Ideal Elevator Corp.

IDEAL ELEVATOR CORP. 347 Ideal Elevator Corp. and International Union of Ele- vator Constructors, Local 4. Case 1-CA-24705 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND DEVANEY On June 15, 1988, Administrative Law Judge Robert T. Wallace issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, t and conclusions2 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Ideal Elevator Corp., Boston, Massachu- setts, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied. 1. Substitute the following for paragraph 1(b) and reletter the following paragraphs accordingly. "(b) Coercively polling employees concerning their desire for union representation." 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 i The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd . 188 F.2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for reversing the findings. The Respondent has also excepted to the judge's factual finding that employee Shawn Baker resigned from his job in March 1986. We find merit in this exception as the record clearly shows that Baker has worked for the Respondent continuously since 1985 . This inadvertent error does not affect our decision. In addition, the Respondent excepts to the judge's finding that by poll- ing its employees before the Union claimed majority status , the Respond- ent violated Sec 8(a)(l) of the Act We also find merit in this exception. The record clearly establishes that the Union knew of and condoned the Respondent's plan to poll its employees in November 1985 at a time when the Union had not claimed majority status . In these circumstances, we conclude that it would be inequitable to find that the timing of the polling was unlawful . However, we agree with the judge that the Re- spondent, by polling its employees without observing the safeguards set forth in Struksnes Construction Co., 165 NLRB 1062 (1967 ), violated Sec. 8(a)(1) of the Act. Although the judge found the polling violation, he in- advertently failed to include it in his recommended Order . We shall modify the recommended Order and notice accordingly. 2 In reaching the conclusion that Kenneth Boyce Jr , the son of the Respondent's sole owner, should be excluded from the unit , the judge relied on NLRB v. Action Automotive, 469 U.S. 490 (1985), and on his de- termination that Boyce Jr enjoyed a "special status" by virtue of his close relationship to the owner and of the on-the-job benefits he enjoyed. While we agree with the judge that Boyce Jr. should be excluded from the unit, we find it unnecessary to rely on the judge's "special status" analysis because Sec. 2 (3) of the Act, as the judge himself noted , excludes from coverage "any individual employed by his parent or spouse." Further, we find it unnecessary to rely on the judge's "rebuttable pre- sumption" analysis to conclude that statements made by Supervisors Tnckett and Ahern were attributable to the Respondent . We note that, on remand, the Board applied the analysis set forth by the Third Circuit in NLRB v. Schroeder, 726 F.2d 967 (1984), to determine an employer's responsibility for statements made by its supervisors, as the law of the case in National Apartment Leasing Ca, 272 NLRB 1097 (1984). In this regard, the Board continues to hold that under Sec. 2(13) of the Act "an employer is bound by the acts and statements of its supervisors whether specifically authorized or not." Dorothy Shamrock Coal Ca, 279 NLRB 1298, 1299 (1986). Accordingly, we conclude that the Respondent is liable for the statements of Supervisors Ahern and Tnckett. 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 unlawfully discourage member- ship in the International Union of Elevator Con- structors, Local 4, or any other labor organization. WE WILL NOT threaten you with physical harm, loss of jobs, and shut down of operations if you choose to be represented by any union. WE WILL NOT coercively poll you concerning your desire for representation by International Union of Elevator Constructors, Local 4. WE WILL NOT coercively interrogate you as to your sympathies and activities on behalf of any union. WE WILL NOT create an impression that union meetings and activities are under surveillance. WE WILL NOT promise or award pay raises or other benefits in order to induce you to avoid being represented by any union. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your rights guaranteed by the Act. 295 NLRB No. 39 348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL, on request, recognize and bargain with International Union of Elevator Constructors, Local 4, as the exclusive representative of all em- ployees in the unit described below with respect to rates of pay and other conditions of employment and, if an understanding is reached, embody that understanding in a written signed agreement. The bargaining unit is: All full-time and regular part-time elevator constructors and helpers , excluding office cler- icals, salesmen, guards and supervisors as de- fined in the Act. WE WILL, on their unconditional offer to return to work, reinstate employees found in this proceed- ing to have been striking to protest our continuing unfair labor practices. All of you are free to join the International Union of Elevator Constructors, Local 4, or any other labor organization. IDEAL ELEVATOR CORP. Benjamin Smith and John Welsh, Esqs., for the General Counsel. Scott G. Blair, Esq. (Stoneman, Chandler & Miller), of Boston, Massachusetts, for the Respondent. Paul F. Kelly and Shelley B. Kroll, Esqs. (Segal, Roitman & Coleman), of Boston, Massachusetts, for the Charg- ing Party. DECISION STATEMENT OF THE CASE ROBERT T. WALLACE, Administrative Law Judge. Upon charges filed by the above-named Union on May 8, 1987,1 as amended, a complaint issued on July 1; and the case was heard by me in Boston, Massachusetts, be- tween August 24 and September 2. As further amended at the trial, the complaint alleges that Respondent engaged in numerous unfair labor prac- tices (threats of physical violence, layoffs, and plant clo- sure; and awarding of benefits) in order to defeat the Union's organizing drive. A bargaining order as well as an order to reinstate striking employees is sought. Based on the entire record, including my observation of the witnesses and after due consideration of briefs filed by all parties, I make the following FINDINGS OF FACT/ANALYSIS 1. JURISDICTION Respondent, a Massachusetts corporation engaged in the construction and repair of elevators , admits that during a representative 1-year period it purchased and received directly from out-of-state suppliers at its place of business in Boston goods valued in excess of $50,000. I find that it is an employer engaged in commerce within ' All dates are in 1987 unless otherwise stated. the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act. I also find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. BACKGROUND Kenneth Boyce Sr. is the Respondent 's president and sole stockholder, and is an employer within the meaning of Section 2(2) of the Act. Thomas Woods is the Re- spondent's general manager and is a supervisor under Section 2(11) of the Act. The following employees con- stitute a unit appropriate for collective bargaining within the meaning of Section 9(6) of the Act: All full-time and regular part-time elevator con- structors and helpers, excluding office clericals, salesmen, guards and supervisors as defined in the Act. On May 5 , 1987, the Union, by telegram, requested that Respondent recognize it as the exclusive collective- bargaining representative of employees in the unit; and 3 days later it filed a petition seeking a Board determina- tion in that regard . Processing of the petition was blocked by the charges at issue in this case. Respondent's payroll list for the period April 28 through May 9 includes the following 14 employees: Paul Ahern Paul Hardy Shawn Baker James Harrell Ken Boyce, Jr. Dan Keating Thomas Caruso John McDougall John Donahue Robert Morales Stephen Eagan Gerald Oemig John Hardy William Trickett Of those, Ahern and Trickett were the highest paid with each receiving $20 per hour. Oemig at $16.50 per hour was the next highest, followed by Eagan with $16. Each of those employees were licensed elevator mechanics. The other employees , all unlicensed, received hourly rates ranging from $8.50 to $12 an hour. III. REPRESENTATION ISSUE Respondent contends that all 14 employees belong within the bargaining unit as of May 5 . 1 find, however, that Ahern and Trickett should be excluded because they are supervisors within the meaning of Section 2(11) of the Act; and that Boyce Jr. must be excluded because he is an "individual employed by his parent" and hence not an employee within the meaning of Section 2(3) of the Act. Boyce Jr., age 19, is the son of Respondent's president and sole owner. During all pertinent periods he resided with his father and he is shown to have been given some job-related privileges and benefits not available to other employees. For example, during a 1-year period follow- ing his hire as a full-time employee in May 1986, he was the only nonsupervisory employee entrusted with keys to IDEAL ELEVATOR CORP. Respondent's facility,2 and he was accorded free use of uniforms. In NLRB v. Action Automotive, 469 U.S. 490 (1985), the Court approved factors relied on by the Board in deciding whether an employee's familial ties are sufficient to align his interests with management and thus warrant his exclusion from a bargaining unit. Included among those are: family ownership of and direct involve- ment in the management of the business (NLRB v. Cara- velle Wood Products, 466 F.2d 675 (7th Cir. 1972)); the employee's continued residence in the family home (Pan- dick Press Midwest, 251 NLRB 473 (1980)), and special on-the-job benefits received by the employee (Holthouse Furniture Corp., 242 NLRB 414 (1979)). Indeed, the Court held that close relatives of management are prop- erly excluded from bargaining units even absent a show- ing that they enjoy special job-related privileges. As to Ahern and Trickett, supervisory authority was conferred on them expressly in policy notices to employ- ees (dated June 12, 1985, and February 13, 1986, and issued under the names of Ahern, Trickett, and Woods) which were given to all employees when hired.3 Ac- cording to the June 12 notice, Ahern and Trickett had authority to discipline employees, including docking their pay for tardiness or failure to respond to service calls; and in the one dated February 13, employees were advised that their timeslips would be monitored daily by Ahern and Trickett. It does not appear that employees were ever advised that the notices were rescinded or modified in any respect. Credited testimony also shows that Ahern and Trickett acted in accord with the notices . Trickett hired Morales and John Hardy and interviewed other job applicants. On hiring Morales, Trickett told him that he, Ahern, and Boyce Sr. would be his "bosses"; and he explained that he was the construction foreman, Ahern the service fore- man, and Boyce Sr. "in charge of the whole operation." As construction foreman , Trickett assigned work to em- ployees on a daily basis, instructed them on the job, rep- rimanded them for work infractions, and, at least in one instance, recommended that an employee (Paul Hardy) be docked for poor performance. He also granted em- ployees time off for short periods without prior authori- zation. As service foreman Ahern also interviewed and screened job applicants, and he assigned work to and in- structed employees on the job. Ahern's and Trickett's pay, benefits, and working con- ditions also were commensurate with supervisory status. The blouses of their work uniforms were of a different color than those worn by other employees. They were paid the highest hourly rate and received medical insur- ance.4 Together with Boyce Sr. and Woods , they had 2 Although Harrell had keys, it is not clear that he obtained them any earlier than June 1987 (Tr 865). a General Manager Woods testified that since the fall of 1986 the two notices have not been included in the packet. By that time, however, all the named unit employees had been hired, including Keating whose packet contained both notices when he was hired on September 12, 1986. 4 According to Boyce Sr., Respondent's group medical insurance policy required at least four covered employees . In March 1987 the only insured employees were Boyce Sr., Woods, Trickett, Ahern, and Eagan. Eagan was included in the group because Ahern opted not to take the insurance when it was initially offered. 349 their own desks in Respondent's office. They also had keys to the shop and custody of Respondent's vehicles after working hours. I conclude that Ahern and Trickett possessed both actual (Nueva Engineering, 269 NLRB 999 (1984)) and apparent (Houston Coca Cola Bottling Co., 256 NLRB 520 (1981)) supervisory authority, and this notwithstand- ing the fact that they may not have been clothed with all attributes of a supervisor as that term is defined in Sec- tion 2(11) of the Act (Hydro Conduit Corp., 254 NLRB 433 (1981)).5 Excluding Boyce Jr., Ahern, and Trickett, the bargain- ing unit as of the May 5 union demand for recognition consisted of 11 employees; and of those more than a ma- jority (7) had signed cards which unambiguously au- thorized the Union to represent them.? Respondent, however, contends that four cards should be disregarded because signatures were procured either by misrepresentation (to Paul Hardy) or other improper inducements (to Baker, Eagan , and Morales). In addition, Respondent argues that all the cards are invalid because card signers were told by Business Agent Frank McGet- tigan that by signing they were authorizing Local 4 to represent them in negotiating wages, hours, and working conditions, whereas only the International Union had au- thority under its constitution to negotiate in regard to those matters. Taking up the latter claim first, I find that while McGettigan made the claim to some of the signers, the error is neither advertent nor material . Each employee is shown to have read the card before signing and , as indi- cated above, the words on the card plainly designate the International or the Local or both as bargaining agent. That some signers referred in their testimony to being represented by the entity most visible to them (Local 4) does not negate their awareness also of having designat- ed the International as their representative. As to Paul Hardy, the alleged misrepresentation is that McGettigan told him the purpose of the card was to secure an election. The pertinent testimony (Tr. 28) reads as follows: MR. MCGETTIGAN : [I] told him that . . . the card was . . . to organize Ideal Elevator and that S This conclusion accords with an answer in a prior proceeding (I- CA-23659) before the Board in which Respondent admitted that Trickett held supervisory status in 1986, since Trickett's uncontradicted testimony herein is that his responsibilities remained unchanged up to the time he left Respondent's employ in June 1987. The admission remains effective even though the proceeding subsequently was settled by an agreement which contained a nonadmission clause. 6 Eagan signed on March 27, McDougall on April 13, John and Paul Hardy on April 21, Morales and Keating on April 28, and Baker on May 4. ° The printed portion of each card reads as follows: Authorization for Representation By International Union of Elevator Constructors I desire to be represented by the International Union of Elevator Constructors, and I hereby designate the International Union of Ele- vator Constructors and/or its appropriate affiliated Local Union as my Bargaining Agent in matters of wages, hours , fringes and all other conditions of employment 350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the International Union of Elevator Constructors- if they won an election would represent them in wages, fringes and working conditions. However, when read in conjunction with other testimo- ny (Tr. 27, 30, 40) it is clear that McGettigan informed each prospective signer that voluntary recognition or an election would be sought only if a majority of Respond- ent's employees designated the Union as their representa- tive; and that construction accords with testimony of other signers including Paul Hardy (Tr. 394-395). Baker, in Respondent's view, was intimidated or "pres- sured" into signing by the president of another union (Fireman's Local 144) of which Baker was a member; and, in support Respondent cites testimony wherein Baker states that the president told him to "tread lightly" in regard to the organizing drive of Local 4. Here too I find that the testimony does not support the contention. The pertinent quotation (Tr. 908) is as follows: [BAKER] . . . I was advised by my union presi- dent to tread lightly on it; to possibly stay out of it; not get involved in it. Far from being intimidated, Baker was told to avoid get- ting involved in the drive. His subsequent testimony that he felt "a little bit pressured" when he signed amounts to nothing more than an expression of subjective intent and as such it is irrelevant . Federal Alarm, 230 NLRB 518 (1977). Eagan claims to have signed only after McGettigan promised to give him a job with a union company within 2 weeks; and Respondent, citing D. H. Overmyer Co., 170 NLRB 658 (1968), argues that this was an offer of a substantial economic benefit which undermined his free- dom of choice. But I decline to credit Eagan's claim, finding it hard to believe that McGettigan at the outset of an organizing drive of uncertain duration would make a commitment to transfer a card signer out of the bar- gaining unit prior to a demand for recognition or a deci- sion to abandon the drive. Indeed, Eagan admits agree- ing to help in the drive , and on cross-examination he conceded that the asserted job offer was not absolute but instead was tied to the outcome of the drive . In that re- spect, he quotes McGettigan (Tr. 686 and 687) as saying "the quicker you get more responses from these guys . .. then the quicker things will happen . . . for you." In the circumstances, I find likely and credit McGetti- gan's testimony that his only reference to obtaining an- other job for Eagan came in response to Eagan's expres- sion of fear that by signing he would risk his job. He states (Tr. 799): "I did tell Steve that if he got fired be- cause of this organizing drive, that I would make every effort to try and find him a job, but beyond that, I didn't guarantee him anything." Ostensibly because of McGetti- gan's failure promptly to live up to the promise of a job "within two weeks," Eagan asked for return of his card; and Respondent contends that this demand constitutes an additional reason for nullifying the card . However, Eagan also testified that he did not seek its return until May 8 and after Respondent had posted the Union's May 5 telegram demanding recognition . Therefore, his request does not affect the majority status achieved by the Union at the time of its demand for recognition . Federal Alarm, supra; Emco Steel, 227 NLRB 989 (1977), enfd. sub nom. Bohack Corp. v. Teamsters Local 807, 567 F.2d 237 (2d Cir. 1977). Furthermore, a revocation is never effective when it follows, and is likely to have been induced by, an employer's unfair labor practices. Quality Markets, 160 NLRB 44, 46 (1966). Given the small complement of em- ployees, Eagan's habit of hanging around with them after work, and his longtime friendship with an individual (Caruso) who was responsible for several threats of vio- lence, I view as incredible Eagan's assertion that prior to requesting return of his card he had no idea that threats had been made. Morales was already a member of the Union when he signed an authorization card April 28. He had been re- hired by Respondent on March 16,8 and about 1 week later he was contacted by McGettigan and asked to sign. During that conversation he told Morales that he "possi- bly could be fined" for working for a nonunion compa- ny. These circumstances, in Respondent's view, negate the voluntariness of Morales act in signing the card. I disagree. As a member of the Union , Morales had agreed to be subject to legitimate internal disciplinary policies. There is no evidence that McGettigan 's statement repre- sented anything more than a declaration of fact applica- ble to Morales' situation in working for a nonunion com- pany. Unlike Eagan and Baker , Morales appeared in sup- port of the complaint; and in volunteering that the state- ment was made, he did not suggest that it was uttered in an invidious context, i.e., as a threat of punishment for not signing. On the contrary, his testimony reaffirms the voluntariness of his signature . Further, I find no merit in Respondent's argument that if Boyce Sr.'s son is ex- cluded from the unit for having interests too closely aligned with management so should Morales because, as a union member and subject to its disciplinary rules, his interests are inextricably interwoven with the Union. As noted above, however, Boyce Jr.'s exclusion is based on a specific statutory provision; and, in any event, to con- strue preexisting membership in a union as bias sufficient to exclude employees from a bargaining unit would vio- late the spirit and plain intent of the Act. In sum, I find that as of May 5, a majority of eligible employees in the unit had knowledgeably and freely opted to be represented by the Union. IV. UNFAIR LABOR PRACTICES A. Boyce Sr. In mid-December 1986, General Manager Woods, at the behest of Boyce Sr., conducted a poll of employees. As they came into the office to be paid they were told that their envelopes contained ballots which were to be checked "yes" if they were in favor of unionization and "no" if against, and completed ballots were to be placed in a box situated on a desk . No other instructions or ex- planations were given . The poll patently was in violation 8 Morales initially was hired on February 24, 1986 . He, along with sev- eral other employees (including Caruso and Baker) left on or about March 28, 1986, and began to work for companies having contracts with the Union IDEAL ELEVATOR CORP. 351 of their rights under Section 7 of the Act since, among other things, the Union had not at that time claimed ma- jority support, and employees were not advised that their participation was voluntary and without risk of reprisals. Struksnes Construction Co., 165 NLRB 1062 (1967). The Union's organizing campaign effectively began on March 27 when Eagan was first to sign an authorization card. Boyce Sr. grudgingly conceded that he knew Eagan had signed and that he knew the names of other signers.9 On May 4, in a conversation in the shop over- heard by Morales, Boyce Sr. instructed Caruso "to put a cap on the Union situation because it would be coming to a head any day now." He also told Caruso that "it would be his job to talk to the employees about the Union and about the pros and cons of it"; and he empha- sized the importance of the matter by adding that if the Union came in he would "just close his doors and go out of business."' 0 In directing Caruso to interfere with the Union's cam- paign and threatening to close his business in the event the Union obtained majority support, Boyce Sr. violated Section 8(a)(1) of the Act. Boyce Sr. also violated that section in his captive-audi- ence speech on May 14. It was given at the Respondent's facility after working hours and all unit employees were required to listen. Although Boyce Sr. read from a docu- ment prepared by Woods and legal counsel, he also spoke extemporaneously. t t In the course of his remarks he threatened that if the Union came in he would lose customers and be forced to close his business. He warned employees that he would fight the Union "until his last penny" and stated that the Respondent was a nonunion shop, always had been, and always would be. He forbade employee organizing efforts "during our working days and any place that we were officially working for Ideal Elevator." He also urged them to go to the union hall as a group and demand return of their authorization cards. The speech exceeded the bounds of the Respondent's Section 8(c) rights. Boyce Sr. did not simply make per- missible predictions of business reverses based on objec- tive facts. Instead he attempted to coerce employees into voting against the Union by warning them that union representation would result in plant closure and loss of jobs. Such conduct directly inhibits union activity in vio- lation of Section 8(a)(1). Walter Garson, Jr. & Associates, 276 NLRB 1226, 1231-1232 (1985). Similarly, his "last penny" warning, his statement that the Company would always be nonunion, and his urging employees to regain their cards are patently violative as conveying a sense of futility in pursuing the organizing 9 I am not impressed by Boyce Sr.'s candor. As a witness he viewed his role as that of a participant in a cat -and-mouse game . For example, see Tr. 592, 627-629, and particularly Tr. 649-653 in which he concedes that he was deliberately evasive in answering prior questions as to his knowledge of employee involvement in the drive. 10 Caruso has a reputation for talking tough and fighting At the time of trial he was serving time in prison and was likely to remain there for an extended period . Despite that circumstance his status as an employee was not terminated Boyce Sr. regards him as a "talented young man" and will put him back to work whenever he is released. 11 Another instance of Boyce Sr.'s gamesmanship is found at Tr. 668 where, in response to my inquiry as to whether his remarks on May 14 went beyond the prepared speech , he answered . "If I went beyond them, it was very, very carefully, but my statement is that I didn't." effort. Crest Floors & Plastics, 274 NLRB 1230, 1257 (1985). Further, Boyce Sr.'s speech entailed promulga- tion of an unlawful proscription of solicitation. Rules which prohibit union organizing during working hours and in working areas without making clear exception for the employees' breaktime and meal periods violate Sec- tion 8(a)(1). Our Way, 268 NLRB 394 (1983). At the time he gave the speech Boyce Sr. was aware, assertedly through "scuttlebutt," that union adherents had been subjected to threats and harassment; and he told the assembled employees that such activity must cease immediately. In the context of his own unlawful statements, however, that admonition was rendered inef- fectual. Indeed, he continued unlawfully to interfere with employees' choice of their bargaining representative both by providing the "carrot" of increased benefits and, when that failed, by attempting to derail the union drive by again using the "stick" of intimidation and coercion. As to increased benefits, on May 25 employees Har- rell, Morales, Caruso, Keating, Boyce Jr., and Paul Hardy received raises of 50 cents an hour; and on June 15, John Hardy received the same raise. They neither re- quested nor had any reason to expect the raises. Medical insurance benefits also were granted to Keating in June and to Paul Hardy in July. Keating had applied for in- surance upon being hired in September 1986. That appli- cation was "lost." A second application was submitted in Feburary 1987 but coverage was not forthcoming until June 1. Paul Hardy had a similar experience. He applied in April 1986. Six months later he was asked to complete another application, and in April 1987 still another. He finally received insurance on July 1, about 3 months after his wife gave birth. Up to the time Keating and Hardy received coverage during the Union's organizing cam- paign, only Respondent's supervisors and Eagan were in- sured under its medical plan. Following on the heels of the Union's demand for rec- ognition and the filing of its representation petition and unfair labor practice charges, the wage increases and in- surance benefits granted to employees between May and July were clearly meant to discourage employee support for the Union. These improvements were not instituted in accordance with any preexisting company policy, but were wholly within the Respondent's discretion. They were timed to lure employees away from the Union by increasing their dependency on the Respondent. The danger inherent in well-timed increases in bene- fits is the suggestion of a fist inside a velvet glove. Employees are not likely to miss the inference that the source of benefits now conferred is also the source from which future benefits must flow and which may dry up if it is not obliged. NLRB v. Parts Co., 375 U.S. 405 (1964). Accordingly, I find the wage increases and insurance benefits to have been discriminatory in violation of Section 8(a)(3) and (1) of the Act. When bribes failed, Boyce Sr. turned to more forth- right methods of coercion. On Monday July 27, several employees went on strike to protest unfair labor prac- tices charged in the complaint. Beginning on July 23, 352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Boyce Sr. began to interrogate newly hired employees concerning their support for the Union and whether they intended to strike. Anthony Renna was hired on June 24. On July 23 while working at the "Peterboro" jobsite, Renna, with Boyce Jr. present , was asked by Boyce Sr. whether he had attended a union meeting held the night before. When he answered "yes," Boyce Sr. turned and walked away . Later in the day at a different site Boyce Jr. pressed Renna further, asking him to identify employ- ees present at the union meeting. He refused. On the following day Boyce Sr. again appeared at the Peterboro site and went directly over to Renna and asked whether he was going to strike , whether he had signed a card, and the names of other employees who had attended the union meeting . Renna expressed reluc- tance to provide information beyond admitting his own attendance, stating he felt he owed Boyce Sr. that much as an employee . Boyce Sr. continued to press saying that the Union was not interested in Renna, just Ideal and that if the company "went Union" you probably will be out of a job. Renna answered that he "would take every- thing into consideration, and the decision . . . I make probably would be the same one you would make if you were in my shoes." Boyce Sr. replied : "[Be] . . . sure you make the right decision . . . because if you go on strike, you will never work at Ideal again." He then walked about 10 feet away, turned facing Renna (but looking off into the distance" and in apparent frustration) said "I know I'm not supposed to talk with you . . . but I don't give a damn . . . what the Union is doing is ille- gal . . . and if it gets in . . . I will shoot everyone re- sponsible." Thomas Gleason was hired on Wednesday, July 22. He too was approached on July 24 by Boyce Sr., who inquired whether he would attend a Union meeting that night and join others in striking Ideal on Monday. Glea- son responded that yes he would attend the meeting but was not aware of a strike. Boyce Sr. then warned him that he or anyone else who went on strike would never work for him again. i 2 I find coercive and in violation of Section 8(a)(1) Boyce Sr.'s interrogations of Renna and Gleason con- cerning their own and other employees Union activities and sympathies and his threats of loss of jobs and physi- cal harm if employees went on strike or chose to be rep- resented by the Union. Boyce Sr.'s threat to shoot those responsible for bringing in the Union had added force because employees were aware that he carried a gun and used it for target practice in the shop.1 a 12 Employee Harrell was present throughout this exchange and was called by Respondent as a witness. He does not recall Boyce Sr . saying that sinkers would never work for Ideal again . All he remembers of the conversation was that Boyce Sr. may have said there was going to be a union meeting "but I don't really even definitely recall that." On the other hand, Boyce Sr. while denying having made any threats, states that he asked both employees "if they had been at a meeting and if they would be at work on Monday." He claims they answered no to the first question and yes to the second. IS Although Boyce Sr . indicated he had a license to carry a gun and occasionally did so, he denied ever firing it in the shop "because that would be a criminal act" (Tr 193). At a later point, however, he backed off from his categorical "no" stating that he would answer only by saying "it is not legal to shoot a gun within City limits" (Tr. 63). B. Ahern and Trickett Respondent is also liable for the unfair labor practices committed by Trickett and Ahern. For the reasons dis- cussed above, both are supervisors and therefore ex- cluded from the bargaining unit. As supervisors, there is a rebuttable presumption that any threats or statements they make in violation of Section 8(a)(1) are attributable to the Respondent. NLRB v. Schroeder, 726 F.2d 967 (3d Cir. 1984), remanding National Apartment Leasing Co., 263 NLRB 15 (1982). As stated in the circuit court's decision : "The burden would then be placed on the employer to show that, de- spite his supervisory status, the speaker was not author- ized to speak on behalf of management and could not reasonably have been seen so by the threatened employ- ees."14 In this case, Boyce Sr.'s testimony that he alone had the authority to speak on behalf of the Respondent lacks credibility. The supervisory duties carried out by Trickett and Ahern, together with their apparent author- ity to direct, discipline , and reward employees, made them agents of the Respondent in the eyes of the work force. The Respondent never acted to disavow their statements or to deny their authority . Boyce Sr.'s vague references to threats and harassment in his May 14 speech does not constitute a revocation of authority. This is especially so since his own unlawful activity con- tinued unabated . The Respondent is therefore liable for the unfair labor practices committed by Trickett and Ahern even if they acted without actual authority. Alad- din Industries, 147 NLRB 1392 (1964). On the morning of May 6, while in the toolroom, Ahern warned McDougall that if he "went union" he would "get laid off." On June 8, Morales and Ahern were together in the shop. After pointedly studying the Union's May 5 telegram demanding recognition, which had been posted by the Respondent, Ahern turned to Morales and said, "You're in the middle of this." By so identifying Morales, Ahern created the impression that employees were under surveillance. Trickett played an even more prominent role in seek- ing to derail the union drive. In early May at the "Ran- dolph Savings Bank" jobsite, he told Paul Hardy that if employees opted for the Union, Hardy would be laid off and replaced by more experienced help. At the same job- site, he had conversations with Keating in which he re- peated his threat of layoffs. He also told Keating that the Union was "no good" and indicated that despite his in- quiries, none of the employees were willing to discuss the Union with him . On May 6, in Respondent's shop, Trickett told John Hardy, Paul Hardy , and McDougall that he knew about the union organizing drive and once again warned them that if the Union succeeded they would be laid off and replaced by more experienced help. Early on the next day, Morales and McDougall ap- proached Trickett at a jobsite on Broad Street and com- plained to him about threats they had received from Caruso and Boyce Jr. In response, Trickett denied any 14 On remand in National Apartment Leasing Ca, 272 NLRB 1097 (1984), the Board accepted the circuit court's opinion as to the law of the case. IDEAL ELEVATOR CORP. 353 knowledge of the threats but volunteered that he knew about the union drive and told them they would be sorry if the shop was organized because they would "end up on the bench." Finally, on May 12 or 14 at a jobsite in Stoughton, Trickett advised Keating to "watch out" for Morales who he identified as the Union 's key organizer. He also told Keating that "the Union doesn't give a shit about employees . All they want is the company's ac- counts." Keating opted not to go on strike and testified reluctantly and pursuant to a subpoena. I regard his testi- mony as highly credible and corroborative of testimony of the other employees . Indeed, Trickett himself gave credence to their testimony . He admitted talking to em- ployees about the possibility of layoffs and shutdown if the Union organized Ideal . Also, he admitted warning Paul Hardy and Keating to "watch out" for Morales. I find the repeated threat of layoffs uttered by Ahern and Trickett as well as their intimations that union activi- ties were being monitored to be binding on Respondent and unlawful under Section 8(a)(1) of the Act. C. Boyce Jr. and Caruso Although Boyce Jr. and Caruso are not supervisors, they too acted as the Respondent's agents in committing unfair labor practices during the course of the Union's organizing drive. Boyce Jr. is not an "employee " within the meaning of the Act for reasons heretofore discussed . As stated, he is the 19-year-old son of Boyce Sr., lives with him, and was accorded special benefits on the job. Bargaining unit em- ployees were well aware of his privileged position and rightly perceived him as his father's agent . Compare, South Shore Pontiac Co., 203 NLRB 928 (1973); Airborne Freight Corp., 263 NLRB 1376 (1982), and cases cited therein at 1377 fn. 33. Acting in that role, Boyce Jr. threatened employees with the loss of their jobs and with physical violence if they supported the Union. On May 6 he was present during a conversation with employees (the two Hardys and McDougall) in the shop during which Trickett threatened that layoffs would result if Ideal was orga- nized. Interjecting, Boyce Jr. observed that if they failed union-sponsored courses they would be kicked out of the Union. Later that day, in an elevator at "the South Street" jobsite, Boyce Jr. and Caruso interrogated John Hardy about which employees had signed authorization cards. When Hardy pled ignorance , Caruso threatened to "bust [his] head in," and warned him not to come back to the shop at night . Boyce Jr. added that "it would be a real shame if [he] fell down a shaftway." He went on to say: "I may not be able to beat [you] up, but my friends can." That same night, Boyce Jr. called Morales at his home and warned him that "we" had to put a stop to the Union. He told Morales he wanted to speak with him on the following day. Early the next morning, Boyce Jr. and Caruso con- fronted McDougall and Morales outside the shop. Caruso, after stating that he had heard "some bad sto- ries" about him, accused Morales of "trying to turn the shop Union" and warned him that if he "found out any- body was behind the Union, he'd be a dead man." Boyce Jr. bolstered the threat by stating that "something could be done after work" while at the same time making a fist-in-hand gesture. Boyce Jr.'s threats continued after his father's speech. During the week of May 18, Boyce Jr. told Morales, while riding home from work, that "if the shop did become union . . . we'd just close the doors , go out of business, and come in under a different name ." Also, and as noted above, on July 23 at the Peterboro Street job- site, he interrogated Renna in regard to the names of em- ployees who had attended a union meeting. Caruso, for his part, was expressly commissioned by Boyce Sr. on May 4 to stop the organizing drive; and within 10 minutes thereafter he began to implement that order by telling employees (Eagan, Boyce Jr., John Hardy, and Morales) seated together in the shop that Boyce Sr. wanted him to cap the drive because the Com- pany would have to close down if employees opted for the Union . On the next day, he interrogated the same group (augmented by Paul Hardy) about their contact with the Union. Receiving no reply, he told them that the Union only wanted the Company not its employees, and again observed that if the Union came in they would be laid off. Finally, he suggested that it might "be a good idea to take organizer Frank McGettigan down to the local Holiday Inn and waste him." Other instances of unlawful interrogations and threats by Caruso occurred on May 6 and 7 in conjunction with similar conduct of Boyce Jr., and are described above. On June 5 after work John Hardy ran into Caruso and Boyce Jr. in Pug's Pub in Roxbury. One or the other asked if Hardy intended to provide an affidavit to the Board regarding the union organizing effort. When Hardy feigned ignorance (he had given affidavits on May 15 and on June 3), Caruso observed : "It looks like we are going to have to bring `Mario' down." In prior conversations, Caruso had described a friend named Mario as "a friendly firebug." Finally, on June 6 Caruso told Morales in a telephone conversation that he hoped McGettigan came through with his "promises" because "once this was over . . . [you'll] be the first . . . [Boyce Sr.] would let go ...." He went on to tell Morales that he was being kept on only because of the "situation" then currently existing between Boyce Sr. and the Union. I find that Respondent, through Boyce Jr. and Caruso and on the dates indicated, engaged in a campaign of threats and coercive interrogations designed to thwart the union organizing drive in violation of Section 8(a)(1) of the Act. V. BARGAINING ORDER The unfair labor practices found to have been commit- ted by Respondent, including repeated predictions of clo- sure and layoffs accompanied by threats of physical vio- lence (e.g., to beat and shoot union adherents) and the discriminatory award of benefits, are so serious and per- vasive that the possibility of erasing their coercive effect and of conducting a fair election by use of traditional remedies is virtually nonexistent. There are no significant mitigating circumstances . On the contrary, the damage is magnified because the coercive acts occurred in a com- 354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD pany having a small work force and several of the most flagrant violations were perpetrated by the owner. Impact Industries, 285 NLRB 5 (1987). I conclude that entry of a bargaining order is appropriate and necessary in this case. CONCLUSIONS OF LAW I find that Respondent violated Section 8(a)(3) and (1) of the Act in the particulars and for the reasons stated above. further find that those unfair labor practices and each of them have affected, are affecting, and unless per- manently enjoined, will continue to affect commerce within the meaning of Section 2(6) and (7) of the Act. And I further find: (1) that the following employees of Respondent (the unit) constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time elevator con- structors and helpers, excluding office clericals, salesmen, guards and supervisors as defined in the Act. (2) That on or about May 4, 1987 a majority of employ- ees in the unit designated and selected the International Union of Elevator Constructors and its affiliate Local 4 (the Union) as their representative for purposes of collec- tive bargaining; (3) that since then the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representative of the Unit for purposes of collective bar- gaining with respect to wages, hours, and other terms and conditions of employment; (4) that the unfair labor practices found to have been committed herein are so se- rious and substantial in character that the possibility of erasing their effects and of conducting a fair election by the use of traditional remedies is slight, and the employ- ees' sentiments regarding representation, having been ex- pressed through authorization cards, would, on balance, be protected better by issuance of a bargaining order than by recourse to traditional remedies; and (5) that Re- spondent's striking employees are entitled to prompt re- instatement upon their unconditional offer to return to work because the strike was initiated and conducted for the purpose of protesting Respondent's continuing unfair labor practices (compare Jimmy Dean Meat Co., 227 NLRB 1012, 1030 (1977)). REMEDY In addition to the customary cease-and-desist order and requirement for notice posting, my Order will re- quire Respondent to recognize and, on request, bargain with the Union as the exclusive representative of em- ployees in the Unit in regard to terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. Also, I will order prompt reinstatement of striking employees upon their unconditional offer to return to work. I conclude that the scope and severity of Respondent's unfair labor practices evince a general disregard for em- ployees' fundamental rights under the Act and warrant a broad cease-and-desist order. Hickmott Foods, 242 NLRB 1357 (1979). Pursuant to Section 10(c) of the Act, I issue the fol- lowing recommended 15 ORDER The Respondent, Ideal Elevator Corp., Boston, Massa- chusetts, its agents, officers, successors, and assigns, shall 1. Cease and desist from (a) Threatening employees with physical violence, dis- charge, loss of jobs, and shutdown of operations if they select the Union, or any other labor organization, as their collective-bargaining representative. (b) Coercively interrogating employees concerning their or other employees' union activities and sympathies. (c) Creating an impression that union meetings and ac- tivities are under surveillance. (d) Promising or awarding pay raises and other bene- fits in order to induce them to choose not to be repre- sented by the Union or any other labor organization. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with the Union as the exclusive representative of all employees in the unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a written, signed agreement: All full-time and regular part-time elevator con- structors and helpers, excluding office clericals, salesmen, guards and supervisors as defined in the Act. (b) Upon their unconditional offer to return to work, reinstate employees here found to have been striking to protest Respondent's continuing unfair labor practices. (c) Post at its facility in or near Boston, Massachusetts, copies of the attached notice marked "Appendix."16 Copies of said notice, on forms provided by the Regional Director for Region 1, after being signed by Respond- ent's authorized agent, shall be posted by it immediately upon receipt and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that these notices are not altered, defaced, or covered by other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 16 If no exceptions are filed as provided by Sec. 102 .46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 16 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 Na- tional Labor Relations Board."