Yolo Transport, Inc.

YOLO TRANSPORT Yolo Transport, Inc. and Teamsters Cannery Work- ers Union Local 857, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.1 Case 20-CA- 20600 25 November ] 987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS STEPHENS AND CRACRAFT On 10 July 1987 Administrative Law Judge Richard J. Boyce issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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 briefs and has decided to affirm the judge's rulings, findings, and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Yolo Trans- port, Inc., Woodland, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order. i On 1 November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 8 In finding that the Respondent violated Sec 8(a)(5) and (1) of the Act, we do not rely on the judge's characterization of the Union's letter to the Respondent as only a claim for recognition We find that the Union's letter is also a request to bargain "The Board and the Courts have repeatedly held that a valid request to bargain need not be made in any particular form, or in haec verba, so long as the request clearly indi- cates a desire to negotiate and bargain on behalf of the employees in the appropriate unit concerning wages, hours, and other terms and conditions of employment." Marysville Travelodge, 233 NLRB 527, 532 (1977) (quot- ing Al Landers Dump Truck, 192 NLRB 207, 208 (1977)), enfd sub nom NLRB v Cofer, 637 F 2d 1309 (9th Cir. 1981) We find that the Union's letter satisfied this test because it stated that the Union represented a ma- jority of the shuttle truck drivers and set forth a bargaining proposal on their behalf Andrew H. Baker, Esq., for the General Counsel. Alan B. Carlson, Esq., (Littler, Mendelson, Fastiff & Tichy), of San Francisco, California, for the Respond- ent. DECISION STATEMENT OF THE CASE 1087 RICHARD J. BOYCE, Administrative Law Judge. This matter was tried before me in Sacramento, California, on 15 and 16 January 1987.1 The underlying charge was filed on 4 September 1986 and amended on 8 October by Teamsters Cannery Work- ers Union Local 857, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Union). The complaint, issued on 17 October, was amended during the trial and alleges that Yolo Transport, Inc. (Respondent) by a shuttle-truck supervi- sor, Keith Stauffer, committed numerous violations of Section 8(a)(1) of the National Labor Relations Act (Act) in August and September 1986.2 The complaint further alleges that Respondent's shut- tle-truck drivers at the Contadina Foods tomato cannery in Woodland, California, comprise an appropriate unit for collective bargaining, that a majority of those drivers chose the Union to be their representative for that pur- pose about 30 August 1986, and that Respondent since has violated Section 8(a)(5) and (1) of the Act by refus- ing to recognize and bargain with the Union. a The complaint alleges, finally, that Respondent has un- dertaken "a course of conduct precluding the holding of a fair election," the implication being that a bargaining- order remedy would be appropriate even absent a viola- tion of Section 8(a)(5). I. JURISDICTION AND LABOR ORGANIZATION Respondent, a California corporation and a wholly owned subsidiary of Carnation Company, is a trucking company. It does not dispute that it is an employer en- gaged in and affecting commerce within Section 2(2), (6), and (7) of the Act. That the Union is a labor organization within Section 2(5) of the Act likewise is not in question. II. BACKGROUND During the 1986 tomato-canning season, Respondent was under contract with Contadina Foods to perform shuttle-trucking services at Contadina's tomato cannery in Woodland. This consisted of moving tomato-filled trailers between two points about 300 yards apart within the cannery premises-from a "staging area" to a dump- i This manner of setting forth dates comports with the wishes of the Board 8 Sec 8(a)(1) prohibits an employer from "interfer[ing] with, "restrain[ing], or coerc[ing] employees in the exercise of the rights guar- anteed in Section 7" of the Act Sec 7 guarantees employees "the right to self-organization , to form, join or assist labor organizations . and to engage in other concerted activities for the purpose of collective bargain- ing or other mutual aid or protection . . 8 Sec 8(a)(5) prohibits an employer from "refusing to bargain collec- tively with the representatives of his employees , subject to the provisions of Section 9(a) " Sec 9(a) states in relevant part* "Representatives desig- nated or selected for the purposes of collective bargaining by the majori- ty of the employees in a unit appropriate for such purposes shall be the exclusive representatives of all the employees in such unit for the pur- poses of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment 286 NLRB No. 103 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing point-then returning the empty trailers to the stag- ing area. Others took the empty trailers to the fields to be loaded anew and brought back to the staging area. The 1986 season at the Woodland cannery lasted from 7 July to 19 September, give or take a day or two. Re- spondent performed nonstop, 7 days per week, during that time. Keith Stauffer was "in charge" of its shuttle drivers at Woodland. Two crews worked under him, each working daily 12-hour shifts. Seven people, includ- ing a crew chief appointed by Stauffer, were assigned to each shift. Six were on duty on a given day, the seventh having the day off. The crew chief for the day shift was Jose Salcido. His night-shift counterpart was Miguel San- chez. Some of the day-shift drivers could converse only in Spanish. Stauffer used an interpreter, often day-shift driver David Talamante , when talking to them. The 1986 season was Respondent's first at the Wood- land cannery. Another firm, Wally Albright Trucking Company, had had the contract for several preceding seasons. Stauffer had held the same position for that firm as for Respondent. Respondent's Woodland drivers were unorganized at the outset of the 1986 season . The Union did and does represent Contadina's Woodland cannery workers. III. ORGANIZATIONAL ACTIVITY In August various of Respondent's drivers felt ag- grieved by Stauffer's treatment of them. Talamante con- sequently placed a telephone call to the Union in late August; and post-shift meetings ensued the evening of 29 August and the morning of 30 August , conducted by the Union's business agent , Terry Shorey, and attended, re- spectively, by Respondent's day-shift and night-shift crews. Six people, including that shift's crew chief, at- tended each meeting, and all signed union authorization cards while there. The night-shift driver not present at the meeting of 30 August signed and submitted a card within a day or so . Thus, by 30 or 31 August , all but one of Respondent's Woodland complement , exclusive of Stauffer, had signed a card. On 30 August Shorey hand-delivered a letter to Con- tadina's plant manager, Chris Roberts; and, on Roberts' suggestion, left a copy with the gate guard for Stauffer. The letter, addressed to both Roberts and Stauffer, stated: This is to inform you that Teamsters Local #857 represents a majority of the Shuttle Truck Drivers at your Woodland facility. In accordance with Section III(A) & (D) of our current labor agreement you are requested to up- grade these employees to Union Standards in both working conditions and wages retroactive to June 29, 1986. We are also requesting that the RIGHTS OF EMPLOYEES as provided by the National Labor Relations Act be strictly adhered to . Thank you for your cooperation in this matter. If there are any questions, please feel free to call me . .. . The labor agreement referred to is that covering Conta- dina's Woodland cannery workers . Neither Respondent nor Contadina responded to the letter. Stauffer received the letter from the gate guard about 11 a.m. on 30 August . This was his first awareness of or- ganizational ferment. IV. STAUFFER 's ALLEGED MISCONDUCT A. The Allegations Summarized The complaint alleges that Stauffer violated Section 8(a)(1) from late August to mid-September 1986, princi- pally on 30 and 31 August, by several categories of con- duct: (a) Threatening employees that because of their union sympathies and activities they would be discharged or lose their jobs through contracting out, their hours of work would be reduced, their total compensation would be diminished, and more onerous working conditions would be imposed. (b) Interrogating employees concerning their and their coworkers' union sympathies and activities. (c) Indicating to employees that their union activities were a futility. (d) Telling employees they were not to sign union au- thorization cards without company permission and that Respondent would not allow them to have union repre- sentation. (e) Physically assaulting an employee because of his union activities, and threatening other employees with same (f) Imparting to employees the impression that their union activities were under management surveillance. B. Evidence Talamante testified that he encountered Stauffer during the day shift on 30 August . Stauffer, Shorey's letter in hand, "was yelling . . . that he [had been] served by the Union," according to Talamante, and was "really upset." Talamante related that Stauffer presently engaged him in this exchange: STAUFFER: "Did you vote for a union?" TALAMANTE: "What are you talking about?" STAUFFER: "Did you vote for a union?" TALAMANTE : "Yes, I did vote for a union. I asked the Union to represent me." STAUFFER: "Who else?" TALAMANTE: "Everyone else with the exception of Mike Rohles, we all asked the Union to represent us." STAUFFER: "You're a bunch of dumb son-of-a- bitches." TALAMANTE: "Why?" STAUFFER: "Because no fucking union is coming into this cannery." TALAMANTE : "Well, we already asked the Union to represent us." STAUFFER : "Well, you stupid son-of-a-bitch . . . . All of you. YOLO TRANSPORT 1089 Talamante testified that Stauffer then gestured toward other day-shift employees, who had gathered around, di- recting him to translate to "all of these fucking Mexicans that they're a bunch of stupid son-of-a-bitches"; and that he thereupon conveyed to his coworkers, in Spanish, the burden of Stauffer's message. With that, Talamante went on, Stauffer resumed his tirade, declaring that Respondent was "going to be re- placed by another company, which was Albright's," and directing crew chief Salcido to "fire two men immediate- ly," adding that he was "going to run the job with four men" and was "going to work the hell out of [them]." This episode came to an end, Talamante recalled, when Roberts, Contadina's plant manager, drew Stauffer away. Another day-shift employee, Rodolfo Olmos, testified that Stauffer also approached him on 30 August. Olmos recounted that Stauffer, brandishing a letter, asked him if he had "signed up with the Union"; and, receiving an af- firmative answer, asked who else had signed. Olmos re- plied, as he recalled, that everyone had signed, prompt- ing Stauffer to proclaim that, since the employees "wanted the Union," he was "going to leave two people without jobs," and the rest were "going to work like devils." Stauffer further stated, according to Olmos, that "an- other company could take over" in Respondent's place, and Respondent's drivers "would all get fired." Olmos proceeded that the other employees shortly "came close" to Stauffer and him, after which Stauffer asked Salcido: "Why didn't you tell me that the Union was going to come in?" Salcido answered that he "didn't know" about the employees' union sentiments, Olmos re- lated, and Stauffer commanded: "Cut two people." Stauffer told Salcido to select the two to go, Olmos con- tinued, to which Salcido said he could not and asked Stauffer to state "which two." Olmos testified that Stauffer called the employees a "bunch of stupids, motherfucks, and other things," during this encounter, and vowed that he was "going to make sure, take charge, so that the union matter would not come about." Contadina's Plant Manager Roberts, fi- nally intervened, according to Olmos, taking Stauffer away. A third day-shift driver, Jesus Garcia, testified that Stauffer asked him, about 30 August, "how many .. . had signed up for the Union," that he answered that "almost all of us . . . all of us on the day shift," and that Stauffer countered that he was "going to get rid of all of [them]." Garcia averred that Stauffer then told Salcido to lay off him and coworker Miguel Castillo, explaining that they "had taken up with the Union," that Respond- ent "was going to need less personnel," and that the re- maining drivers "were going to be doing more work." Talamante testified that Stauffer unleashed another verbal fusillade on the approach of the 6 p.m. shift change on 30 August. A "majority" of the day-shift em- ployees were within earshot, according to Talamante, and Stauffer, "yelling and shouting" began by proclaim- ing that "no fucking union was coming into the shop" and that he was "going to fire those fucking agitators." Talamante went on that Stauffer then "singled [him] out," asking: "Are you the fucking agitator . . . that got the Union in?" Talamante replied, as he recalled: "I asked for the Union to represent me, but everyone else asked for the same thing." At that point, Talamante continued, Stauffer ques- tioned Salcido as follows: STAUFFER: "Jose, did you know about this?" SALCIDO: "No, I didn't." STAUFFER: "Did you vote for the Union?" SALCIDO: "Yes, I did." STAUFFER: "Did you ask them to represent you?" SALCIDO: "Yes, I did." Stauffer then asked, according to Talamante: "Who are the fuckers that agitated this move?" Talamante as- sertedly responded: "Keith, if you remember . . . you once told me that this company, if Carnation wasn't careful with the way they were treating us here at the yard that the Union was going to come in and represent us."4 With that, Talamante testified, Stauffer "came rush- ing at" him as if he "was going to grab" him, "like to [sic] was going to hit" him, simultaneously calling him "a fucking liar" and declaring that he was going to "sit [Ta- lamante] on [his] ass." Others intervened, preventing a physical encounter, according to Talamante, whereupon the employees began to disperse and Stauffer called after them that they were "going to get fucking fired." Moments later, Talamante testified, he saw Stauffer ask arriving night-shift drivers if they had "voted for the fucking Union. 115 Addressing Stauffer's conduct near the end of the day shift on 30 August, Olmos testified that Stauffer told him, Talamante, and another day-shift driver, Jose Bernal, that the drivers were "going to work 40 hours a week with two days of rest," rather than the present 12- hour shifts, 6 days per week. Olmos went on that Tala- mante presently asked Stauffer why he was "angry at" Talamante, remarking that Stauffer himself once had said the drivers "would be better off' if they were "part of the Union." Stauffer responded heatedly, according to Olmos: [H]e got angry with Talamante and he said he was a liar, and . . . he called him a liar about ten times or so, and then David told him, yes, that he was a liar, and he got angrier, and he said he was going to sit on top of him, and David backed up because he got close to him and he raised his hand to him. And I had to jump into the middle because . . . it wasn't good that they should fight. Stauffer and Talamante then "backed off," Olmos testi- fied, and Stauffer asked: "Whose idea was it to bring in the Union?" Olmos recalled that he told Talamante in Spanish to say it was Olmos' idea, "so that [Stauffer] 4 Talamante testified. "He [Stauffer] told me one time if the Company wasn't careful that the fucking Union was going to come in." Stauffer "was upset with the Company then," Talamante explained, "because he fired me and the Company hired me again " S Regarding his recurrent attribution of the "F-word" to Stauffer, Ta- lamante testified . "That's his favorite expression, the word 'fuck 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wouldn't continue to fight." Olmos' recital leaves to sur- mise whether Talamante complied. A while later, according to Olmos, he heard Stauffer ask a night-shift driver if he "had signed the card." A night-shift driver, John Kiehn, testified that Stauffer asked him, after his arrival for work the evening of 30 August, if he "went to the union meeting" that morning, and if he had "signed the card to join the Union." Kiehn assertedly replied yes to both queries, whereupon Stauffer stated that the drivers were "in for a surprise." Two coworkers, Ron Johnson and Andres Sanches, wit- nessed this encounter, according to Kiehn. Kiehn testi- fied that Stauffer then "went around and asked some other people the same questions . . . if they were at the meeting, if they signed the union card." "Probably two hours later," Kiehn testified, Stauffer declared that Respondent "could fire" the drivers and "get the mechanics out of the shop to drive the trucks." Stauffer also stated that night, per Kiehn, that the drivers would "end up making less money" if they "went union," because "it would be the agricultural union" and they would "make $7 an hour, work 8 hours a day, 40 hours a week." That night as well, according to Kiehn, Stauffer asked him "who had instigated getting the Union, who had originally approached the Union to bring them in there"; and proclaimed that he had a "whole list of people who could do [the drivers'] jobs," that he "could call them anytime" and therefore "could fire" all the existing driv- ers. Kiehn further testified that Stauffer once stated to him, possibly on 30 August, that "the people in the plant that had more seniority could come and bump us off our jobs ... if we went union." Kiehn believed that coworkers Ron Johnson and Larry Still were with him when these remarks were made, but was "not really sure." Night-shift driver James Stark testified that he asked Stauffer, the evening of 30 August: "Keith, did you hear about this union thing?" Stauffer replied, per Stark: Yeah, I've heard about it . . . . I've known about unions for ten years, and I've been in and out of them. My father lost his business in unions. Stauffer then stated, according to Stark, that Talamante "had put these words in [Stauffer's] mouth" to the effect that Stauffer "likes unions." Stark's recital continued: [Stauffer] said: "I didn't say that. So I grabbed [Ta- lamante]." And he showed me how he grabbed him. Reared his fists back and kind of blew up, and cuss- ing. He was showing me what happened . . . . He just pulled we by my shirt and picked me up off the pallets a little . . . . He threw his fist back . .. . He said some cuss words and basically he's mad. Stauffer also stated in this same exchange, according to Stark, that .. . if we got in the Union . . . we would just end up losing our jobs the next year , anyway, because of seniority reasons . . . . [I]t runs on seniority and . . . those people inside the cannery . . . had lots of seniority, and [since they] were in the same union ... they would bump us off, they would take our jobs. Stark testified that Stauffer further observed on this occasion that ... one way [Respondent] could deal with it is [it] could fire all you guys and hire some people from the mechanics that fix the trucks, or fix something around there, and the people from the shop, they could take our job . . . and do just as good as us ... . Stark's account proceeded that Stauffer stated at his time, as well, that a way out for [Contadina] would be to give [the contract] to Wally Albright and let them run it and just get out of it; that we would lose our jobs and there would be no union or anything. Stark recalled that two coworkers, Sam Collins and Ron Johnson, and possibly others, were present during this encounter; and that Stauffer subsequently "said these things a lot." Stark additionally testified that Stauffer said to him, "a short while after we signed the card[s]," that "Mexicans had started this whole thing." Talamante testified that, "maybe a day or two, a couple of days after," his 30 August encounters with Stauffer, Stauffer told him, ... that there was another company that would be taking over the contract .... [T]hat it was Wally Albright that was going to be taking over the con- tract, and they were going to get rid of Respondent, because they couldn't afford it. That they made a very bad contract with Carnation, and that they couldn't afford to keep up the contract as it was .... That they couldn't afford to pay us union wages. And, "a few days after . .. the first incident," accord- ing to Talamante, Stauffer, ... told us that . . . in order for us to have a union, . . . we had to have the permission of the Company . . . . [T]hat we were not right, what we did was not right, because we didn't go through management to get permission to bring a union into the plant. Talamante also testified that Stauffer, ... used to tell us that, if the Union was to come into the shop . . . we would, some of us, would lose our jobs, because they weren't going to hire as many people. Olmos, beyond his recital earlier summarized, testified that Stauffer stated "three or four times . .. in the next day or two" after 30 August that, YOLO TRANSPORT 1091 ... we would lose our work because the Al- bright Company would come in and ... we would not be able to have a union. Garcia, in addition to ascribing certain 30 August con- duct to Stauffer as previously described, testified that Stauffer said, "about four days after we signed up for the Union," that "they were going to put on managers from Contadina ... to drive the trailers, do what we were doing"; and that Stauffer also stated that, . .. the Union wasn't going, to be any good; that we were going to work only eight hours per day, and that was going to be no good. Finally, Kiehn further testified that Stauffer remarked to him about season's end that Respondent's contract with Contadina "was only for one year," and that "next year it would go back to Wally Albright's and we'd be out of a job." As earlier mentioned, Stauffer received Shorey's letter from the gate guard about 11 a.m. on 30 August, a Satur- day, and with it his first knowledge that organizational activity was afoot. Stauffer testified: I opened the letter and read it, and I turned to Mr. Salcido. I says, "Is this in fact true?" ... He said, "Yeah, we voted to go union." . . . He says some- thing about more money or something , and I said, "Well, I didn't know we had a money problem." And that was the end of the conversation. Stauffer would have it that he "wasn't upset," nor was he "yelling or shouting," during this exchange. On its conclusion, he averred, he "went in and discussed" the letter with Plant Manager Roberts. Stauffer testified that he did not thereafter discuss the Shorey letter with any employee , and that his next union related conversation with any employee occurred a day or two later, "either Sunday or Monday" and involved Talamante. He elaborated: Talamante came up to me, him and Rudy Olmos. He approached me, he says : "I want to thank you. It was really a good idea you had suggesting we go to the Union." . . . And I said, "What are you talk- ing about?" He said, "You stood right here and told us that you thought it would be a good idea to go to the Union." And I said, "'I never made no such statement." Then he called me a liar. And that's when I threatened him with physical violence if [he] did it again. I said, "You call me a liar one more time, David, I'm going to knock you on your butt." Then Rudy stepped between us and said, "Hey, fellas, no fighting." Stauffer recalled that other employees were "within hearing distance" of this altercation. He expressly denied that he called Talamante a liar, repeating , "He called me a liar." He also denied ever telling other employees about the incident. The next day, Stauffer testified, he and Talamante "apologized to each other for the inci- dent," and "dropped it right there." On Tuesday, 2 September, according to Stauffer, he telephoned Craig Nash, western division manager for Carnation's trucking operations, about the Shorey letter, and was advised, "[D]o not discuss any union activities with anyone until you hear from me." Stauffer testified that, between the Talamante alterca- tion and his conversation with Nash, the subject of the Union did come up in conversation between him and the employees. He then modified: I didn't initiate them, but the employees asked me if I thought they made a good decision , and just gen- eral things like that . I said I knew nothing about how the Union worked. I couldn't answer that question. After supposedly receiving Nash's advice, Stauffer ad- mittedly continued to talk with the employees about the union situation, but again only if they broached the sub- ject. He expanded: I was asked once by one of them if I knew if they went union how it would affect their seniority with the cannery. I said I had no idea .... I was asked if they were to go union how would if affect my standing with the Company .... I said, "I have no idea." . . . [I]t was mentioned one night how much retroactive pay they was going to get the first of the year, and there again I had no knowledge. Led through various of the complaint allegations by Respondent's counsel, Stauffer mechanically denied that, after talking with Nash, he ever threatened employees with discharge, reduced hours, physical assault, a reduc- tion in force, or more onerous conditions, should they support or select the Union; or ever interrogated them concerning their union sympathies or activities; or told them that union representation would be futile, that they would need company permission to sign authorization cards, that they could not have union representation, or that they would have to go through Respondent to obtain representation. Stauffer similarly denied that he told employees, after his conversation with Nash, that their wages would be reduced if they went union, that Contadina would re- place Respondent with Albright Trucking and they con- sequently would lose their jobs should they go union, or that they would be "bumped" by more senior inside can- nery workers if representation materialized. Stauffer concededly referred to Respondent's Latino drivers as "dumb Mexicans" on frequent occasions- "hundreds of times." They in turn called him a "fat gringo," he testified, and "nothing [was] meant by it." "We've done it for years," he went on, and "there was nothing negative to it at all." Nash, although testifying, said nothing about the al- leged telephone conversation with Stauffer about 2 Sep- tember. 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD C. Conclusions 1. Credibility The General Counsel's witnesses, while seemingly hampered in some instances by a language barrier,6 im- pressed me by their demeanor as being faithful to the oath, and by the content of their recitals as being capable of reasonably accurate perception and recall. Stauffer, by contrast, was unimpressive in both demeanor and testi- monial substance-an assessment with which Respondent appears to agree, conceding in its brief that "the weight of evidence would indicate that conduct by Keith Stauffer violated Section 8(a)(1)" on 30 and 31 August, "and perhaps a day or two thereafter."7 I therefore credit the General Counsel' s witnesses in general and in those specific instances in which their tes- timony and that of Stauffer conflicts. 2. The alleged unlawful threats Job loss. I find that Stauffer threatened employees with job loss because of the union situation in each of the fol- lowing instances, and conclude that he thereby violated Section 8(a)(1) each time: (a) By stating in the presence of some and perhaps all of the day-shift drivers, shortly after receiving Shorey's letter on 30 August, that Respondent would be replaced by Albright Trucking, causing Respondent's drivers to be fired. (b) By directing Salcido, in the presence of day-shift drivers on 30 August, to fire two drivers inasmuch as the drivers wanted a union." (c) By telling Garcia on 30 August, after Garcia had reported that "almost all" of the day-shift drivers had signed union cards, that he was "going to get rid of all of [them]." (d) By directing Salcido, in Garcia's presence on 30 August, to lay off Garcia and Miguel Castillo because they "had taken up with the Union."9 (e) By proclaiming within earshot of most and possibly all of the day-shift drivers near shift's end on 30 August that he was "going to fire those fucking agitators." (f) By calling after the dispersing drivers following his altercation with Talamante near shift-change on 30 August that they were "going to get fucking fired." (g) By telling Kiehn during the night shift starting on 30 August that Respondent "could fire" the drivers and "get the mechanics out of the shop to drive the trucks."10 Olmos and Garcia testified through an interpreter, who translated from Spanish to English 7 Significantly, most of the questions through which Respondent's counsel elicited denials while leading Stauffer, seriatim, through the com- plaint dealt with times after his supposed 2 September conversation with Nash. But, even if not so qualified, these denials would have left the spe- cific and detailed contrary testimony "essentially unrebutted " Williamson Memorial Hospital, 284 NLRB 37, 39 (1987) 8 Respondent contends that Salcido was a supervisor , the General Counsel that he was not As is more fully developed later, that issue need not be resolved for purposes of this decision Stauffer's remarks to Sal- cido, occurring in the presence of drivers, are unlawful in either case 9 See preceding footnote 10 Although Stauffer perhaps did not expressly cite the employees' union activities as the underpinning for this and certain other possibilities (h) By stating to Kiehn during the same shift that he had "a whole list of people who could do [the drivers'] job," that he "could call them anytime," and that he therefore "could fire" all the drivers. (i) By also telling Kiehn during that shift, probably in the presence of two other drivers, that the more senior in-plant employees "could come and bump" the drivers "off [their] jobs . . . if they went union."" (j) By informing Stark during the night shift of 30 and 31 August that the drivers "would just end up losing [their] jobs the next year" if they went union because the in-plant employees, represented by the same union and being more senior, would "bump" them. (k) By saying to Stark and at least two coworkers during the same shift, much as he had to Kiehn as de- scribed above, that Respondent "could fire" all the driv- ers, replacing them with mechanics "and the people from the shop"; and by opining in the same encounter that "a way out" for Contadina would be to give the contract to Albright, in which case Respondent's drivers "would lose" their jobs "and there would be no union or any- thing." (1) By telling Talamante a "day or two" after Stauffer's initial outburst on 30 August that Albright would be "taking over the contract"; that "they were going to get rid of" Respondent because "they couldn't afford to pay [its drivers] union wages." (m) By commenting to Olmos "three or four times .. . in the next day or two" after 30 August that Re- spondent's drivers "would lose [their] work because the Albright Company would come in ... . (n) By stating to Kiehn near season's end that Re- spondent had only a 1-year contract, and that its drivers would be "out of a job" the next year because the con- tract would revert to Albright. Reduced hours, diminished compensation. I find and conclude that Stauffer threatened employees with re- duced hours and diminished compensation in reaction to the organizational ferment, violating Section 8(a)(1), in each of these instances: (a) By telling Olmos, Talamante, and Bernal, late in the day shift on 30 August, that the drivers were "going to work 40 hours a week with two days of rest," rather than the present 72 hours. (b) By advising Kiehn during the night shift on 30 August that the drivers would make less money if they unionized because they then would work 40 hours per week at $7 per hour. (c) By stating to Garcia "about four days after" the card-signing sessions that "the Union wasn't going to be mentioned below, his manifest preoccupation with those activities at this time and the absence of any other suggested or plausible context for his remarks leaves no doubt of an antiumon nexus i i An employer permissibly can "make a prediction as to the precise effect he believes unionization will have on his company In such case, however, the prediction must be carefully phrased on the basis of objec- tive fact to convey an employer's belief as to demonstrably probable con- sequences beyond his control " NLRB v. Gissel Packing Co, 395 U.S 575, 618 (1969) This remark by Stauffer, and his sundry other pro- jections concluded hereafter to have been unlawful, fall well short of that standard E g, Mercury Marina, 282 NLRB 794 (1987), Long-Airdox Co, 277 NLRB 1157 (1985), Thnftway Supermarket, 276 NLRB 1450, 1452 (1985), Scotch & Sirloin Restaurant, 269 NLRB 436, 440 (1984) YOLO TRANSPORT any good"; that the drivers "were going to work only eight hours [per day]." More onerous working conditions. Still crediting the General Counsel's witnesses, I find and conclude that Stauffer unlawfully threatened the employees with more onerous working conditions by slating to some or all of the day-shift employees on 30 August, after directing Salcido to reduce the crew by two, that he was "going to work the hell out of' the rest; that they were "going to work like devils." 12 3. The alleged unlawful interrogations I find and conclude that Stauffer interrogated employ- ees on 30 and 31 August, violating Section 8(a)(1), as fol- lows:' a (a) By asking Talamante variously if he had "vote[d] for a union," who else had done likewise, and if he was "the fucking agitator . . . that got the Union in." (b) By asking Olmos if he had "signed up with the Union" and who else had signed. (c) By asking Garcia "how many . . . had signed up for the Union." (d) By asking the employees, apparently generally, before the altercation with Talamante, who "the fuckers [were] that agitated this move"; and, after the alterca- tion, "Whose idea was it to bring in the Union?" (e) By asking Salcido, in the presence of day-shift driv- ers, if he "knew about" the organizational activity, if he had "vote[d] for the Union " or asked the Union to rep- resent him, and why had he not told Stauffer "that the Union was going to come in.""' (f) By asking Kiehn and other night-shift drivers if they had gone "to the union meeting" the morning of 30 August and if they had "signed the card to join." (g) By later asking Kiehn "who had instigated getting the Union." 4. Alleged unlawful indications that the employees' union activities were futile I find that Stauffer made substantially these remarks on or shortly after 30 August: (a) To Talamante, that "no fucking union is coming into this cannery." (b) To Olmos and other day-shift employees, that he was "going to make sure, take charge, so that the union matter would not come about." 12 Cf Jones Plumbing Co, 277 NLRB 437 (1985) 13 The test is "whether under all the circumstances the interrogation reasonably tends to restrain, coerce, or interfere with rights guaranteed by the Act" United Artists Communications, 280 NLRB 1056 (1986), citing Rossmore House, 269 NLRB 1176, 1177, 1178 fn. 20 (1984) The present interrogative incidents plainly had that tendency inasmuch as none of the targeted employees was an openly declared union supporter at the time; the questioning was focused, pervasive, and juxtaposed with unlawful threats and other verbal misdeeds as is concluded above and below; and Stauffer's manner in the asking was abusive and menacingly hostile. See generally Establishment Industries, 284 NLRB 121, 122 (1987), Pony Express Courier Corp, 283 NLRB 868 (1987); Bates Nitewear Co, 283 NLRB 1128 (1987); Fimco, Inc., 282 NLRB 653 (1987), United Artists Communications, supra, Sunnyvale Medical Clinic, 277 NLRB 1217 ( 1985); Rossmore House, supra. 14 See fn. 8, supra. 1093 (c) To Talamante and other day-shift employees that "no fucking union [is] coming into the shop." (d) To Olmos "three or four times," that the drivers "would not be able to have a union" because Albright "would come in and . . . [they] would lose [their] work." I conclude that these utterances, particularly in combi- nation with Stauffer's other verbal excesses at the time, conveyed the message that Respondent would go to nearly any lengths to frustrate the employees' organiza- tional desires, and that each therefore carried a threaten- ing purport in violation of Section 8(a)(1). 15 5. Alleged unlawful assertion that company permission was needed to sign union cards and that Respondent would not allow union representation I find that Stauffer stated to Talamante and other day- shift drivers, "a few days after" 30 August, that they "had to have permission of the Company . . . to have a union"; and that "what [they] did was not right, because [they] didn't go through management to get permission to bring a union into the plant." I conclude that, so stating, Stauffer misstated the em- ployees' statutory rights in a manner likely to interfere with and restrain them in their exercise of those rights, thereby violating Section 8(a)(1).16 6. Alleged unlawful physical assault and threat of same I find that, on 30 August, reacting to Talamante's remark in the presence of several coworkers that Stauffer once had said, "the Union was going to come in ... if Carnation wasn't careful" in its treatment of the drivers, Stauffer "came rushing at" Talamante as if he "was going to grab . . . and . . . hit" him, exclaiming as he did so that Talamante was "a fucking liar" and that he was "going to sit [Talamante] on [his] ass." 17 I also fmd that Stauffer later recounted this episode to Stark, saying that Talamante had accused him of liking unions and indicating by word and gesture that he conse- quently pulled Talamante up by his shirt, drew his fist back menacingly, and swore at him. I conclude that, by attacking Talamante in the circum- stances, Stauffer interfered with, restrained, and coerced Talamante in the exercise of his Section 7 rights, violat- ing Section 8(a)(1); and that, by doing so in the presence of other employees and later describing the incident to Stark, he broadcast the message, thereby threatening them in further violation of that section. 's 7. Allegedly unlawful impression of surveillance The General Counsel contends that Stauffer unlawful- ly imparted the impression that the employees' union ac- 15 E g , Scotch & Sirloin Restaurant, 269 NLRB 436, 439 (1984); Pa1by Lingerie, 252 NLRB 176, 180 (1980) 15 Colony Printing & Labeling, 249 NLRB 223, 224 (1980) 17 To the modest extent that their versions of this incident differ, I credit Talamante, who was directly involved, over Olmos, an onlooker 11 NLRB v. Norbar, Inc, 752 F 2d 235, 239 (6th Cir 1985); Studio SJT, 277 NLRB 1189 ( 1985), Batavia Nursing & Convalescent Inn, 275 NLRB 886, 891 (1985) 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tivities were under surveillance by saying to Stark that "Mexicans had started this whole thing." I find that Stauffer indeed made such a statement about 30 August . And, while I disagree with the General Counsel's theory of violation, I conclude that it did vio- late Section 8(a)(1). My reasoning is that, given Stauffer's profligate verbal deprecation of Respondent's Latino em- ployees,19 the probability that word of the statement would reach those employees, and Stauffer's generally intemperate reaction about this time on learning of the union activity, the statement likely would induce a par- ticular uneasiness among Respondent's Latinos about their job security, tending to arrest their continued orga- nizational involvement.20 The Court took particular note of the protractedly in- imical effect on fair elections of threats of job loss. Sum- marizing a law-review study of over 20,000 Board-con- ducted rerun elections, it stated: The study shows . . . that certain unfair labor prac- tices are more effective to destroy election condi- tions for a longer period of time than others . For in- stance, in cases involving threats to close or transfer plant operations, the union won the rerun only 29% of the time, while threats to eliminate benefits or refuse to deal with the union if elected seemed less irremediable with the union winning the rerun 75% of the time.24 V. THE APPROPRIATENESS OF A BARGAINING ORDER REMEDY AND THE ALLEGED UNLAWFUL REFUSAL TO RECOGNIZE AND BARGAIN A. Sufficiency of the Violations Just Found to Support a Bargaining Order Before addressing the other issues on which a bargain- ing-order remedy or an unlawful refusal to recognize and bargain rely, I think it appropriate first to determine if Respondent's misconduct is sufficient, assuming the pres- ence of the other requisites , to support a bargaining order. The guidelines for this determination appear in NLRB v. Gissel Packing Co.21 The Supreme Court in Gissel set forth two situations in which bargaining orders are ap- propriate: "exceptional" cases fraught with "outrageous" and "pervasive" unfair labor practices, and certain "less extraordinary" cases attended by "less pervasive" mis- conduct nevertheless having a "tendency to undermine [the union's] majority strength and impede the Board's election processes."22 The Court elaborated that the Board, when deciding if misconduct comes within at least the latter of these categories, may consider ... the extensiveness of an employer's unfair prac- tices in terms of their past effect on election condi- tions and the likelihood of their recurrence in the future. If the Board finds that the possibility of eras- ing the effects of past practices and of ensuring a fair election . . . by the use of traditional remedies, though present, is slight and that employee senti- ment once expressed through cards would, on bal- ance, be better protected by a bargaining order, then such an order should issue.23 'y Stauffer's insistence that "there was nothing negative to it at all" is dismissed as pure bovine excrement fO Cf. Cartridge Actuated Devices, 282 NLRB 617 (1986) My reason for rejecting the General Counsel's theory of violation is that the remark in question was too general to suggest that it emanated from information obtained through surveillance, especially in light of Stauffer's proclivity to verbally abuse the Latinos . See generally Cartridge Actuated Devices, supra, Spring Motel, 280 NLRB 284 fn. 2 (1986); Gemco, 279 NLRB 1138 (1986); Sierra Hospital Foundation, 274 NLRB 427 (1985), Palby Lingerie, 252 NLRB 176, 176 (1980); South Shore Hospital, 229 NLRB 363, 363 (1977). 41 395 U S 575 (1969) 92 Id. at 613-614. 98 Id. at 614-615. Applying Gissel precepts, the Board has deemed a bar- gaining-order remedy to be appropriate in a number of cases in which, as in the present, the misconduct consist- ed only of verbal acts violating Section 8(a)(1). One such case is Long-Airdox Company .25 It involved, in addition to other and lesser violations, threats in vari- ous forms that the employees would lose their jobs should unionization occur . The Board observed in sup- port of a bargaining order: [T]he threats to discharge, to close the plant, and to refuse to bargain and force employees out on strike and replace them, as well as statements concerning loss of customers, are threats the Board and the courts have long recognized to be "hallmark viola- tions." . . . Moreover, the threats of plant closure are "one of the most coercive actions which a com- pany can take in seeking to influence an election."26 The Board added that, beyond "the nature of the mis- conduct, its "swiftness and timing . . . which began the day after the Union demanded recognition," yet further reduced "the possibility of erasing the lingering effects of the unfair labor practices and of conducting a fair elec- tion by use of traditional means ....1127 Another case in point is Kona 60 Minute Photo,28 which also presented unlawful threats of discharge and job loss through striker replacement , along with less seri- ous violations of 8(a)(1). Concluding that the situation called for a bargaining order, the Board commented that discharge threats "have a profound impact on employ- ees"; that the seriousness of the misconduct was "further underscored by the small size of the unit" (seven em- ployees); and that, "taken as a whole , the Respondent's acts involve[d] the type of severe and pervasive coercion which has lingering effects not readily dispelled."29 The Board rejected the argument that the passage of time and employee turnover militated against a bargaining order, noting that a traditional cease-and-desist order "would, 24 Id. at 611 fn. 31. sa 277 NLRB 1157 (1985). 26 Id. at 1160. The second inside quotation is from Donn Products V. NLRB, 613 F 2d 162, 166 (6th Cu 1980). !7 Id. at 1161 8a 277 NLRB 867 (1985). 29 Id. YOLO TRANSPORT 1095 in effect, reward the Respondent for its own wrongdo- ing."a o Other cases in this genre include Ste-Mel Signs i and Four Winds Industries.32 Ste-Mel Signs dealt with threats of closure in the face of an organizing drive, and of dis- continuing that portion of the business targeted for orga- nization. Explaining the need for a bargaining order remedy, the Board stated: [T]he threat of job loss through plant closure or curtailment of operations seriously interferes with the employees' ability to make choices freely in the election of a collective-bargaining representative.33 Noting that the unit in Ste-Mel Signs consisted of only 14 employees, 8 of whom were "directly subjected to Respondent's illegal conduct," and that that conduct fol- lowed quickly on the employer's learning of the union activity, the Board continued that "the pervasiveness of unlawful conduct in a small employee complement heightens its damaging effect,"34 and that the "imprint of the unfair labor practices is solidified because of the swiftness with which they occurred and the number of employees directly affected."35 Four Winds Industries involved an employer's preelec- tion advisories to employees that a strike and then the permanent replacement of the strikers would result should they unionize. The Board concluded that this was a "thinly veiled threat" of inevitable job loss,36 warrant- ing a bargaining order. It explained: [T]he threat of job loss is one of the most flagrant acts of interference with a fair election, the effect of which is to render a reliable election unlikely. 37 Another instructive case, although containing unlawful layoffs as well as threats thereof, is Quality Aluminum Products.98 It, like the present case, concerned a seasonal business. Deciding that a bargaining order was indicated, the Board observed that those illegally laid off, even though later recalled, "would be 'painfully aware that future support of a union could lead to the same end,"'as and that "this is particularly true [inasmuch as] .. . the seasonal nature of the Respondent 's business renders ad- ditional layoffs probable. 1140 The Board went on to sug- 30 Id. Similarly, in Koons Ford of Annapolis, 282 NLRB 506 (1986), which included a wage increase violating Sec 8(aX3) in addition to un- lawful threats of job loss, the Board stated (at 509) that the "inhibitive effects of these unfair labor practices are likely to persist despite a sub- stantial level of turnover and concomitant passage of time." See also United Artists Communications, 280 NLRB 1056 fn 4 (1986), and Thriftwny Supermarket, 276 NLRB 1450, 1452 (1985). ai 246 NLRB 1110 (1979) 32 228 NLRB 1124 (1977) ss 246 NLRB at 1110 94 Ibid sa Id at 1111, quoting from Chandler Motors, 236 NLRB 1565, 1567 (1978) 36 228 NLRB at 1124. 37 Id at 1125. 38 278 NLRB 338 (1986). 99 Id at 340 quoting from Exchange Bank, 264 NLRB 822, 824 fn. 14 (1982) 40 Id at 340. gest, and logic dictates, that the susceptibility to layoff inherent in the seasonal situation likewise would heighten and prolong employee sensitivity to unlawful threats of same.41 Returning to the case at hand, Stauffer committed a profusion of "hallmark violations"-raising the prospect that Respondent would be replaced by Albright Truck- ing, directing Salcido to fire two drivers, declaring that he was "going to fire those fucking agitators," and in- voking assorted variations on those themes. Stauffer's on- slaught contained sundry other violations, as well, which, although not of hallmark seventy, cannot be said to have been inconsequential in their aggregate impact or in combination with the hallmark violations. Beyond that, Stauffer's antiunion tirade began almost immediately on his learning of the union activity, appar- ently continuing almost nonstop for the next couple of days, directly affected most of the employees in the small unit and doubtless was observed by all of them, and oc- curred in a seasonal context. The record contains no evi- dence, moreover, that Respondent openly disavowed Stauffer's misconduct or otherwise attempted to neutral- ize its impact on the employees, nor does it afford any basis for supposing that such conduct would not recur in succeeding seasons under similar circumstances . Indeed, because Stauffer had occupied the same position for sev- eral years at Woodland, for Respondent and its predeces- sor, Albright, one might assume that he will continue in that capacity, his virulent and unrestrained union animus intact, for Respondent or whomever. I conclude, based on the array of factors just men- tioned and the cited decisions, that the possibility of eras- ing the effects of Respondent's misconduct and conduct- ing a fair election by application of traditional remedies is slight to nonexistent, and that a bargaining-order remedy therefore is warranted, assuming the presence of the other requisites to such a remedy. B. The Other Requisites 1. Unit appropriateness The parties have stipulated and I conclude that the fol- lowing is an appropriate bargaining unit for purposes of the Act: All seasonal shuttle-truck drivers employed by Re- spondent at the Woodland, California, facility of Contadina Foods, excluding all other employees, guards, and supervisors as defined by the Act. 2. Majority42 Evidence. As previously indicated, 12 of the 14 in Re- spondent's complement of shuttle-truck drivers and crew chiefs at Woodland had signed and submitted authoriza- tion cards by the morning of 30 August, and another driver did so within roughly the next day. The cards stated: 41 Id. at 340-341 42 "[N]onmalonty bargaining orders cannot be considered a remedial option " Gourmet Foods, 270 NLRB 578, 587 (1984). 1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I hereby authorize Cannery Workers and Warehou- semen Local 857 as my Exclusive Collective Bar- gaining Representative for Better Wages, Fringe Benefits and Job Security. Talamante translated as deemed necessary during the 29 August meeting at which day -shift employees signed. All of those attending the next morning's meeting at which night-shift employees signed are conversant in English. The record provides not so much as a hint that the substance of the meetings and the import of the cards were not understood by all. Respondent contends, however, that the Union never enjoyed a valid card majority because the two crew chiefs, Salcido and Sanchez, were at once statutory su- pervisors and open proponents of unionization. The Gen- eral Counsel argues, on the other hand, that they were not supervisors; and that, even if they were, their status and activities were not of a majority-tainting character. Salcido and Sanchez each attended his shift's card- signing meeting, and both signed. Salcido, moreover, joined Olmos in urging that Talamante call the Union as a prelude to those meetings, offered to do Talamante's work while he made the call, and gave him the coins with which to operate the telephone. Sanchez, for his part, once sympathetically asked Talamante if he had "called the Union yet," informed some of his crew of the pending meeting with Shorey, was the first of his crew to speak with Shorey in advance of that meeting, and provided an authorization card to the one member of his crew, James Stark, who did not attend the meeting. On presenting the card to Stark, who was off duty the day of the meeting, Sanchez stated, by Stark's account, that "everybody else was for it," but did not expressly urge that he sign.43 Other than might be inferred from the foregoing, the record leaves to speculation the impact of Salcido's and Sanchez's sympathies and activities on the attitudes of others. Talamante testified that "it was the total group that made a decision in unison" to go union; Olmos averred that the sentiment to call the Union "was from all of us, but the idea came from [him]"; and Kiehn stated that all of the night-shift employees at the 30 August meeting thought union representation was "a good idea." Kiehn testified in addition that he "wouldn't know if [Sanchez] was the main supporter"; and Olmos testified that Salcido responded, when asked by him on 29 August if he intended to sign a card , that he "didn't know because he wasn't sure." Conclusions. I conclude that the Union achieved a valid card majority the morning of 30 August. So doing, I reject Respondent's contention to the contrary ground- ed on Salcido's and Sanchez' participation in the organi- zational effort. For Respondent's contention to prevail it must demon- strate not only that Salcido and Sanchez were supervi- sors, but that their prounion involvement either "misled [the employees] into believing their employer favored the Union" or "raised among employees the specter of 43 Stark testified "He left that to me " supervisory retaliation if they declined to sign cards."44 Whether or not Respondent has met its burden on the supervisory issue, it plainly has failed on the other, for the Board has concluded in a number of instances of su- pervisory conduct matching or exceeding that of Salcido and Sanchez that card-negating taint did not attach.45 The status of Salcido and Sanchez thus need not be definitively resolved for purposes of this decision.46 C. Conclusion Concerning a Bargaining Order Remedy The Union having achieved a valid card majority in an appropriate unit on 30 August and Respondent having embarked on its course of misconduct that same day, I conclude that a bargaining order remedy is warranted, effective August 30.47 D. Allegedly Unlawful Refusal to Recognize and Bargain 1. Additional evidence As previously mentioned, the Union's Shorey caused a jointly addressed letter to be delivered to Stauffer and Contadina's Roberts on 30 August that stated the Union 44 Kut Rate Kid, 246 NLRB 106, 107 (1979). Also Industry Products Co., 251 NLRB 1380, 1380 fn. 2 (1980), Orlando Paper Co., 197 NLRB 380, 387 (1972). 45 See, in addition to decisions cited in preceding footnote, United Art- ists Communications, 280 NLRB 1056 (1986), Moe Warehouse, 275 NLRB 1132 (1985), Pantex Towing Corp., 258 NLRB 837 (1981 ). Inasmuch as the Board generally "refuse[s] to count cards directly solicited by supervi- sors," the one card solicited by Sanchez, that of James Stark, would have to be disregarded should Sanchez be deemed a supervisor. Sarah Neuman Nursing Home, 270 NLRB 663, 663 fn 2 (1984), also United Artists Com- munications, supra, 280 NLRB 1056 fn 11 46 Assuming Salcido and Sanchez to have been supervisors, and the one card solicited by Sanchez (Stark's) thus invalid , the Union still had valid cards from 10 employees in a unit of 12 A summary of the evi- dence relevant to the supervisory issue appears in Appendix A, accompa- nying this decision The question is close See, e.g, Spring Valley Farms, 272 NLRB 1323 (1984), Vanport Sand & Gravel, 267 NLRB 150 (1983), Fisher Foods, 245 NLRB 685 (1979); Spector Freight System, 216 NLRB 551 (1975); BASF Wyandotte Corp, 193 NLRB 720 (1971); Scott Paper Co, 171 NLRB 821 (1968); Fresno Auto Auction, 167 NLRB 878 (1967); King Jack's Foodarama, 150 NLRB 1384 ( 1965); West Virginia Pulp Co., 122 NLRB 738 (1958); Brighton Mfg. Co., 122 NLRB 220 (1958), Waldo Rohnert Co, 120 NLRB 152 (1958) 47 Although Shorey's letter constituted a demand for recognition (see below), such "a demand is not a necessary predicate to the granting of a bargaining order as a remedy for an employer's serious unfair labor prac- tices in violation of provisions of Section 8(a) other than Section 8(aX5)." Grandee Beer Distributors, 247 NLRB 1280, 1280 fn. 5 (1980). Given the retroactivity of the bargaining order and the possibility, under successorship principles, that Respondent's obligation thereunder would devolve upon another employer should Respondent not succeed itself in 1987, 1 disagree with the General Counsel that "the bargaining- order issue would be rendered moot" were Respondent not to get the 1987 contract, and I perforce reject Respondent's contention that a bar- gaining order should not issue because of uncertainties about Respond- ent's 1987 status I also reject Respondent's argument that a bargaining order is inappropriate because of uncertainties over the makeup of its payroll even if it does succeed itself As a general proposition, uncertain- ty about the future is to be resolved against the wrongdoer The record discloses, moreover, that Respondent generally gives hiring preference to former employees, which tends to resolve this uncertainty compatibly with the general proposition; and, as previously indicated (fn 30 and ac- companying text), the Board is disinclined to withhold a bargaining order because of employee turnover YOLO TRANSPORT 1097 represented "a majority of the Shuttle Truck Drivers" at Woodland and requested that they be "upgrade[d] . . . to Union Standards in both working conditions and wages" pursuant to the labor agreement covering Conta- dina's cannery employees. Also as earlier noted, neither addressee responded to this letter. Respondent admits in its answer, however, "that it has failed and continues to fail to recognize or bargain with" the Union. 2. Conclusions I conclude that Shorey's letter, while not well crafted for the purpose, put Respondent on notice that the Union was claiming recognition as the representative of Respondent's employees. 48 Stauffer's ensuing panic leaves no doubt that he so understood it. I further con- clude that Respondent, by admittedly failing to recognize the Union, with its card majority in an appropriate unit, and coincidentally undertaking a course of action inimi- cal to a fair election, violated Section 8(a)(5) and (1).49 CONCLUSIONS OP LAW A. The 8(a)(1) Violations Respondent, by Shuttle-Truck Supervisor Stauffer, violated Section 8(a)(1) of the Act as follows: (1) By stating in the presence of some and perhaps all of the day-shift drivers, shortly after receiving Shorey's letter on 30 August, that Respondent would be replaced by Albright Trucking, causing Respondent's drivers to be fired. (2) By directing Salcido, in the presence of day-shift drivers on the 30 August, to fire two drivers inasmuch as the drivers wanted a union. (3) By telling Garcia on 30 August, after Stauffer had reported that "almost all" of the day-shift drivers had signed union cards, that he was "going to get rid of all of [them]." (4) By directing Salcido, in Garcia's presence on 30 August, to lay off Garcia and 'Miguel Castillo because they "had taken up with the Union." (5) By proclaiming within earshot of most and possibly all of the day-shift drivers near shift's end on 30 August that he was "going to fire those fucking agitators." (6) By calling after the dispersing drivers following his altercation with Talamante near shift-change on 30 August that they were "going to get fucking fired." (7) By telling Kiehn during the night shift starting on 30 August that Respondent "could fire" the drivers and "get the mechanics out of the shop to drive the trucks." (8) By stating to Kiehn during the same shift that he had "a whole list of people who could do [the drivers'] jobs," that he "could call them anytime," and that he therefore "could fire" all the existing drivers. p (9) By also telling Kiehn during that shift, probably in the presence of two other drivers, that the more senior 48 Atlas Graphics, 227 NLRB 136, 140•-141 (1976), Ref-Chem Co, 169 NLRB 376, 382 fn. 23 (1968) 49 Grandee Beer Distributors, 247 NLRB 1280, 1280 fn. 5 (1980), Free- hold AMC-Jeep Corp., 230 NLRB 903, 903 (1977) Shorey's letter cannot fairly be construed, however, as a request to bargain Respondent's 8(a)(5) violation therefore consists only of its refusal to recognize Cf Atlas Graphics, supra at 140-141 in-plant employees "could come and bump" the drivers "off [their] jobs . . . if they went union." (10) By informing Stark during the night shift of 30 and 31 August that the drivers "would just end up losing [their] jobs the next year" if they went union because the in-plant employees, represented by the same union and being more senior, would "bump" them. (11) By saying to Stark and at least two coworkers during the same shift, much as he had to Kiehn as de- scribed above, that Respondent "could fire" all the driv- ers, replacing them with mechanics "and the people from the shop"; and by opining in the same encounter that "a way out" for Contadina would be to give the contract to Albright, in which case Respondent's drivers "would lose" their jobs "and there would be no union or any- thing." (12) By telling Talamante a "day or two" after Stauffer's initial outburst on 30 August that Albright would be "taking over the contract"; that "they were going to get rid of" Respondent because "they couldn't afford to pay [its drivers] union wages." (13) By commenting to Olmos "three or four times ... in the next day or two" after 30 August that Re- spondent's drivers "would lose [their] work because the Albright Company would come in ... . (14) By stating to Kiehn near season's end that Re- spondent had only a 1-year contract, and that its drivers would be "out of a job" the next year because the con- tract would revert to Albright. Respondent, by Stauffer, further violated Section 8(a)(1) in these respects: (1) By telling Olmos, Talamante, and Bernal, late in the day shift on 30 August, that the drivers were "going to work 40 hours a week with two days of rest," rather than the present 72 hours. (2) By advising Kiehn during the night shift on 30 August that the drivers would make less money if they unionized because they then would work 40 hours per week at $7 per hour. (3) By stating to Garcia "about four days after" the card-signing sessions that "the Union wasn't going to be any good"; that the drivers "were going to work only eight hours [per day]." (4) By stating to some or all of the day-shift employees on 30 August, after directing Salcido to reduce the crew by two, that he was "going to work the hell out of" the rest; that they were "going to work like devils." Respondent, through Stauffer, also violated Section 8(a)(1) on 30 and 31 August as follows: (1) By asking Talamante variously if he had "vote[d] for a union," who else had done likewise, and if he was "the fucking agitator . . . that got the Union in." (2) By asking Olmos if he had "signed up with the Union" and who else had signed. (3) By asking Garcia "how many ... had signed up for the Union." (4) By asking the employees, apparently generally, before the altercation with Talamante, who "the fuckers [were] that agitated this move"; and, after the alterca- tion, "Whose idea was it to bring in the Union?" 1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (5) By asking Salcido, in the presence of day-shift drivers, if he "knew about" the organizational activity, if he had "vote[d] for the Union" or asked the Union to represent him, and why had he not told Stauffer "that the Union was going to come in." (6) By asking Kiehn and other night-shift drivers if they had gone "to the union meeting" the morning of 30 August and if they had "signed the card to join." (7) By later asking Kiehn "who had instigated getting the Union." Respondent, by Stauffer, committed additional viola- tions of Section 8(a)(1) on or shortly after 30 August by these remarks: (1) To Talamante, that "no fucking union is coming into this cannery." (2) To Olmos and other day-shift employees, that he was "going to make sure, take charge, so that the union matter would not come about." (3) To Talamante and other day-shift employees that "no fucking union [is] coming into the shop." (4) To Olmos "three or four time[s]," that the drivers "would not be able to have a union" because Albright "would come in and . . . [they] would lose [their] work." (5) To Talamante and other day-shift employees, that they "had to have permission of the Company . . . to have a union"; and that "what [they] did was not right, because [they] didn't go through management to get per- mission to bring a union into the plant." (6) To Stark, that "Mexicans had started this whole thing." Respondent, through Stauffer, further violated Section 8(a)(1) on 30 August, first, by launching an abortive physical attack on Talamante because of Talamante's union activities; then, by describing the incident to Stark. B. The 8(a)(5) Violation Respondent violated Section 8(a)(5) and (1) of the Act by failing, since receiving the Union's demand on 30 August, to recognize the Union as the exclusive collec- tive-bargaining representative of the employees in this appropriate unit: All seasonal shuttle-truck drivers employed by Re- spondent at the Woodland, California, facility of Contadina Foods, excluding all other employees, guards, and supervisors as defined by the Act. C. Bargaining Order Remedy Apart from Respondent's violation of Section 8(a)(5), the character of its misconduct warrants a bargaining order remedy inasmuch as the Union had achieved a valid card majority in the above unit before the onset of that misconduct. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed50 so 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 ORDER The Respondent, Yolo Transport, Inc., Woodland, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of jobs through discharge, reduction in force, contracting of work to an- other employer, being "bumped" by more senior in-plant employees, or otherwise, because of their support of and desire to be represented by Teamsters Cannery Workers Union Local 857, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica or any other labor organization. (b) Threatening employees with fewer hours and less pay, or that they will be required to "work like devils," because of their support of and desire to be represented by the Union or any other labor organization. (c) Coercively interrogating employees about their union sympathies and activities, or those of their co- workers. (d) Stating to employees that Respondent will not permit the Union or any other labor organization to rep- resent its employees, or that the employees must have company permission before obtaining union representa- tion, or that bringing a union into the plant without com- pany permission is not right. (e) Physically attacking employees because of their union activities, or telling employees about such an attack. (f) Telling employees that "Mexicans had started this whole [union] thing." (g) Failing and refusing to recognize , and on request bargain collectively in good faith with, the Union as the exclusive collective-bargaining representative of its em- ployees in the appropriate unit: All seasonal shuttle-truck drivers employed by Re- spondent at the Woodland, California, facility of Contadina Foods, excluding all other employees, guards, and supervisors as defined by the Act. (h) 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. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the above-described unit, the recognition to be retroactive to 30 August 1986, and embody any agreement reached in a signed docu- ment. (b) Post at the Contadina Food facility in Woodland, California, English- and Spanish-language versions of the attaced notice "Appendix B."51 Copies of the notice, on Board and all objections to them shall be deemed waived for all pur- poses sl 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 " YOLO TRANSPORT forms provided by the Regional ]Director for Region 20, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 days consecutive days, during the tomato-canning season in conspicuous places including all places where notices to Respondent's employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (c) Mail English- and Spanish-language versions of the notice to all employees employed in the above-described unit at any time from 30 August 1986 to the date of said mailing, at their last known addresses.52 (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 52 Mailing is necessary to ensure that all employees affected by the ret- roactive and prospective remedy are meaningfully informed of their stat- utory rights in light of the shortness of the tomato -canning season, the uncertainty about the existence and suitability of a posting place at the Contedma facility, the possibility that Respondent will not be engaged at that facility in seasons subsequent to 1986, the likelihood that some of the affected employees will not be on the payroll if and when posting occurs, and the nature and seriousness of Respondent's misconduct. See generally Pacific Amphitheatre, 276 NLRB 32, 47 (1985); Batchelor Electric Co., 254 NLRB 1145, 1148 (1981); SFS Painting & Drywall, 249 NLRB 111 (1980); Haddon House Food Products, 242 NLRB 1057, 1058-1059 (1979); G . V R, Inc., 201 NLRB 147, 154 (1973). APPENDIX A Summary of Evidence on the Supervisory Issue Salcido and Sanchez, as earlier stated, received crew chief designation from Stauffer , who was "in charge" of the shuttle-truck drivers. They worked a 72-hour week, spread over 6 days, as did those on their crews, and re- ceived an hourly wage of $7 , as against $6.50 for their crew members. Stauffer, by contrast, received a flat $800 per week, was on 24-hour call every day of the week, and filled in for the crew chiefs on their days off. All, including Stauffer, were laid off at season's end. Stauffer testified that he was present on the cannery premises "eight to ten hours" during the day shift, and "normally about four" during the night shift; and that he was always present at the 6 a.m. and p.m . shift changes "to make sure all of the employees showed up" and to "discuss the activities of the shift before with the crew chiefs."' Stauffer elaborated that he would stay "some- times an hour, sometimes two hours," at shift change, "depending on how things were going "; that he was "always there" during the day-shift lunch breaks, as well-which were staggered among the crew and ex- tended from 10:30 a.m. to 1 p.m.-"to fill in in case of any emergencies"; and that night shifts were "the same way." Stauffer testified that he "might be home sleep- ing" when not on the premises, and that he could be i Stauffer's literal testimony was that he "discuss[ed] the activities of the night before with the crew chiefs " (Emphasis added.) Although Stauffer was present more hours during 1 he day shift, the record affords no basis for supposing that the procedure was not about the same as con- cerns both shifts 1099 paged on those occasions. Home was "maybe a mile-and- a-half' away. Stauffer testified that if a driver were to be absent or tardy he was to inform the gate guard, who would notify Stauffer on the pager, or inform the appropriate crew chief. If a driver were more than 15-minutes tardy, Stauffer himself called around for a replacement. Stauffer testified that, while the crew chiefs had noth- ing to do with the season-opening makeup of Respond- ent's crews, they were involved in the hire of replace- ment drivers "as the season progressed." He enlarged: When I found out that maybe a man didn't show up for work or something, and they [the crew chiefs] say, "Well, I got a guy that needs a job ," and I'd asked them to bring him in and try [him] out, and see how [he] work[s] out. Then, according to Stauffer, the prospective employee would undergo a 6-hour training regimen administered by one of the crew chiefs, after which I would get ahold of my crew leader, whichever one it was, and we'd discuss it. It was up to their judgment. I left it up to them . If they felt the candi- date could qualify for the job, why, we put him on. Stauffer added that, although "it was hard for [him] to observe [the candidate] all the way through" the training period, he "observed them very closely . . . when we put them on . . . to make sure they were qualified for the job"; and that he "reserved" the authority to over- ride the crew chief at that point. Stauffer testified that four drivers were obtained by this process: Jesus Garcia, referred by Salcido; and Jorge Castro, Sam Collins, and Miguel Castillo, referred by Sanchez. Another candidate washed out during the train- ing period, according to Stauffer, when Salcido said he "ain't going to make it" and Stauffer thereon sent the prospect home. Stauffer testified that Jorge Castro like- wise failed to survive the trial period, based on Salcido's opinion that he could not "hack it." Respondent's pay- roll records discloses, however, that Castro was hired 1 day and terminated the next, perhaps suggesting that this was an instance in which Stauffer exercised his overrid- ing authority.2 Finally, with regard to hiring, Jesus Garcia testified that when Salcido contacted him about working for Re- spondent Salcido said he "was the foreman and for [Garcia] to come to work." The record contains no convincing evidence that Sal- cido or Sanchez ever discharged anyone , either on their own or on orders from Stauffer, or that they had that au- thority.3 Stauffer testified, however, that they could ef- fectively recommend discharge, citing the instance of one Jerry Gaines. a Despite Stauffer's assertion that this "never occurred." s James Stark testified that Stauffer had told him that Sanchez "could fire us if we didn't act right " Given the weight of evidence to the con- trary, this does not warrant the inference that the crew chiefs in fact had that authority 1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Gaines "was having problems getting to work on time," according to Stauffer; and, on the fourth instance of his being tardy, Salcido ... said he didn't want to have to worry about him being late anymore, and he recommended that we let him go, so I did. I concurred with him whole- heartedly. Later in his recital, Stauffer put the matter in a some- what different perspective, relating that he was "terribly upset" over Gaines' tardiness on this occasion; that he sent Gaines home on his late arrival; that he then "talked to the crew chief and said, 'Let him go"'; and that he advised Gaines of that decision. Stauffer added: "Had he had a car accident or something, I wouldn't have termi- nated [him]. We found out he slept in." Concerning the imposition of discipline, Stauffer testi- fied that Salcido and Sanchez both had reported to him that they had issued oral warnings to members of their crews. Stauffer elaborated that Salcido reportedly had admonished drivers for "go[ing] to sleep in the truck while . . . waiting to pull the load up," telling them that "very possibly . . . [they would] be terminated if [they] got caught again"; and that Sanchez reportedly had cau- tioned "a couple of' drivers for returning late from their lunch breaks, warning "that they'd be replaced . . . if they didn't get back on time." Stauffer did not identify the employees involved in these incidents. Further on the subject of discipline, John Kiehn testi- fied that Sanchez "did say things to a few people"; that "he would tell them what they did wrong and which way he wanted it done." Kiehn added that he and his coworkers had been told by Stauffer that Sanchez "ran the crew [and] disciplined the crew," and, "if you did something wrong, he'd be the one that would say some- thing to you." Asked what discipline in this context en- compassed, Kiehn replied: "If [the drivers] were doing something wrong, [Sanchez] would tell them what they were doing wrong and the way he wanted it done." Kiehn added that these were not Stauffer's literal words, but that "that's the way it worked." Olmos testified that, while he never saw Salcido disci- pline anyone, Salcido would "tell us the mistakes we made"-"that it wasn't done this way, that it was done the other way." With respect to the direction of employees, Stauffer testified that he instructed new drivers to follow the orders of the crew chiefs. Olmos testified that Stauffer told him that Salcido "was going to be the [day-shift] foreman and to ask him about anything." Similarly, Garcia recounted Stauffer's informing him that Salcido was "the boss" and that the day-shift drivers were "to follow" his orders and take their problems to him. Kiehn likewise testified that Stauffer told him that Sanchez would tell the night-shift drivers "what fruit to pick up" and to take "any problems" to Sanchez. Finally, James Stark testified that Stauffer told him that Sanchez would be "boss" on the night shift, and to "work with" San- chez. Consistent with the foregoing, Olmos recalled that Sal- cido "would go around the whole yard" at the outset of the day shift and "tell us what had to be done first"; and Garcia testified that Salcido "told us what we had to do there and gave us instructions about our work." To like effect, Kiehn testified that Sanchez "would tell us where we started every night, what jobs we did, what to switch .... Talamante averred, on the other hand, that "the orders always came in the morning from" Stauffer; e.g., "who would take what lines." Kiehn expanded that Sanchez' instructions "varied from night to night"; that he sometimes gave them "maybe once or twice," and that "other times it would be three or four times, five times, in a night." The in- structions, Kiehn went on, had to do "mainly" with leak- ing trailers: We were told to pick the leaking trailers up ... . [I]f it leaked too much, the fruit would go bad. So, it would have to come in first, before the other ones. Kiehn testified that Sanchez sometimes directed the drivers to change "lines" in departure from the accus- tomed order. The cannery had four lines. Normally, a driver was assigned a given line for 2 hours, after which he rotated to the next line or to "backup" for 2 hours, eventually returning to the inital position for the last 2 hours of his shift. A change in that order was called for, according to Kiehn, if a problem arose inside the can- nery requiring the stoppage of a line. As for the sorts of problems he took to Sanchez, Kiehn testified that they were "equipment problems, mainly.,, Beyond the foregoing, Stauffer testified that the crew chiefs "generally" told the drivers when to take their half-hour lunch breaks, explaining that juggling some- times was necessary to enable a driver to tend to person- al matters. Stauffer also testified that the crew chiefs, particularly Salcido, conducted the previously mentioned 6-hour training period for new driver candidates, "go[ing] through the whole procedure of driving the trucks, dumping the tomatoes , and whatever else was re- quired on the job." This duty befell Salcido more often than Sanchez, he testified, because the prospective driv- ers "weren't familiar with the yard, and [he] didn't want them out there at night driving trucks." Stauffer testified that "generally" throughout the day [the crew chiefs] would drive trucks," particularizing that they filled in when their crew members were on break and that they also drove a sprinkler truck over the premises twice a day to keep the dust down. At about the time Salcido and Sanchez were hired. Stauffer gave each a copy of this memorandum: TO: Crew Managers Crew Chiefs It will be the responsibility of each crew manager or crew chief to see that tomatoes are delivered promptly, safely, and efficiently from the staging areas to the tomato dumps. Your duties will include, but are not limited to, assuring that: YOLO TRANSPORT 1101 1. Equipment is inspected daily and thorough- ly. 2. Equipment is operated properly and safely. 3. Any equipment defects reported immediate- ly to Riverbank.4 4. Personnel are properly dressed. 5. Crew members arrive for their shift prompt- ly. 6. Crew members conduct themselves profes- sionally, safely and efficiently. 7. Crew members are courteous and helpful in dealing with tomato dump crews. 8. Any trailer damage is identified and record- ed on Yolo inspection sheet and carrier notified. 9. Any injuries or accidents are reported im- mediately to Riverbank. 10. Overtime is kept at a reasonable level. 11. Crew members are treated equally and fairly. 12. Discipline, when necessary, is administered promptly, fairly and consistently. These are guidelines . Above all, we must keep the proper type and the proper amount of tomatoes at the dumps at all times. That is job number 1. You have our phone numbers if anything comes up that needs our immediate attention. Don't be afraid to call us. /s/Craig B. Nash Craig B. Nash Western Division Manager Neither Salcido nor Sanchez testified. • Carnation's Western Division trucking headquarters are in River- bank, California. APPENDIX B 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 threaten employees with loss of jobs through discharge, reduction in force, contracting of work to another employer , being "bumped" by more senior inplant employees, or otherwise, because of their support of and desire to be represented by Teamsters Cannery Workers Union Local 857, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America or any other labor organization. WE WILL NOT threaten employees with fewer hours and less pay, or that they will be required to "work like devils," because of their support of and desire to be rep- resented by the Union or any other labor organization. WE WILL NOT coercively interrogate employees about their union sympathies and activities, or those of their coworkers. WE WILL NOT state to employees that we will not permit the Union or any other labor organization to rep- resent our employees, or that the employees must have company permission before obtaining union representa- tion, or that bringing a union into the plant without com- pany permission is not right. WE WILL NOT physically attack employees because of their union activities, or tell employees about such an attack. WE WILL NOT tell employees that "Mexicans had start- ed this whole [union] thing." WE WILL NOT fail and refuse to recognize, and on re- quest bargain collectively in good faith with, the Union as the exclusive collective-bargaining representative of our employees in this appropriate unit. All seasonal shuttle-truck drivers employed by Yolo Transport, Inc., at the Woodland, California, facili- ty of Contadina Foods, excluding all other employ- ees, guards, and supervisors as defined by the Act. WE WILL NOT in any other manner interfere with, re- strain, or coerce you in the exercise of the rights guaran- teed you by Section 7 of the Act. WE WILL recognize and, on request , bargain collec- tively in good faith with the Union as the exclusive bar- gaining representative of the employees in the above-de- scribed unit, said recognition to be retroactive to 30 August 1986, and WE WILL embody any agreement reached in a signed document. YOLO TRANSPORT, INC.