1) that the N.L.R.B., and not the Idaho Department of Labor and Industrial Services, is the agency with jurisdiction to certify bargaining represen- tation for this employer and (2) that the "cross check" upon which said "certification" is purportedly based was of "authorization cards" which, in the good faith belief of the employer, may not reflect the true desires and intentions of the employees. We believe the employees of Idaho Pacific Steel Warehouse Co. are 3 Earl Harrison, who signed a union card on October 24, notified the 4 Assuming arguendo that this was so, nevertheless, an mtelhgent and Union by letter dated November 10 that he was rescinding his authority for knowledgeable individual, who was in charge of the Boise plant, would not the Union to represent him and requested that his card be "withdrawn." He be so naive as not to know the legal incidence of a card check under the left Respondent's employ on February 19, 1976 . circumstances here revealed. IDAHO PACIFIC STEEL WAREHOUSE CO. 329 entitled toexpress themselves in a proper secret ballot election and we trust you-will agree. As mentioned above, -the General Counsel alleges also that Respondent committed various independent violations of Section 8(axl). The first of these alleges that it was coercive of employees' Section 7 rights when.Respondent notified its employees that in the future there would be no more gasoline sales made to them for their personal cars from the company pump which purchases they paid monthly in cash. It is also alleged in the complaint that 'Respondent's rescinding this gas purchase privilege also violated- Section 8(a)(5) by unilaterally changing a condi- tion of employment. Bailey, Respondent's vice president, testified that, 3 years after this employees' gasoline privilege had been instituted, a nationwide energy shortage occurred, resulting in the Company not having sufficient fuel for their own vehicles. Also, he continued, the additional administrative duties involved, including the bookkeeping and collecting from the employees for their gas purchases, became irksome so Respondent notified the employees "the first part of October" that it was discontinuing selling gasoline to them.5 - - - The General Counsel also alleges that Section 8(axl) was violated when. Rulon Evans, a supervisor within the meaning of Section 2(11) of the Act, not only promised employees reinstitution of pension benefits but also threat- ened them -with rescission of such benefits should they select the Union as -their bargaining, representative. Both Evans and also Land, Respondent's warehouse foreman, denied that this ever occurred. Employee Hartzfeld testified that, in July 1975, the Company had promised to institute a pension plan in the future but Evans-told them on October 29 that the proposed -pension plan had been rescinded but, if they wished to pay the premium' themselves, it could be arranged for them to do so by paying the premiums directly to the insurance company. Patterson, another employee, corroborated Hartzfeld and added that Evans told both him and Hartzfeld, however, that "benefits would be dropped if the Union were to come in." Evans denied this. Other 8(a)(1) allegations in the complaint are that various employees were interrogated concerning their union beliefs. Employee Patterson testified "a couple of days after the first of [November]" Evans asked him: - if I realized how much one union would hurt some of the fellow employees to which I replied, "No, I did not realize how much' it would hurt them." I really wasn't that much involved at the time.... He asked me if I really felt the Union would help me to which I felt it -was the best thing to do and he also said, you do know you had- raises on your last paycheck [of October 31, received on November 3 ]. Evans denied he ever said this. 5 Hartzfeld, the General Counsel's witness, estimated he was notified the first week in November that the gasolme ,arrangement was being terminated. It is believed and found upon Hartzfeld's credited testimony that Respon- dent notified its employees after union activities commenced. 6 Lebanon Steel Foundry v. N LR.B., 130 F.2d 404, 407-408 (C.A:D.C., 1942) Hartzfeld testified that in a conversation with Evans, who is admitted to be a supervisor, Evans- asked him in"the early part of November," "what we figured that we would gain by having the Union . . . and I told him that we hadn't had a raise in better than a year and the fact that they took our pension plan away from us, and that ended the conversation." Hartzfeld also testified that Land, the warehouse fore- man, said to him on January 2, 1976: " `Ernie, you wouldn't cross a picket line if it was put up, would you?' and I said, `No, sir. No way!' and he said, `Well,- in that case, I need your keys [to the plant],' so I gave him my keys and after I gave him the keys I asked him what the reason was and he said, `I guess the boss was going down the hard way...: " Bailey, on his direct examination by Respon- dent's counsel, testified that Corson, the union official, threatened him in the "latter part of December" with a strike and picketing, whereupon he requested those •of his employees who had keys to the plant to return them. ,The complaint alleges that a violation of Section 8(a)(3) occurred when Respondent, withheld from its employees a scheduled wage increase in retaliation for their union activities. Beginning in the spring of 1975, some, of the employees requested raises in pay. In September, Bailey consulted with his superiors at the main plant in Portland, Oregon, about,-the employees' requests for a, pay raise. Respondent decided in October.to grant the pay raises to be effective October 31. When the checks arrived from Portland on Friday, October 31, payday, they included a pay raise of 25 cents an hour. These checks, however, were never issued to the employees. Instead, other checks, which did not include the 25-cent hourly increase but their current .wage scale, were paid to the employees on Monday, November 3. Section 8(a)(5) The uncontradicted evidence shows that the Union had been designated by the Respondent's employees in an appropriate bargaining unit as their bargaining agent when the Union requested recognition and bargaining on No- vember 6. Thereupon, by virtue of the provisions of Section 9(a) of the Act, the Union became the exclusive representa- tive of all the employees in the bargaining unit, and Section 8(a)(5) provides that when an employer`refuses to bargain with the representative chosen by his employees he is guilty of an unfair labor practice. Such a showing has been made here by a preponderance of the credited evidence. It is well settled that an employer's duty to bargain is not dependent upon an election and Board certification.6 Thus, a union's representative status may be - established by designation cards, or applications- for membership or employee petitions.7 The Act, it should be emphasized, does not condition an employer's obligation to bargain upon an antecedent certification by the Board, where, as here, a union's majority designation is clearly established 7 See UnitedMme Workers v. Arkansas Oak Flooring Co., 351 U.S. 62, 71- 72 (1956); NLRB. v. Bradford Dyeing Association, 310 US. 318, 338-340 (1940), N.L.R.B. v. Loursville Refining Co., 102F.2d678,680(C.A.6, 1939), cert. denied 308 U.S. 568; NLRB. V. Clinton E. Hobbs Company, 132 F.2d 249 (C.A. 1, 1942), enfg. 41 NLRB 537. 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by authorization cards, so that the employer acts at his peril in refusing to recognize a duly selected bargaining agent .8 By Respondent's failure to accept the fact as to the Union's majority as certified by the Idaho Department of Labor and by engaging in unlawful conduct designed to undermine the Union's support, detailed above, Respondent commit- ted unfair labor practices. Equally clear is the established law that an employer's duty to bargain arises immediately upon receipt of an unequivocal request, such as the circumstances in this case reveal. However, when the Respondent Company stressed its insistence that it would not grant recognition on the basis of the Idaho State Department of Labor's cross-check of the employees' authorization cards,9 the Company betrayed its fundamen- tal opposition to the entire principle of collective bargain- ing by resorting immediately to coercive activities and refractory conduct. By interfering with the rights of its employees and violating the Act immediately following the Union's request for recognition, Respondent itself provided a reliable index for measuring whether it had a good-faith doubt of the Union's claim that it represented a majority of the employees. Moreover, the Respondent offered no evidence casting any doubt on the authenticity of the cards the employees signed which shows bad faith.10 The credible evidence is conclusively to the contrary. While an employer may, of course, refuse to recognize a union when motivated by a good-faith doubt concerning its majority status, it is settled, as stated in Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 741 (C.A.D.C., 1950), cert. denied 341 U.S. 914, enf. 85 NLRB 1263, that when: such refusal is due to a desire to gain time and to take action to dissipate the union's majority, the refusal is no longer justifiable and constitutes a violation of the duty to bargain set forth in section 8(a)(5) of the Act. [Citing cases.] The Act provides for election proceed- ings in order to provide a mechanism whereby an employer acting in good faith may secure a determina- tion of whether or not the union does in fact have a majority and is therefore the appropriate agent with which to bargain. Another purpose is to insure that the employees may freely register their individual choices concerning representation . Certainly it is not one of the purposes of the election provisions to supply an employer with a procedural device by which he may secure the time necessary to defeat efforts toward organization being made by a union." Furthermore, any attempt to evaluate whether Respon- dent insisting upon a Board election, did so in good faith, requires that due consideration be given to Respondent's conduct and activities detailed above and below.12 Accord- ingly, it is found that the Respondent refused to bargain collectively on and after November 3, 1975, with the Union 8 N.LR.B v Piqua Munising Wood Products Co, 109 F 2d 552,556 (C A 6, 1940). 9 An erroneous view of the law, even if held in good faith, is not a defense to a charge of refusal to bargain Old King Cole, Inc v. N LRB., 260 F 2d 530,532 (C.A. 6, 1958). iO See John P Serpa, Inc, 155 NLRB 99 (1965), where the Board said "Where the General Counsel seeks to establish a violation of Section 8(aX5) on the basis of a card showing, he has the burden of proving not only that a majority of employees in the appropriate unit signed cards designating the as the exclusive representative of its employees in an appropriate unit and thereby deprived its employees not only of the rights guaranteed by Section 7 of the Act, but also violated Section 8(a)(5) of the Act. In Linden Lumber Division, Summer & Co. v. N.LRB., 419 U.S. 301 (1974), the Supreme Court held that an employer may lawfully refuse to bargain on the basis of union authorization cards and insist on an election if he refrains from conduct that would tend to preclude a free election. However, in Nation-wide Plastics Co., Inc., 197 NLRB 996 (1972), the Board reaffirmed its holding in Fred Snow, Harold Snow and Tom Snow, d/b/a/ Snow & Sons, 134 NLRB 709 (1961), and in Linden Lumber, supra, the Supreme Court expressly recognized that an employer who agrees to have majority status determined by a means other than a Board election may not thereafter breach its agreement, refuse to bargain, and insist upon an election because of dissatisfaction with the agreed-upon method. Snow & Sons, supra, involved an agreement to a card check conducted by a mutually agreed upon neutral third party for the purpose of determining the authenticity of the employees' signatures. The employer subsequently refused to bargain, asserting that, while it did not question the accuracy or propriety of a card check, it did not consider a card check binding. The Board held that this refusal to bargain violated Section 8(a)(5), reasoning that, after obtaining the results of the card check,the employer could entertain no reasonable doubt as to the union's majority status.13 In affirming the Board's holding the Ninth Circuit Court of Appeals stated: 14 The manner in which an employer receives reliable information of union representation, whether by acci- dent or design . . . is of no consequence. Once he has received such information from a reliable source, insistence upon a Board election can no longer be defended on the ground of a genuine doubt as to majority representation. Nor is it important whether an employer appreciates in advance that a card count may provide information which will undermine his right to insist on a Board election. Had the Snows been told in advance of the legal significance of the signature verification and had they then refused to participate in the signature verifica- tion procedure, they could no longer claim that their insistence on a Board election was in good faith. In the Snow case, the employer had expressly agreed to resolve the issue of the union's representative status by a means other than a Board election. However, in Harding Glass Industries, Inc.,15 where a card check was conducted by a disinterested third party, there was some question as to the parties' agreement. The employer had told the union he union as bargaining representative, but also that the employer in bad faith declined to recognize and bargain with the union." 11 See also Clennoni's, Inc, 154 NLRB 1397, 1401 (1965) iY See NLRB. v. Marion G Denton and Valedia W Denton, d/b/a Marden Mfg. Co., 217 F.2d 567, 570 (C.A. 5, 1954), cert. denied 348 U S 981 31 134 NLRB 709, 710 14 308 F.2d 687, 692 (C.A. 9, 1962). 15 216 NLRB 331(1975) IDAHO PACIFIC STEEL WAREHOUSE CO. 331 would -not respond to the, union's demand for recognition until he consulted with counsel and that he had initiated, the card check merely for the purposes of verification of signatures: Notwithstanding this question as to the "volun- tarism,'" i.e., whether in fact that employer had agreed to let its "knowledge'-of majority status-be established by means other. than -a Board election, a majority' of the Board- held that the employer was bound to recognize the union's majority after participating in `the card check. The employ- er, held the-Board, had sought the card check, and after it occurred the employer had no reasonable basis for doubt- ing the union's majority. -- - With respect to Respondent's defense in the instant proceeding that it did not understand the-implications of a card check when it agreed to the procedure, Harding Glass, supra, would appear to indicate that whether or not the employer - intended to create a binding obligation by assenting,_to or requesting g-a card check the test is not this intent, but whether the employer has a good-faith doubt of -majority status. In the face of an-impartial verification of card authenticity, it would appear that the employer cannot successfully assert a good-faith doubt,, regardless of his intent to be bound by the results of a cross-check of union authorization cards or his purported-lack of understanding as to the implications of his agreements. In Sullivan, Electric Company, 199 NLRB 809, 816 (1972), where an employer conducted a poll of his employees which revealed the union's majority but it' nevertheless-- insisted upon an election; contending that it was unaware of the union's bargaining demand,- the -Board stated, citing N.L.RB. v. 'Regal Aluminum, Inc., 436 F.2d 525 (C.A. 7, 1971): [T]he company-,cannot hide behind its own self-construct- ed wall of obstinance and thereby use its ignorance as a = shield :. _. As- Mr. Justice Clifford early observed: '[I ]t is- well-settled law that a - party= to a transaction, ;where -his' rights -are liable to be injuriously affected by-notice, cannot wilfully shut his eyes, to the means of knowledge which he knows are- ' at: hand, and thereby escape the consequences which would flow from the notice if it had actually been received.... . Thus, in the -instant Case-at bar, -Respondent violated Section 8(a)(5) on 'November 6,, under- the circumstances herein, by refusing -to -bargain on the basis of a- card majority after agreeing to an impartial verification of authenticity. The alleged violation of Section 8(axl) Discussion and Conclusions [T]he question of organization by the employees . . . is the -exclusive business and concern of the employees. It is the mandate of the statute that the employer shall not 18 N L R.B v. William Davies-Co, Inc., 135 F2d 179, 181(C A. 7, 1943). 17 N.L.R.B v Illinois Tool Works,153 F.2d &11,814 (C.A. 7, 1946). 18 N.L R.B. v. The Syracuse Stamping Company, 208 F.2d 77 (C.A. 2, 1953) - 19 N L R.B.-v. Somerset Classics, Inc, and Modern Mfg. Co., Inc., 193 F.2d 613 (C.A. 2, 1952), cert denied sub nom Modern Mfg. Co., v. N.L.RB., 344 intrude himself into the picture. The slightest interfer- ence,: intimidation or, coercion by the employer of the employees in the rights guaranteed to the employees by the statute constitutes an- unfair labor practice= in violation of Section 8(a)(1)=of the Act.16 In determining.whether an, employer's conduct amounts to interference, restraint, or coercion within thee meaning of Section 8(a)(1);, the test--is not the employer's intent-or motive, but whether the conduct is reasonably calculated or tends to interfere with the -free exercise - of the rights guaranteed employees by the Act.17 Threats of discharge for prounion, activity -tend to deny :employees the free exercise of the right of self-organization guaranteed- by -Section 7 of the Act.18 Threats to deny employees wage increases or rescind other benefits they presently enjoy, as Respondent did in this case, ifa union organizing drive is successful, obviously have a similar coercive effect.19 Interrogation or questioning may extract -information which is often used for subsequent reprisals and to induce fear. This - fear will be -felt not only by the worker interrogated but also by all other employees who hear of the -questioning. Especially in the insecure organizational period, the employer- can make a seemingly innocent -question -suggest his displeasure with employees who support the union. Such questions may convey an imagined threat of reprisal and dissuade employees from supporting a union. In -the instant case, the questioning of employees as to what benefits they expected from the Union, or whether they would cross a picket linein the event of a strike, are so linked with other -antiunion conduct -clearly evidencing Respondent's union animus that it is part of a pattern of hostile conduct directed by Respondent '•against union activity. - - An overall perspective of the factual situation of the case at bar reveals that Respondent's conduct, which was motivated by knowledge of its employees' union activities, was such as' restrained, interfered 'with, and coerced employees in the exercise -of their rights for the reasons hereinafter and above-indicated. On -the issue-of whether Respondent violated Section 8(a)(1), consideration has been given also to Respondent's patent union animus, its discriminatory and proscribed conduct and refusals to bargain, as it is not required that each item of Respondent's conduct be considered separately and apart from all others, but consideration must be, given to all such conduct as a whole with a view to drawing inferences reasonably justified by their cumulative probative effect 20 To establish a, violation of Section 8(a)(1);- it need only be shown that under the circumstances existing the employer's conduct may reasonably tend to coerce-or intimidate employees in the exercise of rights protected under the Act 21 Moreover, 'employees Hartzfeld, Patterson, and Johns, whose testimony merits belief, appeared to' be forthright, sincere, and credible witnesses. Furthermore, their versions are consistent with the attendant circumstances in this case. U.S. 816; N:L R.B. v. Franks-Bros. Company, 137 F.2d 989 (C.A 1, 1943) affd. 321 U.S. 702. 20 N.L.R.B. v.'Popeil Brothers, Inc., 216 F 2d 66,68 (C.A. 7, 1954). 21 Local 542, International Union of Operating Engineers, AFL-CIO v. N.L KB., 328 F.2d 850,852 (C.A. 3, 1964), cert. denied 379 U.S. 826, 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, considerable probative value is attached to their testimony as they were employed by Respondent at the time they testified. As such, they depended on their jobs for their livelihood and they undertsood that, after testifying, they would continue in the employment of Respondent. This practical consideration has lead the trier of these facts to place considerable credence on these employees' testimo- ny as it is believed they were impelled to tell the truth regardless of what consequences might eventuate. Based upon the foregoing, it is concluded and found that by the following conduct, which is singly and in combina- tion unfair labor practices for the reasons explicated herein, Respondent violated Section 8(a)(1) of the Act as it interfered with, restrained, and coerced the employees in their freedom to choose to be represented by the Union: (1) When Respondent notified its employees after union activity had commenced that the gasoline purchase privi- lege for their personal cars was rescinded. (2) When Evans, a supervisor, promised employees reinstitution of their pension benefits and also threatened rescission of same should they select the Union as their bargaining representative. (3) When Evans interrogated Patterson and Hartzfeld individually as to whether they realized how much the Union would hurt them and if they really felt the Union would help them. Evans on another occasion asked Hartzfeld what the employees figured that we would gain by having the Union. See N.LKB. v. Armcor Industries, 535 F.2d 239 (C.A. 3, 1976). (4) When Evans asked Hartzfeld whether he would cross a picket line in the event of a strike and the latter replied in the negative. (5) Section 8(a)(3) was violated when Respondent discri- minatorily withheld a scheduled pay increase of 25 cents an hour on October 31, 1975, in retaliation for employees' union activities. All other allegations of the complaint are hereby dis- missed because of lack of proof as well as a failure to prove by a preponderance of the evidence said allegations with respect to Respondent not giving its employees a Christmas bonus and requesting of certain employees the return of keys to company premises which had been given them by Respondent before the inception of organizational activity by the Union. THE REMEDY Having found that Respondent engaged in unfair labor practices as set forth above, it will be recommended that it cease and desist therefrom and take affirmative action, found necessary and designed to effectuate the policies of the Act. Having found that Respondent discriminatorily withheld a wage increase from the unit employees when it rescinded on Friday, October 31, those checks increasing their wages and then issuing to them checks eliminating the wage 22 N L. R B v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); California Lingerie, Inc, 129 NLRB 912 (1961). 23 Republic Steel Corporation v. N LR.B, 311 U.S 7,10 (1940), NLRB v. Lundy Manufacturing Corp., 316 F.2d 921, 925 (C A. 2, 1963). 24 International Broadcasting Corporation, 99 NLRB 130, 133 (1961). 25 Republic Steel Corporation , supra, 311 U S at 10. increase on Monday, November 3, the same day the Idaho Department of Labor's card check revealed that a majority of the employees had selected the Union herein, it will be recommended, therefore, that all such unit employees be made whole by Respondent for any loss of earnings suffered by reason of such discrimination against them. Having found that Respondent interfered with, coerced, and restrained its employees in the exercise of rights guaranteed by Section 7 of the Act, which the basic purpose of the Act was designed to achieve, it shall be recommend- ed that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed them by Section 7 of the Act.22 The remedial purposes of the Act are quite clear. It is aimed, as the Act says, at encouraging the practice and procedure of collective bargaining as a means of resolving labor disputes and of protecting the exercise by workers of full freedom of association, of self-organization, and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representatives.23 It was the duty of Respon- dent to refrain from disturbing the status quo by coercive conduct and to permit the Union to engage in legitimate organizational activity.24 The General Counsel requests that Respondent be ordered to return keys to its premises which it retrieved from certain employees during the Union's organizational campaign. He has cited no cases for such relief nor have I found any authority for issuing such an order. In view of the broad range of Respondent's illegal conduct, it will be recommended that Respondent be required to cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. The remedial purposes of the Act are quite clear. It is aimed, as the Act says (§ 1) at encouraging the practice and procedure of collective bargaining and at protect- ing the exercise by workers of full freedom of associa- tion, of self-organization and of negotiating the terms and conditions of their employment or other mutual aid or protection through their freely chosen representa- tive.25 Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the follow recommended: ORDER 26 Respondent, Idaho Pacific Steel Warehouse Co., Inc., Boise, Idaho, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their membership in, views about, -or activities on behalf of Local No. 483, 26 In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 10248 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. IDAHO PACIFIC STEEL WAREHOUSE CO. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Independent, or any other labor organization. (b) Interrogating employees as to whether they would cross a picket line. (c) Threatening employees with reprisals if they should support, assist, or select the aforesaid Union as their bargaining representative or any other labor organization; nor shall Respondent rescind their employees' gasoline purchase privilege for their personal cars from company tanks. (d) Promising employees reinstitution of their pension benefits if they did not support the Union herein or any other labor organization. (e) Threatening employees with rescission of pension benefits should they select the aforesaid Union or any other labor organization., (f) Denying or rescinding wage increases to any employee because he supports or sympathizes with said Union or any other union. (g) Refusing to recognize and bargain collectively and in good faith with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment with the above-named Union, as the exclusive bargaining representative of its employees in the following appropriate unit: All production employees, maintenance employees, truckdriving employees, and warehouse employees employed at 5320 Emerald Street, Boise, Idaho, exclud- ing technical employees, office clerical employees, professional employees, guards and supervisors as defined in the Act. (h) Discouraging membership in the aforesaid Union or any other union. 27 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 333 (i) Presenting to, and discussing directly with employees, contract proposals concerning terms- and conditions of employment without first presenting such proposals to, or discussing these proposals with the aforesaid Union. (j) In any other manner interfering with the efforts of the aforesaid labor organization to bargain collectively on behalf of the employees or with the employees' Section 7 rights of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of the employees in the above-described unit with. respect to rates of pay, hours of employment, and other terms and conditions of employment, embodying in a signed agreement any understanding reached. (b) Preserve and, upon request, make available to the Board or, its agents, for examination and copying, all payroll records, timecards, personnel records and reports, and all other records necessary to analyze the amount of wages due of those employees whose wage increases were rescinded on November 3, 1975, by Respondent. (c) Post at its premises in Boise, Idaho, copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps,shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."