Marion Center Supply, Inc.

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Marion Center Supply, Inc. and William S. Ondo and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 110 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Cases 6- CA-16640, 6-CA-16843, and 6-RC-9391 8 November 1985 DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 17 August 1984 Administrative Law Judge Walter J. Alprin issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge 's rulings, findings,' and conclusions as modified and to adopt the recom- mended Order as modified.2 Discharge of Cressley The judge found dischargee Cressley had a record of "relatively minor work offenses" which had been forgiven. The record reveals, however, that some of Cressley's offenses were serious, and he was warned not to continue such behavior. Cressley was the second employee to sign a union authorization card, 1 day after Ondo signed his card. Cressley discussed the advantages of the Union with numerous employees and told other employees that he signed a union card. i The Respondent has excepted to some of the judge 's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings The judge made several factual errors For example , the judge found employee McCullough confirmed that the Respondent's owner and presi- dent, Elliott, discussed the union campaign in July 1983 , in fact, McCul- lough placed the conversation in July at one point and in August at an- other point in his testimony . And, contrary to the judge's finding, Elliott did not admit speaking to employee Laney about refusing to sign a peti- tion to revoke union authorization cards Finally, contrary to the judge's finding, one of the Respondent 's customers did identify discriminatee Ondo as one of the employees engaging in allegedly dilatory practices We correct the errors, but because there is sufficient independent evi- dence to support the dating of the conversation in July and the ultimate findings that the Respondent solicited revocation of authorization cards and unlawfully discharged employee Ondo, we find the errors do not affect the judge's conclusions Nor do we find it significant that the judge mischaracterized a list of employees as the Excelsior list We find it unnecessary to rely on fn 5 of the judge's decision and the judge's discussion of Buffalo Broadcasting Co, 242 NLRB 1105 ( 1979). 2 We modify the recommended Order to provide that the Union is en- titled to both a bargaining order and a certification of representative in the event the revised tally of ballots shows that it won the election. See Gordonsville Industries, 252 NLRB 563 , 604 (1980), and the cases it cites. The Respondent claimed it fired Cressley when it received notice that Cressley had been ticketed for failing to show a truck lease to a Public Utility Commission (PUC) officer. This situation is not similar to any of Cressley's prior, unexcused of- fenses. The Respondent alleged Cressley told El- liott he did not show the truck lease to the PUC because he did not feel like it. Credited testimony reveals Cressley did not have the requested items and he did not tell Elliott he did not feel like show- ing them to the PUC. Accordingly, we agree with the judge that the claimed reason for Cressley's discharge was pretextual. Given the finding of the Respondent's prior knowledge of the union campaign and Cressley's participation,3 and the pretextual reason offered for his discharge , we agree with the judge that Cress- ley's discharge violated Section 8(a)(3) and (1) of the Act. Bargaining Order The judge found the Union represented a majori- ty of the unit employees at one time. We agree. When the Respondent first received notice of the Union's demand for recognition 10 August 1983, there were 19 unit employees working for the Re- spondent, not counting the 100 -percent company shareholder's three children who are not employees under Section 2(3) of the Act. The Union had signed cards from 10 of the 19 employees . Includ- ing discriminatory dischargees Ondo and Cressley, the Union had cards from 12 out of 21 employees. Therefore, the Union clearly represented a majori- ty of the unit employees on the demand date. The judge found that a Gissel4 bargaining order should be issued . We agree. The Respondent com- mitted at least four "hallmark" violations-dis- charging the main union adherent and an active union supporter, threatening discharge, and threat- ening plant closure. See NLRB v. Jamaica Towing, 632 F.2d 208, 212-213 (2d Cir. 1980). (The threats were made by the Respondent's owner and presi- dent.) In a small unit of 21 employees, one-fourth of the unit (5 employees) were directly affected by the Respondent's hallmark violations . Such highly coercive unfair labor practices as the repeated vio- lations of Section 8(a)(3) were likely to have had a 3 We agree with the judge's finding that the Respondent had direct knowledge of discriminatee Ondo's union activity . We further agree with the judge that the Respondent's knowledge of discriminatee Cressley's union activity may be inferred . In so doing, we rely on the fact that the Respondent had direct knowledge of the Union's campaign, that Cress- ley's discharge occurred almost simultaneously with Ondo's discharge, and that the Respondent's asserted reason for discharging Cressley was pretextual. We therefore find it unnecessary to pass on the judge 's addi- tional reliance on the "small plant doctrine " 4 NLRB v Gissel Packing Co., 395 U S. 575 (1969) 277 NLRB No. 26 MARION CENTER SUPPLY 263 profound impact on all employees. In these circum- stances, we conclude that in the event the revised tally of ballots shows that the Union lost the elec- tion, it is unlikely that the use of traditional reme- dies would be sufficient to ensure a fair rerun elec- tion. Accordingly, we agree that a bargaining order is warranted.5 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Marion Center Supply, Inc., Marion Center, Pennsylvania, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order. IT IS FURTHER ORDERED that the challenges to the ballots of John Zolocsik, Richard Engle, Gerald McCullough, and William Ondo, having been overruled, they shall be opened and counted and a revised tally of ballots be issued and served on the parties. If the tally shows a majority vote for the Union, then the Union shall be certified as representative in the above appropriate unit. If the revised tally fails to show that the Union has re- ceived a majority of the valid ballots counted, the election shall be set aside and the representation case dismissed. 5 Member Dennis concurs See her separate opinion in Regency Manor Nursing Home, 275 NLRB No 171 (July 31, 1985) Barton A. Meyers, Esq., for the General Counsel. Rodney M Scott, Esq. (Tomb & Tomb), of Indiana, Penn- sylvania, for the Respondent. Ernest B. Orsatti, Esq. (Jubelirer, Pass & Intieri), of Pitts- burgh, Pennsylvania, for the Charging Party/-Petition- er. DECISION STATEMENT OF THE CASE WALTER J. ALPRIN, Administrative Law Judge. The issues in this case are whether the employer violated the rights guaranteed employees by Section 7 of the National Labor Relations Act (the Act) by threats, surveillance, and otherwise in violation of Section 8(a)(1) of the Act; whether the employer terminated employees because of protected union activities in violation of Section 8(a)(1) and (3); alternatively whether the employer terminated an employee in retaliation for filing charges with or testi- fying pursuant to the Act in violation of Section 8(a)(4) of the Act; whether the Union represented a majority of employees in an appropriate unit; and whether the em- ployer failed and refused to recognize and bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, Charges were filed on August 17 and October 21, 1983,1 complaint issued October 27, and amended com- plaint issued November 10. Hearing was held before me at Indiana, Pennsylvania, on March 13-15, 1984, and briefs were thereafter submitted on behalf of the employ- er and of the General Counsel.2 On consideration of the entire record, and observing the demeanor of the witnesses, I make the following FINDINGS OF FACT A. Background and Jurisdiction Marion Center Supply, Inc. (Respondent) engages in the sale of ready-mix concrete, pre-cast concrete prod- ucts, and other building supplies at its sole facility at Marion Center, Pennsylvania, and in hauling coal and re- lated products. It admits it is, and I find it to be, an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 110, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) has been at all times ma- terial herein a labor organization within the meaning of Section 2(5) of the Act. B. Events Prior to Receipt of Demand to Recognize 1. Knowledge of union campaign William Ondo, employed by Respondent as a truck- driver on June 22, began the Union's organizational cam- paign sometime in July with the distribution of union au- thorization cards, which were executed by the 13 em- ployees and on the dates as follows: William Ondo, July 13; Michael Cressley, July 14; James Lightcap, July 18; Terry Goss, July 18; D. Lynn Baun, July 20; Gerald McCullough, July 22; Kevin Berringer, July 25; Gary Reinhart, July 25; Harry Bish, July 26; James Edwards, July 26; Daniel Ford, July 26; Thomas Lipsie, July 26; and Blair Hilty, August 2. Ford, who left the employment of Respondent in No- vember, testified that some time during the second week of July, while under a truck greasing it, he heard Glenn Elliott, Respondent's president and sole stockholder, come in and ask John Zolocsik, another employee, whether he had heard the rumors about a union "making their way" into Respondent. Zolocsik, called by Re- spondent to testify, was not questioned regarding the in- cident. Elliott could only testify, "I have no idlea; I don't recall asking that," which I take as a denial. Ford also testified that a short time later, since it was also during the second week of, or late in July, he and McCullough, who is still employed by Respondent, ap- proached Elliott to complain that Respondent's wages were substandard and to ask for an increase in pay, bene- fits, or both, for all employees. Ford testified that he and McCullough at that time told Elliott that the union was All dates are in 1983 unless otherwise indicated. a Respondent's unopposed motion to correct the transcript is hereby granted. 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD working its way in, and that Elliott responded that "there would be no way that the union would ever come in at Marion Center Supply." McCullough confirmed that the meeting with Elliott took place on July 20 or 21, that they told Elliott of the union campaign and, since they preferred not to have a union, requested a raise or , other benefits for all employ- ees. He also testified that Elliott's response was that "no way would the union get into Marion Center Supply." McCullough testified that there was a third meeting among the three, about a week later, 3 in which Elliott asked if the employees were really thinking of "going union" and asked for the identity of those persons who were "starting" the union, stating that he would "take care of the problem." McCullough also testified that during this conversation Elliott stated that he would never "go union; that we would have to go on strike and while we were striking he could hire all new employees to replace us." Ford was not questioned and did not testify as to this conversation. Elliott first testified , as to the alleged con- versation, that "there may have been , everybody would like to make money. I'm sure. They may have asked me for more money." After then denying that Ford and McCullough had asked about a union, Elliott testified that "the only thing I said that I was having a hard time and I didn't have the business . . . I just said that busi- ness was slow, the accounts receivable were slow and that I would take it under consideration and that was it." Elliott also denied asking who was involved in the Union and stating that the Union would never come in. Ford also testified that in the latter part of July, Ondo and Zolocsik got into an argument, after which Elliott asked Zolocsik whether Ondo was "the one getting the Union started or is he pushing the Union in here?" El- liott denied making such an inquiry. Goss, who was employed by Respondent until early November, testified that during the last week of July, as he was leaving work, Elliott approached him and asked if he would like some advice. Goss said he would, and Elliott "said, stay the hell away from those guys that's starting that bullshit. And I said, What bullshit is that? He said, the bulls hit about the union." Goss further tes- tified that Elliott then told him "that if I wanted a future there that to stay away from them or else I was fired." Elliott denied the conversation . Elliott and Goss are in- volved in a dispute regarding liability for a hospital charge of $23 which Goss claims arose from a work-re- lated incident occuring April 27 covered by workmen's compensation and which Elliott believed to cover other services . Elliott also testified that there is a dispute be- tween Goss and himself due to an error Goss made in mixing a batch of concrete which Goss denies, and re- garding Goss making an obscene gesture to the wife of one of his customers. McCullough also testified that roughly between August 1 and 6, Elliott told him he had a "pretty good idea of who started the union and wanted to know if he drove a brown and orange auto-car dump truck tri-axle," 3 McCullough was able to place the time because it was shortly after he had signed his union authorization card on July 22 which described only the vehicle driven by Ondo. Elliott also denied making this statement. 2. Discriminatory discharges a. William Ondo On August 3, Ondo returned to Respondent 's facility to park his vehicle. He was then told by Elliott that there was no work available for the vehicle, and that he should not report the next morning. This was the first such occurrence since Ondo had been hired on June 22 as a tri-axle dump truck driver hauling coal , sand, and gravel. The next day, August 4, about 5:30 p .m., Elliott phoned Ondo at home and told him that "We're going (to) try another fellow on that truck to see if he can make better time" and that he should sign up for unem- ployment benefits. Ondo asked for and was given permis- sion to come to the facility for his personal gear, which he did. On Ondo's final paycheck Respondent typed a restriction to the endorsement, as follows: "I, William Ondo understand that I am being laid off from Marion Supply, Inc. as of August 4, 1983." Ondo refused to exe- cute the endorsement in that form, and Respondent re- fused to release funds to honor the check for over 2 months, until Ondo had retained counsel who threatened suit and Ondo, after being advised of the consequences or lack thereof, had endorsed the check with the state- ment. The testimony of Elliott with the entire litany of grounds for Ondo's termination was summed up in his counsel's letter to the Board agent on September 23, rel- ative to the charge herein , as follows: As previously emphasized in our statement in letter form of August 30, 1983, the employer, Marion Center Supply , Inc., had no knowledge whatsoever of union activity at its establishment until several days after the discharged individuals, including William Ondo, had already been dismissed for cause. Ondo's layoff was precipitated by a pat- tern of behavior displaying negligence, unwilling- ness to perform his duties diligently , property damage and waste, and an antagonistic attitude which was known to be disruptive of his fellow em- ployees. William Ondo began working for the employer approximately 6 weeks before he was eventually laid off. About three weeks into his employment, he smashed the corner of a garage located at the en- trance to the employer 's premises by turning his truck around the corner too sharply-an action that was considered to entail extreme driver incompe- tence both due to the fact that no one had ever before hit the garage in such a manner, and the fact that Ondo had no reason to be making the turn which caused the accident, as he was supposed to be going straight past the garage that was struck. The next incident involving Mr. Ondo was the discovery of his involvement in a practice of wait- ing around after his truck was loaded at Mears Coal Co. until all of the other trucks from Marion Center Supply had also loaded. He, along with the other MARION CENTER SUPPLY drivers involved, were warned about this waste of the employer's equipment and fuel. Because a large diesel truck is normally left running constantly during the day until it is shut down at night, any waste of time involves, in addition, the unnecessary use of fuel to keep the engine running. Another practice of Ondo's relating to his even- tual layoff was his incessant use of his CB radio in the truck he was driving. The other drivers of Marion Center Supply complained about this prob- lem to the employer. The "Music Man" as Ondo called himself, would constantly be driving with one hand holding the microphone of the CB radio. By driving one-handed on the narrow bumpy roads that comprise the majority of highway in this part of the state, and hauling 70,000 lbs. of material in a large coal truck, Ondo subjected other users of the highway to danger and subjected the employer to potential liability for any injury or property damage that could have resulted. William Ondo was known by many to be antago- mtstic, boisterous, and what some call "lazy." He disrupted those around him, and one of the other employees, Mr. John Zolocsik, even asked the em- ployer to fire Ondo at one point. Ondo refused to do small tasks connected with the maintenance of his truck, such as aiding with an air hose, handing tools to other workers, etc. Ondo would do nothing but drive his truck and even his performance at that task slid below acceptable standards. Throughout Ondo's period of employment, he took longer and longer to perform the same runs with his truck, and used more fuel as well. The final event which precipitated his layoff for cause oc- curred on August 4, 1983, when the employer found hard evidence that Ondo had been malinger- ing on the job. Ondo left the employer's premises after completing his run with the coal truck to Erie, Pa., on August 3. When Ondo left he was told by the employer that he need not come in the next day, August 4, because the employer had no more orders that required the use of Ondo's truck for the 4th. Later that same evening of August 3, an order requiring the use of that truck did come in. The em- ployer tried to call Ondo at his home to tell him to come in on the 4th, but could not reach him. The employer does not recall whether, when Ondo was called at his home that evening, his line was busy, or whether no one answered the phone at all. In any event, Ondo was unavailable to drive the truck on August 4. At this point, the employer called em- ployee Thomas Lipsie, who had asked for a chance to drive a coal truck in the past, to make the same run to Erie, Pa. Lipsie, to the employer 's surprise, made the same run in the same truck hauling the same amount of material in over 2 hours less time using 12 gallons less fuel. The copy of the time cards for Ondo and Lipsiie for the run in question, show the difference. On making the discovery, the employer called William Ondo and told him that he had better sign up for unemployment because he was being laid off. 265 Ondo merely stated "alright" [sic] or "okay" and that was the end of the conversation. In addition, Elliott testified at the hearing as to incidents in which he observed Ondo speeding, "smoking the brakes" by abruptly reducing speed, and driving danger- ously. Examination of Ondo also sought to establish as an additional reason for his August 4 discharge the mis- suse at various times after that date of keys allegedly given Ondo. Ondo testified that he had indeed had the accident hit- ting the garage corner. He admitted that at various times during his employment he exceeded the speed limit, but denied the specific instances of speeding, smoking the brakes, or driving dangerously alleged by Elliott. In terms of waiting until all trucks were loaded before leav- ing a loading cite, Ondo testified as to assistance in load- ing he was required to give other drivers, and the fact that the vehicles generally ran in convoy. As to taking additional time to complete a run, in a convoy all vehi- cles take the same time, and the speeding with which Ondo was charged would have reduced the time of the runs. Ondo admitted using the CB radio, which was in- stalled by Respondent for Respondent's own benefit. However, Ondo testified that the CBs were used in part to discuss the Union campagin with other drivers, going from the generally used channel 19 to channel 33 for such purpose pursuant to secret prearrangement.4 Zolocsik testified for Respondent that he had asked Ondo for assistance only once, and received it, that the only problem Ondo ever created was once failing to move his vehicle for the convenience of others, that Ondo never argued with other employees, but that he thought Ondo was "rather stupid" in hitting the edge of the garage, and told Elliott he could find a better driver. He did not testify as to asking Elliott to fire Ondo. As evidence of Ondo malingering, Respondent pre- sented the testimony of John Jahoda, an employee of Re- spondent's coal company customer. Jahoda reported on excess running time, bunching up of vehicles, loitering, littering, and other matters. He did not, however, identi- fy Ondo as individually being involved in any of these activities. Finally, Elliott's testimony of the actual status of and reason for Ondo's termination went further than coun- sel's letter previously quoted. The reason "was a combi- nation of three things or several things. I had the com- plaint from the coal company; they didn't name Ondo by name and I wasn't picking on him because of that. It was things that I observed and it was a matter of economics. I had too many men." The observations dealt with speeding and unsafe driving, and excessive time, previ- ously discussed. Again Elliott testified the grounds for termination were: "But the reason why I laid him off was that my concrete business . . . they didn't need as much daily as they had before." Further, Elliott had been asked by Lipsie for the chance to drive a dump truck, and "So I kept thinking about, my main concern 4 Ondo testified of an instance of mentioning the union campaign on channel 19 while Elliott's daughter was near by in a vehicle which had a CB, but there is no evidence that the conversation was overheard. 266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Mr. Ondo was, I was afraid of him having a serious accident." He testified that "the day of the 3rd, our loads had been cut back a little but, our concrete had dropped away . . . so I really didn't need Lipsie at all for the concrete end of it . . . I tried to call Bill Ondo once and it was either busy or no one answered . . . so I thought, well I'll give Lipsie a try and he worked out well, even using up less time than Ondo." Elliott continued testify- ing as to the reason for Ondo's termination that "the concrete business never recovered. . . . So, consequent- ly, we didn't need as many men. So if you don't need, the newest, at that time Mr. Ondo was the newest man." Actually, Hilty had been hired 5 weeks after Ondo. Pay- roll records reveal that Respondent hired two new driv- ers on August 5, and a third new driver on August 8. Elliott testified as to Ondo's status that his action of August 3 "was strictly just a layoff," and "I didn't con- sider [it] really super permanent. If I'd got the work, he would've been back." Elliott considered Ondo as still employed until August 19 when Elliott received notice of the unfair labor practice charge. In his words, "When I got the unfair labor practice on the 19th, you know, that sort of makes your decision for you" and, in earlier testimony, "I probably thought, well, you don't need friends like that." After receiving Ondo's charge he as- sumed Ondo didn't want to be his friend and that since he received no notice of application for unemployment benefits that Ondo had obtained other employment. b. Michael Cressley Cressley was employed by Respondent as a driver from May 1, 1981, until August 4, He was the second employee to sign a union authorization card, doing so on July 14, and prior to his termination discussed the Union with three to five other drivers at Respondent's facility, and once or twice on the CB. After work on August 4 he was terminated by Elliott, who told him that a report from the Pennsylvania Public Utility Commission was the reason. In his letter to the State Office of Employment Securi- ty, dated August II, Elliott stated the following grounds of "willful misconduct" leading to discharge: Mr. Michael G. Cressley had been employed with our company from May 1, 1981 to August 4, 1983. In that time period these are some of the things that lead [sic] to his willful misconduct: Summer of 1981 Mr. Cressley was to report to work at 7:00 AM on Saturday to drive a concrete mixer truck in which we had promised the customer concrete to be at their home at 8:00 AM. Mr. Cressley never showed up, leaving me in a real mess. Monday morning Mr. Cressley came to work and told me that he had to take his baby to the Indiana Hospital. Later that day I called the Indiana Hospital, there was no child there Saturday under the name Cress- ley. Mr. Cressley was warned at this time. Fall of 1982 On Thanksgiving eve, Mr. Cressley was instruct- ed to fuel up his truck and put it away. He did that but ran into a 16' wide door smashing the frame. Mr. Cressley left for the day not telling me about the door. One of the other employees came to me and said do you know Mike smashed the door? I re- plied NO! On the door frame, I had to work many hours that evening trying to get it closed and locked. On Thanksgiving evening I called Mr. Cressley and asked him why he did not tell me, his reply was "you don't seem to get as mad several days later than if I would have told you that day." Mr. Cressley was warned at this time Winter of 1983 [sic] Mr. Cressley was driving a dump truck, he was instructed how to operate the truck such as mainte- nance, dumping loads, driving in bad weather con- ditions, etc. . . . Mr Cressley would not follow in- structions on how to dump, therefore he twisted the tailgate twice. We had approximately 4 hours of welding, straightening, etc. . . . to do each time. Another employee drove this same truck approxi- mately 246,000 miles and never hurt the tailgate. Mr. Cressley was warned at this time. Spring of 1983 Mr. Cressley was still driving the same dump truck, he would not tighten the bolts on the wheel, therefore he busted the front lug. Mr. Cressley was warned to check these items daily. A few weeks later one of the other dump truck drivers made Mr. Cressley tighten the bolts at the limestone quarry because the wheel was ready to fall off. Mr. Cress- ley was warned again about his poor maintenance. Summer of 1983 Mr. Cressley was pulled over by a state police of- ficer for a common check of the truck. He asked Mr. Cressley to see the insurance card, Mr. Cressley said he did not have one, which was and is incor- rect because I issue a new card to each truck once a year. Mr. Cressley was warned about this, he did not seem concerned about the matter. August 3, 1983 In the mail today I received the attached road check from the Pennsylvania Public Utility Com- mission telling me Mr. Cressley was stopped and did not show them his lease and sign for the truck, which was and is on board. As you will find in the enclosed letter, upon questioning Mr. Cressley why these items were not shown to the PUC people, he indicated that he did not feel like showing them to the PUC people. At this time Mr. Cressley was fired from our company for willful misconduct. After further examination of the truck we found that it looked like pigs had lived in it, we also found several other maintainance [sic] items that should MARION CENTER SUPPLY have been reported to our maintainance [sic] super- visor. Mr. Cressley was a very moody employee, he never was concerned about his job. If you need more reports of this nature, I have a lot more items similar to this. By Elliott's direct testimony, and by cross-examination of Cressly, additional accidents or incidents of alleged poor driving were added for the period starting in 1983. Cressley's testimony regarding the incidents in the letter were as follows: That in 1981 he had neglected to advise Elliott when he took his son to the hospital, having gone to the emergency room and not being re- quired to admit the child to the hospital and that he was warned not to miss too many Saturdays or he would lose his job; that in 1982 he did run into the door frame and failed to report it because he was afraid of being fired, and that he was instructed to and did repair it the next day; that in 1983 he did, through inexperience, damage the dumping mechanism of a dump truck and was warned that if it continued he would be reassigned to a different type of vehicle; that he checked wheel bolts regularly but that they would work loose, which was the reason for regularly checking them; that, in 1983, he did not have a current insurance card available because Re- spondent had not issued one to him; that on August 3, as the last vehicle in a convoy of five, he was stopped and when explaining that he was allegedly operating under lease was asked for a copy of the lease, required to be carried, and as to why he did not display the required identifying door placards. Cressley testified that he searched the vehicle for a copy of his lease papers but was unable to find them, and that the placards had been previously given to another driver at Elliott's direction. He admitted that he did not mention the incident to El- liott at the time, but denied that he failed to display the items to the PUC because he "did not feel like showing them," or making any such statements to Elliott. During this period Elliott had problems with many drivers not appearing for work on Saturdays, and he had instituted the practice of delaying payday from Friday to Saturday for any driver not coming in on Saturday three times. Cressley had failed to come in only twice, though a number of drivers failed to come in three times and had had their paydays changed. Cressley was denied unemployment benefits and ap- pealed the ruling, stating that his actions had not been willful. He did not allege that his union involvement was the cause of his discharge, and he did not appear at the hearing of his appeal. c. Blair Hilly Hilty was employed by Respondent as a driver from July 29 to August 4. He signed a union authorization card on August 2. Hilty testified that on the evening of August 4, when he finished work, he was approached by Elliott who told him that the coal company at the loading point had com- plained that drivers "were screwing around and holding up traffic; we were loading and just setting . . . and he told me I was fired. And I said, you didn't fire me, I quit." 267 Elliott testified that no such conversation took place, and that on August 5 Hilty simply did not report for work. Elliott's daughter, Respondent's dispatcher, testi- fied that after Hilty clocked out on August 4 she gave him his instructions to report for work the next morning, that they chatted and he mentioned nothing about any conversation with Elliott, being fired, or quitting. C. Events After Receipt ofDemand to Recognize the Union By letter dated August 3, received by Elliott August 10, the Union advised Respondent it claimed a majority of Respondent's employees as members, and "requesting recognition as the sole and exclusive bargaining agent for the people." The Union also filed a certification petition with the Board, a copy of which was received by Re- spondent on August 8. 1. Soliciting revocation of union authorization cards Ford and McCullough testified that in mid-to-late August, Elliott told them that for employees "that really didn't want this union in here the best way to get this out of here was to sign a petition saying that we the un- dersigned employees . . . do not want this union to rep- resent us." Ford testified that the suggestion was coupled with veiled threats, later discussed. Ford and McCul- lough testified that they discussed this between them- selves, and that McCullough then wrote out a petition as dictated by Elliott. It was then arranged that as employ- ees came into the shop, Ford and McCullough would get their signatures. Those employees not coming through the shop were sent by Elliott, who told them that Ford and McCullough wanted to see them. To the roughly six employees who asked what would happen if they did not sign, McCullough responded "I have no idea, but that I was signing it, I needed to keep my job." McCullough added that Elliott came over several times to see who had signed the petition and as to driver Laney, when told he refused to sign, that Elliott said he would take care of it and the next day Laney signed. Elliott's coun- sel gave McCullough the names and addresses of parties to whom copies were to be sent-the Board, the Union, and Elliott. McCullough left the petition in an office safe over- night, and the next day found it had disappeared. He tes- tified that when he reported this to Elliott he was told to quickly make up another one, get it signed the same way and "Nip this thing in the bud." McCullough's second petition was as follows: We the undersigned employe(e)s of Marion Center Supply, Inc. Do not want the Teamsters' Local 110 Union in representing us in any way, because we feel we have been lied to, mislead, 5 misinformed to believe things that are not so. (We want the cards back) This is the second original copy of this letter. The first one was stolen by someone for the Union. The 5 Note the same past tense spelling in Elliott's letter re Cresssley, first paragraph 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first letter we had 100% of the employees (sign), this letter we don't But its enough! C.C. Better Relations Board C.C. Teamsters Local 110 & Marion Center Supply (Signatures) Vernon Laney J. W. Lattimer Harry Bish James Lightcap Gary Reinhart Jerry McCullough Gary Nicholson Donald Troup Terry M. Goss R. E. Miller Daniel Ford Kevin Berringer -----s Bill Elliott Richard Ingle Bruno Busano, Jr. Thomas Lipsie was asked to sign but responded that he was for the Union and would not. McCullough testified that Elliott was within hearing distance at the time. Lipsie was directed by Elliott to clock out for the bal- ance of the day. The portion of the petition stating "We want the cards back" was inserted at Elliott's direction only after the signatures had been obtained. McCullough again ob- tained addresses from Respondent's counsel, and the peti- tion was given to Elliott's daughter , the company dis- patcher, for stamping and mailing on that day, August 18. Lipsie testified confirming that he had been sent to see Ford by Elliott who told him that Ford had something for him to sign, that when he refused to sign Elliott was within hearing distance, and that after refusing, Elliott told him to punch out and go home, though the usual practice would have been for him to take another load. Elliott's testimony regarding the petition was that McCullough had come to the office and was very upset about how the Union had misled him and suggested that he, McCullough, "write a letter." Elliott testified that McCullough "insinuated, what should he do, what should they do, and it just sort of came, it was a sugges- tion, I think, really from both of us, maybe, if they wanted to, that they could notify the people, the Union people, I guess. But I felt that that was strictly their own doing, McCullough's own doing. . . . We just sort of, possibly mutual, just to let them know how they, the men, felt. This was something that was sort of throwed in the air by both of us, but they could do what they wanted to do." Other than repeating his frequently used statement that the three quickest ways of going out of business were women, booze, and the Union, and that as far as his knowledge went Teamsters only involved truck driving so that unionized employees would not be able to fill in on other jobs, he said nothing, neither agreeing nor dis- agreeing with the idea of writing any letter, much less dictating it. Elliott recalled McCullough telling him that Laney would not sign the letter and speaking to Laney about it, but does not recall hearing Lipsey refuse to sign. As to the petition in general, Elliott denied any knowl- edge of what Ford and McCullough were doing, that he 6 Signature of James Lightcap stricken-appears in second column "was instructed by Jerry McCullough, when the employ- ees punched out that they were supposed to come and see him in the garage . That's all I did, when they would punch out I said, Jerry said he'd like to see you over in the garage." 2. Threats, interrogations, and surveillances In addition to the allegations of unlawful interroga- tions of Zolocsik, Ford, and McCullough prior to notice of representation, and a threat to fire Goss if he became involved with the Union , the General Counsel alleges a number of unfair labor practices thereafter. As previously noted, driver Ford testified Elliott said that if the Union was voted in he would close down and then reopen with new employees , and that if the employ- ees were represented by Teamsters they could only be used as drivers and would not be used in nondriving time to work as mechanics or laborers in the casting depart- ment. He also testified Elliott said that he would not go union, would close the business if it went union, would refuse to bargain, would force employees to strike and then replace them, and would reduce pay to minimum wages. McCullough also testified Elliott said that he would force a strike and replace the employees , asked for the names of union supporters , asked whether he had attend ed specific union meetings and who was there and "how things were going," stated that Teamsters would only drive and he would not let them do other work, that he would reduce pay to minimum wages, and that he would not negotiate if Respondent were unionized. McCullough also testified that some time after Ondo was terminated he received a message that Ondo had called him at home and asked to be called back . He testi- fied that he mentioned this to Elliott , who gave him a tape recorder, asking him to use it to record "anything incriminating about Mr. Elliott, the Company, the Union or any other employee there." McCullough testified he took the tape recorder, but did not return Ondo's call. In another incident, James Edwards testified that on March 9, the Thursday prior to the opening of the hearing, he had a conversation with Elliott in the office , that Elliott "had a little piece of paper laying on the counter and it had (Ondo's, Cressley's, and Hilty's) names. And the paper said that the National Labor Relations Board was trying to get them their jobs back into the yard. And he told me if they came back into the yard-I mean, he just said-or asked me if I know what they are going to be driving, and he said, the same thing they were driving when they left, a dump truck. I took one of their jobs." Edwards testified that Elliott stated he "was not telling me what to do or what not to do. He just showed me the paper." Edwards also testified that Elliott had asked whether they had ever had a conversation regarding the Union, and Edwards responded that there was "just some small thing" which he could not even remember, and that Elliott responded that "he didn't want to hear that again, hear about it." Elliott's testimony regarding all the above instances consisted of direct denials, or admissions with explana- tions. He specifically denied ever asking the identity of MARION CENTER SUPPLY those joining or belonging to the Union, ever stating that the Union would never "come in," ever stating that Re- spondent would shut down, or ever stating that he would refuse to bargain with the Union. Elliott also denied ever stating that instead of bargaining he would only pay minimum wages, testifying that what he had said was, as in a prepared script, that bargained wages could be anything from minimum wages up. He denied ever stating that he would force a strike or would re- place strikers, testifying that he only read prepared texts regarding those points. He denied threatening that if the Union came in he would restrict employees to driving and not continue the practice of permitting them to work as mechanics and production employees when not driv- ing, but admitted telling employees that it was his under- standing Teamsters would only "drive a truck but we have many other positions other than driving a truck and we would have to have separate people for all these dif- ferent positions." Regarding the tape recorder incident, Elliott denied McCullough's version, testifying that in a climate of threats by the Union and fear on the part of employees, McCullough asked for the recorder because his wife was receiving threatening calls. As to Edward's testimony of the conversation 4 days before the hearing, Elliott testi- fied that "[w]hat happened, I wrote on a piece of paper that Mr. Ondo, Mr. Hilty, and Mr. Cressley wanted to come back and work for Marion Center Supply; this was what the Labor Board was trying to come across with. He (Edwards) read it and he said, would they be driving trucks and I said, I shrugged my shoulders and that's, I never said a word because I don't know and I don't think anybody knows." Elliott's daughter, who works as dispatcher, was present . She confirmed Elliott's testimo- ny that Edwards asked how reinstatement would effect him [sic] and that Elliott merely shrugged his shoulders in resposne . She did not know what the "piece of paper" stated, where it came from or where it went, and was not aware that Elliott himself had prepared it. D. Discussion of Unfair Labor Practices 1. Credibility Virtually all the ultimate findings regarding unfair labor practices revolve about the credibility findings on the testimonial conflicts between Elliott, on the one hand, and, on the other , Ford, McCullough, Goss, Cress- ley, Hilty, and others. For the reasons following and except where other circumstances require different find- ings, I do not accept Elliott's testimony. Elliott testified that Ondo's termination was based in part on the economic grounds of loss of business and in part on Ondo's being the most recent employee and hence the first to go in any reduction . The facts show that 2 days after Ondo was terminated 2 other men were hired, and a third was hired the next workday . Elliott's excuse of lack of work was therefore not truthful. Sec- ondly, according to Elliott's own testimony, Hilty gave no indication when he clocked out on August 4 that he would not report for work the next morning. Since Hilty had been employed by Respondent for less time than Ondo, Elliott's testimony that Ondo was laid off on 269 August 3 as most junior driver also is not truthful. Third- ly, Elliott testified that the action as to Ondo on August 3 was a layoff and not a termination, and that Ondo would have been recalled had there been an opening. Since others were employed on August 5 and 8, before Elliott received Ondo's charge to the Board, with no recall of Ondo, it is obvious that Elliott's testimony on this point also is not truthful. Elliot's insistence that in order to cash his last paycheck Ondo sign an endorse- ment to the effect that he had been laid off rather than discharged is indicative of his furtive attempts to miscast his action. Further, weighing testamentary contradiction between Elliott and McCullough, I find McCullough is more be- lievable. In addition to his straightforward demeanor, I have considered that McCullough remained in Respond- ent's employ, and his testimony may place his job in jeopardy. Clearly contrary to self-interest, McCullough's testimony is highly credible. The same is true as to Ed- ward's testimony, also contradictory to that of Elliott. 2. Prior knowledge of union campaign and participation by discriminatees Elliott denied any knowledge of the union campaign prior to August 8, after the terminations of the three drivers. McCullough, however, whose testimony I have found credible, told Elliott about the Union campaign on July 20 or 21. Ford , who is no longer employed by Re- spondent and whose testimony is thereby not contrary to self-interest, nevertheless testified credibly and forth- rightly, confirming McCullough's statement in this regard . I also credit Ford's testimony that he had earlier overheard Elliott question Zolocsik about rumors of a union campaign, and later still during July, overheard Elliott question Zolocsik about Ondo's participation. Zo- locsik testified, and denied neither of these two incidents. Goss is also no longer employed by Respondent, and has one or more disputes with Respondent , but in view of my crediting other testimony regarding Elliott's knowl- edge of the union campaign I also find credible his testi- mony that Elliott warned him in July against involve- ment in the campaign. In sum, I find that, through El- liott, Respondent had direct knowledge of the union campaign prior to August 3. In addition, the General Counsel argues that pursuant to the Board's "small-plant doctrine," direct proof of knowledge is not required where it may be inferred from the record as a whole. In the seminal case of Wiese Plow & Welding Co., 123 NLRB 616, 618 (19:59), the Board ruled that examination of the record as a whole support- ed, on circumstantial evidence, knowledge both of the union campaign and that the discharged employees had been active participants. It cited as factors that (1) there was a small number of employees, (2) the discrirninatee had spoken to other employees in favor of the union, (3) the discriminatees' prior union membership was known to the employer, (4) the discharge took place shortly after the time knowledge was inferred, (5) the employees acting on behalf of the union were discharged simulta- neously, and (6) the former practice of giving warning prior to discharge was not followed. In succeeding cases 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD additional criteria were cited , such as giving pretextual reasons for discharge , Marsden Electric Co., 226 NLRB 1097, 1099 (1976), and Florida Cities Water Co., 247 NLRB 755, 756 ( 1980), and employer union animus, Alumbaugh Coal Corp., 247 NLRB 895, 900-901 (1980), Corn Bros., Inc., 262 NLRB 320, 325 (1982). I agree with the General Counsel that, given (1) the small size of the work force, (2) that discrimmatees Ondo and Cressley had spoken in favor of the Union, in person and by CB, between themselves and with other employees , (3) the discharges took place shortly after knowledge could be inferred, (4) the employees were discharged almost si- multaneously, (5) no warnings were given to Ondo, (6) the grounds for discharge were pretextual , (7) the em- ployer exhibited union animus, (8) the son of Respond- ent's manager worked with the other employees, and (9) the daughter of Respondent's manager was the dispatch- er, in a position to overhear CB communications be- tween drivers, there is an inference from the record that Respondent was aware of the union campaign before the discharges, and at least aware of Ondo's and Cressley's participation.7 Respondent points out that the employees were secre- tive and circumspect in pursuing the organizational effort. However, the Board has recognized that employ- ees may attempt to conceal their plans from their em- ployer, but that such fact does not eliminate the validity of the small-plant doctrine. Bros. Three Cabinets, 248 NLRB 828, 841 (1980). 3. Discriminatory discharges As previously stated, it is found that Respondent's dis- charge of Ondo was made with both actual and inferred knowledge of the union campaign and of Ondo 's partici- pation. The grounds offered by Respondent have been found to be pretextual , and Ondo's discharge was in vio- lation of Section 8(a)(1) and (3) of the Act." As also previously stated, it is found that Respondent's discharge of Cressley was made with the actual and in- ferred knowledge of the union campaign , and with the inferred knowledge of his participation . In view of the prior findings that Elliott's contested testimony standing by itself should not be credited, I do not find that Cress- ley willfully withheld documents from the Pennsylvania authorities, or that he told Elliott he had done so. I find, rather, and employee with a record of relatively minor work offenses, each of which had been forgiven, who was pretextually discharged on a false claim of willful misconduct. I therefore find Cressley 's discharge also to have been in violation of Section 8(a)(1) and (3) of the Act. 7 I have previously also found direct evidence of Respondent's knowl- edge of the union campaign and of Ondo 's participation 8 In view of the finding it is not necessary to consider the General Counsel 's alternative theory that Ondo was discharged unlawfully and in violation of Sec 8(a)(4) of the Act because he filed a charge with the Board. However, if it were to be found that Ondo was not in fact dis- charged on August 3 because of participation in the union campaign, then I would find that Respondent determined about August 19 that it would not recall Ondo because of the charge he filed with this Board , in viola- tion of Sec . 8(a)(4) of the Act. The recommended Order and remedy in that case would be substantially the same as herein. The same findings of knowledge and participation are made in respect to Hilty. However, Respondent's stated reason for discharge, failure to report for work, is sup- ported not only by Elliott's testimony, but by the testi- mony of his daughter, who testified credibly that she had instructed Hilty to report for work at 4 a.m. the next day as he clocked out, after his alleged confrontation with Elliott, and that he made no mention of the confronta- tion, of being discharged, or of quitting. I do not credit Hilty's testimony, and find that he was not discriminator- ily or unlawfully discharged by Respondent. 4. Other unfair labor practices In determining credibility issues above , I have already found that Respondent interrogated Zolocsik, Ford, and McCullough regarding the identity of persons active in the union campaign. In view of my general credibility findings as to Elliott's contested and otherwise unsup- ported testimony, I further find that Respondent solicited McCullough and Ford, and through them both directly and indirectly the other driver-employees , to repudiate the Union and revoke authorization cards; that Respond- ent threatened to discharge Goss, an employee , for pro- tected union activity ; that Respondent threatened Ford and McCullough to force a strike, to refuse to bargain meaningfully, to reduce wages, and to close the facility because of protected union organizing activity ; and that Respondent interrogated Edwards regarding testimony he might give in this proceeding and impliedly threat- ened to discharge him for giving adverse testimony. Each of these actions constitute violations of Section 8(a)(1) of the Act. E. Refusal To Bargain and Election 1. Facts The first written notification of the union campaign re- ceived by Respondent was the Union 's petition for certi- fication, docket number 6-RC-9391, filed with the Board on August 5, received by Respondent August 8. That pe- tition defines the bargaining unit to be "all truckdrivers, mechanics , laborers" and excludes "all office clerical em- ployees and guards, professional employees and supervi- sors as defined in the Act." The petition reports that it had made a request of the employer for recognition as bargaining agent on August 3. Though sent by certified mail August 3, the Union's letter demanding recognition was not received by Re- spondent until August 10. It stated that as of August 3 the Union had enrolled as members "the majority of your employees at your establishment in Marion Center, Pennsylvania," and requested recognition as "bargaining agent for the people.',' On August 23, Respondent and the Union executed a Stipulation for Certification Upon Consent Election. The agreed upon description of the appropriate collective- bargaining unit was: All full-time and regular part-time production and maintenance employees including all driver-opera- tors, batch plant operators, yard workers, truck dis- MARION CENTER SUPPLY patcher and parts runner employed by the Employ- er at its Marion Center, Pennsylvania, facility; ex- cluding all office clerical employees, the sales and office manager, professional employees and guards and supervisors as defined in the Act. This was the same description as had been involved with this Union and this Respondent in an unsuccessful elec- tion in June 1978, except that the positions of truck dis- patcher and parts runner were not specifically included and the position of sales and office manager was specifi- cally excluded. The "Excelsior list" of all employees was as follows: Name Job Title Hire End Donald L. Baun Truckdriver 4/9/82 -- Roger Kevin Berringer Truckdriver 3/15/83 -- Harry ]Bash Truckdriver 4/14/80 Bruno J. Busani Jr. Truckdriver 8/5/83 Michael Cressley Truckdriver 5/1/81 8/4/83 James L. Edwards Truckdriver 5/11/75 William G. Elliott Welder-Yardman 1978 Richard R. Engle Fork Truck Oper. 2/3/75 Daniel E. Ford Truckdriver 3/17/83 Terry M. Goss Truckdriver 3/11/83 Deborah Griffith Parts Runner 1978 Blair H Hilty Truckdriver 7/29/83 8/4/83 Vernon B. Laney Truckdriver 5/6/77 James W. Lottimer II Truckdri ver 7/22/71 James V. Lightcap Truckdriver 6/21/83 Thomas G. Lipsie Truckdriver 5/23/83 Gerald M Truckdriver/Concrete 5/14/82 . McCullough Tech. Richard L Mertz Truckdnver 8/27/79 Robert E. Miller Truckdriver 8/8/83 Gary L. Nicholson Truckdriver 5/5/83 William S. Ondo Truckdriver 6/22/83 8/3/83 Gary W Reinhart Truckdriver 6/18/83 Daniel E. Troup Truckdriver 8/5/83 Penny L. Wallace Truck Dispatcher 7/9/77 John M. Zolocsik Mechanic 5/19/77 271 to hire, transfer, suspend, lay off, recall, promote, dis- charge, assign, reward, or discipline other employees, or to adjust grievances, or to effectively recommend any of those actions. The ballot of William Elliott (William) was challenged by the Union on the basis that he is a full-time student and does not share a community of interest with mem- bers of the unit. William is the son of Glenn Elliott, owner and manager of Respondent. At the time of the hearing William was a senior at a vocational-technical high school, expecting to work for Respondent full time upon graduation. He has worked for Respondent for 5 years, and his duties are described by his father as "If it's dirty, he does it." During the summer he works 40 to 60 hours per week, and during the school year 15 evening and weekend hours per week. He is paid an hourly wage. The ballot of Deborah Griffith was challenged by the Union on the basis that she is a casual employee, em- ployed full time elsewhere. Griffith is Elliott's married daughter, and has worked for Respondent for over 4 years as a "parts runner," traveling wherever necessary to get parts required to keep trucks and equipment oper- ating. Gerald McCullough's ballot was challenged by Re- spondent on the basis that he was a concrete technician and not within the bargaining unit. In mid-July McCul- lough, who had been employed as a driver, was asked by Elliott if he would like to work in the office, and would like also to do concrete and technician work. He spent about 4-1/2 hours per week working as a concrete tech- nician in the office, doing so between 12:30 and 5 p.m. one day a week. The balance of his time McCullough cleaned the office, drove, worked as a mechanic or in the pre-cast division, shoveled sand, and loaded vehicles. His pay did not change. The Board agent challenged Ondo's ballot in accord- ance with established Board procedures on the basis that he was not employed at the time and not on the eligibil- ity list. 2. Discussion The election was held on October 14. Of the "approxi- mate number of Eligible voters," all 22 cast ballots. Eight unchallenged votes were cast for, and eight against the Union, and six ballots were challenged. The ballots of Zolocsik and Engle were challenged by the Union on the basis that they are supervisors within the meaning of the Act. Zolocsik is a nondriving me- chanic, who is generally in charge of the area where work is performed by himself and by drivers who do not then have driving assignments or who are servicing the vehicle they regularly operate. Engle, who can under- stand others and make himself understood though a non- speaking and nonhearing individual, operates a highlift and a forklift vehicle, and is generally in charge of the area where pre-cast concrete forms are produced, where other employees may work when not on driving assign- ments. Engle and Zolocsik, both hourly wage employees, direct other employees to the extent of directing what routine work has to be done. Neither has the authority a. Contested ballots' After a review of the above-cited facts it requires no further consideration to find that neither Zolocsik nor Engle was a supervisor within the meaning of the Act. The union challenge of their ballots should be set aside. As to McCullough's position there is no doubt that for 4- 1/2 out of 5 days he works as a driver, mechanic, batch plant operator, and yard worker, whose function and in- terest in working conditions remains within the commu- nity of the unit. The challenge of Respondent as to his ballot should be set aside. William Elliott and Deborah Griffith are son and daughter of Glenn Elliott, the president and sole stock- holder of Respondent commercial corporation. As indi- viduals "employed by his parent" neither of them enjoys 9 In view of the later recommendation of a bargaining order, these dis- cussions will apply only if the matter requires further consideration 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the status of "employee." National Labor Relations Act, Section 2(3). While this rule does not apply for employ- ment by the founder of a nonprofit corporation, Tops Club, Inc., 238 NLRB 928 (1978), or to the son-in-law of a commercial corporation's president and majority stock- holder, NLRB v. Hubbard Co., 702 F.2d 634 (6th Cir. 1983), the issues there are whether the individual en- joyed a special status differing from other employees in the unit. There is no question but that William Elliott and Griffith, as Glenn Elliott's direct offspring, have no status as employees for purposes of the Act. The chal- lenges as to their ballot must therefore be sustained, though on grounds other than as stated. Ondo's ballot was challenged because he was no longer employed by Respondent. As found herein, Ondo was discriminatorily discharged, and is therefore eligible to vote. Tampa Sand & Material Co., 137 NLRB 1549 (1962). The challenge as to his ballot should be set aside. b. Refusal to bargain Respondent correctly argues that it was under no obli- gation until the Union made a clear and unambiguous demand for recognition in a bargaining unit appropriate for collective bargaining. Its argument that such a demand was not made, however, is not valid. The Union's demand letter referred to the extremely general description of a majority of Respondent's em- ployees, and to "these people," which is not a proper de- scription of any appropriate bargaining unit. Before re- ceiving this, however, Respondent received a copy of the Union's petition to the Board, more fully describing the appropriate unit as being all truckdrivers, mechanics, and laborers, excluding all office clerical employees and guards, professional employees and supervisors as de- fined in the Act. Respondent's argument is grounded in the Seventh Circuit's holding that not only is an employer under no duty to acceed to a request to bargain where the demand is ambiguous, equivocal, or otherwise vague, but also that the employer is under no obligation to clarify or re- solve such infirm demand. National Can Corp. v. NLRB, 374 F.2d 796 (7th Cir. 1967). Though not stated in the decision, this directly reverses the rule set forth just the prior year, in the same circuit, that "the proper course for the employer in those circumstances is to refuse to bargain with respect to those employees whose unit status is disputed, not to wholly refuse to bargain." NLRB v. Richman Bros. Co., 387 F.2d 809, 813 (7th Cir. 1967). In any event, the Third Circuit, which incidentally is the circuit in which the matter at hand is sited, later dis- posed of the issue by ruling that "the contemporaneous filing of a representation petition was relevant to the im- portant issue of whether the letter constituted a legally sufficient request for bargaining in an appropriate unit, such as could be the basis of a refusal to bargain." NLRB v. M. Koppel Co., 412 F.2d 681, 684 (3d Cir. 1969). The Board itself adopted such stance, holding in Pilot Freight Carriers, 223 NLRB 286, 304 (1976), that "[t]he demand letter . . . stated that `an overwhelming majority of your employees . . .' have chosen the Union as their bargaining agent. It appears to me that even though the unit was somewhat ambiguous in the initial demand letter-this request was sufficient to support a duty to bargain. It is well settled that a union's request for recognition is sufficient to raise a duty to bargain on the part of an employer if the employer is apprised in general terms of the proposed unit description. The re- quest need not be grammatically perfect and need not define the unit in minute detail . . . . It is also noted that further particulars as to the unit make-up were supplied by the Union." It is therefore clear that Respondent cannot rely on the Union's letter, with its imperfect statement of bar- gaining unit, but must consider the petition, of which it had notice when the letter was received and which more clearly defined the unit. In addition, Respondent was aware, from the election held 4 years previously involv- ing the same Local and Union, of the precise proposed scope of the unit. Prior dealings have been held to put an employer on notice, Buffalo Broadcasting Co., 242 NLRB 1105, 1106 fn. 2 (1979), especially where bargaining took place. Neither the petition nor the prior dealings, however, included within the unit the positions of truck dispatcher or parts runner. I therefore find that Respondent failed to bargain with the Union as sole representative of a unit composed of. All full-time and regular part-time produc- tion and maintenance employees including all driver-op- erators, batch plant operators, and yard workers em- ployed by Marion Center Supply, Inc. at its Marion Center, Pennsylvania, facility; excluding all office cleri- cal employees, professional employees and guards and supervisors as defined in the Act. I further fmd such fail- ure to be in violation of Section 8(a)(5) and (1) of the Act. F. Bargaining Order The General Counsel contends that a Gissel bargaining order, NLRB Y. Gissel Packing Co., 395 U.S. 575 (1969), is the appropriate remedy in this case since the Union had achieved a majority based on authorization cards, and, in addition, because Respondent "has engaged in a clear course of conduct calculated to undermine and de- stroy support for the Union among its employees." The General Counsel thus seeks a bargaining order based on both the so-called first-category of Gissel, because of egregious, outrageous, or pervasive unfair labor prac- tices, and because of the second Gissel category, where a majority existed. Just prior to submission of briefs herein the Board issued its decision in Gourmet Foods, 270 NLRB 578 (1984), in which it ruled that no bargaining order should issue unless it is determined that the Union represented a majority of the bargaining unit at some time, and we must therefore first examine the majority issue. The "Excelsior" list of employees from July 1 to Octo- ber 31 (G.C. Exh. 17) totals 25 employees. Of these, 3 (William Elliott, Griffith, and Wallace) are children of Respondent's sole stockholder and hence are not employ- ees within the meaning of the Act, so that there are a total of 22 employees. Of these, 3 (Cressley, Hilty, and Ondo) were discharged and replaced by new employees MARION CENTER SUPPLY 273 (Busani, Troup, and Miller) by August 8, when the peti- tion was received, so that the number of employees on that date should have been no more than 19. Since there were 13 signed union-authorization cards priox to August 10, none of which were voluntarily or effectively withdrawn either before or after that date, the Union had a clear majority at all times and under all cir- cumstances-13 of 25 on the'list, 13 of 22 after exclusion of nonemployees, and 13 of 19 after discounting replaced employees. The Union therefore fully meets the majority test. Assuming that Gourmet Foods, supra, limits Gissel to situations where both a majority and egregious antiunion acts need be shown, we next consider the nature, extent, and effect of the violations of Section 8(a)(1), (3), and (5) above discussed. Respondent commenced a course of surveillance and attempted intimidation when it first learned of the union campaign in July, even before the petition here was filed. It discriminatorily discharged the leading union propo- nents, with such a chilling effect on employes that it was able to coerce the preparation and execution of a petition by all or virtually all of the remaining employees dis- claiming union representation. Through the period to the election Respondent continued its campaign of threats, coercion, and attempted intimidation. In this case, the violations which occurred beginning with Respondent's knowledge of the union activity and continued on through the time of the election in a rela- tively small unit constitute, I conclude, conduct which undeniably dissipated the Union's majority status and im- pacted substantially on the election process. Indeed, I find that it clearly interfered with the election. I further conclude , based on the potency and extent of Respond- ent's unlawful conduct, that it is improbable that the use of traditional remedies here would be sufficient to insure a fair rerun election, and that the desires of the employ- ees with respect to the Union as established by union-au- thorization cards is more reliable. Cf. Sturgis-Newport Business Forms, 227 NLRB 1426 (1977), enfd. 563 F.2d 1252 (5th Cir. 1977); Schulte's IGA Foodliner, 241 NLRB 855 (1979); Dependable Lists, Inc., 239' NLRB 1304 (1979). Accordingly, I find that Respondent violated Section 8(a)(5) and (1) as alleged and I shall recommend the issuance of a bargaining order. Considering the foregoing , and having found that the Respondent's conduct described above during the critical period prior to the representation election of October 14, 1983, ][ recommend to the Board with respect to Case 6- RC-9391 that the petition be dismissed in view of the is- suance of a remedial bargaining order in an appropriate unit. CONCLUSIONS OF LAW 1. By interrogating employees concerning the union activities of others , by creating the impression among employees that their union activities and the activities of others were under surveillance, by soliciting, coercing, instructing, and assisting employees to repudiate the Union and revoke authorization cards, by informing em- ployees it would not negotiate with the Union , by threat- ening discharge directly and through stating that a strike would be inevitable and striking employees terminated and that the plant would be closed, by threatening em- ployees with loss of economic benefits through reduced wages, and by coercively interrogating an employee con- cerning intended testimony without appropriate safe- guards, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 2. By discriminatorily discharging employees Ondo and Cressley, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By refusing to recognize and bargain with the Union after it was authorized by a majority of the mem- bers of the appropriate unit set out above while engaging in serious and substantial unfair labor practices as set out above, Respondent has engaged and is engaging in unfair labor practices within the meaning of' ection 8 (a)(5) and (1) of the Act. 4. The unfair labor practices set forth above affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as found above, Respondent has not engaged in any other unfair labor practices alleged in the com- plaint. THE REMEDY It having been found that Respondent engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, my recommended Order will require that it cease and desist therefrom and take certain affirm- ative actions necessary to effectuate the policies of the Act. Having found that Respondent discriminatorily dis- charged Ondo and Cressley, Respondent shall be re- quired to offer Ondo and Cressley immediate and full re- instatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and shall make each of them whole for any loss of pay and earnings that they may have suf- fered as a result of any discrimination against them. Any backpay found to be due shall be computed in accord- ance with the formula set forth in F. W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).10 Respondent's unfair labor practices were widespread, touched all of the employees, and spanned virtually the entire period from the commencement of the union ac- tivity until the election. They demonstrate a general dis- regard for the employees' fundamental statutory rights and therefore warrant the imposition of a broad injunc- tive order precluding Respondent, its officers, agents, successors, and assigns from engaging in unfair labor practices "in any other manner." See Mid-Continent Re- frigerated Service, 228 NLRB 917 (1977), and Federal Alarm, 230 NLRB 518 (1977). I have previously found that a bargaining order is ap- propriate from the circumstances of this case . Consistent with the Board's policy, I shall recommend that the bar- gaining order be made effective from August 10, 1983, the date Respondent was advised that the Union 10 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD achieved its majority status after Respondent had com- menced its unfair labor practices. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Marion Center Supply, Inc., Marion Center, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning the union ac- tivities of others. (b) Creating the impression among employees that their union activities and the activities of others are under surveillance. (c) Soliciting, coercing, or assisting employees to repu- diate or revoke authorization of Teamsters, Chauffeurs, Warehousemen and Helpers Local No. 110 , affiliated with International Brotherhood of Teamsters , Chauf- feurs, Warehousemen and Helpers of America, or any other union. (d) Informing employees it would not negotiate with a union, that it would close down operations , or reduce benefits or wages, or threatening to discharge employees by forcing a strike and employing replacements, if a union were authorized. (e) Coercively interrogating employees regarding in- tended testimony before this Board without appropriate safeguards. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively with Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 110, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as exclusive collective -bargaining representative of the employees of the Respondent in the appropriate bargaining unit as follows: All full-time and regular part-time production and maintenance employees including all driver-opera- tors, batch plant operators, and yard workers em- ployed by Marion Center Supply , Inc., at its Marion Center, Pennsylvania, facility; excluding all office clerical employees, professional employees and guards and supervisors as defined in the Act. (b) Offer William Ondo and Michael Cressley immedi- ate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a 11 If no exceptions are filed as provided by Sec 102 .46 of the Board's Rules and Regulations, the findings , conclusions, and recommended Order shall , as provided in Sec. 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses result of the discrimination against them , in the manner set forth in the remedy section of the decision. (c) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way. (d) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant in Marion Center, Pennsylvania, copies of the attached notice marked "Appendix."12 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Re- spondent's authorized representative , shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days 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 the notices are not altered, defaced, or covered by any other material. (I) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. 11 If 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 Nation- al Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT interrogate our employees regarding their activities in support of Chauffeurs, Teamsters and Helpers Local Union No. 110, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- MARION CENTER SUPPLY housemen and Helpers of America, or the activities and support of other employees with respect to the Union. WE WILL NOT create the impression among employees that their union activities and the activities of others are under surveillance. WE WILL NOT Solicit, coerce, or assist employees to repudiate or revoke authorization of any union. WE WILL NOT inform employees we will not negotiate with a union, or close down operations, reduce benefits or wages, or threaten to discharge employees directly or by forcing a strike and employing replacements, if a union is authorized. WE WILL NOT coercively interrogate employees re- garding intended testimony before the National Labor Relations Board without appropriate safeguards. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL NOT refuse to recognize and bargain with the Union as the exclusive collective-bargaining repre- sentative of our employees in the following appropriate unit: All full-time and regular part-time production and maintenance employees including all driver-opera- tors, batch plant operators, and yard workers em- ployed by Marion Center Supply, Inc., at its Marion 275 Center, Pennsylvania, facility; excluding all office clerical employees, professional employees and guards and supervisors as defined in the Act. WE WILL, on request, recognize and bargain with Chauffeurs, Teamsters and Helpers Local Union No. 110, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive collective-bargaining representative of our employees in the unit described above and, if an understanding is reached embody such understanding in a written signed agreement. WE WILL offer William Ondo and Michael Cressley immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest. WE WILL notify William Ondo and Michael Cressley that we have removed from our files any reference to their discharge and that the discharge will not be used against them in any way. MARION CENTER SUPPLY, INC.