Ambulette Transportation Service Corp.

224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Ambulette Transportation Service Corp . and Local 810, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 29-CA-12110 16 December 1987' DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 20 August 1986 Administrative Law Judge James F. Morton issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a brief in support of the judge's decision. 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,2 and conclusions, to modify the remedy,3 and to adopt the recommended Order.4 Contrary to our dissenting colleague, we agree with the judge that the Respondent's unlawful con- duct fully warrants the imposition of a remedial bargaining order. To demonstrate its opposition to the employees' support for the Union, the Re- spondent engaged in an immediate, across-the- board retaliatory discharge of its entire work force. 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 2 In adopting the Judge's finding that the Union repeated its initial 15 October 1985 demand for recognition to the Respondent, we find it un- necessary to rely on the mailgram of 16 October because the record fails to establish that the Respondent ever received that correspondence However, it is clear that the Union's attorney reiterated the Union's bar- gaining demand on 17 October In addition, while we agree with the judge's determination that Wil- liam Stewart is not a supervisor we do not adopt his statement that the parties stipulated to his inclusion within the unit The document on which the judge relies was not stipulated as reflecting bargaining unit composition, but merely lists the individuals on the Respondent's payroll as of 15 October 1985 In any event, we find that the record fails to es- tablish the Respondent's claim that Stewart possessed supervisory author- ity or responsibilities, and we agree with the judge's conclusion that he is not a supervisor 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 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to I January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 4 Chairman Dotson would overrule Abilities & Goodwill, 241 NLRB 27 (1979), and therefore would delete the backpay portion of the judge's recommended Order Several days later, to erase any doubt either as to its motivation for the mass firings or to its antiun- ion commitment, the Respondent admonished em- ployees that it would be futile to choose the Union as their representative because it would go out of business before having anything to do with the Union. A week after the discharges, the Respond- ent notified all 19 employees simply to "disregard our notice of termination" and that their "jobs are available and awaiting your return." The judge found, and we agree, that the Re- spondent's terse retraction of its wholesale dismis- sal of the work force did not effectively repudiate its earlier unfair labor practices. The dissent, how- ever, chooses to ignore entirely that the Respond- ent's attempted rescission of the termination does not meet the standards set forth in Passavent Memo- rial Area Hospital, 237 NLRB 138 (1978), for an ef- fective repudiation of past unlawful conduct Spe- cifically, the mere statement, that the employees were to "disregard" their having been fired neither compensates them for their loss of a week's salary nor offers them any assurances that the Respondent now recognizes and accepts their right to engage in protected activities free of the threat of future re- taliatory action. Further, the notice of their jobs' current availability contains no reference whatso- ever about the additional unlawful threats that the Respondent might close its business completely rather than deal with the Union they selected to represent them. In these circumstances, it is most unlikely that employees would feel sufficiently secure against the potential for retribution by the Respondent that a bargaining order would be un- warranted. The dissent makes much of the fact that the Re- spondent's violations all took place during a week- long period and that the Respondent's refraining, from committing any more transgressions of the: Act should speak as loudly as "mere words" in as- suring employees that their rights will be respect- ed. We disagree. The impact of the Respondent's swift, sweeping, and severe reaction to the employ- ees' unionization cannot effectively be erased by silent subsequent inaction. The angry dismissal of an entire work force and the dire threat of plant closure require affirmative and explicit repudiation by the Respondent. Its failure to take such timely steps on its own has left us with circumstances in which a fair election cannot be conducted, so the bargaining order is warranted under the standards of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).5 5 The dissent cites several circuit court cases for its contention that mitigating circumstances, e g , the absence of unlawful conduct for an ex- Continued 287 NLRB No. 23 AMBULETTE TRANSPORTATION SERVICE ' ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Ambulette Transportation Service Corp., New York, New York, its officers, agents, successors, and assigns, shall take the action set forth in the recommended Order. CHAIRMAN DOTSON, dissenting in part. While I agree with my colleagues that the Re- spondent committed unfair labor practices, I cannot approve the issuance of a bargaining order to remedy this unlawful conduct. The Respondent transports elderly and handi- capped persons for treatment and care at hospitals and other health-related facilities. In October 1985 the Respondent had around 19 employees who were unrepresented. On 15 October the Union made a demand for recognition which was reject- ed. On 16 October the Union filed a representation petition and engaged in a strike. All 19 of the Re- spondent's employees picketed. On the same day, the Respondent's manager, Otis Raysor, handed each employee a notice stating that if they wanted to speak to the Respondent's president without any union official, they should make an appointment with the receptionist and the president would be happy to discuss it with them. On 18 October the Respondent enclosed a termination notice in the employees' pay envelopes stating that their services were no longer required. On 23 October Manager Raysor told an employee that the Respondent would go out of business before having anything to do with the Union. On the same day Raysor told another employee that the Respondent would rec- ognize any union but the one the employees' had chosen. On 25 October the Respondent informed the striking employees that they should disregard the termination notices and that their jobs were available to them. The employees stayed on strike for about 4 months. The Respondent reduced its employee tended period of time after initial commission, should properly be consid- ered in determining whether a bargaining order is appropriate While we do not quarrel with this general proposition, it is necessary to consider all the circumstances of a particular case, including the nature of the viola- tions, their extent, and their likely lingering impact in deciding on an ap- propriate remedy Each of the cases cited by the dissent is distinguishable from the instant case Peerless of America v NLRB, 484 F 2d 1108 (7th Cir 1973), NLRB v Jamaica Towing, 632 F 2d 208 (2d Cir 1980), Donn Products v NLRB, 613 F 2d 162 (6th Cir 1980), and First Lakewood Asso- ciates v NLRB, 582 F 2d 416 (7th Cir 1978), all involved violations solely of Sec 8(a)(1) of the Act While NLRB v Windsor Industries, 730 F 2d 860 (2d Cir 1984), and NLRB v Century Moving & Storage, 683 F 2d 1087 (7th Cir 1982), included violations of Sec 8(a)(3) as well as (1), both were layoffs, rather than discharges, and both involved only two employees rather than the entire work force Neither the extent nor the impact of the unfair labor practices in those cases is comparable to what occurred in this case 225 complement to three and hired temporary replace- ments When the Union, on behalf of the striking employees,. unconditionally applied in February 1986 for their reinstatement, the Respondent let go the three temporary replacements and took back the three most senior of the striking employees. It placed the remainder of the strikers on a preferen- tial hiring list., - The judge found, and I join my colleagues in agreeing, that the Respondent violated Section 8(a)(3) by discharging the striking employees and violated Section 8(a)(1) by threatening plant clo- sure and by informing employees that it was futile for them to support the Union. The judge further found, on, the basis of union authorization cards, that at the time of the Union's demand for recognition it represented a majority of the employees. The judge then concluded that a bargaining order was warranted to remedy the Re- spondent's unfair labor practices. He found that the termination of all unit employees at the virtual start of their first organizational attempt, coupled with the threat of plant closure and the message of futili- ty in selecting a representative, required a determi- nation that traditional remedies were insufficient to erase the impact of the unfair labor practices. In so finding, the judge noted that he would have been disinclined to recommend a bargaining order had the Respondent timely and effectively disclaimed the threat of plant closure, assured its employees it would not again terminate them at the onset of an organizational campaign, and rescinded its state- ments that it would never deal with the Union. With respect to the Respondent's rescission of the terminations and offers of reinstatement, the judge found that this action simply limited the Respond- ent's backpay exposure and was not enough to offset the effect of the terminations, which must have had a lasting and telling effect on the recipi- ents of such harsh treatment. I do not agree with this analysis. The Board and the courts have repeatedly stated that the election process is superior to the use of authorization cards to determine employee senti- ment. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 603 (1969); J. J. Newberry Co. v. NLRB, 645 F.2d 148 (2d Cir. 1981); Donn Products v. NLRB, 613 F.2d 162 (6th Cir. 1980); and First Lakewood Associates v. NLRB, 582 F.2d 416 (7th Cir. 1978). An order to bargain, based on a show- ing of majority status through authorization cards, is an extraordinary remedy, warranted when the possibility of erasing the effects of past unlawful conduct and of ensuring a fair election by the use of traditional remedies is slight. NLRB v. Gissel Packing Co., supra, 395 U.S. at 614. I do not find 226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that the Respondent's unfair labor practices in this case require such an extraordinary remedy. The whole of the Respondent's unlawful conduct is confined to the period of a week. The Respond- ent discharged its striking employees on 18 Octo- ber, 2 days after the strike began, and on 23 Octo- ber one of the Respondent's agents made two un- lawful threats: one of plant closure and one of the futility of selecting a representative. Two days after these threats were made, the Respondent re- scinded the discharges and offered the strikers' jobs to them. No further unlawful conduct occurred during the course of a 4-month strike. When the strikers applied for reinstatement, the Respondent let its temporary replacements go, reinstated the three most senior strikers, and placed the remaining strikers on a preferential hiring list. While I in no way condone the Respondent's discharge of all its striking employees and the threats it made to them, I also cannot fail to observe that those employees so harshly treated at the beginning of their strike were subsequently able to continue the strike for 4 months without one instance of interference, coer- cion, or restraint by the Respondent. At the end of the strike the Respondent kept its word and termi- nated strike replacements, reinstated the most senior strikers, and placed the remaining strikers on a preferential hiring list. This is not therefore a case where a respondent simply reduced its back- pay liability by offering reinstatement; instead, the Respondent rescinded the discharge of its striking employees and from that day forward refrained from any misconduct while its employees exercised their protected rights for an extended period. True, the Respondent did not expressly tell the employ- ees that it would not again unlawfully discharge them or threaten them with plant closure and the futility of selecting a representative. But surely ac- tions are as strong as words in this context and the Respondent's subsequent lawful conduct in the face of a continuing strike must have assured employees of its intention to refrain from misconduct as much as, if not more than, mere words could have done. In any event, routine remedies would surely have erased any lingering effects. I therefore cannot find that the possibility of erasing the effects of the Re- spondent's unfair labor practices by use of tradi- tional remedies is so slight as to require the issu- ance of a bargaining order.' Indeed, the Respond- i This analysis is consistent with the reasoning of various courts of ap- peals that have stressed the need to consider mitigating circumstances subsequent to unlawful acts in determining whether a bargaining order is an appropriate remedy J J Newberry Co v NLRB, 645 F 2d 148 (2d Cur 1981) Although many court decisions have emphasized employee turnover and change in management as subsequent events that may obvi- ate the need for a bargaining order, these are not the only circumstances to be taken into consideration In describing the kind of analysis that ent's lawful conduct after 25 October has already softened the impact of its earlier misconduct inas- much as the employees have freely exercised their rights from that date forward and the Union's strength has been maintained to the extent that it could sustain the strike for 4 months. Remarkably, the judge and my colleagues take no notice of the lengthy period of lawful conduct following the initial unfair labor practices and ap- parently feel that the same employees who for 4 months freely exercised their right to strike will not now be able freely to choose whether they wish representation in a Board-conducted election. Their decision ignores the reality of the labor rela- tions between the parties and needlessly cuts off the preferred election process. I would require only the traditional remedies for the violations found here and would not order the Respondent to bargain with the Union. should be used in bargaining order cases , the Seventh Circuit stated, "the 'detailed analysis' of the likelihood of recurring misconduct and of the potential curative effect of ordinary remedies only requires an appraisal of those factors which might reasonably have a bearing, such as whether the employer has a history of antiunion animus and Labor Act violations, whether the employer has taken affirmative rectifying measures or other- wise indicated his cooperativeness in assuring a fair election , etc " Peerless of America v NLRB, 484 F 2d 1108, 1118 fn 16 (7th Cir 1973) Further, the courts have held that a bargaining order may not be appropriate even when "highly coercive" or "hallmark" violations (as described in NLRB v Jamaica Towing, 632 F 2d 208, 212-213 (2d Cir 1980) occurred if sur- rounding circumstances and subsequent events obviate the need for it See, e g, NLRB v Windsor Industries, 730 F 2d 860 (2d Cir 1984), Donn Products v NLRB, 613 F 2d 162 (6th Cir 1980), and First Lakewood Asso- ciates v NLRB, 582 F 2d 416 (7th Cir 1978) In circumstances similar to the case at bar, the Seventh Circuit refused to enforce the Board's bargaining order NLRB v Century Moving & Stor- age, 683 F 2d 1087 (7th Cir 1982) The unfair labor practices in Century consisted of coercive interrogation , an unlawful promise of wage in- crease, the layoff of one employee for 16 days, and the layoff of another for 9 days in a unit of some 14 employees The court found that a bar- gaining order was not warranted despite the presence of "hallmark" vio- lations ` Although the layoffs had an immediate and probably substantial impact , any residual or continuing effect of that action was limited by the Court's reinstatement of Cork 9 days latei, and Ryan to regu- lar hours 16 days later It is noteworthy that the reassignment of work to Ryan and Cork by the Company occurred without any re- medial action by the Board While this does not remove or excuse the previous violations, it makes recurring misconduct less likely and increases the chances that ordinary remedies would be effective to ensure a fair election Id at 1094 By the same token, the Respondent's rescission of the ter- mination in the instant case, occurring without any remedial action by the Board, as well as the Respondent's conduct during the course of the 4-month strike makes recurring misconduct less likely and increases the probability that ordinary remedies can ensure a fair election Lynn Neugebauer, Esq., for the General Counsel. Mr. Chuck Ellman (Industrial Labor Relations Consult- ant, Inc), of East Orange, New Jersey, for the Re- spondent. Sidney L. Meyer, Esq, for the Charging Party AMBULETTE TRANSPORTATION SERVICE 227 DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge. The complaint as amended alleges that Ambulette Transpor- tation Service Corp (Respondent), committed unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act), and that an appropriate remedy therefor requires that Respondent be ordered to bargain collectively with the labor organi- zation chosen by a majority of Respondent's employees, Local 810, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). Respondent's answer places those allegations in issue The particular matters to be decided are whether Respondent: (a) Refused to assign work to two drivers because of their union activities (b) Informed employees, in various ways, that it was futile for them to support the Union. (c) Discharged 19 employees because of their union activities. (d) Threatened plant closure in order to undermine union support among its employees. .(e) Unlawfully refused to honor the Union's request to bargain (f) Should be ordered to bargain with the Union as a remedy for its unfair labor practices. I heard this case in New York City on 21, 22, and 23 April and on 21 May 1986 On the entire record, includ- ing my observation of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and by Respondent, I make the follow- ing FINDINGS OF FACT 1. JURISDICTION The pleadings establish and I thus find that Respond- ent is a New York corporation engaged in providing coach services for, among others, the Department of Hospitals of the City of New York, and that its annual operations meet the Board's nonretail standards I further find, based on the pleadings, that the Union is a labor or- ganization as defined in Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A An Overview Respondent is engaged in the business of transporting elderly and handicapped persons for treatment and care at hospitals and other health-related facilities In October 1985 (all dates hereinafter are for 1985 unless stated dif- ferently) it had about 19 employees who were unrepre- sented By mid-October the Union had obtained signed authorization cards from a number of these employees; the specific circumstances thereof are discussed under a separate section below. On 15 October two union representatives made a demand on Respondent that was rejected. The General Counsel alleges that that rejection violated the Act. Two drivers, who had accompanied the two union representatives when they made the demand on 15 Octo- ber, sought then to begin their workday but were in- formed by Respondent's president that there was no work for them' that day. At issue is whether the two drivers were thereby unlawfully discriminated against. On 16 October the Union filed a petition with Region 29 of the Board, Case 29-RC-6467, seeking an election among Respondent's employees, a matter that is blocked from further processing by reason of the instant case. Also on 16 October, the Union struck; all 19 employees of Respondent thereafter picketed. In the next several days, according to the allegations in the complaint in this case, Respondent in various ways informed its employees that it was futile for them to support the Union and threatened them with plant closure if they continued to support the Union. On 18 October Respondent notified all the striking em- ployees that their employment was terminated. A week later, Respondent informed these employees that they are to disregard that notice and that their jobs were available to them The employees stayed on strike for about 4 months. As a result of the strike, according to Respondent, it lost business and reduced its employee complement to three employees It hired temporary replacements. When the Union, on behalf of the striking employees, uncondition- ally applied in February 1986 for their reinstatement, Re- spondent let its three temporary replacements go and took back, in their place, the three most senior of the striking employees. It has placed the remainder of the striking employees on a preferential hiring list.' B. Alleged Discriminatory Refusal to Assign Work The complaint alleges that, on 15 October, Respondent unlawfully refused to assign work to two drivers, Thomas Graves and Egray Johnson Respondent con- tends that they had, previous to 15 October, informed Respondent that they would not be at work that day and that Respondent assigned their work to other drivers when they did not report for work at the usual time Graves and Johnson did not report to work on 15 Oc- tober at their normal starting time, 7 a m. Instead, about 11 30 a.m., they arrived at Respondent's premises with two union representatives who, as discussed below, pre- sented Respondent's president with the Union's demand. Respondent rejected that demand and the discussion thereon concluded about 12:30 p.m. Graves and Johnson then advised Respondent that they were ready to go to work. Respondent's president, Lenny Vogel, told them that there were no vans to be assigned to them Graves and Johnson testified that, at that time, there were vans stationed in Respondent's garage Respondent called an office employee, Earl Council, as a witness in support of its contentions. He testified that, on 14 October, Graves asked him to tell his supervi- ' The complaint alleged that the employees involved in this case were engaged in a strike that was caused or prolonged by Respondent's unfair labor practices At the hearing, it became clear that the strike had ended The General Counsel's brief does not allude to the unfair labor practice strike allegation presumably because the strike has ended 228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sor, Otis Raysor, that he would be absent for personal reasons on 15 October Council testified, as to the other driver (Johnson), that on the morning of 15 October, a message was relayed by Respondent's answering service to the effect that Johnson had called to state that he would not be in to work on 15 October because he had jury duty As a result of these statements of Graves and Johnson, according to Council, other drivers were as- signed on 15 October to cover for them After the union representatives left about noon that day, Graves and Johnson asked to be put to work They were informed by Respondent's president that the work they "were sup- posed to do had been covered." To rebut Council's testimony, the General Counsel called Graves and Johnson as witnesses to account for their not having reported for work at the usual starting time on 15 October. Their accounts follow Graves testified that he had obtained Council's ap- proval on 14 October to report for work "late" on 15 October. Graves testified also that he had told Council to tell Raysor that he "would not be in until about 11.00 a.m. on 15 October." Johnson testified that he was "pretty sure" he had told Council on 10 October that he would be late coming to work on 15 October During cross-examination, Johnson indicated that he was scheduled to report for jury duty on 15 October and that he would try that day "to get out of" it I credit Council's testimony, not Graves' or Johnson's. The account given by Johnson is unclear and appears to be improbable It is unlikely that driving assignments would not be made until a workday was half over, as Johnson's version would have required Respondent to have done Graves' account seems to be contradictory and, in any event, is not persuasive. The credited testimony discloses that Respondent made work assignments at the start of the workday on 15 October and on the premise that neither Graves nor Johnson would be at work that day. Respondent did not revise the work schedules for that day to accommodate Graves and Johnson when they indicated about 12.30 p.m. that they were ready to begin work. The General Counsel offered no evidence to show that they were thereby treated in a disparate manner The evidence failed to establish that Respondent refused to assign work to them on 15 October for unlawful reasons. C Events from 16 to 25 October 1 Notice to all drivers The employees of Respondent struck on 16 October Respondent's manager, Otis Raysor, handed to each of them that day a copy of a notice, reading as follows: To all Drivers. If you wish to speak to Lenny (Vogel, Respondent's president) without any Union official, please make an appointment with Rachel (the receptionist) and Lenny will be happy to dis- cuss it with you. The General Counsel contends that this notice, in overall context, demonstrates that Respondent wanted the employees to know that it was futile for them to sup- port the Union . That contention is considered in a sepa- rate section below 2. Termination notice On 18 October Respondent handed pay envelopes to the striking employees Inside each envelope was a form with the caption, TERMINATION NOTICE, and a statement that their "services to the company were no longer required " On 25 October Respondent wrote each of these em- ployees, telling them to disregard those termination no- tices and advising them that their jobs would be avail- able for them upon their return. The timing of the termination notice in relation to the start of the strike, in context with the unlawful threats, as found below, establish a clear prima facie showing of un- lawful discriminatory motive. Respondent offered no off- setting evidence I thus find that the 19 striking employ- ees were discharged on 18 October because they sup- ported the Union This significance of Respondent's let- ters of 25 October insofar as they could be said to have neutralized the effect of that unlawful act is considered separately below. 3. Alleged acts of Respondent's manager, Otis Raysor Respondent's answer admits the allegation in the com- plaint that Raysor is a supervisor as defined in the Act. The General Counsel's witness Donald Jones testified that on 22 October, he heard Raysor tell driver Thomas Graves and another employee named Philip,2 that Re- spondent's president, Vogel, would hire the employees back but not with the Union Raysor denied making such a comment Thomas Graves testified for the General Counsel but he failed to corroborate Jones' account. In the absence of readily available corroboration, I credit Raysor's denial. The General Counsel called another witness, Darryl Daniel, who testified that, on 23 October, he was present with several other employees on strike when Raysor was talking with a driver, Leroy Shaw. Daniel related that Raysor told Shaw that Respondent would recognize any union but the one that the employees had chosen Shaw corroborated Daniel's testimony I credit Daniel's and Shaw's accounts over Raysor's bare denial. Their testi- mony impressed me as candid. Gregory Thomas testified for the General Counsel that about 23 October he asked Raysor what Lenny Vogel intended to do and whether Lenny would talk to the Union. Thomas further stated that employees "Paul and Ricardo" were present then and that Raysor responded that Lenny would go out of business before he would have anything to do with the Union. Raysor denied making that comment. I credit Thomas' account as he appeared to be readily responsive to questions put to him 2 The only "Philip" on the list of names of employees received in evi- dence'is that of a helper, Philip Bosket Bosket testified for the General Counsel but made no reference in his testimony to the statement attrib- uted to Raysor by Jones AMBULETTE TRANSPORTATION SERVICE and did not seem to be weighing the import of the ques- tions before answering In sum, I credit his candor over the summary denial by Raysor The credited testimony establishes that Respondent, through Raysor, informed employees that Respondent would close its facility before it would recognize the Union as their bargaining representative and that it would recognize any labor organization but the Union. These statements clearly constitute an interference with employees rights under Section 7 of the Act See Vincent et Vincent, 259 NLRB 1025 (1982). In the context of these findings and in light of the termination of employ- ment of the striking employees on 18 October, as noted above, the import of Respondent's notice to all drivers, dated 16 October and set out above, is all too obvious. Respondent was there clearly indicating to its employees that it would be open to discussion with them but never with the Union 4. Alleged statements by Earl Council A subparagraph of the complaint alleges that Respond- ent, by its agent, Earl Council, made various coercive statements. The General Counsel does not allege that Council is a supervisor as defined in the Act but does contend that Council served as Respondent's agent. Council is alleged to have informed striking employees of the same thing that Respondent's president and Re- spondent's manager told them, i e , that it was futile for them to choose the Union as their bargaining representa- tive. The evidence offered to establish Council's agency status is unpersuasive. His bookkeeping/dispatching func- tions do not involve the exercise of independent judg- ment. On occasion when Raysor is not available, an em- ployee has asked Council to transmit a request to Raysor. In a recent decision, the Board had occasion to determine whether an individual who performed func- tions analogous to those performed by Council was an agent or whether remarks attributed to him were nothing more than speculation or his personal opinion. The Board determined that the individual was not an agent. See Zack Co., 278 NLRB 958 (1986). The indicia that the General Counsel relies on to establish that Council acted as Respondent's agent are less compelling than the ele- ments relied on by the General Counsel in Zack Co. I therefore find that Council was at no time an agent of Respondent D. The Request for a Bargaining Order Remedy 1 The appropriate bargaining unit The drivers, helpers, and mechanics employed by Re- spondent at its only facility comprise, presumptively, an appropriate unit for collective bargaining The record buttresses that presumption as the parties have stipulated that these employees are subject to the same pay formu- la, the same supervisor, and the same labor relations poli- cies and that they receive the same vacation and medical benefits I therefore find that they comprise an appropri- ate bargaining unit. 229 2 The alleged demand The General Counsel's witnesses testified that on 15 October two union representatives demanded that Re- spondent's president recognize the Union as the repre- sentative of the employees in the above-described unit Respondent's president, Lenny Vogel, testified that those union representatives sought only to discuss unspecified grievances of two drivers and that they left when Vogel told them that he would talk to them only in the absence of the grievants I credit the General Counsel's witnesses as it seems unlikely to me that the experienced union representatives would present themselves solely to re- solve grievances of but 2 employees in an unrepresented unit of about 19 employees Vogel's testimony that he wanted the two employees excluded from any discussion indicates that the union representatives were not seeking to discuss their grievances, as Respondent contends. I credit the union representatives' accounts and find that, on 15 October, the Union demanded that Respondent recognize it as bargaining agent for its employees. I credit also the testimony of the Union's counsel that he sent a mailgram dated 16 October demanding that Re- spondent "recognize and meet with (the Union) to bar- gain for contract" and that he asked Respondent's presi- dent, during a telephone conversation on 17 October, to meet with the Union to discuss contract terms Respondent also asserts that the Union's bargaining de- mands were defective because, when the initial request was made on 15 October, the Union did not have signed authorization cards from a majority of the unit employ- ees As found below, the Union on 16 October did repre- sent a majority of those employees I find Respondent's assertion without merit. It is axiomatic that a request for bargaining is continuous and need not be repeated Grico Corp, 265 NLRB 1344 fn 9 (1982). See also Fall River Dyeing Corp., 272 NLRB 839 (1984). Thus the Union's request on 15 October carried over to the next day, as a matter of law In any event, as found above, separate bargaining demands were presented to Respondent by the Union's counsel on 16 and 17 October 3 The Union's alleged majority The General Counsel, Respondent, and the Union have stipulated that Respondent had 19 employees classi- fied as drivers, helpers, or mechanics during the week of 15 October Of these 19 employees, the General Counsel placed in evidence union authorization cards signed by 12 Respondent contends that 6 of those 12 cards are in- valid on the ground that they were solicited by William Stewart whom it asserts is a supervisor Stewart, howev- er, is one of the 19 employees listed on the stipulated em- ployee payroll roster of 15 October Apparently in an effort to void the stipulation, Respondent offered the tes- timony of its president, Lenny Vogel, to the effect that Stewart; a driver, worked on the night shift, got "the pa- perwork" together, served as "liasion with the office" by informing it of any problems, made sure each night that the doors were locked, and saw to it that the security system was in working order Vogel also testified that, in September, Stewart told him that the men wanted "pre- mium pay for Labor Day," and that he, Vogel, "went 230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD along with" Stewart's suggestion that Vogel "should pay" premium pay for that holiday One of the General Counsel's witnesses testified that Vogel once told him that Stewart was his "supervisor"; he further testified that Stewart "busted [his] chops" when he did a bad job The evidence is insufficient to justify vacating the stip- ulation of the parties that Stewart, on 15 October, was one of the 19 unit employees At best from Respondent's viewpoint, Stewart performed leadman responsibilities that were not even as great as those of an employee found by the Board not to be a supervisor as defined in the Act. See Vanport Sand & Gravel, 267 NLRB 150 (1983). See also Central Freight Lines, 250 NLRB 435, 446-450 (1980). Respondent challenged the validity of 5 other cards of the 12 on which the General Counsel relies. Specifically, Respondent challenged the cards signed by Leroy Shaw, Phillip Bosket, Nicholas Tedesco, Daniel McRae, and Donald Jones. Shaw's testimony about his card was somewhat con- fused and, from his account overall, I find merit to Re- spondent's contention that he did not sign his union card until 16 October. Respondent contends that the card signed by Philip Bosket should not be counted as his testimony indicates clearly that it was not signed until after the strike began. Bosket's testimony is inadequate to support a finding that it was signed on the date shown thereon, "10/12/85." Rather, it appears that he signed his card on 16 October, the day the strike began. Regarding the card signed by Nicholas Tedesco and dated "10/15/85," Tedesco testified that he in fact had signed it on the second day of the strike, i.e., 17 October. Similarly, Daniel McRae's card although dated "9/15/85" was signed by him the day the strike started, according to his account. I thus find that it actually was signed on 16 October. The card signed by Donald Jones is dated "9/6/85 " Jones testified that he had signed two union cards, the last one on the day the strike began. Although his testi- mony was not the most precise, I conclude that he did sign a union card several weeks prior to the strike at a meeting held by the Union As noted above all 19 unit employees took part in the strike beginning 16 October. Based on the foregoing, I conclude that on and after the "strike began on 16 October, the Union had been se- lected by a majority of the unit employees to represent them 4. Evaluation As found above, the Union, certainly when the strike began on 16 October, was supported by a clear majority of the employees in an appropriate bargaining unit after Respondent had rejected its bargaining demand. To undermine that support, Respondent initiated a campaign on 16 October. It made clear to its employees then that it would deal with any labor organization of their choice other than the Union," it threatened them with plant closure if they continued their support; it made it obvious to them that their concerns would re- ceive favorable consideration so long as they recognized the futility of supporting the Union. It summarily termi- nated the employment of all unit employees because of their support for the Union. Respondent did, a week after the discharges, notify the employees that it rescind- ed their discharges and, when the strike ended, it han- dled the strikers' offers to return to work in a nondis- criminatory manner. Respondent, however, has made no attempt to inform its employees that it has changed its position regarding their rights to representation by the Union. Its restoration of the strikers' employment status on 25 October served its own purposes in limiting any monetary liability that may arise from a backpay claim. Any mitigating effect of the 25 October letters on the impact of its overall unlawful conduct was but inciden- tal. The Board recently decided several cases concerning whether bargaining order remedies should issue. In Radio Broadcasting Co., 277 NLRB 1112 (1985), the Board declined to issue a bargaining order, finding that the effects of the unfair labor practices could be erased by the use of traditional remedies. The unfair labor prac- tices in that case consisted of solicitation of grievances and the promising and granting of benefits in violation of Section 8(a)(1). In Clark Equipment Co., 278 NLRB 498 (1986), instances of unlawful interrogation, threats of loss of benefits, and related violations of Section 8(a)(1) were also held to be insufficient to sustain a bargaining remedy, especially as the violations were limited to a rel- atively small part of a large work force In five other recent cases, the Board issued bargaining orders, having found that the unfair labor practices were serious and pervasive. See Well-Bred Loaf, 280 NLRB 306 (1986); Dayton Auto Electric, 278 NLRB 551 (1986); Quality Alu- minum Products, 278 NLRB 338 (1986), Studio S.J.T, 277 NLRB 1189 (1985); and Midwestern Mining Inc, 277 NLRB 221 (1985) In these last five cases, the Board found various acts of unlawful discrimination against em- ployees as well as independent acts of interference with their Section 7 rights The conduct consisted of unlawful termination notices sent employees, layoffs and dis-, charges, in addition to threats of loss of jobs and of plant closing, to unlawful interrogation, surveillance of union activities, and to other instances of interference Al- though these five cases differ from Radio Broadcasting, above, and Clark Equipment, above, in that the latter two cases involved violations of only Section 8(a)(1) of the Act, I do not view that difference as decisive as the Board does not use a mechanistic approach in determin- ing when to issue and when not to issue bargaining order remedies Rather, the Board cases make clear that the unfair labor practices to be remedied should be evaluated in context with the size of the employee unit, the per- centage of the employees affected, the nature and timing of the violations, the existence or absence of mitigating factors, and related considerations. It is then that a deter- mination is made as to whether traditional remedies are sufficient to erase the impact of the unfair labor prac- tices. The termination of employment of all the unit employ- ees at the virtual start of their first organizational at- tempt, coupled with the unequivocal threat of plant clo- AMBULETTE TRANSPORTATION SERVICE sure and the clear message to the employees that it was futile for them to support the Union, materially tilt the equities in this case in favor of the issuance of a bargain- ing order remedy Had Respondent timely and effective- ly disclaimed the threat of plant closure, assured its em- ployees that it would not again terminate their employ- ment at the very onset of an organizational effort, and rescinded its statements that it would never deal with the Union as their collective -bargaining representative, I would have been disinclined to recommend issuance of a bargaining order Respondent took none of those steps. All it did was act to limit its backpay exposure. That alone does not neutralize the unfair labor practices found It is not even enough to offset the effect of the termination notices given the employees on 18 October, for it has been held that an offer of reinstatement alone does not constitute a mitigating factor sufficient to pre- vent the issuance of a bargaining order See NLRB v. Balsam Village Management Co., 792 F.2d 29 (2d Cir. 1986), enfg 273 NLRB 420 (1984). This view is consist- ent with that expressed by the Board in Zim Textile Corp, 218 NLRB 269 (1975), cited with approval in Windsor Industries, 265 NLRB 1009 (1982). In Zim, the employer unlawfully discharged two employees and rein- stated them 2 days later The employer there contended that those two discharges did not stand in the way of a free election as the two employees had been promptly reinstated. The Board rejected that contention and held that the effect of the discharges was not so easily eradi- cated , that an employer's readiness to employ extreme measures such as the discharging of two employees to defeat a union cannot have but a lasting and telling effect, and that employees will certainly understand and remember the harsh treatment visited on them as a result of their having asserted their Section 7 rights such that they may draw back from again asserting those rights. In the absence of any timely reassurances by Respondent that its conduct will not be repeated, I cannot find that its 28 October letter constituted an effective repudiation of its unlawful acts. Cf Dayton Auto Electric, 278 NLRB 551 fn 2 (1986). CONCLUSIONS OF LAW 1. Respondent Ambulette Transportation , Service Corp . is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2 Local 810, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica is a labor organization as defined in Section 2(5) of the Act. 3 Respondent has committed unfair labor practices in violation of Section 8(a)(1) of the Act by having: (a) Threatened plant closure in order to under- mine employee support for the Union. (b) Informed employees in substance that it was futile for them to support the Union. 4. Respondent has committed unfair labor practices in violation of Section 8(a)(1) and (3) of the Act by having, on 18 October 1985, terminated the employment of the following employees- Alberto Jones Campbell Alex Davis Phil Bosket Marco Gonzalez Egray Johnson Oscar Johnson Donald Jones Greg Thomas Richardo Ferrera Leroy Shaw Frank Thompson Daniel McRae Thomas Graves Nicholas Tedesco William Stewart Herman Aiken Darryl Daniel Lonnie Coleman Roscoe King 231 5. Respondent has committed unfair labor practices in violation of Section 8(a)(1) and (5) of the Act by having failed and refused since 16 October 1985, to bargain col- lectively with the Union as the exclusive representative of the following unit of Respondent's employees: All drivers, helpers and mechanics excluding all office clerical employees, dispatchers, professional employees , guards and supervisors as defined in the Act. 6. It is appropriate to remedy the foregoing unfair labor practices to require Respondent (a) to post notices as set forth infra, (b) to make whole all the 19 employees named above for all losses they suffered as a result of their having been terminated from Respondent's employ from 18 to 25 October 1985 with interest thereon as pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977), (c) to remove from its records any 'reference to those termi- nations of employment and to notify each of the 19 em- ployees that Respondent has done so, and (d) to bargain collectively on request with the Union as the exclusive representative of the employees in the unit described above and to embody in a signed agreement any under- standing reached. 7. Respondent did not engage in any other unfair labor practice alleged in the amended complaint. 8. It would not be appropriate, in the circumstances of this case to issue a visitatorial order as requested by the General Counsel inasmuch as gross backpay is limited to the period 18-25 October 1985 and is prima facie easily calculated by reference to the earnings of employees in the prior week . Cf Nathan 's Furniture Store, 278 NLRB 268 In. 2 (1986). On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed3 ORDER The Respondent, Ambulette Transportation Service Corp., New York, New York, its officers, agents, succes- sors, and assigns, shall 1. Cease and desist from (a) Threatening to close its plant in order to under- mine support among its employees for Local 810, a/w 3 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 232 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International ' Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. (b) Informing employees in substance that it was futile for them to support that Union (c) Terminating the employment of its employees to' discourage them from supporting that Union (d) Failing and refusing to bargain collectively with the Union as the exclusive representative of the employ- ees in the following unit found appropriate- All drivers, helpers and mechanics employed by Ambulette Transportation Service Corp. excluding all [who] are office clerical employees, dispatchers, professional employees, guards and supervisors as defined in the Act. (e) In any other way interfering with , restraining, or coercing its employees in the exercise of the rights guar- anteed them in Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make whole each of the following named employ- ees by paying them, with interest, for all losses they suf- fered as a result of their being discriminatorily terminat- ed from employment from 18 to 25 October 1985• Alberto Jones Campbell Frank Thompson Alex Davis Daniel McRae Phil Bosket Thomas Graves Marco Gonzalez Nicholas Tedesco Egray Johnson William Stewart Oscar Johnson Herman Aiken Donald Jones Darryl Daniel Greg Thomas Lonnie Coleman Richardo Ferrera Roscoe King Leroy Shaw (b) On request by the above-named Union recognize and bargain collectively with it as the exclusive repre- sentative of the employees in the above -described unit and on request embody in writing and sign any agree- ment reached. (c) 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. (d) Remove from the personnel records and files all references to the unlawful termination of employment of the employees whose names are listed above and notify each, in writing, that this has been done and that such termination will not be held against them in any way (e) Post at its facility in Brooklyn, New York, copies of the attached notice marked "Appendix."4 Copies of 4 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 " the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized representative , shall be posted by the Re- spondent immediately on 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 (f) 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 RECOMMENDED that those allegations of the amended complaint, found not meritorious here, are dismissed. 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. WE WILL NOT threaten to close our plant in order to undermine support among our employees for Local 810, a/w International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, AFL-CIO. WE WILL NOT inform our employees in substance that it is futile for them to support that Union. WE WILL NOT terminate the employment of any of our employees in order to discourage them from supporting that Union. WE WILL NOT fail and refuse to bargain collectively with the Union as the exclusive representative of the em- ployees in the following appropriate unit: All drivers, helpers and mechanics employed by us excluding all office clerical employees, dispatchers, professional employees, guards and supervisors as defined in the Act. WE WILL NOT in any other mannner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL make whole each of the following named employees by paying them with interest for all losses they suffered as a result of their being terminated from employment from 18 to 25 October 1985 because they supported the above-named Union. Alberto Jones Campbell Alex Davis Phil Bosket Marco Gonzalez Egray Johnson Oscar Johnson Donald Jones Greg Thomas Frank Thompson Daniel McRae Thomas Graves Nicholas Tedesco William Stewart Herman Aiken Darryl Daniel Lonnie Coleman AMBULETTE TRANSPORTATION SERVICE Richardo Ferrera Roscoe King Leroy Shaw WE WILL on request by the above-named Union rec- ognize and bargain collectively with it as the exclusive representative of the employees in the above-described unit and on request embody in writing and sign any agreement reached. 233 WE WILL remove from our personnel records and files all references to the unlawful terminations of employ- ment of the employees above named and notify each, in writing, that this has been done and that such termina- tions will not be held against them in any way. AMBULETTE TRANSPORTATION SERVICE CORP