Lott'S Electric Co., Inc

LOTT S ELECTRIC CO 297 Loft's Electric Company, Inc and New Jersey IBEW Construction Business Managers Asso- ciation, International Brotherhood of Electrical Workers, AFL-CIO and International Brother- hood of Electrical Workers, AFL-CIO and Local Unions 52, 102, 164, 211, 262, 269, 358, 400, 439, 456, 581, 592 and 675, International Brotherhood of Electrical Workers, AFL-CIO Lott's Electric Company, Inc and Gauntt Construc- tion Company, Inc and New Jersey IBEW Construction Business Managers Association, International Brotherhood of Electrical Work- ers, AFL-CIO Cases 22-CA-14656, 22-CA- 14745, 22-CA-14705, and 22-RC-9663 March 15, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND DEVANEY On March 17, 1988, Administrative Law Judge James F Morton issued the attached decision The Respondent and the General Counsel filed excep- tions and briefs in support thereof and in opposition to the other's exceptions I 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 i During the hearing the Respondent through its former legal counsel stipulated that the New Jersey IBEW Construction Business Managers Association International Brotherhood of Electrical Workers AFL- CIO which collectively represents Local Unions 52 102 164 211 262 269 358 400 439 456 581 592 and 675 International Brotherhood of Electrical Workers AFL-CIO (named as Joint Petitioners in Case 22- RC-9663) was a labor organization within the meaning of Sec 2(5) of the Act The Respondent now seeks in a posthearing motion to with draw from that stipulation and to reopen the record so that evidence con cernmg the Union s status as a labor organization can be adduced The General Counsel opposes the Respondent s motion to set aside the stipu lation and to reopen the record Having duly considered the matter we deny the Respondents motion to reopen the record The evidence sub mitted in support of the motion consisting of testimony proffered in an unrelated representation proceeding and an assertion by its present coun sel that the Respondent s trial counsel was inexperienced in labor matters is insufficient under Sec 102 48 of the Board s Rules and Regulations to justify reopening the record in this proceeding or to set aside the stipula tion voluntarily entered into by the parties at the hearing Because our denial of the Respondents motion we find it unnecessary to rule on the General Counsel s Motion to Strike Postcnpt and Accompanying Letter 2 The Respondent and the General Counsel have excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent contends inter alia that unit employee Okomski was misled into signing an authorization card for the Union and that the judge therefore erred in counting his card in determining whether the Union had attained majority support We find it unnecessary to pass on the validity of Okomski s card as the record shows that the Union had conclusions and to adopt the recommended Order, as modified 3 We agree with the judge that employee John Oliver did not quit his job but rather was unlawful ly terminated for his union activities when the Re- spondent refused to assign him any more work fol lowing his recovery from a knee injury On Octo ber 17, 1986, the Respondent's president expressed displeasure with Oliver's union sympathies, asked him why he did not quit, and told him he had been transferred to a more distant jobsite because of his union activities Shortly thereafter, Oliver injured his knee and told his supervisor, Groff, that he would not be able to work for the last week in Oc- tober Groff said he would call Oliver with a work assignment for the first week in November, but did not do so Although Oliver left numerous messages informing the Respondent that he was able to work, Groff never returned his calls When Oliver was finally able to reach Groff by using another person's name, Groff said he had heard that Oliver quit his employ and he (Groff) would have to con- tact the Respondent's manager The judge found, and we agree, that there was no basis for Groff's assumption that Oliver had quit and that in the context of the Respondent's other unlawful acts to- wards Oliver, its failure to call him for work con- stituted a discharge in violation of Section 8(a)(3) and (1) of the Act The Respondent contends that regardless of what happened prior to the November 4, 1986 tele phone conversation with Groff, Oliver nevertheless voluntarily quit when he told Groff at the end of the conversation not to bother checking on his status with the Respondent's manager because he wanted to work out of a union hiring hall We find no merit in this contention Given the Respondent's earlier unlawful acts of urging Oliver to quit and transferring him to a more distant jobsite, and Groff's failure to answer repeated calls from Oliver, it is reasonable to infer, as did the judge, that Oliver's November 4 remark resulted from his exasperation at the manner in which he was being secured 16 additional valid authorization cards (not counting Okomski s) from the 29 employees in the unit and had thereby demonstrated that it enjoyed the support of a majority of the Respondents unit employees In the last paragraph of sec III C of his decision the judge inadvert ently stated that the Respondent pressured employee Sutherland to with draw his union card by threatening to withhold the processing of his ap prenticeship papers It is clear from the judge s prior discussion of this matter and from the record that employee Seltner and not Sutherland was the target of the above unlawful conduct 2 We shall modify the judge s recommended Order only for the put pose of clarifying that the Respondents remedial and bargaining obliga tion stated in the Order is with Local Unions 52 102 164 211 262 269 358 400 439 456 581 592 and 675 International Brotherhood of Elec tncal Workers AFL-CIO whose representatives are collectively known as New Jersey IBEW Construction Business Managers Association Inter national Brotherhood of Electrical Workers AFL-CIO 293 NLRB No 31 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD treated by the Respondent and does not constitute either a voluntary quit or a waiver by Oliver of his right to an offer of reinstatement Whether Oliver subsequently worked out of a union hiring hall is a remedial matter best left to the compliance stage of this proceeding ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge, as modified below, and orders that the Re- spondent, Lott's Electric Company, Inc, and Gauntt Construction Company, Inc, Burlington, New Jersey, its officers, agents, successors, and as signs, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(a) "(a) Coercively questioning its employees as to their support for Local Unions 52, 102 , 164, 211, 262, 269, 358, 400, 439, 456, 581, 592, and 675, International Brotherhood of Electrical Workers, AFL-CIO, whose representatives are collectively known as New Jersey IBEW Construction Busi ness Managers Association, International Brother hood of Electrical Workers, AFL-CIO " 2 Substitute the attached notice for that of the administrative law judge 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities WE WILL NOT coercively question you as to your support for Local Unions 52, 102, 164, 211, 262, 269, 358, 400, 439, 456, 581, 592, and 675, International Brotherhood of Electrical Workers, AFL-CIO whose representatives are collectively known as New Jersey IBEW Construction Busi- ness Managers Association, International Brother hood of Electrical Workers, AFL-CIO WE WILL NOT threaten to discharge you to dis courage you from supporting the Union WE WILL NOT threaten you that we would close our operations to discourage you from supporting the Union WE WILL NOT warn you that reprisals will be taken against you to discourage you from support- ing the Union WE WILL NOT promise to adjust your grievances in return for your withdrawing support of the Union WE WILL NOT solicit grievances from you to dis- courage support for the Union WE WILL NOT inform you that your support for the Union is a futile act WE WILL NOT induce you to withdraw your signed union authorization cards WE WILL NOT tell you that you were transferred to other jobsites because you supported the Union WE WILL NOT lay off, discharge, suspend, or transfer you to discourage support for the Union WE WILL NOT refuse to bargain collectively with the Union as the exclusive representative of our electricians, including journeymen, foremen, and apprentices WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer James Koerner, John Oliver, Vito Galati, Mark Seltner, Joseph Carluccio, and Barry Galczynski immediate and full reinstatement to their former jobs or , if those jobs no longer exist, to substantially equivalent positions of em ployment without prejudice to their seniority or other rights and privileges and WE WILL make them whole for all lost earnings they suffered as a result of our having discriminated against them, less any net interim earnings, plus interest, and WE WILL also make Mark Seltner whole for having un- lawfully suspended him for 5 days WE WILL notify each of those named employees that we have removed from our files any reference to the discriminatory acts we committed against them and that none of these acts will be used against them in any way WE WILL, on request, bargain in good faith with the Union as the exclusive collective-bargaining representative of all our electricians, including journeymen, foremen, and apprentices, and will sign any agreement reached with it LOTT'S ELECTRIC COMPANY, INC AND GAUNTT CONSTRUCTION COM PANY, INC LOTT S ELECTRIC CO Gary A Carlson and Debra J Cosgrove Esqs, for the General Counsel Laurence E Rosoff Esq, of Cherry Hill, New Jersey, for Lott s Electric Company, Inc DECISION STATEMENT OF THE CASE JAMES F MORTON, Administrative Law Judge The consolidated complaint in the first three cases captioned above alleges that Lott's Electric Company, Inc (Re spondent) has violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) and proposes as a remedy that Respondent be ordered to bargain collec tively with New Jersey IBEW Construction Business Managers Association, International Brotherhood of Electrical Workers, AFL-CIO (the Union) 1 Respondent is alleged to have on approximately 18 different dates and by 3 individuals, committed unfair labor practices consisting of unlawful interrogation, threats, and other coercive conduct designed to undermine support for the Union The complaint also alleges that Respondent dis criminatorily (a) laid off three employees, (b) transferred and later discharged two employees, and (c) suspended and laid off a sixth employee Respondent's answer places in issue these alleged un lawful acts and also the supervisory status of one of the individuals alleged to have committed a number of these acts Respondent's answer also asserts that a bargaining order remedy is inappropriate In the above captioned representation case, the Union filed its petition about 1 August 1986, a Stipulation for Certification for Consent Election was approved in mid August, the election was held on 19 September 1986, and when the Union did not receive a majority of the valid ballots it filed objections thereto, in the Report on Ob jections, certain of the objections were consolidated for hearing as they pertain to matters also alleged as unfair labor practices 2 The hearing was held before me in Newark New Jersey on 27 29, and 30 April and on 1, 4, 5, and 6 May 1987 On the entire record, including my observation of the demeanor of the witnesses, and after due consider ation of the briefs filed by the General Counsel and Re spondent I make the following FINDINGS OF FACT I JURISDICTION AND LABOR ORGANIZATION The pleadings establish and I find that Respondent is a New Jersey corporation engaged as an electrical contrac tor in the building and construction industry and that its operations meet the Board s standard for asserting juris diction over nonretail business 3 I At the hearing and in their respective briefs the parties have used the term Union to refer also to the IBEW construction locals whose man agers formed the New Jersey IBEW Construction Business Managers As sociation Those construction locals are the joint petitioners in the repre sentation case involved herein 2 The remaining objections were withdrawn 3 Respondent is operated in conjunction with Gauntt Construction Co a general contractor in the construction industry The amended pleading 299 The pleadings also establish and I therefore find that the Union is a labor organization as defined in Section 2(5) of the Act II BACKGROUND A Respondents Operations Respondent is a family run business The father s legal name is Frank Lott Jr , but he is referred to by many of the employees as Frank Sr To confuse his name further, his son s legal name is Frank IV, but he is often referred to by his father s legal name, Frank Jr To avoid confu sion, I shall refer to the father as Frank Sr (or at times Senior), and to his son as Frank IV Another son, Lance Lott, is also active in the business, as is a son in law who is an electrician employed by Respondent Frank Sr has been in the electrical industry since 1954, in all phases, from design to construction He had been project manager on major installations, including Newark International Airport, naval yards, university, and hospitals In the 1960s, he did business as Lott Elec tnc, an individual proprietorship Frank IV started his own business in 1976 He owned a truck, worked alone, and used the trade name, Lott s Electric In 1977, he hired several employees In 1979, Respondent was formed Frank IV was its sole stockholder then Frank Sr joined Respondent in 1982 as general manager His other son, Lance, joined Respondent and, at some point, he became half owner of Respondent with Frank IV Frank IV is president of Re spondent, Lance is vice president Frank IV testified that his duties include handling more of the high finances Lance performs estimating functions Frank Sr oversees the operations His duties include planning representing Respondent at job project meetings, and managing the complement of about 100 employees involved in electri cal and related construction work That Respondents business is a family operation was made clear by the candid testimony of Frank IV He tes tified at one point that his sister would have killed him if he laid off his brother in law Respondent has its principal office in Burlington New Jersey, from which it assigns electricians to work at con struction sites in New Jersey and Pennsylvania As these projects are subject to the provisions of the Davis Bacon Act, Respondent pays its electricians the Davis Bacon rates, which vary according to the area in which a job site is located A significant part of an area rate is the cost of contributing to pension welfare and other funds As Respondents electricians have been unrepresented by any labor organization and as it has established no fringe benefit plan itself for these employees it includes, in their weekly wages, moneys equivalent to the total value of fund contributions B The Union s Organizational Effort The 13 local unions of the IBEW which are listed as joint petitioners in the above captioned representation establishes that Respondent and Gauntt constitute a single employer within the meaning of the Act 300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD case, are located in New Jersey and represent electri clans in the construction industry Each of these locals has a business manager in charge The business managers formed the New Jersey IBEW Construction Business Managers Association IBEW, AFL-CIO One of its purposes is to organize unrepresented electricians in the construction industry in New Jersey It employed Rich and Dressel to this end In early 1986, he began visiting jobsites to speak with the electricians in Respondent s employ All dates hereafter are for 1986 unless specified otherwise In early March, according to the testimony of one of the alleged discnminatees, James Koerner, Dressel vis ited the jobsite in Totowa, where he was working and gave him his business card and union authorization cards Koerner testified that the construction superintendent there later asked for and took those cards On the Friday of that week, as Koerner related he saw those cards on the desk of alleged Supervisor Ralph Groff at Respond ent s office in Burlington Koerner testified that Groff told him then to steer clear of the Union if he wanted to stay in Respondents employ There is no allegation in the complaint that Respondent thereby violated the Act nor does the General Counsel in her brief, refer to this aspect of Koerner s testimony as constituting a violation of the Act by Respondent or as evidence of union animus Koerner s account, however, does serve to focus on a critical issue that is whether Groff is a supervisor within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Alleged Supervisory Status of Ralph Groff The complaint alleges that Ralph Groff is a supervisor within the meaning of the Act and that Respondent acting through him, unlawfully interrogated employees threatened them and solicited grievances from them to discourage them from supporting the Union Respond ent's answer denies these allegations Groff refers to himself as Respondents general fore man On some of Respondents forms, an abbreviation of the title superintendent appears alongside his name He has an office at Respondents Burlington headquarters from which he directs electricians regarding jobsites they are to report to He is responsible for visiting these plants to ensure that the foremen there see to it that the work is progressing as scheduled The General Counsel presented uncontroverted testimony that Respondent s president in April told employees that Groff was its electrical field superintendent There was uncontroverted testimony also that Groff has hired employees on his own Groff testified that he has issued written discipli nary warnings to about 15 to 25 employees The evidence in this case supports a finding that Groff was a supervisor within the meaning of Section 2(11) of the Act and is even stronger than that in Aztec Concrete 277 NLRB 1244 (1985), in which a field superintendent was found to be a supervisor I therefore find that Groff was at all times material a supervisor within the meaning of the Act B Alleged Unlawful Conduct in June and July 1 The first alleged un'awful act Vito Galati, one of the alleged discnminatees, testified as follows In June while assigned to a jobsite in Somer ville, he had lunch at a diner with Field Superintendent Groff and several coworkers, one of whom he recalled was Joseph Okomski While there, Groff looked at him and said, ' [H]ey buddy, you didn t sign one of them union cards or talk to any of them union guys did you? When he responded that he had not, Groff said, be cause if [you] did [and] if the old man catches wind of it, he would definitely, he would close the doors Groff went on to say that Galati would be fired if [the old man] found out about it that [Galati] had done any thing with the Union The old man that Groff referred to was Frank Sr In the course of Groff's testifying during Respondent's case he was asked if he at anytime had asked any of the employees as to their feelings about the Union and he re sponded that he had not He explained that the reason he had not was that he had been given specific orders from Frank IV as to what he could do and that he got instruc tions from Frank IV almost daily These instructions, he related were first given him about 1 August when Re spondent received formal notice of the Union s demand, as recounted further below Groff testified also that he had heard rumors about the Union and by that, he was referring to conversations he overheard among employ ees at the diner referred to in Galati s account and that occurred at indefinite times in the period between April and the date of the representation election, 19 Septem ber At another point in the course of his testimony, Groff was responding to the account given by James Koerner regarding the first appearance of the Union s organizer, Dressel at another jobsite in March or April Groff's ac count thereon was that he was made aware then that Dressel was distributing union authorization cards Nev ertheless, according to Groff, he did not mention this to either Frank Sr or Frank IV Okomski who was present at that diner in June ac cording to Galati s account testified for Respondent re garding another issue, discussed below but neither was asked about nor testified to the diner incident in June as related by Galati Galati s testimony appeared to be given candidly and without guile I am troubled by certain aspects of Groff s account It seems unlikely to me that he would have re marred entirely silent at lunchtime as his testimony would have it when employees under him were discuss ing the Union Groff sought to explain his silence by stating that he was following orders from Frank IV but those orders, by Groff's own account, were not given him until a month or 2 later Even more troubling to me is Groff's testimony that he withheld from Frank Sr and Frank IV knowledge that Union Representative Dressel was at one of Respondent s jobsites a month before in an effort to organize Respondents employees It seems un likely to me that a field superintendent would not di vulge such information to his own superiors LOTT S ELECTRIC CO After weighing these points and noting that Galati s account did not appear to be contrived or tailored and particularly as it seems unlikely to me that Groff would have remained mute while the others discussed the Union openly in his presence, I am satisfied that Galati s testimony more probably reflects what did occur I credit his account The questioning of Galati by Groff and the contempo raneous warning that Respondent would close down its operations and discharge Galati if he supported the Union constitute acts interfering with, restraining, and coercing employees in the exercise of their rights under Section 7 of the Act and thereby violates Section 8(a)(1) of the Act See Fimco Inc, 282 NLRB 653 (1987) 2 Alleged coercive conduct in July James Koerner, an electrician employed at the Totowa jobsite, as noted above, testified as follows as to discus sions he had in July with Groff and with Frank Sr Groff telephoned him while he was at that jobsite and, in the course of the discussion, Groff asked him if he had signed a union card Koerner told him that he had as he felt it was in his best interest to do so Groff told him that he had screwed up That evening Groff tele phoned him at home and told him that if he pulled his card back, he would make amends with the old man that [Koerner] could keep [his] job He replied that he was not going to pull back his card Groff then said that it was nice working with him and that he would be get ting two paychecks on the coming Friday Groff then told him that the old man wanted to speak to him Koerner then called `the shop' and spoke to Frank Sr who told him that he wanted to talk about the Union Koerner said that he wanted to be up front with Frank Sr and told him that he had signed a card, that it was nothing personal but it was in his best interests to go with the Union Frank Sr responded that he was sorry that Koerner felt that way and that Koerner was fin ished That ended the conversation As noted above, Groff denied that he asked any of the employees about the Union He testified that he was re strained from doing so because he had been given re peated instructions to refrain from so questioning any employees This testimony by Groff implies that repeated restraints were needed to ensure that he did not question employees as to their support for the Union It seems un likely that a field superintendent would have been sub jected to being told over and over what he was not to do I find Groff's account improbable Frank Sr also has denied talking to employees about the Union He testified that he did not know anything about the Union until he happened to overhear two em ployees talking about the Union outside his office and that he laughed over it He further testified that when the Union soon after made its demand for recognition Frank IV directed him as to what he could do concern ing the Union s campaign and that, on one occasion Frank IV iced him from discussing the Union Frank Sr related that on another occasion, union organizer Dressel introduced himself when he was at a nearby bar with his employees He testified that he and Dressel agreed not to talk to the employees that they would 301 have a good time instead, and that he Frank Sr put away 15 to 20 drinks The personality portrayed by Frank Sr s demeanor at the hearing was one of decisiveness and of strictly bust ness This portrait is entirely at odds with that conveyed by the account he gave-that of a convivial spirit with an enormous capacity for hard liquor His son Frank IV, is a young man who showed deference to his father It is hard to accept Frank Sr s account that his son iced him by an order he gave I credit Koerner s testimony, which seemed candid and direct Groff's questioning Koerner whether he signed a union card, his efforts to get Koerner to withdraw his support of the Union to be able to keep his job and Frank Sr s observation that Koerner was finished when he admitted he signed a union card constitute coercive interrogation and unlawful threats of discharge violative of Section 8(a)(1) of the Act See Fimco Inc, above C The Events of 1 August On 30 or 31 July, the Union had demanded that Re spondent recognize it as the representative of Respond ent s electricians On Friday afternoon, 1 August, the electricians reported to the Burlington office to turn in their timesheets and to get their paychecks from Frank Sr, in accordance with regular procedures The General Counsel presented four witnesses who testified as to what occurred that afternoon James Koerner testified that the electricians were called into Groff's office one by one and that when he went in Groff told him that he was in deep trouble before sending him to Frank Sr s office Alleged discriminatee John Oliver testified that the electricians entered Groffs office one at a time He relat ed that in his turn Groff told him that he has to ask Oliver something and then asked if Oliver had signed a card for the Union Oliver testified that he answered, yep and that Groff then shook his head and said that all the Union would do was to take his money Alleged discrimmatee Galati testified as follows He entered Groff s office when Oliver left it Groff leaned forward and asked between you and I if he had signed a union card Galati s response was that the only thing that matters to him is that he works steady Groff told him that that was good and that he could go to Frank Sr s office to pick up his paycheck While talking with Groff, Galati noticed that there was a sheet of paper on Groff 's desk that had two columns one headed Yes the other No " Koerner s name and Oliver s name were in the Yes column Galati s name was put in the No column Theodore Sutherland, an electrician, gave testimony as follows He was about the last employee to enter Groff's office that day He asked Groff if there was anything wrong Groff told him there was a little problem and then asked Sutherland if he had signed a union card Sutherland replied by asking Groff to wait a minute as he had a gripe to bring up He told Groff that a laborer on his jobsite was giving him, an electrician orders as to how he should do his job and that the laborer had threatened to fire him Sutherland told Groff that he had 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signed a union card because he felt a union was needed when a laborer can fire an electrician Groff then called Lance Lott into his office and asked Sutherland to repeat his gripe Sutherland did so Lance Lott shook his head and left Groff then asked Sutherland if he still would have signed the union card if Groff straightened out the matter Sutherland responded that he would not Groff told him to get his check and that he would see Suther land on Monday As noted above, Groff denied questioning any employ ee about the Union In a prehearing affidavit taken by the General Counsel during the administrative investigation of the underlying unfair labor practice charges, one of the discrimmatees referred to having gone to a restaurant for dinner in early 1987 with the Union s organizer, two other discri minatees and the wives of all four men Respondent sug gests in its brief that two of the General Counsels wit nesses in their discussions with Groff on 1 August, had sought to conceal that restaurant meeting and hence should not be credited I am not persuaded that Koerner, Galati, Oliver, or Sutherland concocted then the ac counts they gave at the hearing before me Obviously, their accounts were not restatements of each other s tes timony Rather, the accounts they related appeared to be consistent with their respective personalities and it seems unlikely that they were invented for purposes of the hearing I note also that Lance Lott was not called by Respondent to controvert Sutherland s testimony, I find the accounts given by the General Counsel s witnesses believable and I credit them over Groff's denials Groff's statement to Koerner that he was in deep trouble, in context with the telephone conversations Koerner had earlier with Groff and Frank Sr as re counted above constituted a threat that he would be subjected to reprisals because he supported the Union and Respondent thereby violated Section 8(a)(1) of the Act See Algreco Sportswear Co, 271 NLRB 499 507 (1984) Groff's methodical questioning of employees regarding support for the Union in connection with the inducement to Sutherland to withdraw his union card by implying that his problem with a laborer at the Totowa jobsite would be resolved and in relation also to the events im mediately following as discussed in the next subsection, constitutes coercive questioning violative of Section 8(a)(1) See Koons Ford of Annapolis 282 NLRB 506 (1986) The implied inducement contained in Groff's comments to Sutherland violates Section 8(a)(1) as Re spondent thereby sought his withdrawal of his union card See Daniels Cadillac 270 NLRB 466 470 (1984) Groff's asking Sutherland whether he would continue to support the Union if his gripe was resolved constitutes a promise to adjust a grievance to dissipate support for the Union and thus violated Section 8(a)(1) The General Counsel presented three witnesses who testified regarding statements made later that afternoon by Frank Sr and by Frank IV Vito Galati testified that after he left Groff's office, he went to Frank Sr s office He waited outside while Oliver was with Frank Sr 4 Galati testified further that Frank Sr told him, when he went in, that he did not want a union and that Frank IV then said that Respond ent would close its doors before it would have a union Theodore Sutherland a journeyman electrician, tests feed as follows regarding his discussion with the Lotts after he left Groff's office that day When he got to Frank Sr s office he saw about nine other persons there Frank Sr stated that he did not need a union At that point Frank IV said that before the Union takes over they will close down and open up again and that anyone who signs a union card will be left out in the rain Frank Senior said in a very hostile voice that he would die before the Union takes his Company from him Frank Sr mentioned all the negative things about a union Suther and had a vague recollection that one of the employees present wanted to see something on paper but could not be more specific as he was then thinking about whether he was going to support the Union Mark Seltner, an electrician apprentice , gave the fol lowing account Because it was getting late, a group of employees including himself was let into Frank Sr s office Frank Senior said that the Union could not do any good and asked anyone to step forward if he could show that the Union could be a benefit No one an swered As the employees were filing out, he (Seltner) asked Frank Senior if he could talk to him He told Frank Senior that he had signed a union card Senior re plied that he knew he had and he knew everybody that signed a card Seltner then asked Frank Senior if he could prove that the Union would not be a benefit to the employees Frank Senior said he could Frank Senior handed Seltner a copy of union bylaws and told him to read it Frank Senior began discussing how he was look ing forward to bigger and better jobs Frank Senior was then holding Seltner s apprenticeship papers in his hand and said as he was sitting down, that 2 weeks ago he was sure of sending them, but now he was not sure if he would send them He asked Seltner to tell him what he should do Seltner told him he wanted the papers sent so that he could complete his apprenticeship Frank Senior stated that he had gotten good reports of Seltner s work and that with a promotion Seltner would not have to serve a full 4 year apprenticeship as he could get credit based on his experience Frank Senior said that all Seltner had to do to be sure the apprentice papers are sent in is to get back his union card Frank Sr offered to help him do that if he ran into any difficulty getting the card back Frank Senior told Seltner that he has to be either for him or against him and that he (Frank Senior) cannot take care of anyone who is not for him For the reasons noted above I am not disposed to credit Frank Sr s denials of the accounts proffered by the General Counsels witnesses Nor do the efforts of Frank IV impress, respecting his ordering and directing his father during the Union s campaign More than once Frank IV testified that he took command of the situation 4 Galati testified that he overheard part of the discussion that Frank Senior had with Oliver However Oliver was not asked about that dis cussion and did not refer to it in the course of testifying before me I give no weight to Galati s account as to what he may have overheard LOTT S ELECTRIC CO 303 and each time he made that assertion it became weaker I credit the testimony offered by the General Counsel s witnesses The credited evidence establishes that Respondent, on 1 August threatened to close its operations and threat ened to discharge employees to discourage support for the Union and pressured Sutherland to withdraw his union card by threatening to withhold the processing of his apprenticeship papers These acts constitute violations of Section 8(a)(1) of the Act See Daniels Cadillac, above See also Delta Data Systems Corp, 279 NLRB 1284 (1986) D Alleged Threat at the Somerville Jobsite From a sequential standpoint , it is noted that, on 4 August, the Union filed its petition in Case 22-RC-9663 and that, on 14 August , an agreement to hold an election on 19 September among Respondents electricians was approved Galati testified that, while he and another electrician Joseph Okomski , were working at a jobsite in Somerville in August they were visited by Field Superintendent Groff, who spoke to them , and that he out of the blue then said that he hoped this union thing don t go through because if it does they 11 close the doors ' Okomski testified for Respondent about the circum stances under which he had signed a union card, as dis cussed later, but made no reference to the incident relat ed by Galati As noted earlier, Groff has denied engaging in any co ercive conduct Galati s account was given in a forthright manner and I credit it Respondent, through Groff, informed these employees that it will close its operations if the employ ees choose the Union to represent them Respondent thereby has violated Section 8(a)(1) of the Act E Alleged Incident on 15 August Seltner, the electrician apprentice testified that on Friday, 8 August he was at the Burlington office to get his paycheck and that Frank Sr was not there as he was on vacation Seltner testified that on 15 August when he went in to pick up his paycheck, Frank Sr told some one there to close the door and then asked Seltner if he had something to tell him Seltner testified that he told Frank Sr that he did not have a chance to do anything and that Frank Sr then handed him a slip with the tele phone number of the National Labor Relations Board on it He told Seltner that he should call that number if he has any trouble getting it back I credit Seltner s account over Frank Sr s denials as previously discussed It is ob vious that Frank Sr was referring to the union authors zation card that Seltner had signed and that Frank Sr had discussed with him 2 weeks before I therefore find that Respondent again unlawfully encouraged Seltner to withdraw his support for the Union and thereby violated Section 8(a)(1) of the Act F Alleged Coercive Conduct About 29 August Joseph Carluccio , an electrician testified for the Gen eral Counsel that on a Friday about 3 weeks before the election scheduled then for 19 September, Field Superin tendent Groff said to him that he could not understand why any of Respondents electricians would want the Union in view of the money they are paid Carluccio tes tified that he told Groff that the life expectancy of an electrician with Respondent was only about a year and that Groff then stated that the election would be no problem because, if it went yes, they would just close the doors and open up under the name of Gauntt Elec tric (As noted in fn 3 above Respondent and Gauntt Construction Co Inc are a single employer ) I credit Carluccio s account It was vivid and plausible In the overall context of Groff's comment, his interro gation of Carluccio violated Section 8(a)(1) See Missis sippi Chemical Corp, 280 NLRB 413 (1986) Groff's threat of a closedown also violated Section 8 (a)(1) Fur ther his asking Carluccio why anyone would want the Union was reasonably calculated to elicit a response and Respondent thereby unlawfully solicited grievances See Fimco Inc, 282 NLRB 653 (1987) G Alleged Threat in Early September Koerner testified that Groff in telephone discussions with him regarding progress of the Totowa job, repeat edly made references to the efforts of the employees to organize and that, on one occasion about 2 or 3 weeks before the election, Groff expressed total confidence that the employees would reject the Union and also said that it would not make any difference if they did not as Re spondent could always shut its doors I understand the import of Koerner s account to be that he could not dis tinguish any of the several telephone discussions he had with Groff about the Union and that he was relating the tenor of Groff's remarks Koerner s account was obvi ously not given in a rote like manner, but came across as one that accurately reflected his best recollection I credit it and find that Respondent, by Groff's statements, unlawfully threatened to closedown its operations, in violation of Section 8(a)(1) of the Act H The Vote No Buttons Carluccio, who testified for the General Counsel, as noted earlier also testified as follows respecting Re spondent s use of Vote No" buttons before the election Two days before the election Groff came to a jobsite at the Naval Yard in Philadelphia where Carluccio was working, and handed him a Vote No button that he had taken from a brown bag Carluccio put the button on his shirt Nine other electricians there wore Vote No buttons that day All were directed to leave work early and to go to the Burlington office A movie about unions was shown there All the electricians there, except one were wearing the Vote No buttons Koerner and Oliver were not present Seltner s account respecting the wearing of those but tons is as follows He was released from work early that day and ordered to report to Burlington On his arrival he saw his foreman, Dave Reed take a Vote No" button from Groff, who was standing outside the build ing Reed put the button on his hat Seltner told Groff that he did not want one After having watched the 304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD movie, coffee and cake was served Frank IV and Lance Lott asked him how he stood with the Union Their mother also was present and she asked him where his button was He answered that he did not wear one Galati also testified as to having been present for that movie He related that Groff had been standing outside the building handing out Vote No buttons and that he walked by Groff without taking one He testified that just about everyone there was wearing the buttons except for himself, Seltner, Steve Busch, and Barry Galczynski David Reed, an electrical foreman, testified for Re spondent that he observed Groff in the parking lot that day wearing a Vote No button, but did not see Groff handing out any buttons Reed did not directly contro vert Seltner s testimony that he Reed took a Vote No button from Groff and put it on his hat Groff testified that he saw the buttons for the first time when Frank IV brought them in and told him that if the employees want them, they can have them, but that he was under no circumstances to offer them the buttons or to give the buttons out Groff testified that Frank IV gave him those directions on a daily basis and he denied ever asking any employee to wear a Vote No button Frank IV testified that he did not know whether he was going to give out the buttons, but that when he put one on himself it caught on and everyone kept asking [him] for one in the office That was when [he] decided to use them in the campaign He testified that he then removed the buttons from his desk drawer and put them in a cardboard box in the office He testified that he in structed Groff a hundred times that he was not to offer them to employees In seems unlikely that the wearing of the buttons caught on, as Frank IV related, after he had been wearing one Groff did not testify that that was how he first noticed the buttons and yet he works alongside Frank IV at Burlington Even more significantly, a person of Groft's intelligence would not have to be told a hundred times not to hand out the buttons I do not credit their accounts Nor do I credit Reed's It seems likely that he wore a Vote No button as he was a fore man and yet he proffered no explanation as to how he may have gotten it I credit Seltner s account of how he got it I also credit the accounts of Carluccio and Galati as set out above, that Groff was handing out Vote No' buttons to employees In Kurz Kasch 239 NLRB 1044 (1978) the Board stated It is well established that an employers request, during an election campaign, that an employee wear a vote no" button or other pro employer insignia constitutes a form of interrogation because, by agreeing or refusing to wear the button, the em ployee is forced into an open declaration either for or against the Union The Board has however, held that an employer can lawfully make Vote No' buttons available to employees if they ask for them and also that an isolated playful ges ture by a supervisor in pinning a button on an employee for a brief moment is not violative of the Act See Wm T Burnett & Co, 273 NLRB 1084 (1984), and cases dis cussed therein at 1093 The evidence before me established that Respondent did much more than simply make Vote No buttons available They were distributed by Groff to employees just prior to their having reported, as directed, to Re spondent s facility where they were shown a campaign movie These circumstances place Respondents distribu tion of the buttons well within the scope of the holding in Kurz Kasch, above and I thus find that Respondent, in handing out the buttons to its employees engaged in co ercive interrogation in violation of Section 8(a)(1) of the Act I Alleged Violations at Perro s Bar On payday each Friday, many of the electricians went to Perro s a bar three blocks distant from Respondent s office in Burlington where they cashed their checks and had a few beers ' The General Counsel contends that on 22 August and on five other Friday evenings at Perro s the electricians were subjected by Respondent to coercive interrogation, unlawful threats, and other con duct violative of the Act Galati testified for the General Counsel that, on 22 August Frank IV came to Galati s table at Perro s and that Frank IV then said that he was trying to get a 100 percent vote Galati s account continued as follows Frank IV stated that he respected Koerner for his opin ion in standing up for the Union Frank IV said that many times a company is not aware of problems until something like this comes along and that they would, after it was over, start taking more care of its employees Koerner mentioned to Frank IV that the foremen should get more pay than the electricians he works with Frank IV said that he did not realize that was really a big prob lem Koerner told Frank IV that he has got to be kid ding" When Frank IV wanted to know why Koerner had not brought that matter to his attention before, Koerner told him that, whenever anyone goes into the office, he gets hollered at and that Frank Sr would fire any employee who complained Frank IV said that he did not realize that they were overlooking things like that and that in the future job foremen would be paid more and that they would look into starting our own little union over there because we didn t need the electn cal union of course after the election was over with Frank IV said regarding pension and other bene fits that Respondent would look into them and probably the employees could get them Koerner testified for the General Counsel as follows On a Friday in early August, he saw the Lotts and Groff at Perro s for the first time Frank IV stated then that Respondent was an up and growing company with an open door policy so that anytime there was a problem anyone could come in to discuss it Koerner asked him why medical benefits were taken out of their pay before and not after taxes Frank IV said that the paperwork was too involved for them to do otherwise Koerner asked him why foremen were not paid more money LOTT S ELECTRIC CO Frank IV said that the pay was high as mandated by the State and that he could not afford to pay more There was talk also about a pension plan that had once been in existence Frank IV said that there had been complaints about the plan and that the plan was discontinued, but that wasn t to stop it in the future if [the employ ees] wanted to get involved in a pension plan or some thing else The General Counsels brief cites the testimony given by Galati and Koerner to support the allegations in para graph 17 of the amended complaint, which recites that Respondent on 22 August through Frank IV at Perro s promised pension and other benefits and higher wages for foremen if they refrained from choosing the Union as their collective bargaining representative Although Ga lati s and Koerner s accounts may not be clearly at van ance regarding alleged promise of pension benefits, they do conflict as to the alleged promise of higher wages for foremen I note that Koerner s testimony is that the inci dent he referred to took place about 1 August and that Galati is quite clear that the incident he related occurred on 22 August It may well be that they were testifying to two separate incidents Regardless of any speculation the point is that the General Counsel proffered their ac counts in support of the allegations of paragraph 17 and that the General Counsel has the burden of persuasion that those allegations are more probably true than Re spondent s denials thereof Because of the variances be tween the accounts of Galati and Koerner, I find that the General Counsel has not met her burden Galati testified that on Friday 29 August, while he was at Perro's, Frank IV approached him and said he wanted to talk to him Galati related their discussions then as follows Frank IV told him he was puzzled as to how he, Galati, was going to vote He asked Galati if he would come out of the closet and wear a Vote No" button Galati responded that he did not want to do that Frank IV asked for his reason Galati told him he did not want to discuss his personal views Frank IV said that the way Respondent got it Galati was a union activist and that was why he had been moved to Bordentown Galati asked him for the name of the person who said he was a union activist Frank IV named his foreman, Billy Meyers Galati said that Meyers was not even present when he and other employees discussed the Union and that all he Galati, did then was to try to answer some of the questions they had regarding advantages and disad vantages of the Union Galati admitted then that he had signed a card for the Union and told Frank IV that even if the Union lost, he could get work through the Union Frank IV said that it would not do the employees any good to go for the Union as Respondent will fight it to the last penny Frank IV began slamming his fist down on the bar and said that Respondent would close down before the Union would get in I credit Galati s testimony The interrogation by Frank IV was coercive as the circumstances include an asser tion by Respondent that Galati had been transferred to Bordentown because he was perceived to be a union sup porter, a statement indicating that it would be a futile act to support the Union and a threat to close because of the 305 Union By these acts Respondent has violated Section 8(a)(1) John Oliver testified for the General Counsel that, on 5 September, he talked with Frank IV at Perro s His ac count follows He asked Frank IV what he thought about all this union business Frank IV replied that he was not happy with it Oliver asked what he thought about the company going union Frank IV said that he would think about it but always the option of closing [his] shop down Koerner testified that about a week or two before the election while he was in Perro s with John Oliver and Groff, he (Koerner) asked Frank IV what would happen if the vote did go yes and that Frank IV replied that he could always shut the doors I credit the substance of their accounts over the denial thereof by Frank IV In essence, their accounts disclose that on about 5 September, when asked about Respond ent s reaction to a union victory Frank IV stated that Respondent could close its plant The variations in their accounts regarding which one asked Frank IV is not critical The minor variations noted are likely reflective of the personal impact on each that the answer of Frank IV had and hence would thereby enhance, rather than detract from, the credibility of their testimony In Rain Ware Inc 263 NLRB 50 54 (1982), enfd 732 F 2d 1349, 1356 at fn 9 (7th Cir 1984), a similar minor discrepancy respecting two accounts of a threat to close was held to be no basis to discredit those accounts Further that case held that as the asserted threat was not made based on a business judgment, but was stated as a response in the context of an organizational effort, it was held violative of Section 8(a)(1) of the Act For the same reason, I find that Frank IV s answer was violative of Section 8(a)(1) The complaint alleges, at paragraph 24, that Respond ent, on 19 September at Perro s created the impression among its employees that it kept their union activities under surveillance In support thereof the General Counsel submitted the testimony of two employees, Oliver and Carluccio, that Frank IV told them then that he knew which of the employees voted for the Union and proceeded to state the names of 10 employees The tally of ballots at the election held in Case 22- RC-9663 shows that nine employees cast votes for the Union In addition Respondent challenged the ballot of another As discussed further below the General Coun sel submitted in evidence 17 union authorization cards signed by Respondents employees all dated prior to the holding of the election One of General Counsels wit nesses, Oliver, stated that a number of these 17 had told him that they had since changed their minds, Oliver speculated that Frank IV based his knowledge on the re sults of the interrogation of employees conducted in August by Groff as to their support for the Union There is no suggestion by the General Counsel that Respondent indicated to Oliver or Carluccio that it had arranged somehow to watch how the employees marked their ballots when they voted in secret The evidence of fered appears to show that Respondent, by reason of its questioning of employees as discussed above, drew con clusions as to their feelings about the Union which con 306 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD clusions were in accord with the views of Oliver and Carluccio That evidence would disclose to employees the efficiency of the interrogations The fact that Re spondent, in the eyes of the employees, conducted direct inquiries as to the union support would tend to negate an inference that it also had secretly surveilled their union activities Had there been no evidence of direct and in tensive interrogations in this case the statement by Frank IV on 19 September would have unlawfully con veyed that impression of surveillance Cf Wilco Business Forms, 280 NLRB 1336 (1985) 5 The General Counsel alleges that Frank Sr, on 26 September at Perro s, threatened employees with repris als to discourage them from supporting the Union and told them that it was futile for them to support the Union Koerner testified as follows respecting these alle gations He congratulated Frank Senior on his victory Frank Senior responded by asking what he was still doing here ' When Koerner asked what he meant by that remark, Frank Senior responded that he thought Koerner would now be with the Union and said that Koerner should do him a favor and with the other nine assholes just leave Koerner told him he will leave when he is ready and will give Frank Senior fair notice Frank Senior said that Koerner's life expectancy with Respondent was nil and that as long as there was a breath of air in his lungs and a penny in his pocket, there would never be a union in his Company I credit Koerner s account over Frank Senior' s denial The statements he attributed to Frank Senior are entirely consistent with the forceful personality exhibited by Frank Senior The credited evidence establishes that Re spondent by Frank Sr violated Section 8(a)(1) on 26 September by, in substance, stating that it was futile for the employees to support the Union and in pointing to those supported the Union as objects of his anger par ticularly Koerner, threatened them with reprisals See Rood Industries, 278 NLRB 160 (1986) The last allegation in the complaint regarding coercive conduct engaged in by Respondent at Perro s is that on 17 October Frank IV informed employees that they had been transferred to different jobsites because they sup ported the Union Oliver testified as follows relative to this allegation Frank IV came over to his table where he was sitting with several coworkers, and said he wanted to talk about work He Oliver, complained about the foremen Respondent has Frank IV asked him why he does not quit Frank IV told Oliver that he had been given the job he was on because he got involved with the Union That jobsite required Oliver to drive for 2 1/2 hours every day Frank IV told him that he could be sent further too" I credit Oliver s account and find that Frank IV's re marks were violative of Section 8(a)(1) See Cardivan Co 271 NLRB 563 (1984) 5 The General Counsel alleged that Respondent had also created the impression that it engaged in surveillance when Frank Sr told Selmer that he knew that Seltner and others had signed a union card and he knew who the others were I find no merit in that allegation for the same reason I find none here J Alleged Discriminatory Job Transfers The General Counsel alleges that Respondent trans ferred John Oliver and Vito Galati to different jobsites because they supported the Union Oliver signed a union authorization card on 5 March while he was working at a jobsite in Somerset On 1 August, as found above, he acknowledged to Respond ent s field superintendent, Groff when Groff asked him that he had signed a union card In August, he was trans ferred to a jobsite located in Totowa, New Jersey, ap proximately twice as far as Somerset is from his home in Burlington Also as found above, Frank IV told him after the election while urging him to quit, that he had been transferred to Totowa because he supported the Union and that he may even be assigned to more distant locations Respondent submitted no specific evidence regarding the transfer of Oliver to the Totowa jobsite It did con test the veracity of his testimony as discussed above There is evidence before me that Respondent has effect ed transfers between its jobsites as needs arose The evidence submitted by the General Counsel re garding transfer to Totowa sets out a strong prima facie showing of discriminatory motive, especially in view of Frank IV s clear statement thereon Respondent has not shown it would have selected him for that transfer, absent his union activity In view of the unrebutted showing that Oliver was transferred because of his sup port for the Union, I find that Respondent thereby, in violation of Section 8(a)(1) and (3) of the Act discrimi nated against him to discourage its employees from sup porting the Union Cf Woodhne Motor Freight, 278 NLRB 1141 (1986) Vito Galati signed an authorization card for the Union on 21 May He was then working for Respondent in Somerset New Jersey As found above Galati when asked by Groff told him that he had not signed a union card In July Groff visited the Somerset jobsite Accord ing to Galati s testimony, which I credit, Groff appeared upset because an order for materials that he had placed had not been filled and one of the employees suggested that he Groff might want to sign a union card like the rest of us On 1 August as noted above Galati told Groff that he had not signed a union card Groff record ed Galati on a sheet as one who did not support the Union Toward the end of August, Galati was assigned to a jobsite at the Philadelphia naval yard That transfer is not alleged as unlawful the naval yard is only 15 min utes from Galati s home Galati testified that during the week he worked there several other electricians asked him about the Union and discussed it with him in general terms According to Galati, Groff, while checking the jobsite 2 days later, made a remark to Galati regarding his talking the shit [he] was talking The next day Groff transferred him to a jobsite in Bordentown New Jersey approximately a 2 hour drive from Galati's home Galati was the only electrician working on the naval yard jobsite at that location Galati testified further that, in September while he was at Perro s, Frank IV told him that he was puzzled as to how he would vote and that, when Galati told him he did not want to discuss his LOTT S ELECTRIC CO 307 personal views, Frank IV stated that the foremen on the Philadelphia job identified him as a union activist and that was why he, Galati, was moved to Bordentown I credit Galati s detailed account and find, based on es sentially the same rationale as that set out above in dis cussing Oliver s transfer that Galati was transferred to Bordentown for discriminatory reasons in violation of Section 8(a)(1) and (3) of the Act K Seltner's 5 day Suspension The complaint alleges that Respondent discnminaton ly suspended Mark Seltner for 5 days Seltner s testimony, discussed in part above and now recounted further insofar as it pertains to this allegation, is as follows He began working for Respondent in April as an electrical apprentice On 25 July he signed a union card while working at a jobsite, referred to as Wilson Homes On 1 August, he had questioned Frank Senior s statement about the Union Respondent made repeated efforts to induce him to withdraw his union card, includ ing an implied threat that it would not process his ap prenticeship application until he did so In September, he refused to wear a Vote No button proffered to him by Field Superintendent Groff He was reasssigned to the Wilson Homes jobsite in early October The foreman at that jobsite then was Alan Stout Stout had helped Seltner get his job with Respondent On the second day after Seltner had returned to Wilson Homes, Stout told him that he was not working fast enough Seltner replied that the other electricians had built up their speed as they were doing the same type work for about a month and that he would build up speed too Another employee Koerner, testified that, about this same time, he happened to overhear Field Superintend ent Groff talking to Stout at the Burlington facility and that he heard Groff tell Stout then that he would force Seltner to quit On 24 October Seltner wore a T shirt to work It had an IBEW emblem on it Seltner also hung up an IBEW poster Stout told him that he did not want him to wear that T shirt again Stout threw the IBEW poster into the trash receptacle Stout told Seltner that he, Seltner, was making him look bad and he told Seltner that he should quit On the following Monday, 28 October Seltner was ill and telephoned to report that he would not be able to work On the next day he reported for work Stout sent him home early as he was still sick Seltner had obtained permission earlier from Stout to be absent from work on 30 October to go to a church retreat On 2 November, Stout informed him that he was sus pended because he was absent and because his work was too slow Stout did not testify I credit Seltner's account and also Koerner's testimony as to his having overheard the discussion Groff had with Stout Seltner was suspended the week of 3-7 November On payday, he asked Frank Sr why he had been suspended Frank Sr replied that he had not called in 1 day Seltner told him that he did call in Frank Sr told him that his work was too slow and that he cannot `get along with the guys Seltner told him that the only one he has a problem with is Stout Frank Senior told him that he, Seltner, would have to see Stout The testimony of Theodore Sutherland established that Groff informed employees in August that Respondent would give a warning to an employee for not calling in to report that he would be absent or for reporting to work late-that a second violation would result in a week s suspension, and that a third violation would result in discharge The credited evidence reveals that Seltner was an open supporter of the Union who had been expressly named by Frank IV as a union supporter and that Re spondent had made repeated vain efforts to effect a change in his position Seltner continued to show his support for the Union, even after it lost the election The timing of his suspension, a week after he wore an IBEW shirt while at work, his exhibiting a union poster there, and his foremen s annoyance at him for these actions are factors to be given weight in determining the issue of discriminatory motive The evidence of independent union animus exhibited by Respondent is significant Seltner s testimony as to his discussion with Frank Senior and the fact that the progressive disciplinary policy announced in August by Groff was not followed point up the pretextual nature of the reasons given by Respondent to Seltner for suspending him These factors together set out a strong prima facie case supporting the complaint allegation Cf Postal Service, 270 NLRB 896, 907 (1984) Respondent has not sustained its burden of showing that Seltner, notwithstanding, would still have been suspended on 3 November Accordingly, I find that the General Counsel has proven that Seltner was sus pended for a week in retaliation for his having engaged in activities supporting the Union L The Discharges The General Counsel contends that Respondent discn minatonly terminated the employment of six employees because they had supported the Union and that it did so in the guise of selecting four of them for layoff treating the fifth as one who had quit, and asserting various grounds to discharge the sixth Respondents position is that it based the selection of four employees for layoff solely on nondiscriminatory criteria, that the fifth did indeed quit and that the sixth was discharged for valid reasons 6 6 The General Counsel s brief argues that a statement made by a unit employee William Meyers to alleged discriminatee Galati to the effect that Frank Sr would get rid of troublemakers over a period of time after the election is an admission against interest by Respondent Meyers was Respondents observer at the election and is classified as a foreman a nonsupervisory position The General Counsels argument is based essen tially on a statement by Frank IV to Galati that he told Galati that Meyers had informed him as to Galati s union activity and that Meyers was acting in Respondents interest in doing so The difficulty I have with the General Counsels reasoning is that it charges Respondent with holding Meyers out to employees as its agent so that Meyers could reveal to them the very pretext it would use to conceal its unlawful motive The General Counsels reliance on Fzmco Inc above is misplaced as there the leadman agent was relaying direct orders and was not as the General Counsel urges here purporting to reveal a planned pretext That is not to say that Meyers remarks would not constitute an unlawful threat Cf Continued 308 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The four laid off employees are Joseph Carluccio, James Koerner, Barry Galczynski, and Mark Seltner Their layoffs are discussed next and are followed by dis cussions regarding terminations of the other two alleged discriminatees, John Oliver and Vito Galati Joseph Carluccio Carluccio, an electrician, began working for Respond ent in June He was the first of the alleged discriminatees to be laid off He had signed an authorization card for the Union on 26 June As found above, Respondent's field superintend ent Groff had asked him why any employee would want the Union and, when Carluccio in substance told him that the employees were concerned with job security, Groff threatened that Respondent would close its doors if they voted for the Union Also as found above, Frank IV had, on the night of 19 September, named Carluccio and others as the employees who supported the Union The circumstances of Carluccio s layoff are as follows He had received work assignments for only 3 of the days in the week 6-10 October, Groff told him that there was not enough work On 10 October, Groff told him that he was to report to a jobsite in Totowa on Monday, 13 Oc tober On the evening of 10 October at Perro s bar, Car luccio talked with Lance Lott, Respondents vice presi dent and one of its co owners According to Carluccio they talked about his prospects for continued employ ment with Respondent Carluccio quoted Lance Lott as having told him that he should have known better than to have voted for the Union On Saturday I1 October, Groff telephoned Carluccio to tell him not to report for work Carluccio was also told then to call Groff every day He telephoned Monday and Tuesday, 13 and 14 October and was told each time that there was no work He did not call there after and has not worked for Respondent since About 3 weeks later according to Carluccio, he met Lance Lott at Perro s and Lance Lott told him then that he had a future with Respondent but was not loyal like [his] brother Carluccio has a brother Victor, who is em ployed by Respondent as an estimator Lance Lott did not testify I credit Carluccio s uncon troverted testimony regarding his conversations with Lance Lott The credited evidence in this case establishes that Car luccio supported the Union, that he had been named by Frank IV as one of the employees who had voted for the Union, that his last work assignment was suddenly can celed and that Lance Lott told him that he was not loyal and should have known better than to have supported the Union Those factors and the other evidence of union animus on Respondents part make out a prima facie showing tht Carluccio s layoff was discriminatorily moti vated Thus I find that the General Counsel has met her burden as set out in NLRB v Transportation Management Corp 462 U S 393 (1983) and that the burden shifted to Futuramik Industries 279 NLRB 185 (1986) The amended complaint however does not allege that Meyers acted for Respondent in the com mission of any independent violation of the Act Respondent to demonstrate that it would have laid Car luccio off even absent his support for the Union Frank Senior testified regarding the procedure he fol lowed in determining manpower needs in October the reasons certain employees were laid off, and the criteria therefore He did not testify as to Carluccio s layoff, al though he did refer to a document in evidence that he prepared and that indicates no work assignments were scheduled for Carluccio since early October Frank Senior testified that Frank IV also was involved in re viewing that document He testified that Frank IV wanted to know everything about the job assignments and that Frank IV s requests boiled down to minority situations, foremen situations, apprenticeship situations and our assistant foremen programs " Frank IV testified that Carluccio s layoff was based purely on seniority There is nothing in Frank Senior s testimony to indicate that seniority was a factor in his decision to lay off Carluccio For that matter his ac count as to that nature of Frank IV s inquiries indicates that Frank IV was concerned with aspects other than se niority Suffice it to say that Respondent has offered no proba tive evidence to demonstrate that it would have laid off Carluccio, absent his union activities Nevertheless the General Counsel in her brief, examines the grounds cited by Frank Senior as the basis for his layoff decision Respecting the reference to minority situation, Re spondent endeavored to show that Frank Senior in se lecting employees for layoff, took into account Govern ment affirmative action guidelines presumably to ensure that minority employees were not laid off However, the individual it designated as its affirmative action officer acknowledged that Respondent had no affirmative action plan and that he had no knowledge of Title 7 or of EEOC Further, Respondent did lay off a black employ ee and classified a Caucasian as a minority employee be cause he is a Canadian citizen Frank Senior s account indicates that he also sought to protect apprentices from layoff As discussed below, however, one of the alleged laid off discriminatees was an apprentice As to Frank Sr s reference to an assist ant foreman program, Frank IV acknowledged that Re spondent has never promulgated any such program and that the program consists simply of his making value judgments as to which employee should be designated to fill in occasionally for an absent foreman The evidence proffered by Respondent in support of its efforts to rebut the General Counsels case are so in substantial, contradictory confused and unsupported that they instead buttress the General Counsels showing See Williams Motor Transfer 284 NLRB 1496 (1987), in which the Board stated that the unsupported reasons of fered by the employer there provide additional support for the General Counsels contention To the same effect see Thriftway Supermarket 276 NLRB 1450 1463 (1985), in which pretextual reasons for discharging an employee were held to warrant an inference that the discharge was unlawfully intended I find that Respondent selected Carluccio for layoff and laid him off, in violation of Section 8(a)(1) and (3) of LOTT S ELECTRIC CO the Act, in retaliation for his having supported the Union Mark Seltner As found above, Seltner had been discnminatonly sus pended for 5 days That suspension was scheduled to end on his being notified over the following weekend where to report on Monday, 10 November When he had re ceived no call over that weekend, he called Respondent's office on 10 November and got an assignment Seltner testified that, on 17 November, he and the other electricians finished their work assignments early and as they had done on similar occasions in the past, they packed their equipment and were ready to leave Seltner looked for the foreman, Stout, but did not find him Seltner left with several electricians and believed that all the other electricians also left work early that afternoon On 21 March, Stout told Seltner that he would have to sign a paper before he could get paid He was given a notice of dischplinary action Handwritten thereon as a note that he had left work one half hour early on 17 November without permission Seltner signed the notice According to Seltner, there was no further writing on the notice when he signed it However, when that notice was produced at the hear ing pursuant to a subpoena issued by the General Coun sel, the following entries had later been added to it Ralph Groff wrote a recommendation that Seltner should be laid off for being too slow and undependable Frank Sr wrote on it that the layoff was permanent, that this was Seltner s third offense, and that Seltner seemed not to care or to be willing to correct his problems Despite that note, purportedly made by Frank Sr on 17 November, Seltner continued to work at the Wilson Homes jobsite until about mid December He received a call from his foreman, Stout, over a weekend that he was laid off Stout gave him no reason The Wilson Homes jobsite was not completed until 5 months later In the context of the many coercive acts committed by Respondent, including particularly the discriminatory suspension it had imposed on Seltner himself, the facts relating to his layoff support a clear finding that it was also discriminatorily motivated Thus the disciplinary notice was given him for leaving work one half hour early despite the evidence that it was customary for em ployees to leave early under similar conditions Further there appears to be no factual basis for Frank Sr s nota tion that this was Seltner s third offense The fact also that Seltner was not permanently laid off 17 November, as per Frank Senior s notation supports the fact that the notation was entered much later and as an afterthought on his part I therefore find that the General Counsel has established a prima facie case that Seltner was selected for layoff in mid December because he supported the Union I have discussed the evidence proffered by Respondent towards meeting its burden of showing that Seltner would have been laid off, absent his union activities, and for the reasons stated earlier that evidence buttresses the General Counsels case more than it gives any credence to Respondents contentions As Respondent has failed to meet its burden I find that it has in violation of Section 309 8(a)(1) and (3) of the Act, laid off Seltner in mid Decern ber because he supported the Union James Koerner and Barry Galczyski Koerner was laid off 18 October He was a very active union supporter, having served as its observer at the election and having distributed union authorization cards I have found that Koerner had been unlawfully interro gated and threatened, that he was told by Respondent he was finished because he supported the Union, that he was one of those employees who did not put on Vote No buttons distributed by Groff and that Frank IV had named him as one of the employees who voted for the Union Respecting the allegation that he was discnminatorily laid off, Koerner testified as follows Toward the end of October, Groff asked him when he would be going with the Union Koerner, obviously construing this as an in quiry as to when he would quit in order to seek job re ferrals from the Union s hiring halls, responded that he would do so when he was ready Later in that week, in a telephone discussion with Groff, he was told that he was laid off and that he should not call the office, but that Groff would get in touch with him when there was work for him Thereafter he never received a call to return to work even though the job on which he was working was only half finished Koerner s activity in support of the Union, Respond ent s obvious hostility towards him for having supported the Union, including Groffs remarks to him that he was finished with Respondent because of the Union, and the circumstances of his layoff, including the fact that work on his jobsite was but half finished, make out a prima facie showing that he was dtscnminatonly selected for layoff, as the General Counsel contends The rebuttal evidence submitted by Respondent does not aid its case at all At one point, it offered testimony that it was cited by the State of New Jersey for not having adequate minority representation among employ ees at the jobsite where Koerner was selected for layoff instead of another electrician in order that a racial bal ance among electricians there could be reached It devel oped, however, that the citation was issued 5 months before Koerner s layoff and that it referred to the com position of the laborers at the jobsite not the electricians Respondents brief states that Koerner engaged pur posefully in a constant effort to provoke and bait the Lotts and Groff [and after] the election he continued to carry on the union campaign pushing [Frank Senior] and pursuing him " If these observations are intended in any way to convey a contention that Koerner was select ed for layoff because he engaged in a conduct toward Frank Senior that was unprotected by the Act, I reject them as without basis in fact In sum I find that Respondent has offered no proba tive evidence to rebut the General Counsels prima facie case and thus conclude that Respondent violated Section 8(a)(1) and (3) of the Act by having laid off Koerner on 18 October 310 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Collaterally, at the hearing an issue arose whether Koerner was later offered employment with Respondent It came up in the following manner In the course of testifying, Koerner made a reference to his having received a telephone call from Groff the night before he testified Asked later in his testimony to state what that call was about, Koerner related that Groff had inquired as to the location of certain drawings that depicted where various pipes were located on the jobsite in Totowa According to Koerner, Groff told him that those drawings were needed by the State Koerner s testimony was that that subject was the topic of that tele phone call When Groff was called by Respondent he was asked if he had ever contacted Koerner about coming back to work and he replied that he did He was then asked to relate what he had said to Koerner about an offer Groff said, Well, before any of the you know, the guys were laid off, we had one job that was going, it was pretty steady and they were offered that job It was the Wilson Homes job in Trenton here Later in his testi mony, Groff stated that he called Koerner several times after Koerner had been laid off and that, in one of those calls he asked Koerner if he was available to come back to work Groff testified that Koerner replied he was not Groff said he could not recall when he had that discus sion Koerner s testimony is that Groff never made such inquiry of him Respondent also placed in evidence copies of its telephone bills, one of which lists a call on 18 October to Koerner's home telephone number I find Groff's account confusing and unconvincing Respondent does not contend that any of the alleged dis criminatees were offered work at Wilson Homes in lieu of being laid off or that any of the alleged discriminatees refused transfers there In any event Groff was purport ing to state what he said to Koerner regarding recalling him after Koerner was laid off In that context his answer was at best not responsive As to his further testi mony that he asked Koerner if he was available for work I am not clear whether this was supposed to have been said to Koerner in a telephone call made on 18 Oc tober or at some earlier or later time For that matter, that inquiry is not even a job offer but a question as to Koerner s availability In short I am not impressed with Groff's account I credit Koerner s testimony Barry Galczynski Galczynski did not testify before me He had signed a union authorization card did not wear one of the Vote No buttons distributed by Groff and had been identi feed by Frank IV as one of the employees who voted for the Union The General Counsel also notes that the record evidence discloses that Galczynski was selected for layoff with Koerner that Respondent had threatened to discharge any employee who supported the Union that the job on which Koerner and Galczynski were working was far from finished, that Respondent has se lected for layoff a clearly disproportionate number of employees who supported the Union, and that Respond ent s records indicate that it had newly hired electricians on its payroll Based on the foregoing considerations I find that the General Counsel has proved a prima facie violation as to Galczynski s layoff Cf Continental Radiator Corp 283 NLRB 234 (1987), in which the Board held that statisti cal evidence as well as evidence of unlawful motivation made out a prima facie case that the employer there un lawfully laid off those employees who refused to sign an antiunion petition The burden then devolved on Respondent to prove that nonetheless, Galczynski would have been laid off There is no probative evidence in the record that would support it in discharging that burden There are some vague statements made by Frank Senior respecting his selection of Galczynski for layoff, i e - his abilities were in the control facet I was not pleased with his pro duction but I needed him there so I [kept] him on until I got the Honeywell tests through and then he was due to go And they kept telling me they 11 test this week or, you know, that s how the projection laid out I find that Respondent has not shown that, absent Galczynski s support for the Union, it would have laid him off and thus I conclude that Respondent, in violation of Section 8(a)(1) and (3) of the Act, laid Galczynski off on 18 Oc tober because of his support for the Union John Oliver The General Counsel contends that Respondent discri minatorily terminated the employment of John Oliver on 4 November Respondent asserts that Oliver quit its employ then Oliver was the second most senior of Respondent s electricians and had never been laid off previously As found above Respondents president had asked Oliver on 17 October why he did not quit and told him then that he had been sent to the Totowa jobsite 2 1/2 hours away because he had gotten involved with the Union Oliver testified as follows concerning events in late October He had injured his knee and told Groff that he would not be able to work the last week of that month Groff told him that he would call him Oliver on the weekend to give him an assignment for the following week When Groff had not called by Sunday of that weekend Oliver called Groff's home four times that day leaving messages with Groff's wife that he was ready to return to work He did not hear from Groff Several days later, he telephoned Groff s home and, instead of identifying himself, he told Groff's wife that he was Bill Meyers, one of the electrical foremen Groff then came to the phone Oliver made a sarcastic reference to Groff as his buddy and wanted Groff to tell him when he would be going back to work Groff said that someone had said that he had quit Groff said he would talk to Frank Senior Oliver told him not to bother, that he wanted to work out of a union hiring hall Oliver testi feed that he never told anyone he had quit Groff testified for Respondent that he called Oliver after he Oliver had been laid off from work When asked to relate what he said then to Oliver, Groff testi feed The last time I talked to John was right before you know he told me he quit I tried calling him that weekend he was supposed to call me I as LOTT S ELECTRIC CO sumed on my own that he had quit I told my wife to accept calls only from Bill Meyers [Oliver] called using Meyers name and said he finally got through using somebody else s name [when he asked about work ing] I said I got to call Senior [he said he quit] Oliver s account is far more plausible Groff's testimo ny was confused, set forth no logical basis for his assum ing that Oliver had quit contains a far fetched reason as to why Oliver used Meyers name to get through to him and does not begin to explain why Oliver would ask for work, only to then state that he quit I credit Oliver's ac count Respondents case presented another issue for resolu tion Frank IV testified on his direct examination that after the election, Oliver told him that he was going to move to Florida and that he, Frank IV, urged Oliver to stay as he was a good electrician On cross examination, Frank IV stated that he had asked Oliver to come back to work He testified that this offer could have been [made] a month ago three months ago four months ago Oliver s account denies any such offer I do not credit Frank IV s account It is unlikely that Re spondent would have overlooked introducing such evi dence in its direct case and more unlikely that an offer that would have the effect of terminating any backpay period would have been made so casually so imprecise ly and without documentary corroboration The evidence credited above discloses that Respond ent, after having urged Oliver to quit as it was displeased with his having supported the Union stated without any factual basis that it assumed he had quit at a time when he was in fact waiting for Groff's call, and later tried vainly to reach Groff, who was not answering his calls In Atlas Truck Rental, 280 NLRB 54 (1986), the Board adopted a finding that an employee, who had been semi larly treated, had not quit but rather had been terminated in violation of Section 8(a)(1) and (3) of the Act I con clude that Respondents conduct toward Oliver in early November was equally violative Oliver s extemporane ous remark to Groff that Groff need not bother to con sult Frank Senior evidenced his exasperation at the earli er treatment he received after his years of service and cannot be said to be a waiver of his right to receive from Respondent an unconditional offer of reinstatement In that regard see Woodline Motor Freight, 278 NLRB 1141 fn 5 (1986) Vito Galati The last alleged discriminatee is Vito Galati As found above Galati had been discriminatorily transferred in August to a distant jobsite Galati was absent for several days in the last week he worked for Respondent He tes tified he had called Respondents office on 3 days and left messages in accordance with normal practice to advise that he was unable to work On the Friday of that week, he picked up his paycheck without incident On the following day, Groff telephoned him and told him that he was assigned to a Mount Holly plant Groff gave him directions there About 5 minutes later, according to Galati Groff called again and told him that the old 311 man said that he Galati was done because of Galati s absence The prior discrimination practiced against Galati, as found above, surfaced again in his discharge The reason given him was pretextual as the absences cited were in fact excused according to usual practice The circum stances of his layoff in context with the evidence consid ered above relating to the unlawful suspension Respond ent issued to him, warrant a finding that the General Counsel has established that Galati s discharge was prima facie discriminatorily motivated I turn now to the evi dence submitted by Respondent concerning its burden under the cases discussed above to show that Galati would have still been laid off Frank IV testified that Galati had been discharged be cause of habitual lateness, a lot of absenteesim Re spondent s witness, David Reed, a foreman, testified that Galati s work was substandard He also stated that while Galati was tardy a few times it was nothing substan tial Frank Sr testified that Galati was laid off for not doing some things a bunch of minor things [he] couldn t make it to work in the morning The evidence offered by Respondent is in fact contra dictory, lacks specifics and is unsupported by probative documentary material I thus find that Respondent has not met its burden and conclude that Galati was dis charged because he supported the Union and that Re spondent thereby violated Section 8(a)(1) and (3) of the Act IV THE OBJECTIONS The Union had filed objections to conduct affecting the results of the election held on 19 September and it withdrew all except Objections 2, 3, and 4 Those re maining objections alleged that Respondent threatened to cease operations if the vote went union that it distrib uted Vote No buttons to employees to ascertain their vote prior to the election, and that it threatened to dis charge prounion employees As those objections were the same or similar to certain of the complaint allega tions discussed above, they were consolidated for hear ing before me Having found above that Respondent did engage in the conduct as alleged in Objections 2, 3 and 4 I recom mend that they be sustained and that the results of the election be set aside V THE REQUEST FOR A GISSEL BARGAINING ORDER The complaint as amended at the hearing alleges that the Union has since 25 July, been designated by a major ity of employees in a unit comprised of All electricians employed by Respondent including job foremen, electricians and apprentices but ex cluding office clerical employees professional em ployees guards and supervisors as defined in the Act, and all other employees Respondent's amended answer admits that this unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act and that the 312 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Union on 31 July requested that Respondent recognize it as the reresentative of the employees in the unit Re spondent s answer places in issue the allegation that a majority of unit employees had selected the Union as bargaining agent then The complaint further alleges that the unfair labor practices committed by Respondent are of such charac ter as to warrant issuance of an order requiring Respond ent to bargain collectively with the Union and that Re spondent violated Section 8(a)(1) and (5) of the Act by having failed and refused to recognize and bargain with the Union since 31 July Respondent contends that, at best, a rerun election should be conducted The parties are in accord that as of 31 July, there were 29 employees in the above described unit There was dispute as to the placement of Ralph Groff whom Respondent would include and whom the General Coun sel and the Union would exclude as a supervisor As I have found that Groff was at all times a supervisor as de fined in Section 2(11) of the Act, I exclude him from the unit The General Counsel placed in evidence 17 authoriza tion cards signed by employees in that unit as of 31 July Respondent contends that four of those cards are invalid in determining whether the Union was designated as ma jority representative One of the unit employees John King signed an au thorization card for the Union on 9 May On 1 August he wrote the Union requesting the withdrawal of [his] application A second unit employee, Richard Gabrieli, who had signed a union card on 1 May, sent the Union a similar letter on 4 August As found above, Respondents field superintendent Groff had unlawfully interrogated and threatened certain unit employees in June and July On 1 August Groff again unlawfully interrogated employees after they lined up outside his office to turn in their timesheets and Frank Senior that same evening threatened to close Re spondent s doors before the Union would get in King and Gabrieli had waited about 2 1/2 months after having signed their cards before seeking their with drawal In Warehouse Groceries Management 254 NLRB 252 254 (1981), cited with approval in Midwestern Mining 277 NLRB 221 (1985), the Board held that, when an employer has engaged in coercive conduct de signed to undermine union support, the Board will pre sume that revocation by employees after the onset of the coercive conduct is the result of the employers conduct such that the revocation is ineffective That presumption is warranted in the instant case and has support also from the long hiatus between the signing of the union cards by King and Gabrieli and the attempted revocation, and in view of the absence of other intervening events The cards of John King and Richard Gabrieli will be counted towards the Union s majority Respondent contends that another employee was im properly induced to sign a card for the Union and that his card should not be counted Richard Dressel, the Union s organizer, testified that he spoke to Okomski in May about signing a union au thorization card and that the conversation he had with Okomski then was essentially the same as the ones he had with other unit employees Dressel s testimony was that after introducing himself and telling employees that the Union was interested in representing them, he read the language of the authorization card to them and an swered any questions they might have Okomski testified for Respondent that he talked with Dressel during the Union s organizational drive but did not refer to his discussion with Dressel in May He signed a union authorization card on 20 May He testi feed that he had not really read it then although he rec ognized it as an authorization card He testified that Vito Galati gave him and Oliver cards and told him that he was guaranteed a job with the Union if he signed it and that its purpose was to organize a vote Okomski was aware that Galati and Oliver do not work for the Union Galati testified that he had given union cards to a number of electricians with whom he worked, including Okomski Galati testified that he told the employees that if they had any questions they could call the Union as they had the phone number I credit Galati s account I find also that Okomski read the succinct authorization stated on the card he signed In these circumstances and as Okomski acknowledged that representations purportedly made to him were those of a coworker not the Union s, I find he was not misled into signing the card It is difficult for me also to accept that a skilled electrician with simple authorization ]an guage before him would have acted not on it, but on an offhanded remark by a coworker I reject Okomski s tes timony insofar as it is offered by Respondent to suggest that Okomski may have been misled or improperly influ enced into signing the card I do so because Okomski was expressly told to call Dressel if he had any questions and as it is unlikely that he would not have called Dres sel if he put any credence in an observation made by Galati The last card challenged by Respondent is that signed by Vick Luis (Bolanos) Pera The General Counsel, to corroborate the evidence proferred to authenticate cards subpoenaed documents in Respondents possession that contained employees signatures Respondent contends that the card signed by Vick Luis (Bolanos) Pera does not appear to be his signature and notes that the General Counsel did not use a handwriting expert to confirm his signature Authentication of card signatures by compar ing them with signatures on W 4 forms in an employer s possession is a method that the Board has approved See Gordonsville Industries, 252 NLRB 563, 600 (1980) My examination of the handwriting on the card bearing Bo lanos name and the one on the W 4 certificate obtained from Respondents files satisfies me that they are both filled in by the same individual The W 4 form is valid evidence to corroborate the testimony before me offered to establish the authenticity of Bolanos card I shall count his card I therefore find that when the Union sought recogni tion it represented 17 of the 29 employees in the unit de scribed above In this small unit Respondent has discriminatorily laid off not only the employee who was the Union s election observer but also the employee who was the Union s as LOTT S ELECTRIC CO 313 sistant observer Respondent discriminatorily discharged four other employees after having unlawfully suspended one of them, it coercively interrogated employees con cerning their union support it threatened them with dis charge, transfers and plant closure it spoke to them of the futility of their efforts to be represented by the Union Those violations are sufficiently numerous, severe, and pervasive as to warrant the issuance of a bar gaining order In view of the size of the unit and the scope and severity of the violations, it is unlikely that the lingering effects of Respondents unlawful conduct will be dissipated by a cease and desist order The possibility of erasing the effects of Respondents unfair labor prac tices by the use of traditional remedies and of conducting a fair election is slight Correspondingly, a rerun election would not reliably reflect genuine, uncoerced employee sentiment The Board has, in analogous cases made these very findings and has held, as I do now in this case that the employees representation desires, as expressed by the fact that a majority of unit employees had signed author ization cards for the Union, would on balance be better protected by the issuance of a bargaining order than by the use of traditional remedies See, e g Olney IGA Foodliner, 286 NLRB 741 (1987), Impact Industries, 285 NLRB 5 (1987) Kona 60 Minute Photo 277 NLRB 867 (1985) Since Respondent has demonstrated a proclivity to engage in conduct seriously violative of the Act s provi sion and objectives I shall grant the request by the Gen eral Counsel for a broad order Hickmott Foods, 242 NLRB 1357 (1979) As the issuance of a bargaining order necessarily im plies that no question concerning representation exists, the petition in Case 22-RC-9663 must be dismissed See Impact Industries, above CONCLUSIONS OF LAW 1 Respondent is an employer engaged in commerce within the meaning of Section 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 unit of Respondent's employees as described above is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act 4 At all times since 31 July 1986 the Union has been the exclusive collective bargaining representative of the employees in this unit 5 Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) of the Act by having (a) Coercively questioned its employees regarding sup port for New Jersey IBEW Construction Business Man agers Association International Brotherhood of Electri cal Workers AFL-CIO (b) Threatened to discharge its employees to discour age them from supporting the Union (c) Threatened employees that it would close its oper ations to discourage employees from supporting the Union (d) Warned employees that reprisals would be taken against them to discourage them from supporting the Union (e) Promised to adjust grievances in return for em ployess withdrawing their support of the Union (f) Solicited grievances to discourage employees from supporting the Union (g) Informed employees that it was futile for them to support the Union (h) Induced employees to withdraw authorization cards they had signed for the Union (i) Told employees that they had been transferred to other jobsites because they supported the Union (l) Committed the acts described under paragraphs 6 and 9 below 6 Respondent has engaged in unfair labor practices in violation of Section 8(a)(3) of the Act by having (a) Transferred employees to other jobsites to discour age them from supporting the Union (b) Suspended an employee to discourage support for the Union (c) Laid off four employees and discharged two others to discourage support for the Union 7 The objections filed and not withdrawn concerning the conduct of the election on 19 September are sus tained and the results of that election shall be set aside 8 A bargaining order remedy is warranted in this case 9 Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act by having since 31 July failed and refused to bargain collec tively with the Union as the exclusive representative of the employees in the unit described above 10 All allegations in the amended consolidated com plaint as to unfair labor practices committed by Re spondent, which were not found to have meet shall be dismissed 11 As no question concerning representation now exists respecting the unit of employees found appropn ate the petition in Case 22-RC-7663 shall be dismissed 12 The unfair labor practices found have a close, inti mate 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 of commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices I shall recommend that it be or dered to cease and desist therefrom and to take certain affirmative action necessary to effectuate the policies of the Act Having found that Respondent unlawfully laid off Mark Seltner Joseph Carluccio, James Koerner, and Barry Galczynki and also unlawfully discharged John Oliver and Vito Galati I shall recommend that Respond ent shall offer them reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions of employment and make them whole in ac cordance with the method prescribed in F W Wool worth Co 90 NLRB 289 (1950), with interest as comput ed in New Horizons for the Retarded 283 NLRB 1173 314 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1987) 7 For any wages or other benefits they may have lost as a result of the discrimination against them Re spondent shall also be ordered to make whole Mark Seltner for having unlawfully suspended him for 5 days and to pay interest thereon in the same manner On the basis of these findings of fact and conclusions of law and on the entire record, I issue the following recommended8 ORDER The Respondent, Lott s Electric Company, Inc, Bur lington New Jersey, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Coercively questioning its employees as to their support for New Jersey IBEW Construction Business Managers Association, International Brotherhood of Electrical Workers, AFL-CIO (b) Threatening to discharge its employees to discour age them from supporting the Union (c) Threatening employees that it would close its oper ations to discourage employees from supporting the Union (d) Warning its employees that reprisals would be taken against them in order to discourage them from sup porting the Union (e) Promising to adjust employee grievances in return for their withdrawing support of the Union (f) Soliciting grievances in order to discourage em ployees from supporting the Union (g) Informing employees that their support for the Union was a futile act (h) Inducing its employees to withdraw the authoriza tion cards they signed for the Union (i) Telling employees that they had been transferred to other jobsites because they supported the Union (j) Suspending layoff off transferring or discharging employees to discharge them from joining or supporting the Union (k) Failing and refusing to bargain collectively with the Union as the exclusive representative of the employ ees in the unit found appropriate (1) In any like or related manner interfering with re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action to effectuate the policies of the Act ° Under New Horizons interest is computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp 231 NLRB 651 (1977) 8 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 put poses (a) Offer immediate and full reinstatement to Mark Seltner, Joseph Carluccio James Koerner Barry Galc zynski, John Oliver and Vito Galati to their former jobs or, if those jobs no longer exist to substantially equiva lent jobs without prejudice to their seniority or other rights and privileges and make each whole and in addi tion Mark Seltner in the manner set forth in the remedy section above for having unlawfully suspended him for 5 days, for any loss of earnings and other compensation they may have suffered by reason of their having been discriminated against them (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) On request bargain collectively with the Union and sign any agreement reached in the course of such bargaining with it as the exclusive representative of all Respondents electricians including journeymen fore men, and apprentices, but excluding supervisors as de fined in the Act and all other employees (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay roll records, social security payment records, timecards personnel records and reports and all other records nec essary to analyze the amount of backpay due under the terms of this Order (e) Post at its Burlington, New Jersey facility copies of the attached notice marked Appendix 9 Copies of the notice on forms provided by the Regional Director for Region 22 after being signed by the Respondents au thorized representative shall be posted by the Respond ent immediately upon receipt and maintained for 60 con secutive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent 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 the complaint be dismissed insofar as it alleges violations of the Act not specifically found IT IS ALSO RECOMMENDED that the objections found and not withdrawn in Case 22-RC-9663 are sustained that the results of the election are set aside, and as Re spondent is obligated to bargain collectively with the Union regarding the unit of employees involved, the pe tition is dismissed 9 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