Martin City Ready Mix

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Martin City Ready Mix and Building Materials, Ex- cavating Heavy Haulers, Drivers, Warehouse- men and Helpers, Local No. 541 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 17-CA-10270 and 17-RC-9222 September 30, 1982 DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS FANNING AND HUNTER On February 22, 1982, Administrative Law Judge James L. Rose issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. The General Coun- sel and the Charging Party Union thereafter filed answering briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge, for the reasons he set out, that Respondent violated Section 8(a)(3) and (1) of the Act by laying off five drivers who had signed authorization cards, and violated Section 8(a)(1) by promising benefits, in- cluding a wage increase, to its employees to dis- courage them from supporting the Union. Further- more, we agree with the Administrative Law Judge that a bargaining order is the appropriate remedy in this proceeding. However, we wish to explicate our reasons for issuing that bargaining order. In determining whether a bargaining order is warranted to remedy Respondent's misconduct in the instant case, we utilize the test delineated in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 595 (1969). The Court there divided unfair labor prac- 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188 F.Z2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In affirming the Administrative Law Judge, we note that he stated that employee Dodd had testified without contradiction that, during the period of the layoff, described infra, he had seen employees from Respondent's two other concrete plants service construction sites serviced previously by Martin City. We correct such error by noting that Plant Manager McCullough contradicted Dodd's assertion by testifying that he could not recall any occasion during the layoff when employees of the Mo-Kan Ready Mix plant performed an order for Martin City. 264 NLRB No. 66 tice cases susceptible to the issuance of bargaining orders into two categories: (1) "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices; and (2) "less extraordinary" cases marked by "less pervasive" practices. 2 The Court placed its imprimatur on the Board's use of a bar- gaining order to redress unfair labor practices in "less extraordinary" cases when they are marked by a "tendency to undermine [the Union's] major- ity strength and impede the election processes."3 In such cases, the Court indicated that when the respondent's unfair labor practices are less flagrant and the union had majority support at one time among the employees concerned, the Board may consider . . . the extensiveness of an employer's unfair practices in terms of their past effect on elec- tion conditions and the likelihood of their re- currence in the future. If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair election (or a fair rerun) 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, then such an order should issue. 4 In considering Respondent's conduct in tls pro- ceeding, the Administrative Law Judge did not in- dicate whether he considered its actions as "outra- geous" or as "less extraordinary." We believe that they fall into the latter category. Various circuit courts of appeals have indicated that, under their interpretation of Gissel, the Board must indicate specifically under which of the first two Gissel categories it has classified the unlawful practices and must explicate clearly its reasons for issuing a bargaining order, including findings as to why a fair election cannot be held. 1. We start with Respondent's illegal layoff of more than half of its work force on March 30, 1981. 5 Each of the five drivers who were laid off by Respondent had signed authorization cards prior to the layoff; the three employees who were not laid off were the only ones who had not done so. Such a mass layoff at the outset of a union rep- resentation campaign is a highly effective means of sabotaging union organizational efforts.6 The Board has indicated in the past that even when ille- gally laid-off employees thereafter are reinstated · Gissel. supra at 613-614. s Id. at 614. 4 Id. at 614-615. a All dates are in 1981 unless indicated otherwise. I Jensen's Motorcycle. Inc., d/bla Honda of San Diego, 254 NLRB 1248, 1268-69 (1981). 450 MARTIN CITY READY MIX without loss of pay, the fact that the respondent was willing to resort to such drastic measures to ensure the union's defeat is bound to have a linger- ing effect on its employees. 7 Here, Respondent's drivers were recalled but have not yet received their lost backpay and therefore the effect of the il- legal layoff is even more pronounced. 8 Further- more, we think that the timing of the layoff, the next working day after Respondent's receipt of the petition for representation, exemplifies further the severity of Respondent's conduct. Factors indicat- ing the need for a bargaining order thus include the abruptness of the layoff, its timing, and the applica- tion of the illegal layoff only to those who had signed cards. 2. Respondent, upon advice of counsel, thereaf- ter recalled three of the laid-off employees on April 9, and the other two on April 14. However, the Administrative Law Judge found that on the very day of employee Parrett's return to work (April 9), he was the subject of various illegal promises of benefits by Plant Manager McCul- lough. This incident clearly indicates that Respond- ent, while recalling the employees, had not aban- doned its illegal campaign to defeat the Union. As related by the Administrative Law Judge, McCul- lough called Parrett into his own office and asked Parrett how they were going to get rid of "this mess" that they were in.9 McCullough then indi- cated that Respondent's owner, Chambers, had of- fered the employees a raise to $9 per hour "if we could get rid of this mess." McCullough also told Parrett that Chambers had beef in the lockers that the employees could take if they needed any food. The Administrative Law Judge credited Parrett and discredited McCullough on these comments, and then found that Respondent violated Section 8(a)(l) by promising benefits to dissuade the em- ployees from their union activities. We agree, and conclude that these promises of benefits are an im- portant element in our issuance of a bargaining order here. 10 r Zim Tertile Corp., 218 NLRB 269, 270 (1975), affd. without comment 535 F.2d 1242 (2d Cir 1976); see also iernon Devices. Inc., 215 NLRB 475 (1974) Jensen' Motorcyclt. upra at 1269, fn. 42. and case cited therein. The Administrative Law Judge found that the reference to "this mess" meant the employees' union activity, and we agree. 0o We note that the United States Court of Appeals for the Second Circuit suggested in .5'L. RB. v. Jamaica Towing. Inc.. 632 F.2d 208. 213 (2d Cir. 1980). that the Board should weigh illegal promises of benefits less heavily than many other unfair labor practices in its determination of whether a bargaining order is appropriate. The court indicated that "(plromises of benefits may be viewed as mere ploys, never to be fulfilled without union bargaining pressures" Id. at 214, Without passing directly on the court's comment, we note that the situation is different here. McCullough's offer of the beef was no "ploy." since he indicated that it was readily available to the employees then. Further, we note that fcCullough clearly indicated that Parrett should pass his message on to the other employees With respect to the Parrett-McCullough conver- sation, we note that there are further comments that McCullough made to Parrett in this conversa- tion which were not recounted by the Administra- tive Law Judge but nonetheless exemplify Re- spondent's intent to defeat the Union, and which are relevant to our analysis of the propriety of a bargaining order. I Parrett's testimony reveals that, at the meeting, McCullough also indicated that Chambers would be available later that week to extend loans to his employees. And, in contrast to the various inducements that McCullough offered to dissuade support for the Union, McCullough in- formed Parrett that "the plant would be closed down if it went union." While the complaint does not allege that this remark constituted an unfair labor practice, we are satisfied that the matter was litigated fully at the hearing, and, in view of the relevance of these events to the unfair labor prac- tices which the complaint does allege, we find that Respondent's threat of plant closure constituted an 8(a)(1) violation. 12 It is clear that the natural and likely result of McCullough's threat to close the plant was to rein- force the employees' fear that they would lose em- ployment if they persisted in union activity. And we think it likely that the threat of plant closure, along with Respondent's various other actions, could sustain this fear long enough to interfere with the employees' free choice in the event of a second election. Is " The additional findings that we make now are based on the testimo- ny of Parrett McCullough denied that he had made these comments. However, in crediting Parrett on other aspects of the conversation, the Administrative Law Judge found him to be "generally credible" and he "generally discredit[ed]" McCullough's version of the events. Indeed, the Administrative Law Judge found that McCullough "was not a particular- ly credible witness" in this proceeding. Accordingly, although the Ad- ministrative Law Judge did not discuss the conflicts in testimony on the points we now set out, we shall credit Parrett's testimony in this regard. See Apollo Tire Company, Inc., 236 NLRB 1627 (1978), enfd. 604 F.2d 1180 (9th Cir. 1979), and cases cited at fn. 5, therein. 12 In vlew of the General Counsel's failure to amend the complaint in this regard, Chairman Van de Water would not find the threat to close the plant is violative of Sec. 8(aXl). He cannot affirm the "logic" of saying this was fully litigated at this hearing when Respondent was un- aware that this was alleged as a violation and is being informed by this decision that such conduct is in issue. He would, however, agree that other violations found herein warrant the issuance of a bargaining order. '3 Both the Board and courts have long recognized that threats of plant closure because of union activity are among the most flagrant inter- ferences with Sec. 7 rights and are more likely to destroy election condi- tions for a lengthier period of time than other unfair labor practices. See, e.g., Gissel supra at 611, fn. 31; Textile Workers Union v. Darlinglon Mfg. Company, 380 U.S. 263 (1965); Armcor Industries Inc., 227 NLRB 1543, 1544 at fn. 5 (1977). denied enforcement by an equally divided court 588 F.2d 821 (3d Cir. 1978). The United States Court of Appeals for the Second Circuit considered a threat of plant closure to constitute a "hallmark" violation; i.e., a viola- tion severe enough to warrant a bargaining order, absent significant miti- gating circumstances. N.LR.B. v. Jamaica Towing. Inc., supra at 212-213. See also Amalgamated Clothing Workers of Amenrica, AFL-CIO v. N.L.R.R. 527 F.2d 803, 807 (D.C. Cir. 1975), cert. denied sub norm. Continued 451 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Further, as noted, it is clear that McCullough in- tended that Parrett relay these coercive messages to the employees. Even the most unsophisticated em- ployee would be quick to perceive "a fist inside the velvet glove," particularly when a promise of bene- fits for abandoning union organizational efforts is coupled with a threat of plant closure if the union is successful. 14 3. Thereafter, an election, which the Union lost,' 5 was held at Respondent's facility. That same day, after the results were in, Respondent held a party to celebrate the Union's defeat, at which Chambers interrogated at least two of his employ- ees as to how they had voted.' 6 Respondent clear- ly displayed its continuing hostility toward the Union through these postelection interrogations. 4. We further note that the size of the work force at Martin City militates in favor of issuing a bargaining order. The impact of a respondent's unfair labor practices is heightened considerably and prolonged when they occur in a small bargain- ing unit of employees,' 7 particularly when they are undertaken by Respondent officials at the highest levels, as in the instant case. The small size of the work force and the orchestration of the unfair labor practices by top Respondent officials surely drove home the message to Respondent's employ- ees that the threats were deliberate and capable of effectuation. Respondent also contends that even if it violated Section 8(a)(1) and (3) by its actions in the course of the Union's organizational campaign, a bargain- ing order is inappropriate' s because, inter alia, all Jimmy-Richard Co.. Inc. v. N.L.R.B., 426 U.S. 907 (1976). The Board also has held that threats of plant closure are "hallmark" violations. Highland Plastics, Inc., 256 NLRB 146, 147 (1981). Additionally, several circuit courts of appeals, citing Jamaica Towing, have found that other elements, which also are present in the instant case, constitute "hallmark" viola- tions. See, e.g., N.LR.B. v. Wilhow Corporation. d/b/a Town and Country Supermarkets, 666 F.2d 1294, 1305 (10th Cir. 1981) (loss of employment due to union activity); J. J. Newberry Co., A Wholly Owned Subsidiary of McCrory Corporation v. N.L.R.B., 645 F.2d 148, 153 (2d Cir 1981) (im- proper grant of significant economic benefits). i4 Armcor Industries, supra at 1544 (quoting N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409 (1964)). 1i The election was conducted on May 14; three votes were cast for, and four against, the Union. 16 We note that the Administrative Law Judge erred in finding that Chambers questioned each employee with regard to his vote in the elec- tion. We correct his error by noting that the record establishes clearly only that Chambers interrogated at least two employees. In response to an inquiry at the hearing as to whether he had questioned the employees regarding their vote, Chambers responded, "I could have, all of them told me they voted for me." Nevertheless, because the record documents clearly only two such interrogations, we conclude that Chambers interro- gated at least two employees. 17 See, e.g., Jensen's Motorcycle. supra at 1268; N.L.R.B. v. Wilhow Cor- poration, d/bla Town and Country Supermarkets, 666 F.2d 1294, 1305 (10th Cir. 1981); Chromalloy Mining and Minerals Alaska Division, Chro- malloy American Corporation, 620 F.2d 1120, 1130 (5th Cir. 1980). Is In its brief, Respondent contends that the Board declined to issue a bargaining order in a number of cases similar to this one, citing The May Department Stores Company d/b/a The M. O'Neil Company, 211 NLRB 150 (1974), affd. 514 F.2d 894 (D.C. Cir. 1975); Gold Circle Department five of the laid-off card signers subsequently quit Respondent's employ voluntarily. We note, howev- er, that the validity of a bargaining order hinges on an evaluation of circumstances as of the time when the unfair labor practices were committed, not when the Board is deciding the case.' 9 Additional- ly, a bargaining order is designed as much to remedy a respondent's past election damage as to deter future misconduct. 2 0 Therefore, to deny a bargaining order simply because of the passage of time would reward employer recalcitrance, rather than deter an employer from engaging in future unfair labor practices. In this case, the record simply reflects that, at the time of the hearing, the five card signers who quit voluntarily had not been replaced and Respondent had an employee comple- ment of three drivers, the number employed after the layoff. Respondent's three drivers (who were not identified individually in the record) ostensibly were employed by Respondent during the inci- dences of interrogation, promises of benefits, and layoffs. 2' Additionally, Respondent's conduct re- mains unremedied and at no time has it offered its employees assurances that such conduct would not recur. 2 2 Furthermore, we note that "It]here is, Stores, a Division of Federated Department Stores. Inc., 207 NLRB 1005 (1973); Schrementi Bros. Inc., 179 NL RB 853 (1969). Our review of those cases convinces us that they are distinguishable factually from the instant proceeding. We find that the unfair labor practices in the instant case are more serious than those in Gold Circle and Schrementi Bros., and that the unfair labor practices in The May Department Stores were committed by first-line supervisors who did not appear to have authority to carry out such severe threats. After a careful consideration of the record and briefs in the instant case, we are convinced that the facts of the instant case warrant our issuance of a bargaining order and that those cases in which the Board has denied a bargaining order involve facts which dictated a different remedy. We note once again that the issue of whether a bargain- ing order is necessitated to remedy the unfair labor practices committed hinges on the facts of each individual case. 19 See Highland Plastics, Inc., 256 NLRB 146, 147 (1981). 20 Gissel. supra at 612. 2i In these circumstances, we respectfully continue to disagree with those courts of appeals which dictate that change in employee comple- ment is a factor to be considered in determining the propriety of issuing a bargaining order. See Justak Brothers and Company. Inc., 253 NLRB 1054, 1086, enfd. 664 F 2d 1074 (7th Cir. 1981), and cases cited therein. We also note that the Court of Appeals for the Second Circuit seems to indicate that employee turnover is of little significance in cases in which the respondent's unfair labor practices constitute "hallmark" violations (eg., threats of plant closure), as in the instant case. See Jamaica Towing, supra See also fn. 13, supra. We therefore reject Respondent's contentions that a turnover in its em- ployee complement renders a bargaining order inappropriate. Nothing in Respondent's presentation of evidence indicates that its alleged employee turnover since the election has vitiated the effect of its unfair labor prac- tices. 22 Respondent appears to argue that the issuance of a bargaining order here is antithetical to the Board's own standards. It argues, quoting Ja- maica Towing, supra, that the Board has indicated that a key purpose in issuing a bargaining order is "to protect employee sentiment reached at the time of card signing by a majority of unit employees .... " Re- spondent argues that there is no "employee sentiment" to protect here since all those who signed cards subsequently quit. Respondent thereby assumes that only those who signed cards supported the Union. In light of the various unfair labor practices visited on this small employee com- Continued 452 MARTIN CITY READY MIX after all, nothing permanent in a bargaining order, and if, after the effects of the employer's acts have worn off, the employees clearly desire to disavow the union, they can do so by filing a representation petition." 23 In concluding that a bargaining order is appro- priate here, we have followed the Supreme Court's admonition to consider "the extensiveness of [Re- spondent's] unfair labor practices in terms of their past effect on election conditions and the likelihood of their recurrence in the future." 2 4 The unfair labor practices' effects are detailed above. It has been the Board's experience that unfair labor prac- tices of the type noted above are likely to leave a significant and persistent imprint on employees. Such an imprint was made in the instant case be- cause of the swiftness of the layoff, the timing at critical points of all the unfair labor practices, and the number of employees affected directly. Al- though the likelihood of recurrence of the unfair labor practices is difficult to ascertain, given the swiftness and the thoroughness with which Re- spondent responded to its receipt of the Union's pe- tition for election, and the timing of its various other actions, the likelihood of Respondent's re- suming its illegal conduct clearly is present. 25 For all of the above reasons and in light of the analysis mandated by the Supreme Court in Gissel, we find that the possibility of erasing the effects of Respondent's unfair labor practices and of conduct- ing a fair rerun election by the use of traditional remedies is slight, and the employees' representa- tional sentiment, once expressed through authoriza- tion cards would, on balance, be protected better by our issuance of a bargaining order than by tradi- tional remedies. Accordingly, we hereby adopt the Administrative Law Judge's recommended Order, as modified herein, 2 6 requiring Respondent to bar- gain with the Union as the duly designated repre- sentative of a majority of its employees in a unit appropriate for purposes of collective bargaining, effective March 30, the date that Respondent em- barked on its unlawful course of conduct. 2 7 plement once Respondent discovered its employees' union activities, it is impossible to acribe a clear motive to those who did not sign cards, and we reject Respondent's implication to the contrary. as Gissel, supra at 613 24 Id. at 614. 2a Chandler Motors. Inc., 236 NLRB 1565, 1567 (1978). 26 The Administrative Law Judge found, and we agree, that Respond- ent laid off Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Michael Thompson, unlawfully. In accordance with our decision in Sterling Sugars. Inc., 261 NLRB 472 (1982), we shall order the expunction of any reference to the layoffs from Respondent's files. 27 In accordance with his concurring opinion in Beasley Energy. Inc., d/bla Peaker Run Coal Company, Ohio Division #1, 228 NLRB 93, 97 (1977), in the absence of a demand for bargaining, Member Fanning would order only a prospective bargaining order as a remedy for Re- spondent's unfair labor practices. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that Respondent, Martin City Ready Mix, Kansas City, Missouri, 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 l(c) and re- letter the subsequent paragraphs accordingly: "(c) Threatening to close the plant if the Union becomes the collective-bargaining representative of its employees." 2. Insert the following as paragraph 2(c) and re- letter the subsequent paragraphs accordingly: "(c) Expunge from its files any reference to the layoffs of Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Michael Thompson and notify them in writing that this has been done and that evidence of these unlawful layoffs will not be used as a basis for future personnel actions against them." 3. Substitute the attached notice for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the election con- ducted on May 14, 1981, in Case 17-RC-9222 be, and it hereby is, set aside, and the petition in that case be, and it hereby is, dismissed. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAl LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT lay off or otherwise discrimi- nate against our employees because of their in- terest in or activity on behalf of Building Ma- terials, Excavating Heavy Haulers, Drivers, Warehousemen and Helpers, Local No. 541 af- filiated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT promise employees benefits, including a wage increase, in order to discour- age their interest in or activity on behalf of the above-named or any other labor organization. 453 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten to close our plant if the Union becomes the collective-bargaining representative of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Sec- tion 7 of the Act. WE WIL.L make whole Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Michael Thompson for any losses they may have suffered as a result of the discrimi- nation against them, with interest. WE WILL expunge from our files any refer- ence to the layoffs of Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Mi- chael Thompson and notify them in writing that this has been done and that evidence of these unlawful layoffs will not be used as a basis for future personnel actions against them. WE WILL recognize and, upon request, bar- gain with the Union as the exclusive collec- tive-bargaining representative of a majority of our employees in an appropriate bargaining unit and WE WILL embody any agreement reached in a written signed contract. The ap- propriate unit is: All full-time and regular part-time drivers and mechanics employed by Martin City Ready Mix at its facility located at 13716 S. Oak, Kansas City, Missouri, but excluding all office clerical employees, guards and su- pervisors as defined in the Act. MARTIN CITY READY MIX DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge: On March 24, 1981,' five of the Respondent's eight bargaining unit employees2 signed authorization cards designating Build- ing Materials, Excavating, Heavy Haulers, Drivers, Warehousemen and Helpers, Local No. 541 affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America (herein the Union), as their bargaining agent. The petition for election in Case 17-RC-9222 was filed on March 25, and received by the Respondent on March 27. On March 30, the five card signers were laid off. Three were recalled on April 9 and the other two on April 14. Pursuant to a Stipulation for Certification Upon Consent Election, an All dates are in 1981 unless otherwise indicated. 2 It is alleged, the parties agree, and I find that the appropriate bar- gaining unit is: All full-time and regular part-time drivers and mechanics employed by Martin City Ready Mix at its facility located at 13716 Oak, Kansas City, Missouri, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. election was held among the bargaining unit employees on May 14. Three votes were cast for and four against the Union. There were no challenged ballots. At issue is the General Counsel's amended complaint which alleges that the layoff of the five bargaining unit employees was violative of Section 8(a)(3) of the Nation- al Labor Relations Act, as amended, 29 U.S.C. § 151, et seq. In addition, certain acts engaged in by the Respond- ent's plant manager on April 9 are alleged to have been violative of Section 8(a)(1) of the Act. Consolidated with the complaint are the Union's 14 objections to conduct affecting the results of the election, the principal of which track the substantive allegations of the amended complaint. Though admitting the layoffs the Respondent contends that they were caused solely by economic considerations, and generally denies that it engaged in any activity viola- tive of the Act or in any acts which would merit setting aside the election. This matter was heard before me on December I fol- lowing which all the counsel submitted briefs. Upon the record as a whole, including my observation of the wit- nesses, I hereby make the following: FINDINGS OF FACT AND CONCI USIONS OF LAW 1. JURISDICTION The Respondent (herein sometimes Martin City) is a Kansas corporation engaged in the production, retail, and nonretail sale of ready mix concrete, primarily for residential construction. For its Kansas City, Missouri, facility the Respondent annually purchases goods and services valued in excess of $50,000 directly from sources located outside the State of Missouri and, in the course and conduct of its business in Missouri, annually sells goods and services valued in excess of $50,000 to cus- tomers located outside the State of Missouri. The Re- spondent's gross volume of business at that facility ex- ceeds $500,000. The Respondent admits, and I find, that it is an employer engaged in commerce within the mean- ing of Section 2(2), (6), and (7) of the Act. 11. 'rTHE LABOR ORGANIZATION INVOLVED The Union is admitted to be, and I find it is, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR I.ABOR PRACTICES A. The Facts William G. Chambers and his wife Shirley are the sole owners of Martin City. In addition, they are the sole owners of Mo-Kan Ready Mix and Santa Fe Ready Mix, both of which are located in Kansas, about 10 to 15 miles from Martin City. The drivers employed at both Mo-Kan and Santa Fe are represented by the Union; and Chambers, as to the employees of those facilities, has collective-bargaining agreements with the Union. At the time material here, the wage rate for the Mo-Kan and Santa Fe drivers was about $12.90 an hour. The wage rate at Martin City (the 454 MARTIN CITY READY MIX only nonunion ready mix plant in the general geographi- cal area) was from $6.50 per hour to S7.50 per hour. On March 24 five of the Respondent's eight bargaining unit employees met with Gayle Starling, a business rep- resentative for the Union, and signed authorization cards designating the Union as their bargaining agent. The next day Starling filed a petition for representation with the Board, a copy of which was mailed to the Respondent on March 26, and received, according to Chambers' tes- timony (as well as the return receipt), by his wife on Friday, March 27. Chambers testified that, as he returned home late Friday night, he did not learn about the peti- tion having been filed until the next day. The day-to-day decisions involving the operation of Martin City, including hiring, firing, and directing the work force, is the responsibility of Thomas McCullough. Although Chambers and McCullough are in frequent telephone contact, and apparently can reach each other at any time by telephone or radio, Chambers does not actually visit the physical facility more than two or three times a week. Thus McCullough testified that it was he who, during the weekend of March 28, made the decision to lay off employees due to "lack of work." And he testified that he did not consult Chambers. On Monday morning (March 30) after the drivers had assembled at or about 7:30, McCullough told two drivers and the mechanic (who happened to have been the three employees who did not sign authorization cards) to get their trucks, that the others were being laid off. Those who were laid off testified that at this time McCullough said something to the effect, "it looked like we got ourselves a vacation." McCullough denied making such a statement. Chambers testified that he was not aware that McCul- lough had laid off anyone until two of them (Billy Joe Dodd and Gary Miller) called, asked to meet with him, and told him that they needed work and wanted to be reinstated. According to Chambers, this meeting with Dodd and Miller took place as Chambers was en route to see his attorney about the representation petition, sev- eral days after March 30. Chambers further testified that his attorney advised him that those laid off should be re- instated. Thus, Chambers contacted McCullough and told McCullough to take the employees back. On April 9 Dodd, Miller, and Richard Parrett were recalled to work and on April 14 Steve Koenig and Mi- chael Thompson were recalled. B. Analysis and Concluding Findings 1. The layoffs The principal issue in this matter is whether the Re- spondent was motivated by the employees' union activity when determining to lay them off on March 30 or whether, as claimed by the Respondent, the layoff was caused solely by economic considerations; e.g., the lack of work. I conclude that the facts immediately preceding the layoff establish, prima facie at least, that it was caused by the employees' union activity. There had been no warn- ing that layoff was imminent. Indeed, Koenig had been hired only the month before and at that time was advised by McCullough that he could expect 30 or 40 hours a week. This was a small plant where everyone who had signed an authorization card was selected for layoff. Al- though McCullough testified without contradiction that the three he kept were "senior" the credible evidence is that one of them was a mechanic who rarely drove. And the layoff took place the very next working day after the Respondent received the Union's petition for representa- tion. It may be, as contended by the Respondent, the se- quence of events was a mere coincidence. However, such is sufficiently improbable that I can, and do, infer there was a causal connection between the union activity and the layoff. Thus, the burden shifts to the Respondent to establish that the layoff would have occurred when it did even absent the employees' union activity. Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). The Respondent did not meet its burden. First, I cannot credit Chambers' assertion that he did not know of the layoff until several days after it had oc- curred. For the owner of the Company not to be in- formed when more than 60 percent of his employees were laid off is so at variance with the norm of business behavior as to be incredible. Although McCullough may have the power to hire and fire employees and direct the work force, I do not believe that he would tell five of eight employees that they were laid off indefinitely with- out at least consulting the owner. The testimony of Chambers and McCullough that McCullough made the decision on his own and that Chambers did not know about it is simply not believable. I therefore discredit them both. But even if McCullough did make the decision, by his own admission he did so after he learned that the peti- tion had been filed (and earlier he had heard employees talk about unionizing). Further, McCullough's testimony concerning the eco- nomic basis for the layoff is so vague, and so unsupport- ed by any documentary evidence, that it does not reach the minimum standard of believability. McCullough testi- fied, for instance, that business had been slack since the plant reopened on January 22. Yet he did hire Koenig in early March. He was unable to explain why he did this if in fact he did not have enough work for all of the em- ployees at that time. In fact, McCullough testified, busi- ness in March had picked up over February. Further, if business was sufficiently poor so that the Respondent could reasonably only use three rather than seven driv- ers, presumably there exists within the Respondent's con- trol some documentary evidence of this-some records comparing the 1981 volume of business to that of previ- ous years. None was presented. McCullough's testimony that the layoff was caused by "the general decline in business" is not persuasive. McCullough also testified that he decided to lay off the drivers on Monday morning when "I didn't have an order laying on my desk for that day." However, he did not deny the testimony of the drivers that from 60 to 75 percent of all orders are called in the day they are deliv- ered. Thus, no advance orders would not necessarily 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mean there would be insufficient business for all the driv- ers. Finally, it is noted that laying off the drivers as a puni- tive measure would not have particularly hurt Chambers' overall business. With little difficulty Martin City orders could be delivered by employees of Mo-Kan or Santa Fe. Indeed, Dodd testified without contradiction that during the time of his layoff he saw Mo-Kan and Santa Fe trucks at construction sites which had been serviced by Martin City. Even Chambers admitted it was common for his three companies to interchange work. In short, McCullough's conclusionary testimony that there was a lack of work from and after March 30 which necessitated the layoffs is insufficient, particularly since McCullough was not a particularly credible witness. I therefore conclude that the Respondent did not sustain its burden of proving that even absent the employees' union activity the five individuals named in the com- plaint would have been laid off on March 30, 1981. Thus, I conclude that the Respondent was motivated by the employees' union activity and that by laying them off on March 30 it violated Section 8(a)(3) of the Act. 2. The 8(a)(1) activity On April 9 the day Parrett, Dodd, and Miller returned to work, Parrett was alone in the drivers' room between II a.m. and noon. McCullough asked him to come up- stairs (to McCullough's office where McCullough also operates the batch control) and they had a discussion. According to Parrett's generally credible testimony, McCullough asked about "this mess that we was in" and how they were going to go about getting rid of "this mess." McCullough also stated that Chambers had of- fered them a pay raise to $9 an hour "if we could get rid of this mess." And McCullough mentioned that Cham- bers had beef in the Stalwell lockers and if any of the employees were hurting for money or food that they could go to the locker and get some. It is alleged that McCullough promised benefits, including a wage in- crease, in order to discourage employees from supporting the Union. McCullough denied that he used the word "mess." In any event, the Respondent contends that "mess" could very easily have referred to the layoff rather than the union activity. First, I generally discredit McCullough's version of the events herein, supra. Second the "mess" must necessarily have been the employees' union activity and not the layoff. The layoff was over. That McCullough initiated the conversation for the purpose of discouraging employees' union activity is clear. There is no other reason apparent that McCul- lough would have started such conversation. Further, the reference to Chambers having promised employees a wage increase to $9 per hour was, to an extent, corroborated even by Chambers when he testified that he had promised employees a wage increase "if busi- ness got better." Thus, I believe that McCullough did in fact remind Parrett of the promised wage increase and that such was a promise of a benefit in violation of Sec- tion 8(a)(1). Undeniably, Chambers had beef in a nearby locker which he offered to employees during the period follow- ing the filing of the petition and prior to the election. Chambers tends to discount this by suggesting that the meat was getting old, he was not using it, and knowing that employees were hard pressed, he made it available to them. Such was clearly the offer of a benefit at a time when there was a pending campaign to determine union representation. I therefore conclude, as alleged in the amended com- plaint, that the Respondent, acting through McCullough, made promises of benefits to employees in violation of Section 8(a)(1) of the Act. IV. THE OBJECTIONS In addition to the layoffs and the statements McCul- lough on April 9 the Union alleged that a number of other acts engaged in by McCullough and Chambers have unlawfully affected the results of the election. I conclude that it is unnecessary to rule on each objec- tion. The discriminatory layoffs and the unlawful prom- ise of benefits were clearly sufficient to render a free choice among employees unlikely. The election should be set aside. V. THE EFFECT OF THE UNFAIR L.ABOR PRACTICES UPON COMMERCE The unfair labor practices found above, occurring in connection with the Respondent's business, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce within the meaning of Section 2(6) and (7) of the Act. VL. THE REMEDY Having concluded that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Respondent will be ordered to make whole Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Michael Thompson for any loss of wages and other rights and benefits they may have suffered as a result of the discrimination against them in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as provided for in Flor- ida Steel Corporation, 231 NLRB 651 (1977).3 Further, I conclude that the Respondent's unfair labor practices are of sufficient severity so that the traditional remedy is not adequate, and I shall recommend that the Respondent be ordered to recognize and bargain with the Union as the exclusive representative of the employ- ees in the unit defined in footnote 2, above. Although the Respondent's unfair labor practices are not as extensive as sometimes occurs in situations such as this, it is noted that the Respondent acted very quickly in terminating all the employees involved in the union activity. No act of reprisal is stronger than that which denies an individual his job. Telling the five card signers they had gotten themselves a "vacation" leaves no room for doubt that 3 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962). 456 MARTIN CITY READY MIX the Respondent was retaliating against them because they had chosen to engage in union activity. And, upon the employees' return to work, McCul- lough singled out one to promise benefits while asking how they could resolve the "mess." These acts clearly undermined the Union's majority status (only three of the five card signers voted for the Union) and certainly impeded the holding of a fair election. Whether viewed as "outrageous" unfair labor practices, or something "less pervasive," a bargaining order is the appropriate remedy here. ,.L.R.B. v. Gisscl Packing Co., Inc., 395 U.S. 575 (1969). Finally, on the day of the election, after the results were in, Chambers purchased beer and liquor for the em- ployees and they had a party to celebrate Chamber's vic- tory over the Union. During the course of this party Chambers asked each employee how he had voted in the election. Postelection acts of this type show a continuing hostility and suggest that misconduct prior to a rerun election is present. Along with the Respondent's preelection activity such acts indicate that a fair rerun election is slight and that, on balance, reliance on authorization cards as a test of employee sentiment is better placed than traditional method. Viracon, Inc., 256 NLRB 245 (1981). Thus, the election will be set aside and a bargaining order will issue effective on March 30, 1981, the day the Respond- ent embarked on its unlawful course of conduct. Beasley Energy, Inc., d/b/a Peaker Run Coal Company. Ohio Divi- sion #1, 228 NLRB 93 (1977). The Respondent contends that a bargaining order should not issue here because all of the card signers have since quit their jobs. That a bargaining order is inappro- priate without a showing that the union has maintained its majority status has long been rejected by the Supreme Court. See N.L.R.B. v. Gissel Packing Co., Inc., supra. The bargaining order here is to remedy the Respond- ent's unfair labor practices and is entered because a fair election in the future is improbable. Turnover among employees is thus not material. The order is not designed so much to benefit specific employees, as to benefit bargaining unit employees in general. And there is little risk of harm to new employ- ees. If the Union does not adequately represent them, it can be ousted as their bargaining representative. Upon the foregoing findings of fact and conclusions of law, the entire record of this matter, and pursuant to provisions of Section 10(c) of the Act, I hereby issue the following recommended: ORDER 4 The Respondent, Martin City Ready Mix, Kansas City, Missouri, its officers, agents, successors, and as- signs, shall: 4 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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 1. Cease and desist from: (a) Laying off or otherwise discriminating against em- ployees because of their interest in or activity on behalf of the Union or any other labor organization. (h) Promising employees benefits, including a wage in- crease, in order to discourage their interest in or activity on behalf of the Union. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act.5 2. Take the following affirmative action: (a) Make whole Billy Joe Dodd, Steve Koenig, Gary Miller, Richard Parrett, and Michael Thompson for any loss of wages or other rights or benefits they may have suffered as a result of the discrimination against them in accordance with the formula set forth in the remedy sec- tion above. (b) Recognize and, upon request, bargain with Build- ing Materials. Excavating, Heavy Haulers, Drivers, Warehousemen. and Helpers, Local No. 541 affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the duly designated collective-bargaining representative of a majority of the Respondent's employees in the appropri- ate bargaining unit and, if an agreement is reached, embody such agreement in a written signed contract. The appropriate unit is: All full-time and regular part-time drivers and me- chanics employed by Martin City Ready Mix at its facility located at 13716 Oak, Kansas City, Missouri, but excluding all office clerical employees, profes- sional employees, guards and supervisors as defined in the Act. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze and determine the amount of backpay due under the terms of this Order. (d) Post at its Kansas City, Missouri, facility copies of the attached notice marked "Appendix." 6 Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that said notices are not altered, defaced, or covered by any other material. s The Respondent's unfair labor practices in this matter indicate a pro- pensity to engage in violations of the Act and accordingly broad injunc- tive relief is appropriate. See Hwckmott Foods. Inc., 242 NLRB 1357 (1979) a In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National L abor Relations Board" 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the election conducted on May 14, 1981,, be set aside, the petition in Case 17- RC-9222 be dismissed, and all prior proceedings thereun- der vacated. 458