Murd Industries, Inc.

864 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Murd Industries, Inc. and Teamsters Union Local No. 115 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO.' Case 4-CA- 15806 and 4-CA-15874 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 20 August 1987 Administrative Law Judge Irwin Kaplan issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel filed an answering brief and cross-exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, finding,2 and conclusions3 and to adopt the recommended Order.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Murd Indus- tries, Inc., Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order. ' On I November 1987 the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 The General Counsel and Respondent have excepted to some of the judge's credibility findings The Board's established policy is not to over- rule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are in- correct 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 3 In light of our agreement with the judge that the Respondent's unfair labor practices warrant imposition of a remedial bargaining order and the finding of an 8(a)(5) refusal-to-bargain violation, in accord with the prin- ciples of NLRB v Gissel Packing Co, 395 US 575 (1969), we find no need to pass on whether the Respondent also violated Sec 8(a)(5) by withdrawing recognition allegedly extended to the Union We do not rely on the judge's analysis of this issue 4 We agree with the judge that under the circumstances of this case it is unnecessary to include a visitatorial clause in the Order DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge. These consolidated cases were heard in Philadelphia, Pennsyl- vania, on 14 and 15 October 1986. The underlying charges in Case 4-CA-15806 were filed by the Team- sters Union Local No 115, a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Charging Party or Union) on 8 May 1986 The Union filed additional charges in Case 4- CA-15874 on 9 June 1986. The charges in both cases gave rise to order consolidated cases, consolidated com- plaint and notice of hearing on 31 July 1986 and amend- ments to consolidated complaint on 21 August 1986. It is alleged that Murd Industries, Inc (Respondent), unlawfully discharged 3 of its 10 unit employees: Patrick O'Neill, William Maines, and Johnny Sanders because of their support of the Union, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act). In this regard, it is alleged that certain of Respondent's em- ployees engaged in an unfair labor practice strike in pro- test of the aforenoted discharges, which strike was pro- longed by subsequent alleged unfair labor practices en- gaged in by Respondent in violation of Section 8(a)(5) and (1) of the Act. The essence of the 8(a)(5) allegation is that about 29 April 1986, Respondent voluntarily rec- ognized the Union as the exclusive bargaining represent- ative for its production and maintenance employees only to unlawfully withdraw recognition about 15 May 1986. Further, it is alleged that in late May or early June 1986, the Respondent independently violated Section 8(a)(1) of the Act by making certain statements to newly hired em- ployees, whereby, the Respondent threatened to take re- prisals against the striking employees if they returned to work, while promising continued employment to their replacements, if they (the newly hired employees), refuse to support the Union. The General Counsel requested a remedy that includes a Gissel bargaining order. See NLRB v. Gissel Packing Co., 395 U.S 575 (1969) The Respondent filed an answer (amended at the hear- ing) conceding, inter alia, jurisdictional facts and the su- pervisory and agency status of certain individuals, but denying that it committed any unfair labor practices. Re- spondent also denies the appropriateness of a bargaining order under Gissel concepts even if the allegations here are found to have merit Based on the record as a whole, including my observa- tion of the demeanor of the witnesses, and after careful consideration of the posttrial briefs, I make the following Daniel E. Halevy, Esq, for the General Counsel Howard K. Trubman, Esq, of Philadelphia, Pennsylvania, for the Respondent Norton H. Brainard, Esq., of Philadelphia, Pennsylvania, for the Charging Party. 287 NLRB No. 88 FINDINGS OF FACT I JURISDICTION The Respondent, Murd Industries, Inc , a Pennsylvania corporation, is engaged in the packaging of chemicals with its sole office and place of business located in Phila- delphia, Pennsylvania. During the past year, in connec- tion with the aforenoted business operations, the Re- spondent purchased materials in excess of $50,000 direct- MURD INDUSTRIES 865 ly from points outside the Commonwealth of Pennsylva- nia. The Respondent admitted, the record supports, and I find that it is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent admitted, the record supports, and I find that the Teamsters Union Local No. 115, a/w Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. iI. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Respondent has long operated a chemical packag- ing facility in Philadelphia, Pennsylvania In late April 1986,1 Respondent employed 10 nonsupervisory employ- ees.2 On 28 April, at approximately 2 p.m, Arthur Haines, Respondent's owner and president, sent home most of his employees, apparently, because of problems with one of the production machines. The employees who were told to leave gathered at the home of employ- ee Charles Dennte, where they expressed their displeas- ure about having been sent home. Later, they were joined by alleged discrimmatee Patrick O'Neill, one of the few employees not sent home that day but who had stopped by in between work-related errands. In Dennis' home, the employees explored union repre- sentation and O'Neill, who had some previous experience with Local 115 (the Charging Party), recommended that they contact that union. This was done that same day in a phone call by employees Michael Thompson to Union Business Representative Robert Henninger and arrange- ments were made for the latter to meet with employees at Respondent's facility the following day at lunchtime On 29 April, at approximately 11.50 a.m., Henninger appeared in front of Respondent's facility and met with employees Thompson, O'Neill, and Maines. After some discussion about joining the Union, the three employees were given union authorization cards that they then signed and immediately returned to Henninger Around the same time Foreman William Sanders came over to inquire about Henninger's activities and was told by the latter that he was organizing and soliciting Respondent's employees to sign union cards.' The three employees told Henninger that they would direct other employees to Henninger and departed with their foreman only a few feet behind. Soon after, employees Charles Dennis, Cory Dennis, and Sylvester Howard met with Hen- ninger. Around the same time, Union President Joe Yeoman and Business Agent Jim Oliver joined this group. These employees also signed union cards at that time and turned them over to Henninger. While the em- ployees were filling out the union cards, Sales Manager Thomas McClemmy approached Henninger. McClemmy was told by Henninger that he was soliciting union cards from Respondent's employees and did not want McClemmy out there. McClemmy apparently went back inside the plant without incident' Henninger walked to the loading dock and met em- ployee Johnny Sanders and got him to sign a union card. According to Henninger's uncontradicted testimony, Foreman Sanders (unrelated to Johnny Sanders) was standing behind employee Sanders "practically looking over his shoulder." Employee Sanders testified that his foreman asked him what he was doing and he informed him that he was filling out a union card. According to Henninger, Foreman Sanders also watched while he, Henninger, obtained another signed union card from em- ployee Josh McDonald. Around this time, Business Agent Oliver obtained a signed union card from employ- ee Hubert Robinson.-5 In all, 9 of Respondent's 10 nonsu- pervisory employees signed union cards on that occasion. (G C. Exhs 2(a)-(i).) With the signed union cards in hand, Henninger and Oliver returned to the union office where they prepared two standard copies of a recognition agreement with cover letters and a representation petition. The Union mailed a copy of the recognition agreement (G.C. Exh. 4) to Respondent by certified mail (G.C Exh 3(b)). Still the same day, 29 April, between 2 and 3 p m., Henninger and Oliver returned to Respondent's facility to demand recognition At the time Henninger and Oliver appeared at Haines' office, Haines was engaged in a sales meeting with McClemmy (his sales manager), and Camillo Giusti, a customer. Inside, the union representatives handed Haines a written demand for recognition and a copy of the recognition agreement. They also offered to prove the Union's majority status by showing Haines the signed union cards According to Henninger and Oliver, Haines went through the stack of union cards twice but refused to do anything regarding recognition until he returned from his upcoming vacation. Haines also assertedly stated that he did not see any problem and believed that matters could be worked out between them. According to Haines, the Union's intrusion at that time was con- frontational. Haines testified that Henninger and 'Oliver had barged into his office waving union cards and they also blocked the doorway to prevent anyone from leav- ing the office for a few minutes While it is undisputed that the union representatives offered to show Haines the union cards and had handed him a recognition agree- ment, Haines denied that he looked at any of the union cards I All dates hereinafter refer to 1986 unless otherwise indicated 2 The parties stipulated that as of 29 April, Respondent's 10 nonsuper- visory employees were as follows Charles Dennis, Cory Dennis, Michael Edwards, Sylvester Howard, William Maines, Joshua McDonald, Patrick O'Neill, Hubert Robinson, Johnny Sanders, and Michael Thompson 3 Henninger's testimony regarding this encounter was corroborated, uncontradicted, and credited The parties stipulated that William Sanders was a statutory supervisor and agent Sanders did not testify nor was there any reason advanced for the failure to call him as a witness While Henninger did not identify McClemmy by name, he testified that one of the employees referred to him as a salesman and "one of their bosses in the plant " The parties stipulated that McClemmy was a manag- er at all material times On the total state of this record, I am persuaded and find that the unnamed individual was in fact McClemmy It does not appear that anyone other than McClemmy was involved in sales Fur- ther, while McClemmy testified, he did not rebut Henninger's account 5 Robinson's card was erroneously dated 28 April 866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD From Haines' office, the union representatives drove to the Board office in Philadelphia and filed a representa- tion petition (G C. Exh. 6), supported by 9 union cards (G.C. Exh 7), 3 days later, employees Maines, Sanders, and O'Neill were terminated That same day, Haines started his vacation According to Haines, Maines and Sanders were hired as temporaries and, given a drop in business orders, they were no longer needed and laid off. Haines asserted that O'Neill was discharged because he was physically unable to lift heavy drums (filled with mixed chemicals), as required, and Haines was fearful of dealing with another workmen's compensation claim.6 That evening O'Neill phoned Henninger and informed him of the terminations. Henninger told O'Neill to as- semble the employees to meet him Monday morning out- side Respondent's facility On Monday, 5 May, around 7.30 a.m, Henninger met with Respondent's employees and they decided to strike to protest the discharges of O'Neill, Mames, and Sand- ers The employees commenced picketing that morning with signs identifying Respondent with unfair labor prac- tices Haines returned from his vacation and next appeared at Respondent's facility on the morning of 12 May The employees were still picketing and Haines and Oliver spoke briefly about ending the strike and settling the dis- pute Oliver proposed that Haines sign the recognition agreement According to Oliver, Haines told him that he did not know where he had placed the recognition agreement but that if Oliver came back the following day, he, Haines, would have the document signed Haines' account of that brief meeting was limited to an acknowledgement that Oliver asked Haines to sign a rec- ognition agreement to settle the dispute. The next morning, 13 May, Haines conditioned recog- nition on the withdrawal of the unfair labor practices charges and he had to know the cost factors. According to Henninger and Oliver, Haines already had a signed recognition agreement in his hand (denied by Haines) That afternoon Haines met with Henninger and obtained another copy of the recognition agreement. According to Henninger, Haines told him that he had lost his other copy Haines testified that he merely asked Henninger to produce another copy because he, Haines, did not have the document with him at the time. Sometime over the next few days, Haines and Henninger agreed to meet at the union office to discuss more fully recognition and a contract to settle the overall dispute. On 15 May at approximately 2 p.m, Haines, accompa- nied by McClemmy, met with Henninger and employee Charles Dennis at the union office. According to Hen- ninger and Dennis, Haines displayed a signed copy of the recognition agreement but would not turn it over to Henninger. Haines denied that he had ever signed a rec- ognition agreement Also in dispute is the nature of the ground rules at the meeting and whether the parties ac- tually negotiated. r, Haines was then involved in the workmen's compensation claim of former employee John Earp The termination of O'Neill, Sanders, and According to Henninger, Haines agreed to negotiate, starting at the top or beginning of the Union's standard contract and continuing along in sequence article by arti- cle. Further, Henninger asserted that Haines agreed and understood that an "Ok" placed next to any of the arti- cles represented agreement by the parties 7 Haines, on the other hand, denied that he negotiated or that he agreed to any of the substantive terms Rather, Haines maintained that he made it clear that any bargaining rela- tionship and/or contract turned on the amount of the cost package. Haines noted that Henninger insisted on following the Union's practice of discussing noneconom- ic provisions first and that he, Haines, reluctantly went along with that procedure but only with respect to gen- eral language. After approximately 2 hours, the meeting came to a close before the parties reached the money items Haines and Henninger agreed to meet the follow- ing afternoon but Haines canceled the meeting. Henninger testified that he spoke to Haines next, on the picket line, the following Tuesday, 20 May, when Haines told him that he canceled their meeting because he had to meet a Board agent over the Union's charges Haines also assertedly told Henninger that he was upset over the charges and would not give the Union a recog- nition agreement. The parties have not gotten together since, the strike was still in progress at the time of the trial. About 29 May, Haines hired two or three new em- ployees as replacements Soon after, the number of re- placements reached 11 or 12. Haines had his replace- ments sign typed form statements stating in relevant part as follows: At the time of my employment I was told that I would be a permanent replacement, and that I would maintain my job if and when the strike ends. I understand that if "the Murd Company," is re- quired to rehire the people on strike because of the labor laws, or enters into a settlement with Team- sters Local #115, my job may not be permanent [See, e.g, R. Exh 10 ] On two different occasions in June, Haines spoke to his replacements as a group about continued employ- ment. The replacements asked for these meetings because of confusion over their employment status in the event the striking employees returned to work As testified by Haines, he told the assembled replacements that "if the Union won the election, all or part of them [replace- ments] could lose their ,lob[s]." Haines also indicated that it was "likely" that an election would be held at some unspecified date "but they would be employed until at least an election was held " Three of the replacements, Richard Hardy, Andre Holiday, and Dwayne Lister also gave their accounts of the meeting. In essence, a com- posite of their testimony is that Haines pointed out that as there were more replacements than strikers, the re- placements could not lose if they voted against the union and they could remain employed Lister testified that im- Mames are alleged to be violative of Sec 8(a)(3) and will be discussed ' An "OK" appears on Henninger's copy next to certain provisions in more fully separately infra arts i, V-IX, XVI, and XVII (G C Exh 10) MURD INDUSTRIES 867 mediately after one of these meetings, in a brief'conver- sation with Foreman Sanders, the letter made- a similar statement about the replacements numerical advantage over the strikers in an election Further Lister testified (after looking at the affidavit) that Foreman Sanders dis- couraged him from any contact with the pickets 8 B Discussion and Conclusions 1 Credibility This case turns largely on the credibility of Arthur Haines, Respondent's president and owner In this con- nection, it is noted, that the complaint does not allege, nor does the record disclose, that the Respondent, and Haines in particular, made any threats or coercive state- ments prior to the alleged discriminatory discharges of O'Neill, Sanders, and Maines However, if it is deter- mined that the reasons advanced by Haines for terminat- ing the alleged discriminatees are pretextual, such deter- mination would support an inference of unlawful motiva- tion See Keller Mfg. Co, 237 NLRB 712, 717 (1978) ("A pretextual reason, of course, supports an inference of an unlawful one") According to Haines conclusionary and largely unsup- ported testimony, the decisions to layoff three employees was dictated by a drop in customer orders and overall work for the week of 5 May s Haines denied that their union activities, of which he also denied knowledge, were factors in his decision However, I am persuaded on the basis of the total surrounding circumstances that an inference of knowledge on the part of Haines of sup- port for the Union by the alleged discriminatees is clear- ly warranted For example, it is noted that the credited and uncontroverted testimony of the General Counsel's witnesses placed William Sanders, an admitted statutory supervisor and agent, in the same immediate area at the time O'Neill, Mames, and Sanders signed union cards. In employee Sanders' case (as testified by Henninger with- out contradiction), at the time he signed his union card, Foreman Sanders was "practically looking over his shoulder " Henninger also testified credibly, with corroboration from O'Neill and Maines, that he told Foreman Sanders (in the presence of O'Neill and Mames), on 29 April, that he was soliciting Respondent's employees to sign union cards. Further, the record disclosed that shortly thereaf- ter, and just before McClemmy and Haines had lunch to- gether, Henninger transmitted the same message to McClemmy I find it highly unlikely and reject Haines' assertion (without corroboration), that neither Foreman Saunders nor Sales Manager McClemmy told him about these union activities In any event, it is undisputed, that later that same day, Henninger and Oliver presented 8 Lister also noted (after looking at his affidavit), inter aha, that Haines told the replacements that they were permanent employees and that the strikers were fired However, on cross-examination, Lister indicated un- certainly whether Haines had said fired or replaced In evidence are por- tions of the affidavits of Lister and Holiday offered by the General Coun- sel as affirmative evidence (G C Exh 11, p 1, p 2, LL I and 12 ) For reasons noted infra, I have not relied on these affidavits as affirmative evidence 8 The lack of documentary or probative evidence in support of Re- spondent's economic defense will be treated more fully infra Haines with a recognition agreement while displaying a stack of signed union cards While I am not persuaded that Haines-actually examined each union card, as testi- fied by Henninger and Oliver, I find, given the size of the unit, only 10 employees (9 card signers) and the sur- rounding circumstances, that the record warrants the in- ference that Haines had knowledge that the alleged dis- criminatees supported the Union before he made the de- cision to lay off and/or terminate them I also find that Haines was less than forthright and tended to exaggerate in describing his initial encounter with Henninger and Oliver to Haines' office on 29 April. According to Haines, while he was engaged in a sales meeting with McClemmy and a customer (Camillo Giusti), Henninger and Oliver "barge[d]" into his office waving a "packet" of union cards and announced that they intended to have Haines sign a recognition agree- ment. Haines' assertion that Henninger and Oliver "blocked the door so that nobody could get out for a few minutes" is disputed by Respondent's own witnesses Thus, McClemmy and Giusti both denied that they were blocked at any time from leaving the office Moreover, Giusti, contrary to Haines, also acknowledged that Hen- ninger and Oliver (at least in the beginning) were "polite " Still further, I reject Haines' denial, that he signed a recognition agreement Haines admitted receiving copies of *three recognition agreements. Thus, Haines admitted that he was handed a recognition agreement on 29 April, at the time he first met Oliver and Henninger. Further, he admitted receiving a second copy by registered mail. Finally, Haines admitted that Henninger gave him a third copy on 3 May. According to Henninger and Oliver, Haines showed them a signed copy on 13 May but told them on the oc- casion in question that he was not yet ready to give them the document While the testimony of Henninger and Oliver differ in some minor respects, I find for the most part, that they corroborated each other and that their testimony reflected an internal consistency with the overall credited record As for Haines, he could only account for two of the three recognition agreements (both unsigned) that he ad- mittedly received. When asked to explain what happened to the missing document, Haines remarked, "I have no idea " Haines elaborated "I didn't know enough to treat [the recognition agreement] with great respect I might have taken a telephone message on the back of it for all I know " While Haines asked that I "excuse [him] for being flip," I find that such responses were symptomatic and tend to militate against the reliability of his overall testimony In short, I find Haines, inter alia, to be unre- sponsive, elusive, implausible, and unreliable. In these circumstances, and on the basis of demeanor factors, I credit the General Counsel 's witnesses over Haines when the testimony is in conflict unless specifical- ly noted otherwise 868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. The 8(a)(3) allegations a. O Neill s discharge The record disclosed that O'Neill introduced the Charging Union to his fellow employees O'Neill had previously supported the Union at previous jobs, and while working for Respondent, he frequently wore a Teamsters Local 115 hat. He testified credibly that Re- spondent's officials had observed him wearing this Team- sters hat at work On 28 April, when Respondent's em- ployees first explored union representation, O'Neill sug- gested that they contact Local 115. This was done that same day and arrangements were made for Union Busi- ness Representative Henninger to meet the employees the following morning outside Respondent's facility. On Tuesday, 29 April, Henninger, with some assist- ance from O'Neill, obtained signed union authorization cards from 9 of Respondent's 10 employees, including O'Neill. This activity was undertaken in proximity and largely in view and with knowledge of Foreman Sanders and Sales Manager McClemmy. In fact, the credited and uncontroverted testimony disclosed that Henninger told Foreman Sanders, in the presence of O'Neill and em- ployees Thompson and Maines, that he was signing up Respondent's employees for the Union. Further, Hen- ninger repeated this message to McClemmy, moments later In these circumstances, I find that the record dem- onstrated company knowledge of O'Neill's support for the Union. However, even in the absence of any direct link to Haines, I find an inference of company knowl- edge is clearly warranted, given the foregoing circum- stances and noting, inter alia, the size of the unit (only 10 employees) and that, admittedly, the Union displayed a stack of union cards to Haines in support of its recogni- tional claim. As the Board has noted, "[It] has not hesi- tated to infer a respondent's knowledge of employees' protected activity where the circumstances [clearly] war- rant such a finding " Dr. Fredrick Davidowitz, D.D.S., 277 NLRB 1046, 1049 (1985) Having found that O'Neill engaged in union activities of which the Respondent was aware, I turn now to assess another critical element, the timing of O'Neill's discharge. Here too, the circumstances are highly suspect and I find strongly support the General Counsel's prima facie case. The Union's organizational activities com- menced on Tuesday morning, 29 April, and by early afternoon, it had obtained signed union authorization cards from 9 of the 10 unit employees According to Haines, that same morning, "as near as [he] could recall," he made the decision to terminate O'Neill How- ever, Haines testified that because "[the Company] cer- tainly needed [O'Neill] for the last two days of the week," he waited until Friday to terminate him Haines asserted that O'Neill was discharged because he was physically unable to satisfy the exigencies of the job and Haines was fearful of a workmen's compensation claim if O'Neill were to suffer a work-related injury At the time of O'Neill's discharge, he had already been em- ployed nearly 2 months and had never been warned that his job was in jeopardy It is also noted that O'Neill earned $1 an hour more than any other employee In these circumstances, and for reasons discussed more fully below, I reject Haines' reasons for discharging O'Neill, as pretextual Further, I note that the timing of the O'Neill discharge, without any plausible explanation sup- ported by the record, coming so closely on the heels of the Union's demand for recognition, clearly militates against the legitimacy of Respondent's actions. The last critical element to be assessed is Respondent's animus While none of the classic forms of antiunion animus or coercive statements are alleged to have been made prior to the disputed discharges, the various rea- sons supplied by Respondent, all found here to be pretex- tual, as well as the total surrounding circumstances, justi- fy an inference of antiunion animus and I find that Re- spondent's action was discriminatorily motivated 10 See Shattuck Denn Mining Corp. v. NLRB, 362 F 2d 466, 470 (9th Cir 1966); Abbey's Transportation Service, 284 NLRB 696 (1987). Haines' reason for discharging O'Neill and laying off Maines and Sanders are largely conclusionary, implausi- ble, and not supported by probative documentary evi- dence. According to Haines, on 1 May, 1 day before he was to commence his vacation, he prepared a worksheet for scheduling production for the following week that revealed approximately 300 man-hours of work As Re- spondent has some 400 man-hours available (10 employ- ees x 40 hours), he decided to lay off 3 employees. Haines assertedly laid off Maines and Sanders because they were the last employees hired and O'Neill, because, as noted previously, he was physically unable to do the work and Haines was fearful of workmens' compensation claim First, I find that it is not possible to discern from the production schedule itself (R Exh. 5), or from Haines' conclusionary testimony, how he arrived at 300 man- hours of work for the week of 5 May, which he asserted necessitated the disputed layoffs. While Haines testified that the production schedule "reflects the status of orders . . . that were or are on the premises," his calcu- lations regarding man-hours or work were extremely limited, not supported by other evidence and at best, conclusionary For example, Haines noted that the pro- duction schedule he prepared for the week of 5 May dis- closed that the Company had to produce only two more drums for customer Lawrence McFadden, less than 1 days' work for three employees. However, Respondent failed to produce production schedules for any other week so that a comparison could be made nor did it adduce corroborative testimony from Sales Manager McClemmy "who kept ongoing record[s] of specific orders " In fact, Respondent failed to provide any other record reflecting customer orders, including that of Law- rence McFadden, because it apparently does not main- tain such records. Haines explained as follows- We get a great number of [orders] over the phone A lot of them are ongoing that there is no written records We just continue based upon work- 10 In assessing the total circumstances, I have also noted, inter alga, that Haines made coercive statements, reflecting an antiunion bias to the replacements approximately I month after the disputed discharge (as will be discussed more fully intra) MURD INDUSTRIES 869 ing out of materials that are in the warehouse and a lot of orders are given to us without any specific date as to the day they will be delivered [Emphasis added.] Thus, is it not possible to measure the accuracy of the document in question or verify that it represented 300 hours. In these circumstances, when Respondent relied solely on the unsupported testimony of Haines, a witness found otherwise to be unreliable, I find that the produc- tion schedule in question is largely worthless and fails to establish that only 300 man-hours of work was available for the week of 5 May or that a layoff was warranted for legitimate economic reasons Respondent submitted another document to show "a direct relationship between the amount of business (sales) and the number of shop workers." (R Exh 6) Accord- ing to Haines, while Respondent's sales for the months of March and April 1986 were in excess of $38,000 and $40,000, respectively, and substantially higher than any of the 14 previous months, he did not anticipate that this business surge would continue. Thus, the average em- ployee complement of eight and nine for the months of March and April, respectively, had to be reduced Ac- cordingly, Respondent asserted, a layoff of three employ- ees was in order. I find however, that the document (R. Exh 6) that was prepared in contemplation of the instant trial is far from complete and, in any event, does not es- tablish any significant correlation or pattern between sales and employee complement It is noted, for example, that the document in question disclosed that Respondent's sales for the month of July 1986 was in excess of $26,000 and that Respondent em- ployed an average of five employees that month Re- spondent's sales increased by more than $1500 the fol- lowing month, yet, it employed one less employee Fur- ther, 1 month later (September), Respondent's sales dropped some $7000 but no one was laid off Significant- ly, while Respondent contends that it did not anticipate a continued upsurge after April 1986, the record is devoid of supporting evidence and it is noted that the document itself does not reflect sales for any subsequent month In these circumstances, Haines' assertion that he anticipated less business is merely self-serving and the document itself is largely worthless. As noted by the General Counsel, Haines, inter alia, apparently was not figuring the amount of work he had promised to undertake for longtime customer, Camillo Giusti, on Haines' return from vacation on 12 May While Haines' negotiation with Giusti in late April involved a sample order, Haines described Giusti "[as] a potential customer to a high degree " Having found that Respondent's assertion that employ- ees had to be laid off for lack of work is pretextual, there remains the question of O'Neill's ability to perform the assigned tasks. According to Haines, O'Neill was physically unable (knee condition) to lift 55-gallon drums filled with mixed chemicals and weighing from 400 to 600 pounds, as the job required. Haines was assertedly fearful that O'Neill would injure himself as a prelude to a workmen's com- pensation claim Approximately 3 weeks before Haines decided to terminate O'Neill, Haines had received a re- minder from his attorney of an upcoming hearing on the workmen's compensation claim of former employee John Earp (G C Exh. 13). Further, around the end of April, Haines received another "unpleasant reminder" from the Department of Labor and Industry regarding Earp's workmen's compensation claim (R. Exh 7) According to Haines, because O'Neill's physical condition "had been getting worse" and given the recent reminders of Earp's workmen's compensation claim, Haines decided to terminate O'Neill in late April when Haines (assertedly) saw O'Neill "stumble and almost fall handling a drum." In rejecting Haines' reliance on this incident, it is noted, inter alia, that Haines' testimony was not corroborated nor did he bring it to the attention of O'Neill. In the cir- cumstances of this case and for reasons noted below, I find that Haines seized on O'Neill's knee condition as a pretext to shield his discriminatory motivation The record disclosed that O'Neill suffers from arthritis in one knee and carries two screws in his hip as a result of a car accident 6 years ago O'Neill walks with a slight limp that becomes bothersome when the weather is damp However, Respondent made no assertion nor does the record disclose that O'Neill had any difficulties working as a company driver for which job he was largely hired to perform In that capacity he drove a truck 2 days a month and on other occasions he drove a station wagon, making such diverse errands as bank de- posits and picking up rat poison. O'Neill, as a general la- borer, also spent a substantial amount of time in the warehouse mixing chemicals. The disputed physical work involved removing drums from scales and then rolling them to the shipping dock This activity occurred every other day, when the drums were filled with chemi- cals, and took about 10 minutes but, on occasion, lasted up to an hour if there were as many as five or six drums to be moved. O'Neill candidly acknowledged that he needed assist- ance lifting drums off the scale 1 1 However, it is noted that these are 55-gallon drums and when filled with chemicals weigh from 400 to 600 pounds Thus, the fact that O'Neill needed assistance in lifting drums is attribut- able to the nature of the task and not, as contended by Respondent, to any physical limitation. There is a dearth of evidence tending to show that any employee ever per- formed this task without help On the contrary, the un- contradicted testimony of employees Charles Dennis and Michael Thompson confirmed that employees routinely required assistance when lifting such drums. In short, Haines' assertion that O'Neill was physically unable to perform the job as required is not supported by credible evidence.12 i i In assessing O'Neill's overall credibility, I find him to be responsive, consistent, forthright, and note that his testimony in material areas was largely corroborated As I was also impressed with his demeanor, i credit him in all material respects 12 Haines admitted observing O'Neill commute to work on a bicycle This factor also tends to militate against any finding that O'Neill's leg or knee condition hampered his ability to perform physically at work as re- quired - 870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Having rejected Haines' testimony regarding O'Neill's physical limitations to work as required, I turn now to consider whether Haines' decision to terminate O'Neill was influenced by the workman's compensation claim of former employee John Earp Here too, I find Haines' tes- timony implausible and incredible 13 Thus, the record disclosed that Haines was aware of Earp's claim some 3 or 4 months before O'Neill's discharge In fact, 3 weeks earlier, Haines has received a letter from his attorney re- minding him of an upcoming hearing involving Earp's claim Yet, in the face of this knowledge, Haines permit- ted O'Neill to continue to work but sent most of the other employees home, when, on 28 April, problems de- veloped with the labeling machine The next day the Union first appeared on the scene and signed up nearly all the Respondent's employees, including O'Neill, and demanded recognition. As O'Neill had never been told that his job was in jeopardy, I find it highly unlikely and reject Haines' denial that his decision that same day to discharge O'Neill was unrelated to union activities In sum, I find that the General Counsel has demon- strated all the elements necessary to satisfy a prima facie case of unlawful motivation, and, on the other hand, the Respondent has failed to show that it would have termi- nated O'Neill notwithstanding his union activity See, Wright Line, 251 NLRB 1083, 1089 (1980). Accordingly, I find that Respondent terminated O'Neill in violation of Section 8(a)(3) and (1) as alleged. is warranted regarding Respondent's actions in laying off Maines and Sanders on the same day it discriminatorily discharged O'Neill As the General Counsel has demonstrated union activi- ty, company knowledge, timing, and at least, an infer- ence of antiunion animus, I find that his burden under Wright Line, supra, has been met Having previously re- jected Respondent's contention, unsupported by credible evidence, that layoffs were mandated by a downturn in business orders, I further find that Respondent failed its Wright Line burden by showing that Maines and Sanders would have been laid off on 2 May notwithstanding their union activities Accordingly, I find that Respondent laid off Maines and Sanders in violation of Section 8(a)(3) and (1), as alleged. c. The unfair labor practice strike allegation The record clearly established that the strike that com- menced on 5 May occurred to protest the discharges of O'Neill, Maines, and Sanders Having found that Re- spondent discharged the aforenamed employees in viola- tion of Section 8(a)(3), a fortiori, I find that the strike was an unfair labor practice strike, as alleged Further, as the strike was still in progress at the time of the instant trial and as Respondent has not fully remedied the unfair labor practices, I find that the strike was caused and pro- longed by the Respondent, as alleged. b, Discharge of Maines and Sanders The record disclosed that Maines and Saunders were hired as general laborers on Friday, 25 April, and Monday, 28 April, respectively According to Haines, they were hired mainly because of "a big onslaught of business at the end of April." Yet, 1-week later, both of them were laid off for lack of work, the same day Haines discriminatorily discharged O'Neill The credited and uncontroverted testimony disclosed that on 29 April, Maines and Sanders signed union cards in the presence and with the knowledge of their immedi- ate supervisor, Foreman Sanders According to Haines, Maines and Sanders were told at the outset that their employment was not permanent. I credit the denials of Maines and Sanders. In crediting them, it is noted, inter alia, that their testimony was internally consistent with the entire General Counsel's case and that Maines and Sanders were otherwise responsive and plausible. Thus, I credit their denials and I find that Haines did not convey any message to them suggesting a limited tenure of em- ployment In the total circumstances of this case, noting particu- larly the various reasons advanced by Respondent for discharging O'Neill found here to be pretextual (previ- ously discussed), I find that an inference of illegal motive la Haines when asked how strong a factor was the Earp's claim in his decision to terminate O'Neill replied "it was just one factor in making the decision because the Earp thing had been going on since January " (Tr 260, emphasis added ) However, Haines later asserted that Earp's claim was "considered as a major part of the decision" to terminate O'Neill (Tr 328, emphasis supplied) I find that Haines, by assigning such vastly different assessments, is still another factor tending to show the unrehabi- Iny of Haines' testimony 3. The 8(a)(1) allegations In essence, it is alleged that Respondent violated Sec- tion 8(a)(1) by informing replacement employees that the strikers were fired, that if Respondent were forced to recall the strikers they would be fired again, that if the Union won an election, the replacements would lose their jobs; and, that the replacement employees should refuse to sign union papers and stay away from the Union The record disclosed that approximately 3-1/2 weeks after the strike commenced and while the strike was still in effect, Respondent began hiring replacements In June, the replacements had reached 11 or 12 in number, the first two having been hired on 29 May Haines required all these replacements to sign a written acknowledge- ment that in pertinent part stated as follows: At the time of my employment I was told that I would be a permanent replacement, and that I would maintain my job if and when the strike ends. I understand that if "the Murd Company" is re- quired to rehire the people on strike because of the labor laws, or enters into a settlement with Team- sters # 115 my job may not be permanent. [R Exh 10] The first group of replacements was given such state- ments within a week after they were hired, while those hired subsequently, had to sign at the time they were hired These statements generated a good deal of confu- sion resulting in Haines conducting two separate meet- ings in June, at the behest of the replacements, to explain MURD INDUSTRIES their employment status as well as the status of the strik- ers. Holiday testified that Haines told the replacements of an upcoming union election that if the Union lost, all the replacement employees would continue to be employed but if the Union won Haines would take back some of the strikers and some of the replacement employees would have to leave 14 Further, Holiday testified that Haines stated that even if he had to deal with the Union, he was not going to employ those striking employees engaged in picketing. According to Holiday, Haines has also told him at the time he was hired, that his job was "permanent" and that (Haines), would not take back the striking employees be- cause of the "hassle they were putting him through " Lister recalled (after examining his affidavit) that Haines had pointed out to the replacements that they outnumbered the strikers and encouraged them to vote against the Union.15 Lister also ascribed to Haines (as had Holiday), a statement to the effect that the strikers had been fired.1e Finally, Lister (after reviewing his affidavit) ascribed certain statements to Foreman Sanders alleged by the General Counsel to be violative of Section 8(a)(1) Thus, Lister testified, without contradiction, that Sanders told him at one of these June meetings that the Union might ask him to sign some papers and that it would be "good" for him to stay away Lister also testified, without con- tradiction, that if the Union lost the election, the replace- ment employees would be permitted to keep their jobs Sanders pointed out (as had Haines), that there were more replacements than strikers and, as such, they could defeat the Union According to Hardy, Haines' remarks about the conse- quences of a union election amounted to "If the Union win[s], we [replacement employees] lose work " Hardy also noted that Haines had pointed out the numerical ma- jority of the replacements over the striking employees and urged them to vote against the Union. At another meeting, as testified by Hardy, Haines told the replace- ment employees that if a court ordered him to take back the striking employees, he would fire them after the first mistake The Respondent contends, that the testimony of Holi- day, Lister, and Hardy, where in conflict with the testi- 14 Holiday testified more fully regarding Haines' remarks after perus- ing an affidavit he had given to the Board approximately 2 months prior to the instant hearing (G C Exh II ) 15 Lister reaffirmed that the information contained in his affidavit is truthful (Tr 185, 187) 16 On cross-examination Lister acknowledged that it was "possible" that Haines used the term "replaced" rather than "flied" In eithei case, I find that Haines conveyed to the replacement employees that Respondent had fired the strikers As noted previously, Holiday testified that Haines told him that the strikers had been fired Further, Lister, in explaining more fully Haines' remarks testified that Haines conveyed to him that the strikers "don't exist" and that the replacement employees then working "now will be permanent employees " As I have found that the strikers were involved in an unfair labor practice strike they could not be perma- nently replaced white they were lawfully participating in that strike In the total circumstance of this case, I find that Haines ' statement regarding the status of the strikers was coercive and violative of Sec 8(a)(1) See National Microneiics, 277 NLRB 993 (1985), compare Eagle Comtronics Inc, 263 NLRB 515 (1982) (An employer may tell its employees that economic strikers can be permanently replaced ) 871 mony of Haines, is incredible and should be rejected I cannot agree. It is noted, for example, that replacement employees, Holiday and Lister, at the time they testified were still employed by Respondent. As such, they clear- ly testified against their self-interest,'7 a factor long rec- ognized by the Board not to be lightly disregarded See, e.g, Unarco, Inc, 197 NLRB 489, 491 (1972); Gateway Transportation, 193 NLRB 47, 48 (1971); Georgia Rug Mill, 131 NLRB 1304, 1305 In. 2 (1961). While Holiday, Lister, and Hardy had difficulties expressing themselves and at times were even incoherent, I find that they strug- gled largely because of educational shortcomings and/or language limitations rather than intent to mislead or be untruthful Significantly, their testimony was internally consistent with other credited testimony and, in certain key areas, the testimony was corroborated even by Haines On the other hand, for reasons previously de- tailed, I have generally found Haines to be an unreliable witness, particularly in those areas where his testimony was not credibly corroborated. Haines, when cross-examined, testified that he told the replacement employees of a potential loss of their jobs if the Union won the election (Tr 307-308). I reject Re- spondent's contention that "Haines' statements were per- fectly lawful exercises of his free speech under Section 8(c) of the Act."18 Where, as here, employees are told that their future employment turns on the success or fail- ure of the union to win an election, I find that such a message clearly tends to discourage union activity within the meaning of Section 8(a)(l) See Kona 60 Minute Photo, 277 NLRB 867 (1985) As testified by Hardy, after Haines told the replacement employees about the conse- quences of a union victory: "Everybody was saying that they would vote against the Union." In sum, on the basis of the credited testimony and to- tality of circumstances, I find that the Respondent violat- ed Section 8(a)(1) by informing the replacement employ- ees that the striking employees were fired; that if Re- spondent was forced to employ the striking employees it would discharge them again; and, that the jobs of re- placement employees turned on whether the Union won an election. As for the remaining allegation, I find that the record does not establish by a preponderance of credible evidence that Foreman Sanders coercively threatened employee Lister with unspecified reprisals if they signed union papers or if they failed to stay away from the Union As testified by Lister, Sanders told him that someone might want him "to sign some papers or something" and that it is "good" to stay away from the Union I find that the statement by itself is far too ambig- uous to reach the level of a coercive threat.19 Accord- ingly, I shall recommend that this allegation be dismissed. 17 In Holiday's case, Respondent's counsel asked him on cross-exami- nation, "Do you understand that if the Labor Board orders the strikers back, you may not have a job at Murd1" 18 Sec 8(c) in pertinent part provides "The expressing of any views, argument, or opinion should not constitute or be evidence of an unfair labor practice, if such expression contains no threat of reprisal or force or promise of benefit " 19 Given Lister's apparent difficulties with language, I am unwilling to rely on his affidavit, where even there, his statement is less than complete Continued 872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 The 8(a)(5) allegations a. Recognition allegation The record disclosed that, on 29 April, the Union had secured 9 signed authorization cards from Respondent's total complement of 10 employees That same day, Union Representatives Henninger and Oliver, while in possession of those signed union 'cards, demanded recog- nition from Haines as the exclusive bargaining represent- ative of Respondent's production and maintenance em- ployees 20 It is alleged that "[o]n or about 29 April 1986, Respondent, acting through Arthur Haines recognized the Union as the exclusive representative of the Unit." Contrary to the General Counsel, I find that Haines had not granted recognition as alleged It is undisputed that on the day in question (29 April), Henninger and Oliver appeared at Haines' office without appointment and handed him a recognition agreement to sign. They demanded that Haines recognize the Union and offered to demonstrate their majority status on the basis of signed union cards The credited testimony dis- closed that while Haines had noticed that either Oliver or Henninger held a stack of union cards, he, Haines, re- fused to examine those cards 21 Haines credibly testified that he told the union representatives that "after I came back from vacation, we can sit down and discuss what you are talking about but right now, I am not going to do anything " (Emphasis added.) This is essentially the same account provided by Henninger who testified in perti- nent part as follows: Haines said that we caught him suddenly by sur- prise but that he was getting ready to go away on vacation and that he thought we'd be able to work it out but he didn't want to do anything until he returned from vacation. [Emphasis added ] Thus, it is clear from Haines' account, as substantially corroborated by Henninger, that Haines was not willing to take any action, no less granting recognition, until he returned from his vacation Haines' refusal to do "any- thing" until he returned from vacation is far different from the conduct undertaken by the employees in Travel- ways, Inc, 267 NLRB 1332 (1983), relied on by the Gen- eral Counsel. There, unlike the instant case, the employer asked to examine the signed authorization cards and "then proceeded to look at each card and call out the employee's name " The union's majority in Travelways having been thereby established, the parties set a date for a "negotiating meeting " In such circumstances, the union there regarded the respondent's commitment to enter negotiations as tantamount to explicit recognition, on this subject Similarly, I have not relied on Holiday's affidavit as af- firmative evidence (contrary to counsel for the General Counsel), in those instances where his recollection had not been refreshed or where the affidavit otherwise is in conflict with his testimony 20 The parties stipulated and I find that Respondent's production and maintenance employees with the traditional exclusions comprise an ap- propriate unit for collective-bargaining purposes 2i Haines' denial that he examined the union cards is largely corrobo- rated by Camillo Giusti Giusti testified credibly that Haines and the union representatives, were in his view virtually the entire time and he did not see Haines "handle" the union cards although the employer had not uttered the term As such, the union, shortly thereafter, wrote to the Board requesting to withdraw its representation petition, which had been filed prior to its meetings with the employer (supra at 1334). Here, unlike Travelways, the union representatives first filed their representation petition immediately after their meeting with Haines. Had the union representatives re- garded Haines' willingness to discuss the situation (on his return from vacation) as recognition, I find it highly un- likely that they would have filed a representation peti- tion 22 In short, I find that the Respondent had not granted recognition on 29 April as alleged I am also unpersuaded and reject the General Coun- sel's contention that the Respondent granted recognition and bargained collectively with the Union after 29 April While I have credited the testimony of Henninger and Oliver over Haines' denial with regard to the latter's sig- nature appearing on the recognition agreement, I find that Haines at all material times made it clear to the Union that he was withholding recognition until he had more time to contemplate its ramifications Further, Haines made it clear that he had to have some idea of the cost factors. Compare Trevose Family Shoe Store, 235 NLRB 1229, 1231-1232 (1978) (Board found that recog- nition was not conferred even where cards were exam- ined) The credited testimony disclosed that on 13 May, Hen- ninger and Oliver first noticed Haines' signature on the recognition agreement (2 weeks after their initial meet- ing). During that hiatus, inter alia, Respondent's employ- ees had struck to protest the discharges of O'Neill, Haines, and Sanders (found here violative of Sec. 8(a)(3)) and Haines had been away on vacation. As the employ- ees were not striking for union recognition and as Haines credibly testified that he had not examined the union au- thorization cards, I find that the Union had not demon- strated its majority status to Haines, albeit, the Union of- fered to prove such status. In these circumstances, with- out more, I do not find that the act of signing a recogni- tion agreement precludes raising a question concerning representation Compare S. Abraham & Sons, 193 NLRB 523 (1971) (an executed recognition agreement did not bar representation petitions in the absence of a previous- ly demonstrated showing of majority) When Haines re- turned to work from vacation on 12 May, all his unit em- ployees were still on strike Haines met with the union representatives on 12 and 13 May in an effort to end the strike but he refused to "recognize" and "bargain" before he knew what it would cost him Oliver, in turn, told Haines that he wanted the recognition agreement before he would talk about cost factors. Oliver also pointed out to Haines that he could not tell him what the Union wanted because "we haven't talked to the members yet " As testified by Oliver, Haines replied, "I'm not going to give you recog- nition right now, until I find out what you're going to 22 The Union never contended that the filing of the petition manifested an interest in securing the benefits of a Board certification MURD INDUSTRIES ask for" Oliver told Haines to set up a meeting with Henninger to "get this straightened out " As testified by Henninger, when Haines asked for the recognition agreement, Haines responded that "he wanted to think about it some more " Haines agreed to meet Henninger at the union office on 15 May "to get the thing straightened out" The former was accompanied by McClemmy; Henninger was joined by employee Dennis Haines still refused to turn over an executed recognition agreement Even Hen- ninger's account tends to confirm that Haines' principal concern was the cost factor before he would commit himself to recognition and bargaining over the substan- tive terms of a contract. As testified by Henninger, Haines told him that "the most important to him was money I'm still a small employer . . in order to sur- vive, you can't kill me with money." Henninger insisted on following the union practice of negotiating language before discussing any money items. The record disclosed that the principals spent some 2 hours discussing mainly satisfactorily language rather than substantive provisions and they had not reached any of the money items when Haines ended the meeting. The parties did not meet again I find in the circumstances of this case, noting particu- larly that the parties merely discussed contract language generally, and did not "negotiate" in any substantive sense,23 that Haines, by his statements and conduct at the aforenoted meeting did not reach the level of confer- ring recognition In sum, I do find that the Respondent had,not granted recognition to the Union, a fortiori, it could not have un- lawfully withdrawn recognition Accordingly, I shall recommend that this allegation be dismissed b. Gtssel bargaining order remedy The General Counsel contends that a Gissel bargaining order is warranted "because the traditional remedies for the Section 8(a)(1) and (3) violations . will not erase the lingering effects of Respondent's unlawful conduct and allow employees to register an uncoerced choice concerning union representation " In NLRB v. Gissel Packing Co., 395 U S. 575 (1969), the Supreme Court identified two categories of cases in which a remedial bargaining order would be warranted. The first such cat- egory (Gissel 1) involves "`exceptional' cases marked by `outrageous' and `pervasive' unfair labor practices which destroy the possibility of a fair election" (395 US at 613-614) The second category (Gissel II) involves less "exceptional cases" marked by "less pervasive practices " As to Gissel II type cases the Court stated as follows- If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional reme- dies, though present, is slight and that employee sentiment once expressed through cards would, on 21 The distinction is significant See, e g , National Metalcrafters, 276 NLRB 90 (1985), remanded sub nom Auto Workers 449 v NLRB, 802 F 2d 969 (7th Or 1986) (A contractual obligation to "discuss" a decision to relocate a plant was not tantamount to an obligation to "negotiate ") 873 balance, be better protected by a bargaining order, then such an order should issue 395 U S at (614- 615) I find that here Respondent's unfair labor practices in terms of severity and lingering effects on employees are at least encompassed by the Gissel II test thereby justify a remedial bargaining order 24 First, it is noted that Haines unlawfully discharged three of the union cardsigners within 3 days of the Union's demand for recognition, which at the time, rep- resented 30 percent of the bargaining unit It has long been noted that discriminatory discharges within the meaning of Section 8(a)(3) constitute misconduct "going to the very heart of the Act." NLRB v Entwistle Mfg. Co, 120 F.2d 532, 536 (4th Cir 1941). Recently, the Board had again recognized "that unlawful discharge or layoff is one of the most flagrant and severe acts an em- ployer can take to dissuade employees from selecting a bargaining representative " Groves Truck & Trailer, 281 NLRB 1194, 1196 (1986). The news regarding the unlawful discharges was dis- seminated within a few days to the other unit employees who thereupon engaged in an unfair labor practice strike in protest of the discharges As noted previously, the Re- spondent's unfair labor practices also touched all the re- placements Thus, Haines, inter alia, illegally informed the replacements that the strikers (found here to be unfair labor practice strikers) had been replaced and/or fired. Haines' coercive statements were not merely con- fined to the status of strikers, he also illegally informed the replacements that their future employment turned on the outcome of the union election The effect of such co- ercive statements is "heightened" when, as here, they are made, in the main, by the owner and top management of- ficial, who is readily perceived as possessing the ability to carry out his unlawful threats See Long-Airdox Co., 277 NLRB 1157 (1985). In the total circumstances of this case, noting the small size of the unit (10 employees); that 30 percent of the unit had been discriminatorily discharged, that virtually all unit employees, strikers, and replacements were var- iously touched by Respondent's coercive threats, and, that most of the unfair labor practices were committed by Respondent's highest official and owner, I find that the holding of a fair election by the use of traditional remedies is slight Having discontinued the traditional remedies, I further find that the employees' uncoerced choice of representative, previously expressed by signed union cards, on balance, could be better protected by the issuance of a Gissel remedial order. See, e g., Quality Alu- minum Products, 278 NLRB 338 (1986), Kona 60 Minute Photo, 277 NLRB 867, Studio S.J. T , 277 NLRB 1189 (1985); Long-Airdox Co, supra As the Union clearly rep- resented an uncoerced majority appropriate unit, when on 29 April, it demanded recognition, and noting that Respondent commenced its unfair labor practices on 2 24 The Respondent, in its brief, largely ignores the Girsel It category of cases by arguing "[a]t the very minimal, the unfair labor practices al- leged herein are not the outrageous and pervasive kind normally required to justify a bargaining order under Gavel " 874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD May (discharging O'Neill, Maines, and Sanders), I fur- ther find that Respondent violated Section 8(a)(5) by re- fusing to recognize and bargain with the Union from the date it commenced its unfair labor practices. See Regency Manor Nursing Home, 275 NLRB 1261 fn. 5 (1985); see generally Trading Port, 219 NLRB 298, 300-301 (1975). III. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section II, above, occurring in connection with the Respondent's operations described in section I, above, have a close, in- timate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by: (a) Coercively informing the replacement employees that the striking employees were fired. (b) Coercively informing the replacement employees that if Respondent were forced to employ the striking employees, it would discharge them again. (c) Informing replacement employees that their future employment turned on defeating the Union at an elec- tion. 4. The Respondent violated Section 8(a)(3) and (1) of the Act by discharging Patrick O 'Neill, William Mames, and Johnny Sanders because of their support of the Union. 5. The Respondent's employees commenced an unfair labor practice strike on 5 May 1986 which strike was caused and prolonged by the unlawful discharge of the employees named above in paragraph 4. 6. The following unit is appropriate for collective bar- gaining within the meaning of Section 9(b) of the Act: All production and maintenance employees em- ployed by the Respondent at its Philadelphia, Penn- sylvania facility ; but excluding office clerical em- ployees, guards and supervisors as defined in the Act. 7 On 29 April 1986 , at the time the Union demanded recognition from the Respondent, the Union had already obtained signed union authorization cards from a majori- ty of Respondent's employees in the bargaining unit de- scribed above in paragraph 6. 8. Since about 2 May 1986, when the Respodent com- menced engaging in unfair labor practices, the Union has been the exclusive representative of the Respondent's employees in the unit described above in paragraph 6 for purposes of collective bargaining within the meaning of Section 9(a) of the Act. 9. Since about 2 May 1986, the Respondent has violat- ed Section 8(a)(5) and (1) of the Act by refusing to rec- ognize and bargain with the Union as the exclusive col- lective-bargaining representative of its employees in the above-described unit. 10. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. 11. The Respondent did not engage in any unfair labor practices not specifically found here. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. With regard to my findings that the Respondent discri- minatorily discharged Patrick O'Neill, William Maines. and Johnny Sanders in violation of Section 8(a)(3) and (1) of the Act, it is noted that the General Counsel does not dispute that Respondent made an unconditional offer of reinstatement to O'Neill and Maines (see G.C Br 60, fn. 27; Tr. 103). Accordingly, I shall not recommend that Respondent be required to offer reinstatement to O'Neill and Maines . See Quality Aluminum Products, supra, 278 NLRB at fn . 3. However, as the record does not disclose that Respondent unconditionally offered to reinstate Johnny Sanders and noting that Respondent's employees are engaged in an ongoing unfair labor practice strike in protest of the discharge of all three employees, I find, in agreement with the General Counsel, that O'Neill and Sanders did not forfeit all their reinstatement rights. Ac- cordingly, O'Neill, Sanders, and the other unfair labor practice strikers, on application , are entitled to immediate reinstatement even if they have been replaced. See Redway Carriers, 274 NLRB 1359, 1360 (1985). To remedy the unlawful discharge of employee Sanders, I shall recommend, inter alia, that Respondent offer him immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges. Further, I shall recommend that the Respondent make whole employees O'Neill, Maines, and Sanders for any loss of earnings and other benefits they may have suf- fered as a result of the discrimination against them, by payment of a sum equal to that which they would have earned absent the discrimination , with the backpay com- puted as prescribed in F. W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). I shall also recommend that any reference to their terminations be removed from their employment records. Having found that the Respondent violated Section 8(a)(5) and ( 1) of the Act as of 2 May 1986, I shall rec- ommend that it cease and desist and to recognize and bargain on request with the Union as the exclusive bar- gaining representative of the unit employees MURD INDUSTRIES 875 Noting that the Board does not routinely include a vi- sitatorial clause to monitor compliance, I am unpersuad- ed that any special circumstances exist here to warrant such a provision, as requested by counsel for the General Counsel See Kal Contracting Co, 284 NLRB 722 (1987); Holiday Inn East, 281 NLRB 573 (1986), Pence Construc- tion Co, 281 NLRB 322 (1986) Accordingly, I shall not recommend that a visitatorial clause be encompassed by the remedy Finally, noting the gravity of the misconduct commit- ted by the Respondent, including the discriminatory dis- charges of 30 percent of the bargaining unit, I shall rec- ommend that it cease and desist therefrom and "in any other manner" from interfering with the rights of em- ployees guaranteed under Section 7 of the Act. See Hickmott Foods, 242 NLRB 1357 (1979), see also Groves Truck & Trailer, supra; Studio S.J. T , Quality Aluminum Products, supra, cf. Gem Urethane Corp, 284 NLRB 1349 (1987) On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, Murd Industries, Inc, Philadelphia, Pennsylvania, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively informing replacement employees that the striking employee were fired (b) Coercively informing replacement employees that if Respondent were forced to employ the striking em- ployees, it would discharge them again (c) Informing replacement employees that their future employment turned on defeating the Union at an elec- tion. (d) Discharging, laying off, or otherwise discriminat- ing against employees because of their union activities and sympathies. (e) Refusing to recognize and bargain with the Team- sters Union Local No 115 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargain- Ing representative in the following unit All production and maintenance employees em- ployed by the Respondent at its Philadelphia, Penn- sylvania facility, but excluding office clerical em- ployees, guards and supervisors as defined in the Act (a) Offer Johnny Sanders immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed (b) Provide immediate and full reinstatement to Patrick O'Neill, William Mames, and any of the other unfair labor practice strikers, to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to any rights and priviledges previous- ly enjoyed, on application by them, even if it requires discharging their replacements (c) Make Patrick O'Neill, William Maines, and Johnny Sanders whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth heremabove in the remedy section of this decision. (d) Remove from its files any reference to the layoffs or discharges of Patrick O'Neill, William Maines, and Johnny Sanders, and notify them in writing that this has been done and that evidence of this unlawful separation from employment will not be used as a basis for future personnel action against them (e) Recognize and, on request, bargain with the above- named labor organization as the exclusive collective-bar- gaining representative of its employees in the bargaining unit set forth above with respect to wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement (f) Post at its Philadelphia, Pennsylvania facility, copies of the attached notice marked "Appendix."26 Copies of the notice, on forms provided by the Regional Director for Region 4, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. IT IS FURTHER ORDERED that the consolidated com- plaint be dismissed insofar as it alleges violations of the Act not specifically found here 26 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 " (t) 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. 25 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 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. 876 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT coercively inform our replacement em- ployees that we have fired our striking employees WE WILL NOT coercively inform our replacement em- ployees that if we were forced to employ the striking employees, we would discharge them again WE WILL NOT inform our replacement employees that their future employment turns on defeating the Union at an election. WE WILL NOT discharge, layoff, or otherwise discrimi- nate against employees because of their union activities and sympathies. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act WE WILL offer Johnny Sanders immediate and full re- instatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej- udice to his seniority or any other rights and privileges as previously enjoyed. WE WILL provide immediate and full reinstatement to Patrick O'Neill, William Maines, and any other unfair labor practice strikers, to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to any rights and privilegdes previous- ly enjoyed, on application by them, even if it requires discharging their replacements. WE WILL make Patrick O'Neill, William Maines, and Johnny Sanders whole for any loss of earnings and other benefits suffered as a result of our discrimination against them WE WILL remove from our files any references to the layoffs or discharges of Patrick O'Neill, William Maines, and Johnny Sanders, and notify them in writing that this has been done and that evidence of their unlawful sepa- ration from employment will not be used as a basis for future personnel action against them WE WILL recognize and bargain with Teamsters Union Local No 115 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica as the exclusive representative of our employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a signed agreement The appropriate unit is. All production and maintenance employees em- ployed by Murd Industries, Inc, at its Philadelphia, Pennsylvania facility; but excluding office clerical employees, guards and supervisors as defined in the Act MURD INDUSTRIES, INC.