Curtin Matheson Scientific, Inc.

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Curtin Matheson Scientific, Inc. and Warehouse, Industrial and Service Employees Union, Local No. 752. Cases 8-CA-9400 and 8-RC-9949 March 22, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 26, 1976, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and supporting 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 of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 1. We are in agreement with the Administrative Law Judge that Respondent's unfair labor practices, committed in response to and in an effort to frustrate its employees' efforts to select an exclusive bargaining representative, warrant and require a finding that it violated Section 8(a)(5) and (1) when it refused to recognize and bargain with the Union, upon the latter's request, as the exclusive representative of its employees. Further, for the reasons expressed by the Administrative Law Judge, we agree that, irrespective of whether such unfair labor practices be viewed as falling within category one or two as described in the Supreme Court's decision in N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, 614 (1969), a bargaining order is a necessary part of our remedy herein. 2. We find merit in the exceptions of the General Counsel to the Administrative Law Judge's failure to find, through apparent inadvertence, that Respon- dent violated Section 8(aX5) and (1) of the Act by unilaterally instituting a bonus program for its employees on or about August 15, 1975. Respondent admitted this allegation of the complaint in its answer. As the Administrative Law Judge properly imposed the bargaining obligation as of July 8, 1975, it follows that Respondent's subsequent refusal to bargain with the Union before beginning this pro- gram is a violation of the Act.2 228 NLRB No. 116 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Curtin Matheson Scientific, Inc., Cuyahoga Heights, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Insert the following as paragraph 1(i), and renumber present paragraph 1(i) as 1(j): "(i) Unilaterally, and without prior notice to, or negotiation with, the Union, instituting a bonus program for employees in the above-mentioned unit, provided, however, that nothing herein shall be construed as requiring Respondent to vary or aban- don any economic benefit or any term or condition of employment which it has heretofore established." 2. Substitute the attached notice for that of the Administrative Law Judge. 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 Produce; Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the record and find no basis for reversing his findings. 2 Member Jenkins would date the bargaining obligation from the time necessary to correct all violations of the statute. In this case, a date of either June 4 or July 8 will remedy all violations and he therefore is willing to join the Chairman in dating the obligation from July 8, though in other circumstances he would agree with Member Fanning that the appropriate date is June 4. Member Fanning finds that Respondent violated Sec . 8(aX5) on June 4, 1975, when it refused the Union's demand for recognition . The Union's demand was supported by a majority of the employees in the unit. Respondent, by thereafter engaging in the unfair labor practices described and found, forfeited whatever rights it might otherwise have had to have that majority status proven by other means. Hence, in refusing the request for recognition, Respondent refused to do that which the Act requires ; namely, to recognize and bargain upon request with the representative selected by a majority ofits employees. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees with loss of profit-sharing or pension rights, or with lesser benefits generally, if Warehouse, Industrial and Service Employees Union, Local No. 752 (called the Union) represents the employees in the unit described hereinafter. WE WILL NOT threaten our employees that, if the Union represents them, they must strike if they will not accept our offer of lesser benefits and terms of employment, and if they strike they will CURTIN MATHESON SCIENTIFIC, INC. 997 lose their jobs or the Cleveland Branch will be closed altogether. WE WILL NOT coercively interrogate our em- ployees concerning their union sympathies. WE WILL NOT create the impression among our employees of the futility of bringing the Union in, and, WE WILL NOT threaten them with harsher dealing and reprisal if the Union is brought in. WE WILL NOT issue discriminatory disciplinary warnings to employees because of their known or suspected union activities or to discourage their support of the Union. WE WILL NOT discriminatorily require a doc- tor's certificate for 1-day absences for illness of employees because of their known or suspected union activities or to discourage employee support of the Union. WE WILL NOT discourage employees from support of or membership in the Union by any other discrimination affecting their tenure and conditions of employment. WE WILL NOT, unilaterally, and without notice to, or negotiation with, the Union, institute a bonus program for the employees in the unit described hereinafter, provided, however, that nothing herein shall be construed as requiring us to vary or abandon any economic benefit or any term or condition of employment which has heretofore been established. WE WILL NOT refuse, upon request, to bargain with the Union in good faith as the collective- bargaining representative of the employees in the unit described below: All warehouse employees at our Cleveland, Ohio, branch, comprising all warehouse employees and shipping and receiving em- ployees, excluding all office clerical employ- ees, guards, and supervisors, as defined in the National Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed under Section 7 of the National Labor Relations Act. WE WILL, upon request, as of July 8, 1975, recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the unit described hereinabove and, if an agreement is reached, embody it in a written contract. Because we discriminatorily issued written disciplinary warnings to employees Sandra Crews and Lloyd McHam in August 1975, and about the same time discriminatorily required of each of them a doctor's certificate for absence for illness of 1 day, WE WILL expunge from our records any reference to these written disciplinary warnings issued to employees Crews and McHam and WE WILL rescind the discriminatory requirement for submission of a doctor's certificate for absence for illness of 1 day imposed upon employees Crews and McHam. CURTIN MATHESON SCIENTIFIC, INC. DECISION HERZEL H. E. PLAman, Administrative Law Judge: The questions presented are whether Respondent, a distributor of medical instruments and supplies with a warehouse at Cleveland (among many in other locations), engaged in unfair labor practices, both before and after a representa- tion election held July 25, 1975, for its Cleveland warehouse employees; whether Respondent's preelection conduct interfered with the fairness of the election, which the Charging Party (Union) lost; and whether Respondent's preelection and postelection conduct was of such nature as to make the holding of a fair election unlikely and the issuance of a remedial bargaining order necessary. The complaint, issued October 10, 1975,1 alleged that, prior to the election of July 25, 1975, Respondent threat- ened to close the Cleveland warehouse and to deprive the employees of participation in Respondent's profit-sharing pension program and other employee benefits if they supported the Union, engaged in coercive interrogation of an employee concerning her support of the Union, and refused to bargain with the Union, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act); and that, immediately after the election, Respondent discriminatorily issued disciplinary warnings to, and discri- minatorily required doctor's certificates for 1 day's absence for illness of, two employees believed to be supporters of the Union to discourage employee support of the Union, in violation of Section 8(a)(3) and (1) of the Act. The Union objections in Case 8-RC-9949 to the conduct of the election were the same as the Section 8(a)(1) allegations of the unfair labor practice complaint, and by Board order of November 2, 1975, were consolidated for hearing with the unfair labor practice case. Respondent has denied any preelection or postelection violations of the Act. The cases were heard in Cleveland, Ohio, on December 10 and 11, 1975, and January 6, 1976. General Counsel and Respondent have filed briefs. Upon the entire record of the case,2 including my observation of the witnesses and consideration of the briefs, I make the following: i On a charge filed by the Union, August 21, 1975, and amended October 3,1975 2 The corrections of the transcript of the testimony , requested by General Counsel by motion of January 26, 1976, and by Respondent by motion of January 28, and first supplemental motion of February 4, 1976, are allowed. Respondent's objections, in its answering motion of January 28, to several of General Counsel's proposed corrections, were without substance, and are overruled. 998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. JURISDICTION Respondent is a Delaware corporation with its principal place of business located in Houston, Texas, and branch offices and warehouses in 22 locations throughout the United States. Respondent is engaged in the sale of medical and scientific instruments and supplies produced by others, and the warehouse and office located in Cuyahoga Heights, Ohio (variously referred to as the Cleveland warehouse or branch or plant), is I of 22 regional facilities maintained by Respondent for the storage and shipment of its goods. Annually, Respondent ships goods valued in excess of $50,000 from the Cleveland warehouse to points located outside Ohio. As the parties admit, Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. As the parties also admit, the Union is a labor organiza- tion within the meaning of Section 2(5) of the Act. Il. THE UNFAIR LABOR PRACTICES A. Respondent's Business Operations Respondent-Curtin Matheson-is a wholly owned subsidiary of Coulter Electronics (Coulter), constituting the merger of two companies, acquired by Coulter in January 1974. Coulter is a manufacturer of laboratory instruments and has its headquarters in Florida. Respondent is a distributor of medical and scientific instruments and supplies, and has its headquarters in Houston, Texas. Respondent has 22 branch offices and warehouses located regionally throughout the United States. The Cleveland branch manager is James Alampi who was a Coulter employee who moved into the branch manager's job when Coulter acquired Respondent. According to Branch Manager Alampi, the Cleveland branch had, in July 1975, about 29 or 30 employees of whom 7 or 83 were warehouse employees and the remain- der office, sales, and service personnel. In addition there were some Coulter people in the branch. Alampi said he was supplied information by Coulter as well as by Curtin Matheson. Alampi testified that as Cleveland branch manager he was and is in overall charge of the branch, including the sales, office, service, and warehouse personnel. He has three assistants, an operations manager, a sales manager, and a service manager. The operations manager is Irwin (Bud) Reese, who came (from the Pittsburgh branch where he was a packer) to the Cleveland branch in December 1973 as warehouse foreman or supervisor, and after several months became operations manager. The full duties of the operations manager were not described, but it was clear that, among them, the receiving, storing, and shipping of merchandise at the warehouse was under his jurisdiction. However, he did not 3 The parties stipulated that the unit of warehouse employees in the period June 1-7, 1975, when the Union requested and Respondent refused recognition, was 7 employees . At the election of July 25, 1975, there were 9 eligible voters and 9 unchallenged ballots cast, according to the Regional Director's report of October 15, 1975 spend his time in the warehouse,4 which was immediately and directly in the charge of a warehouse supervisor, responsible to the operations manager. The warehouse supervisor who succeeded Reese in March or April 1974, when he became operations manager, was Elliott Davis, who remained for a year until his employment terminated sometime in March 1975. Davis was succeeded as warehouse supervisor, sometime in June 1975, by an employee in the warehouse, Gwen Molton. Branch Manager Alampi and Operations Manager Reese were admitted supervisors within the meaning of the Act. While the issue was not directly raised regarding former Warehouse Supervisor Elliott Davis, if a finding were necessary, there was enough indicia in the testimony to demonstrate that he too was a statutory supervisor, such as his authority to assign and reassign warehouse employees to various duties, and his authority enjoyed and exercised to institute policies in the warehouse, such as a training program and an absentee control program. In the case of Davis' successor, Gwen Molton, the parties stipulated that she was a member of the bargaining unit (as of June 1-7, 1975, see fn. 3, supra), and she voted in the election of July 25, 1975. Nonetheless, though technically not a supervisor within the meaning of the Act, it was clear from the testimony that after her appointment as warehouse supervi- sor, the branch management and employees alike regarded her as in charge of the warehouse and a spokesman for management. Betts Baking Co. v. N.L.RB., 380 F.2d 199, 202 (C.A. 10, 1967); N.L.RB. v. Solo Cup Company, 237 F.2d 521, 524 (C.A. 8, 1956). The warehouse employees did the physical receiving, storing, and packaging for shipping of merchandise. Ship- ping was usually by truck carriers, such as United Parcel Service. In the first week of June 1975, the unit of warehouse employees comprised six warehousemen or warehousepersons-Shirley V. Bartunek (nee Zarara), Sandra Crews, Kyle Depoy, Frank Iran, Lloyd McHam, and Gwendolyn (Gwen) Molton - plus a seventh employ- ee, clerk typist Dorothy Gregorowicz. Packaging for shipping was done, working from invoices or shipping documents prepared by the office employees, usually by two of the warehouse employees working as pickers, pulling the items from stock, and two of the warehouse employees working as packers putting the items in cartons, sealing each carton with gummed tape and affixing a gummed label with the name and address of the consignee and a gummed envelope containing a copy of the invoice or shipping document. Occasionally there was no need for a warehouse employee to pack the order but simply to use the unbroken carton in which the manufac- turer sent the merchandise to Respondent. In such case affixing the address label and shipping document envelope were the only steps needed. In charge of labor relations for Respondent, headquar- tered at Houston, was Larry Gobert, director of personnel and labor relations. According to Branch Manager Alampi, as soon as it appeared that union organizing was under 4 This was true Reese said, even in the period April, May, and early June 1975 when the post of warehouse supervisor was vacant. CURTIN MATHESON SCIENTIFIC, INC. way, Gobert was alerted and he in turn dictated whatever the branch supervisors were to say or do in relation to the Union, and also directed that any personnel actions be submitted to him before their execution. B. The Union Organization According to Personnel Director Gobert only 5 of Respondent's 22 warehouses are union organized. Cleve- land was not among them. In May 1975, employee Sandra Crews discussed, with a representative of the Union, organizing the Cleveland warehouse employees. She signed a union authorization card on May 22, and distributed cards to her fellow employees. Thereafter, the employees met at the union hall. Employees McHam, Zarara (married name Bartunek), and Iran signed authorization cards on May 29. Two days earlier on May 27, employee Molton signed an authoriza- tion card for Union Business Agent Freeman. On June 2, 1975, Union Agent Freeman called personally on Branch Manager Alampi, requesting recognition of the Union as bargaining representative of the unit of ware- house employees. Alampi said he could do nothing, and the Union followed up with a written demand for recognition and bargaining, also on June 2, received by Respondent June 3. Respondent replied June 4, refusing recognition and suggesting an election. The Union had filed a petition for an election on June 2. On June 30, union and employer representatives met at the Cleveland Board offices, and executed an agreement for an election to be held July 25. Employee Crews accompanied the union representative to the meeting. C. Respondent's Countermeasures Respondent's Personnel Director Govert came from Houston to the Cleveland branch and ran four meetings with the employees, opposing unionization of the ware- house. The first meeting was at the end of June, and the other three were held in the 8 days immediately prior to the election of July 25, on July 17, 23, and 24. There was a fifth employee meeting conducted by Branch Manager Alampi on July 8. Employees Kyle (Mike) Depoy and Sandra Crews testified concerning matters told the employees at these meetings by Director Gobert and Manager Alampi. Em- ployee Depoy testified that the new profit-sharing pension plan recently inaugurated for all employees was discussed and the employees were told by Gobert and Alampi that if the Union came into the warehouse the union people would not be eligible for, and would not be in, the program; the Union could promise benefits, but the company was the only one that could deliver any pay increases or benefits; if the Union got in, it would have to negotiate for pay and other terms and benefits, and ask for and negotiate for a profit-sharing pension plan. Gobert further said, according to Depoy, if the Union got in, it would have to accept what the company offered or the Union would have to take the employees on strike, and the company could replace the employees or could close the offices and warehouse. Employee Depoy stated that Gobert amplified the discus- sion of company alternatives to say that if the Union struck 999 Respondent could hire permanent replacements for the striking employees or get work done with supervisory personnel, or could close the branch altogether, or could accede to the union demands. Regarding closing the branch, Gobert added, according to Depoy, that he would try to keep from closing down the place completely, if possible. Employee Crews testified that Director Gobert and Manager Alampi said, if the Union came in, the warehouse employees could not participate in the profit-sharing pension plan, the Union would have to negotiate to get such a plan. According to Crews, Gobert further said, if the Union came in it had two alternatives and the company had three. If the Union got in the Union could accept what the company offered or the Union could take the employ- ees on strike. The company alternatives were to accept what the Union proposed, or permanently replace the employees if they went on strike, or shut the branch down. Employee Crews recalled that Gobert said if the employees went on strike they could be called economic strikers and could be permanently replaced, but she did not recall his saying the company would try to keep from closing the plant down. In connection with the profit-sharing pension plan, it should be noted that on July 3, 1975, all of Respondent's employees, including all Cleveland branch employees, were notified by letter from the company president (G.C. Exh. 6), that the plan, incorporating benefits heretofore enjoyed by Coulter employees, was in effect for Curtin Matheson employees retroactive to the date when Coulter (the parent company) acquired the two original component companies now comprising Respondent (the subsidiary company, Curtin Matheson), or, if the employee was hired thereafter, retroactive to the date of hire. The plan vested a valuable right in each employee, to acquire a specific monthly income after retirement based on earnings before retire- ment, plus an increment based on the employee's share in company profits, the benefits to become irrevocable after 10 years of continuous service including past years of service with the original companies. All contributions to the plan are made by the company, tax-free to the employee. In his testimony (and Board affidavit, G.C. Exh. 15), Personnel Director Gobert confirmed that the profit-shar- ing pension plan was in effect for the Cleveland branch employees at the time of his July meetings with them. Personnel Director Gobert testified that he took control over what was to be said and done by supervision, including any disciplinary actions, concerning the Union at the Cleveland branch. This was the fifth union organizing campaign (at Respondent's several branches) in which he had participated for Respondent, said Gobert, and he claimed he had been successful in defeating the unions in the four previous campaigns. At the first meeting he conducted of the Cleveland branch employees, Director Gobert said he told everyone his "box score" of four wins and no losses in defeating the unions in previous elections held at other branches. Personnel Director Gobert and Branch Manager Alampi agreed that Gobert specifically instructed Alampi on what he was to say to the employees on the matter of the Union at the Cleveland branch meeting of July 8, when Alampi undertook to explain the newly inaugurated profit-sharing 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pension plan (G.C. Exh. 6, supra) for Respondent's employ- ees. Alampi testified he told the employees that union members would not automatically be included in the plan or excluded from it, but that the matter would have to be the subject of negotiation between the company and the union bargaining unit. Personnel Director Gobert testified that he was not at the meeting Manager Alampi conducted on July 8, and that at the employee meetings that he, Gobert, conducted he said nothing on the profit-sharing pension plan. Gobert's affidavit to the Board (G.C. Exh. 15), given in September 1975 shortly after the July meetings and 3 months before he testified, contradicted this testimony, and I do not credit his claim that he was silent on the profit-sharing pension matter. According to his affidavit, Gobert talked to the Cleveland employees on the subject of the profit-sharing pension plan at the July 17 meeting, and he told them (as had Alampi, supra) that the employees would not automati- cally get the profit sharing or automatically not get it if the Union came in, that it would depend on negotiations between the employer and the Union; and he made reference to a Midwestern Instruments decision of the Board and gave each employee a copy of an excerpt of a sentence from the decision (see G.C. Exh. 13). The affidavit further stated that the profit-sharing plan was already in effect at the Cuyahoga Heights (Cleveland) facility, a fact Gobert confirmed in his testimony .5 In substance, if not exact words, Gobert reiterated for the employees what Manager Alampi had previously told them would happen to their profit-sharing pension rights with the advent of the Union. Personnel Director Gobert testified that he distributed and read the pamphlet (G.C. Exh. 13) to the Cleveland employeese in telling them that there was nothing automat- ic about their getting better benefits if they went union, that they could end up with less benefits, and it was not illegal if they got less benefits; that bringing in the Union didn't guarantee better benefits, they could be better or less or the same depending on negotiations. Director Gobert claimed he was asked in the first employees' meeting by (warehouse supervisor) Gwen Molton if the company could close and move the ware- house out of town to avoid dealing with the Union, and that he replied, it didn't make sense economically and would be illegal. Director Gobert said he discussed with the employ- ees the matter of a strike by the Union and testified that he said the company had three choices ; to accede to the union demands, to bring in supervisors and keep work going, or to permanently replace the strikers as economic strikers. He claimed he did not say the company could also close down the Cleveland branch but that he did say, we would try to 5 The Gobert affidavit corroborates the testimony of employees Depoy and Crews that both Director Gobert and Manager Alampi spoke to the employees on the effect of unionization on their profit-sharing pension rights, and spoke in a similar vein. 6 The pamphlet reads. "Regardless of what the Union says - this is the law, 'There is, of course, no obligation on the part of an employer to contract to continue all existing benefits, nor is it an unfair labor practice to offer reduced benefits . . .'(Midwestern Instruments, Inc.), 133 NLRB 1132." r 1 do not regard the statements of Managers Alampi and Reese and management spokesman Molton, that Gobert did not discuss closing the branch as an option, as altering the situation; indeed they were silent on whether Gobert said that the company would try to keep the branch open, as Gobert himself had testified . Moreover there were problems with their keep it open - which suggests, as employee Depoy testified, that Gobert preceded this statement with the assertion that the company had the option to close down the branch. In any event, in view of Gobert's demonstrated unreliability as a witness, supra, I regard the description of employees Depoy and Crews as the more reliable account of what the employees were told.? Following the July 17 meeting, employee Crews asked Personnel Director Gobert for an opportunity to talk to him. She said at the hearing (in response to Respondent counsel's inquiry) that she asked for the opportunity because no one had asked Gobert questions at the employees' meeting, though he had asked if there were any. In Gobert's description of the July 17 meeting, he con- firmed that there were no questions asked of him. Gobert met with employee Crews the following day in the branch lunchroom.8 At this meeting of the two of them, employee Crews asked Gobert, what he had against the Union, and, according to Crews, Gobert answered it was personal. He then asked her, said Crews, why she was for the Union. She replied, because of the need of a pay raise and because seniority on the job meant nothing. According to Crews, Gobert again discussed the two union and three company alternatives, as he had in the employees' meeting, that the Union on its part could accept what the company offered or take the employees on strike , and if struck, that the company on its part could go along with the union demands, or permanently replace the strikers, or close the plant down. Crews asked, was it that easy to close the branch down, and, according to Crews, Gobert replied, yes, that he had kept the Union out of other branches and he was planning to keep it out of this one.9 The matter of closing the branch rather than accept a union had been broached before by management personnel in private conversations. Former Warehouse Supervisor Davis testified that during his tenure, at a time in August or September 1974 when there was no union organizing in progress, in a general discussion of company policy with Branch Manager Alampi and Operations Manager Reese, they told him that if Coulter (the parent company) or Respondent thought a union would come into the Cleve- land branch, the branch would be shut down and relocated, and all three of them, Alampi, Reese, and Davis, would be out of jobs because they had not controlled the situation. Alampi and Reese denied discussing this matter, but because of problems with their credibility discussed infra, I do not credit these denials. credibility as discussed in sec . II, E, infra, concerning postelection conduct. However, all three, plus employee Bartunek who could remember only discussion by Gobert of one option, were clear, as was everyone else, that Gobert told the employees if the Union called them out on strike they could be permanently replaced. a Respondent suggested that in asking for the meeting employee Crews was seeking to trap Personnel Director Gobert into committing an unfair labor practice. The suggestion is without foundation. By his own testimony, Gobert was quite alert to avoidance of any trap. B Director Gobert denied that his meeting with Crews encompassed the discussion described by her, but I do not credit his denials for the reason already given. CURTIN MATHESON SCIENTIFIC, INC. 1001 D. The Election The Board-conducted election was held on July 25, 1975. At the election employee Sandra Crews served as observer for the Union. Though there were seven employees in the bargaining unit in the first week of June, when the Union requested recognition of Respondent, at the election nine eligible voters cast nine unchallenged ballots. The Union lost by a five to four vote. The Union filed objections, some of which the Regional Director found required hearing, report of October 15, 1975; and the Board ordered consolidation of those objections for hearing with the instant unfair labor practice case, order of November 12, 1975. The residual objections are the same as the 8(a)(1) preelection allegations of the complaint. E. Respondent's Postelection Conduct A few days after the election of July 25, on August 1, 1975, Respondent issued written disciplinary warning notices to employee Sandra Crews for alleged shipping mistakes, and to employee Lloyd McHam for alleged shortcomings and mistakes, and a second such notice to Crews on August 15 for an alleged mistake. Additionally, on August 8, 1975, Respondent imposed on McHam a requirement to submit a doctor's certificate for an absence of I day, and similarly on August 14, required Crews to submit a doctor's certificate for 1-day absence. It was stipulated that Respondent had not previously imposed written warnings or other more serious disciplin- ary actions upon unit employees because of errors or mistakes in performance of job duties; and the evidence (reviewed herein) established that Respondent had no rule requiring production of a doctor's certificate for 1-day sick absence, prior to imposing the requirement on employees McHam and Crews. General Counsel contends that the five postelection actions by Respondent against employees Crews and McHam were discriminatory, and in the nature of pretext, because of the known or suspected union activities of the two employees, to discourage further union activity or support. 1. The claimed 1-day sick rule Branch Manager Alampi claimed that, no later than the beginning of 1975, Warehouse Supervisor Elliott Davis imposed a requirement (unwritten) that warehouse employ- ees must submit a doctor's certificate or slip for any absence for alleged sickness of even 1 day. He also asserted that this has been Respondent's policy uniformly enforced since then, and that he was not aware of any occasions when warehouse employees have not submitted a doctor's slip for sick absence of I day. Operations Manager Reese claimed that the rule requir- ing warehouse employees to submit a doctor's slip for sick absence of even 1 day was imposed by Warehouse Supervisor Davis in the third quarter of 1974 and-that this was Respondent's policy since then. Contradicting himself, he further testified that about August 8, 1975, when McHam called in sick he consulted Personnel Director Gobert about imposing a 1-day rule for submission of doctor's slips, because he was operating under the require- ment to get Gobert's permission for changes in personnel rules, and with Gobert's approval, decided to institute a 1- day rule. Reese said he then telephoned employee McHam and told him he had to bring in a doctor's certificate (which McHam testified was a new requirement as far as he knew). On August 14, Reese told employee Crews, who called in sick, that she had to produce a doctor's certificate, and it was not until then that he, Reese, told Warehouse Supervi- sor Molton to talk to the employees and tell them there was a 1-day rule for doctor's slips. Reese added that he didn't know whether Molton had so notified all of the employ- ees.10 Both employees McHam and Crews brought in doctors' certificates, though Crews protested to Reese this was a novel requirement. Former Warehouse Supervisor Elliott Davis testified that he never promulgated a rule requiring, and never required, a doctor's certificate or slip for an illness absence of 1 day, and that there was no such rule in effect when he became warehouse supervisor in early 1974 or at any time during his incumbency (which ended in March 1975). He further testified that, in November 1974, he held a meeting of the warehouse employees and announced that henceforth if any employee was off for 3 consecutive days or more for alleged illness the employee would have to produce a doctor's certificate to support the claim. Davis testified that he notified Operations Manager Reese after the meeting that he had imposed this 3-or-more-days' rule. The only related rule that he inherited when he became supervisor, said Davis, was that an absent employee should telephone in the fact of his absence. Supervisor Davis went through the sheaf of doctors' certificates that Respondent produced from its Cleveland files, and demonstrated, without contradiction, that they concerned absences of employees absent for 3 days or more.11 I find that Alampi, Reese, and Molton were less than truthful in their pretense' that Respondent had a rule requiring a doctor's certificate or slip of an employee for I day's illness, allegedly promulgated by former Warehouse Supervisor Davis and allegedly in effect at the Cleveland warehouse in 1975 prior to requiring such certificates from employees McHam and Crews in August 1975. There was no such prior rule and, if Respondent had such a rule at the Cleveland warehouse, it came after the doctors' certificates were required individually of employees McHam and Crews in August 1975. 10 Molton testified that her predecessor Warehouse Supervisor Davis had that she mentioned to warehouse employees that they were to bring in imposed a 1-day rule, and that it was in effect prior to the July 25, 1975, doctor's certificates for illness of 1 day or more. election ; but that during her incumbency as warehouse supervisor (which 11 One certificate, for former employee Dozier, involved an employee began sometime in June 1975) it was not until August 1975 after employees fired for not telling the truth about his absence, but accepted nevertheless, McHam and Crews had been told by Reese to bung in doctor's certificates said Davis, to pay Dozier off in terminating him. 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The disciplinary warnings Operations Manager Reese gave employee Crews a disciplinary warning notice on August 1, 1975, for three alleged shipping errors in July (Resp . Exh. 3, more fully documented in G.C. Exh. 14). Although the notice purports to attribute a "rash" of errors to Crews, Reese conceded that it was not a matter of numbers for Crews (or that the numbers in July were unusual for the warehouse compared to other months), but that the nature of the errors caused him to issue the disciplinary warning notice, a measure not hitherto employed by Respondent in dealing with employee work errors. On July 8, in a shipment to Grant Hospital where the order called for 36 bottles of a product, the hospital claimed it received only 2 bottles and was 34 bottles short. Reese became aware of the alleged shortage on July 10 but did not call it to the attention of Crews, whose initials appeared on the shipping bill as the packer (although Reese claimed he called the matter to the attention of Warehouse Supervisor Molton). On the make- up order of July 29, calling for 34 bottles, the hospital claimed to have received only 32 bottles, still short 2 bottles. Crews' initials were on the shipping bill as the packer. Again, Reese did not call the matter to Crews' attention. On July 30, an order, which called for sending the items to the "hold" bin of the warehouse, rather than immediately shipping to the customer, was sent to the customer. Crews' initials were on the shipping bill. Again, Reese did not call the matter to Crews' attention. Instead, said Operations Manager Reese, he drew up the disciplinary warning notice, showed it to Warehouse Supervisor Molton, then called in employee Crews and gave her the written warning. Reese said the purpose of the disciplinary warning was to correct the problem, and he was satisfied that the problem had been solved by a definite improvement. Notwithstanding his interest in correcting the problem, Reese admitted that he made no effort to ascertain, or discuss with, or warn, the picker or pickers on the two Grant Hospital shipping bills, who were initially responsible for providing the packer with the correct amount and kind of materials and charged with the duty of having a correction in billing made before it reached the packer if there was a shortage. It turned out that the picker or pickers had not initialled the shipping bills, as required, and no effort was made by Reese to correct this shortcom- ing. As Reese testified, only two persons, employee Bartu- nek and Warehouse Supervisor Molton, were doing the picking at that time. On August 15, 1975, Operations Manager Reese issued a second disciplinary warning notice to employee Crews (Resp. Exh. 4), allegedly for turning a package over to United Parcel Service for delivery without a shipping label and the packing slip affixed to the package. This kind of error, said Reese, was a new experience for him;12 and Crews had never been charged with such an error before. Nevertheless without discussion or warning beforehand, or showing the package to Crews, Reese issued the disciplin- ary notice to Crews, whom he determined to be responsible. 12 A rather strange claim, since he had issued a disciplinary warning to employee McHam on August I (Resp. Exh. 2, discussed infra) allegedly for, among other things, failing to affix labels to packages. 13 Former Warehouse Supervisor Davis testified that he had initiated a She protested being charged with the fault on the ground that the label and packing slip, which were part of the shipping bill she received for packing, routinely to be torn off and affixed to the package by the packer, were torn off the bill and were not on her desk, and had to have been affixed when the package left her. Crews refused to sign the disciplinary notice. Reese testified that a similar error has not happened since then. On August 1, 1975, the same day employee Crews received her first disciplinary warning, Manager Reese gave employee McHam a written disciplinary warning (Resp. Exh. 1, and see Resp. Exh. 2 for backup documents) based, said Reese, on reports to him from Warehouse Supervisor Molton. From the attachments to Respondent's Exhibit 2, McHam's shortcomings appear to have manifested them- selves in the period July 18 to August 1, 1975, and, according to Reese, there was no repetition thereafter. McHam testified that he was told by Reese that if any of the things he was called in for happened again he would be fired. McHam quit his job 3 weeks later, on August 22, 1975. According to Warehouse Supervisor Molton employee McHam was charged with failing to place address labels on packages for shipping, that he did this three times, and the shipments were all returned in less than I week. On being confronted with her memoranda, she admitted there were two returns, one on July 18 and one on July 31, and if there was a third instance it had to be prior to July 18 and she did not write it up. McHam testified that when he worked in the receiving department, prior to his working as a packer, it was not uncommon to receive back from the carriers packages without labels, and he was not aware of repri- mands to employees for such (as was the established fact); and that as a packer no one spoke to or warned him on the subject until the written reprimand of August 1. According to Warehouse Supervisor Molton, employee McHam was charged with leaving his work station 10 minutes before his morning breaktime on August 1, 1975 (see Resp. Exh. 2), without letting her know his wherea- bouts, she added orally. McHam testified that on that occasion he had gone to help Chris Mayer in the receiving department and that he did so under the practice estab- lished by former Warehouse Supervisor Davis, and not revoked, of helping elsewhere when finished with a job without requesting permission.13 Employee McHam testi- fied that he told this to Operations Manager Reese when he was handed the reprimand that same day, and Reese told him that in the future he was to notify his supervisor whenever he left his station to help another. Reese claimed that this was a policy in effect since the time Elliott Davis was warehouse supervisor, but again, as in the case of the alleged 1-day sick rule, Reese was authoritatively contra- dicted by the author of the rule on what the actual rule was, see footnote 13, supra. On redirect testimony, Warehouse Supervisor Molton claimed that employee McHam had gone out of the building to the lunch truck. Employee McHam admitted cross-training program to reduce idle time , and had instructed the warehouse employees that whenever an employee finished a job he was to go to another area to help out without applying to him for permission. CURTIN MATHESON SCIENTIFIC, INC. there were times (but not on August 1) when he as well as others in the warehouse, including Molton, would go out of the building to the street at or about morning breaktime to catch the lunch or break truck that came by and stayed for only a few minutes each morning. No one stopped to ask permission, he said. As employee Crews noted, if the employees didn't catch the truck they had no food or drink for their breaktime. McHam testified that on occasion (warehouse supervisor) Molton got to the truck before he did. Former Warehouse Supervisor Davis testified, without contradiction, that the matter of employees running to catch the lunch truck was a general habit of the employees that existed throughout his incumbency, that there were excesses at times, that Operations Manager Reese called these to his attention noting that (then employee) Molton was a chief offender, and that he, Davis, verbally repri- manded (employees) Molton and Zarara for taking exces- sive time breaks. Molton conceded that since she became warehouse supervisor other employees have left their stations (on nonbreaktime) without notifying her, but McHam was the only employee she wrote up for doing so. Warehouse Supervisor Molton provided no other testi- mony to support the notations of charges in the disciplinary warning to employee McHam of August 1 (such as undependable, inaccurate, loafing, or loss of business) and there was nothing but her reports, as Operations Manager Reese admitted, to sustain the reprimand. F. Section 8(a)(1) and (3) Findings 1. Preelection Respondent conducted a campaign designed to convince the Cleveland warehouse employees that their selection of the Union as their bargaining agent would be futile and would result in reduced benefits and loss of jobs. Moreover, though purporting to state the interaction of employer, employees, and union in terms of legal rights, Respondent did so only partially and not correctly. In my view, Respondent overstepped the bounds of lawful persuasion. Respondent's telling the warehouse employees that if they brought the Union in they would not be eligible for (or, even as Respondent claimed it was said, automatically included in) the newly established and existing profit- sharing pension plan was a clear threat that by voting the Union in the employees would deprive themselves of an existing, valuable benefit. The threat of deprivation was not saved by the suggestion that maybe the Union could, or maybe it couldn't, get the profit-sharing pension benefit restored by asking and negotiating for it. Indeed, the suggestion was made in the context of further telling the employees that with regard to benefits generally, if the employees went union, they could end up with less benefits, and it was not illegal if they got less benefits. The implication was clear that Respondent would offer less benefits than the employees had because 14 1 do not regard Respondent's distribution to the employees of the pamphlet quoting from the Midwestern Instruments case as a violation of the Act. See N L.R.B. v. Tamper, Inc., 522 F.2d 781 (C.A. 4, 1975), reversing in part 207 NLRB 907, and holding that distribution of the pamphlet was not a per se violation. However, as Personnel Director Gobert said, the pamphlet 1003 the Union was representing the employees, and if the employees ended up with less benefits it would be because they had voted a union in to represent them.14 While less direct than the threat to deprive the employees of their profit-sharing pension rights, the threat was nevertheless evident that the warehouse employees would receive less benefits generally if they voted the Union in. By these threats, Respondent violated Section 8(axl) of the Act. Surprenant Manufacturing Co. v. N.LR.B., 341 F.2d 756, 761 (C.A. 6, 1965); Hendrix Manufacturing Company, Inc., 321 F.2d 100, 104, 105 (C.A. 5, 1963). Respondent told the employees if they voted a union in, the Union would have to accept what Respondent offered or take the employees on strike. This was not descriptive of the duty of the employer (and union) to bargain in good faith, rather it suggested the opposite, an employer's fixed take-it-or-leave-it offer, which would be an unfair labor practice. See, for example, McCann Steel Co., 190 NLRB 12 (1971), enfd. N.LRB. v. McCann Steel Company, Inc., 80 LRRM 2651 (C.A. 6, 1972). If the Union then struck, Respondent told the employees, it could permanently replace them or close the branch altogether. If this were an unfair labor practice strike (as it might be from Respondent's description of how it would come about), it would be illegal for Respondent to permanently replace the striking employees, Mastro Plastics Corp., and French American Reeds Mfg. Co., Inc. v. N.LRB., 350 U.S. 270, 278 (1956). A strike may be an unfair labor practice strike notwithstanding it also has economic objectives, and the unfair labor practice strikers must be rehired on demand even though there were other causes of the strike, NLRB. v. Fitzgerald Mills Corpora- tion, 313 F.2d 260, 269 (C.A. 2, 1963), cert. denied 375 U.S. 834 (1963). Even if the strike were wholly an economic strike, the right of the employer to permanently replace the strikers is a qualified right. Under The Laidlaw Corporation, 171 NLRB 1366 (1968), and related Supreme Court cases, when the economic strike ends the strikers, if they signify their intent to return, are entitled to reinstatement or reemployment as vacancies occur, absent substantial busi- ness justifications which the employer has the burden of showing. Respondent not only failed to explain but misstated the relative rights of the employer and employees, in violation of Section 8(a)(1). Dayton Food Fair Stores, Inc. v. N.LRB., 399 F.2d 153, 154-155 (C.A. 6, 1968); Hicks- Ponder Co., a Division of Blue Bell, Inc., 186 NLRB 712, 725 (1970), affd. in relevant part, N.L.R.B. v. Hicks-Ponder Co., a Division of Blue Bell, Inc., 458 F.2d 19,20 (C.A. 5, 1972). As recently said of this kind of statement or misstatement in N.L.R.B. v. Four Winds Industries, Inc., 530 F.2d 75, 78 (C.A. 9, 1976), "[I ]t is a thinly veiled threat from the employer that voting in the Union would inevitably result in ultimate job loss for its supporters ... a violation of Section 8(a)(1) of the Act." Equally, it was a violation of Section 8(axl) of the Act for Respondent to threaten to close down the branch altogeth- er if the Union the employees voted in did not accept was background, in the context of which he made the point that Respondent would deal more harshly with the Umon than with the unrepresented employees, and the employees would end up with less benefits if they brought in the Umon. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's take-it-or-leave-it offer of a contract and took the employees out on strike . An employer may not threaten its employees with closure of the plant to avoid bargaining in good faith with their union representative . Even were the strike an economic strike, rather than an unfair labor practice strike, the "employer's economic predictions must be `carefully phrased on the basis of objective fact to convey [a] belief as to demonstrably probable consequenc- es beyond his control . . . . If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retalia- tion based on misrepresentation and coercion.... " N.LR.B. v. Kaiser Agricultural Chemicals, a Division of Kaiser Aluminum & Chemical Corporation, 473 F.2d 374, 381 (C.A. 5, 1973), quoting from N.LRB. v. Gissel Packing Co., 395 U.S. 575, 618-619 (1969). Here, there was no indication or even pretense that Respondent's statement respecting closure of the branch was related to any economic necessities.15 As in Kaiser, supra, it was "part of a campaign to dissipate the union majority. Rather than expressing predictions of demonstra- ble economic consequences . . . [Respondent ] cited a litany of horrors, including strikes, plant closings, and loss of benefits, that would result if the employees chose the union as their bargaining representative . The employees could reasonably have inferred that these events would result not from the inevitable forces of the market , but from the deliberate acts of the company taken in reprisal ." Kaiser Agricultural Chemicals, supra, 473 F.2d at 381.16 The inquiry, in their personal discussion, by Respon- dent's Personnel Director Gobert of employee Crews, as to why she wanted the Union, was coercive interrogation in violation of Section 8(axl) of the Act, particularly in view of his position in the company, his openly expressed hostility to the Union, and the absence of any obvious or explained legitimate purpose for the inquiry. Such inquiries are judged by their tendency to be coercive not whether they were in fact coercive. N.LRB. v. Varo, Inc., 425 F.2d 293,298 (C.A. 5, 1970). Viewed in its totality, Respondent's preelection conduct was aimed at making the employees realize the futility of electing the Union as bargaining agent and instilling the fear of reprisal for supporting the Union, in violation of Section 8(a)(l) of the Act. Kaiser, supra, 473 F.2d at 380- 381; Textron, Inc. (Talon Division), 199 NLRB 131, 133-135 (1972). 15 Personnel Director Gobert underscored what he had told all of the employees in the general meeting in his personal meeting thereafter with employee Crews, when he told her it would be easy to close the branch down, that he had kept the Union out of other branches of the company and was planning to keep the Union out of the Cleveland branch. 16 The threat of closing was not ameliorated ,by the indication that Respondent would try to keep from closing down completely if possible, or that Respondent had the further option to accede to the Union demands. 11 The warehouse unit, composing seven employees, and a maximum of nine employees at the time of the election and early August, when the discriminatory actions were taken, was a very small plant, see Don Swart Trucking Co., Inc, 154 NLRB 1345, fn, 2 (1965). Employee Gwen Molton was one of the five employees who comprised the group of union card signers, and thereafter became warehouse supervisor and spokesman for 2. Postelection Respondent gave manifest effect to its threatened repri- sal, immediately following the election, by issuing discrimi- natory disciplinary warnings to, and making discriminatory requirement of doctor's certificates for I day illness from, employees Crews and McHam in violation of Section 8(aX3) and (1) of the Act. Employee Crews was the leading union activist among the warehouse employees and Respondent was admittedly aware of it. Employee McHam was a union card signer and while there is no direct evidence that Respondent knew of his union sympathies it is reasonable to infer from the circumstances that Respondent knew or believed or sus- pected that he was a union sympathizer.17 Given Respondent's antiunion hostility and the timing of the five actions against employees Crews and McHam, the absence of any previous history of the use of written disciplinary warnings or more serious action for shipping errors, or of any prior rule or practice requiring doctor's certificates for 1 day illness, and the absence of any prior warnings before issuing the disciplinary actions to or requiring the doctor's certificates of Crews and McHam, indicate the discriminatory nature of Respondent's actions. The pretextual nature of Respondent's reasons for the disciplinary warnings of August 1 is revealed, in the case of employee packer Crews by failing to investigate let alone correct the failure of responsibility shared by the pickers, and in the case of employee McHam by exaggerating the reasons for the disciplinary action. That written reprimands discriminatorily and pretextually motivated constitute violations of Section 8(a)(3) and (1) of the Act. See Tamper, Inc., supra, 207 NLRB 907, 934 (1973), aft in relevant part in N.LRB. v. Tamper, Inc., 522 F.2d 781 (C.A. 4, 1975). The discriminatory requirement of the doctor's certificates made only of the same two employees at about the same time as the discriminatory reprimands were likewise viola- tions of Section 8(a)(3) and (1) of the Act. G. Setting Aside Election The Union's unresolved objections in the representation case to the conduct of the election were encompassed by the Section 8(a)(1) preelection allegations of the unfair labor practice case. The commission of these unfair labor practices has been established, and a fortiori the Union's objections to the conduct of the election have been established. These substantial 8(a)(l) violations interfered with the free choice of the unit of warehouse employees in the July 25, 1975, election, and therefore destroyed the management in the warehouse , see discussion under heading sec. 11 , A, supra She was consulted on issuance of the disciplinary warnings of August 1. Discriminatory action, motivated by the employer's belief or suspicion that an employee engaged in union activities , violates the Act, NLR.B. v. Clinton Packing Co., Inc., 468 F.2d 953,955 (C.A. 8,1972); and the fact that there may have been others in this category, or even known activists, who were not similarly discriminated against, is no defense to the violation of the Act. Rust Engineering Company and Sheet Metal Workers International Association, Local 51 v. N.LR.B., 445 F.2d 172, 174 (C.A. 6,197 1). Moreover, when Respondent reacted to union activity with discriminatory actions that affected both employees known to be sympathetic to the Union and employees whose sympathies were possibly unknown, it discouraged union activities of all of the employees. L B. Foster Company, 192 NLRB 319 (1971). CURTIN MATHESON SCIENTIFIC, INC. 1005 "laboratory conditions" (Neuhoff Brothers Packers, Inc. v. N.LR.B., 362 F.2d 611, 613 (C.A. 5, 1966)) desirable for the conduct of a Board election. Accordingly, the results of the July 25, 1975, election must be set aside. H. Section 8(a)(5) Finding, Bargaining Order The question arises whether a rerun election would be an adequate remedy, or would appear to be a futile act that would permit Respondent to benefit by its misconduct both before and after the election, requiring instead the remedy of a bargaining order under the principles enunciated in N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575 (1969). In Gissel the Supreme Court recognized two categories of unfair practices committed by an employer where a bargaining order would be the more appropriate remedy. The first category involves "outrageous and pervasive" unfair labor practices, the coercive effects of which cannot be eliminated by application of traditional remedies, with the result that a fair and reliable election or rerun election cannot be had. In such cases, the Board may issue a bargaining order without inquiring whether the union possessed a card majority. See Gissel, supra, 395 U.S. at 613-614. The second category involves "less pervasive" unfair labor practices which nonetheless still have the tendency to undermine majority strength and impede the election processes. In this situation the Board may issue a bargain- ing order if the union had at one point a valid majority and the Board finds that the possibility of erasing the effects of the unfair labor practices and of ensuring a fair election of rerun election by the use of traditional remedies, though present, is slight, and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order. See Gissel, supra, 395 U.S. at 614-615. In the case at bar, upon becoming aware that the Union had begun organizing and was requesting representative status, Respondent engaged in a campaign designed to thwart the organizing and destroy any majority the Union may have succeeded in obtaining. At the time of the Union's request for recognition (or an election) and Respondent's refusal of recognition in the first week in June 1975, the Union had a valid card majority of five employees out of a unit of seven employees comprising the warehouse employees of Respondent's Cleveland branch. In the context of antiunion hostility at "captive audience" em- ployee meetings in the preelection period that followed, Respondent threatened that if the employees brought the Union into the warehouse, they faced loss ofexisting profit- sharing pension benefits and loss or reduction of benefits generally, the necessity to strike if they would not accept Respondent's offer of lesser benefits or terms of employ- ment than currently enjoyed, and a resultant loss of jobs or closing of the Cleveland branch altogether. In total, Respondent sought to impress on the employees the futility 18 In addition, the very small size of the bargaining unit would contribute further to reducing any slight possibility of erasing the effects of both the preelection and postelection unfair labor practices by traditional methods, for, "In a plant so small the alienation of the loyalties of even a single prounion employee could affect the result of the election." Consolidated of voting the Union in, and that there would be harsher dealing and reprisal if they did. These were egregious unfair labor practices, which, together with coercive interrogation of an employee and reiteration of the previous threats in a private meeting, had the tendency to undermine, and undermined, the Union's majority strength in the election of July 25, 1975, and prevented the holding of a fair election. By refusing to recognize and bargain with the Union, as requested in early June 1975, and instead engaging in this course of unlawful conduct which undermined the Union's majority status and prevented the holding of a fair election, Respondent also violated Section 8(a)(5) of the Act. Trading Port, Inc., 219 NLRB 298 (1975). If there was a slight possibility of erasing the effects of the pre-July 25, 1975, unfair labor practices and of ensuring a fair rerun election with use of traditional remedies , Respon- dent for all practical purposes eliminated the possibility after the election by committing further unfair labor practices against two of the unit employees, including the leading union activist among them, constituting acts of discrimination and reprisal for their known or suspected union activities and to discourage support of the Union by the unit employees.18 Under the circumstances of this case, the sentiment of the unit employees expressed through the union authorization cards is a more reliable measure of their desires on the issue of representation than the election held July 25, 1975. To remedy Respondent's unfair labor practices, including its Section 8(ax5) refusal to bargain, a bargaining order is necessary, whether the violations be viewed as category one unfair labor practices under Gissel, see Ludwig Fish & Produce, Inc., 220 NLRB 1086, (1975), or as category two unfair labor practices under Gissel, see Kaiser Agricultural Chemicals etc., supra, 473 F.2d at 382-383; Felsa Knitting Mills, Inc., supra, 208 NLRB at 509. The bargaining order will be issued as of July 8, 1975, the date Respondent clearly embarked on its course of unlawful conduct, Bookland, Inc., 221 NLRB 35 (1975); Trading Port, Inc., supra. CONCLUSIONS OF LAW 1. By threats to its Cleveland branch warehouse em- ployees prior to the representation election of July 25, 1975, that if they voted in the Union as their representative they would lose their existing profit-sharing pension rights, receive less benefits generally, have to accept Respondent's offer of lesser benefits and terms of employment or strike with resulting loss of jobs or closure of the branch, by coercive interrogation, and in total by impressing the employees with the futility of bringing in a union and threatening harsher dealing and reprisal if they brought the Union in, Respondent engaged in unfair labor practices in violation of Section 8(axl) of the Act. 2. Immediately after the election, by issuing discrimina- tory, disciplinary warnings to two employees and making Rendering Co., d/b/a Burlington Rendering Company, 161 NLRB 1, 17 (1966), affirmed N.LR B. v. Consolidated Rendering Co, d/b/a Burlington Rendering Company, 386 F.2d 688 (C.A. 2, 1967); and see like finding in Felsa Knitting Mills, Inc, 208 NLRB 504, 509(1974), involving a unit ofapproximately six employees. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD special discriminatory requirement that they produce doctor's certificates for I day absence for illness, because of the employees' known or suspected union activities and to discourage union support, Respondent engaged in unfair labor practices in violation of Section 8(aX3) and (1) of the Act. 3. Prior to commission of the unfair labor practices enumerated in paragraph 1, above, the Union represented a majority of the employees in an appropriate unit. Respon- dent's misconduct undermined that majority and made impossible the holding of a fair representation election, so that Respondent's refusal to bargain with the Union since July 8, 1975, when it embarked on this course of miscon- duct, constituted an unfair labor practice in violation of Section 8(aX5) of the Act. 4. The described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent's preelection unfair labor practices nulli- fied the results of the July 25, 1975, representation election, and Respondent's preelection and postelection unfair labor practices cannot be corrected by conventional remedies including a rerun election. Accordingly, it is appropriate and necessary that Respondent be ordered to bargain with the Union, as of July 8, 1975, when it first embarked on its course of misconduct to undermine the union majority and prevent the holding of a fair election. THE RIM EDY It will be recommended that Respondent: (1) cease and desist from its unfair labor practices ; (2) expunge from its records any reference to the written disciplinary warnings discriminatorily issued to employees Sandra Crews and Lloyd McHam in August 1975, and rescind the discrimina- tory requirement for submission of a doctor's certificate for illness absence of 1 day imposed in August 1975 upon employees Crews and McHam ; (3) bargain with the Union, upon its request ; and (4) post the notices provided for herein. Because the Respondent by its conduct violated funda- mental employee rights guaranteed by Section 7 of the Act, and because there appears from the manner of the commission of this conduct an attitude of opposition to the purposes of the Act and a proclivity to commit other unfair labor practices, it will be recommended that Respondent cease and desist from in any manner infringing upon the rights guaranteed by Section 7 of the Act. N.LRB. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941); N.LR.B. v. The Bama Company, 353 F.2d 320, 323-324 (C.A. 5, 1965); P. R Mallory & Co., Inc., v. N.LRB., 400 F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918 (1969). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: 19 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, recommendations, and Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become ORDER 19 The Respondent, Curtin Matheson Scientific, Inc., Cuya- hoga Heights, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with loss of profit-sharing pension rights and that they will receive lesser benefits generally if th e Union comes into the warehouse. (b) Threatening employees that if the Union comes in they must strike if they will not accept Respondent's offer of lesser benefits and terms of employment, and if they strike they will lose their jobs or the Cleveland branch will be closed altogether. (c) Coercively interrogating employees concerning their union sympathies. (d) Creating the impression of the futility of the employ- ees' bringing in the Union and threatening them with harsher dealing and reprisal if the Union is brought in. (e) Issuing discriminatory disciplinary warnings to em- ployees because of their known or suspected union activi- ties or to discourage employee support of the Union. (f) Discriminatorily requiring a doctor's certificate for I- day absence for illness of an employee because of his or her known or suspected union activities or to discourage employee support of the Union. (g) Discouraging employees from support of or member- ship in the Union by any other discrimination affecting their tenure and conditions of employment. (h) Upon request, refusing to bargain with the Union as the collective-bargaining representative of Respondent's unit of warehouse employees at the Cleveland branch. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed under Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, as of July 8, 1975, bargain collectively (as that term is used in Section 8(d) of the Act) with the Union as the collective-bargaining representative of the unit of warehouse employees at Respondent's Cleveland, Ohio, branch, comprising all warehouse employees and shipping and receiving employees, excluding all office clerical employees, guards, and supervisors as defined in the Act. (b) Expunge from Respondent's records any reference to the written disciplinary warnings discriminatorily issued to employees Sandra Crews and Lloyd McHam in August 1975. (c) Rescind the discriminatory requirement for submis- sion of a doctor's certificate for absence for illness of 1 day imposed in August 1975 upon employees Sandra Crews and Lloyd McHam. (d) Post in its warehouse and offices in the Cleveland, Ohio, branch, copies of the attached notice marked "Appendix." 20 Immediately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 8 (Cleveland, Ohio), Respondent shall cause the its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 20 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 CURTIN MATHESON SCIENTIFIC, INC. copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. 1007 (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the results of the representa- tion election of July 25, 1975, in Case 8-RC-9949, are set aside. 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."