Horizon Air Services, Inc.

HORIZON AIR SERVICES 243 Horizon Air Services, Inc. and Christopher D. Heinz and Albert Solomon and International Association of Machinists and Aerospace Work- ers, AFL-CIO. Cases 1-CA-21011, 1-CA- 21031, and 1-CA-21148 24 September 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 30 December 1983 Administrative Law Judge Robert W Leiner issued the attached deci- sion The Respondent filed exceptions and a sup- porting 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, 1 and conclusions as modified and to adopt the recom- mended Order The judge found that a bargaining order is an ap- propriate remedy in this proceeding The Respond- ent contends that the judge's findings do not meet the requirements for a bargaining order set forth by the First Circuit Court of Appeals in NLRB v American Spring Bed Mfg Co, 670 F 2d 1236 (1982) In that case, the court asserted that to sup- port the issuance of a bargaining order, the Board must "articulate specific examples and precise rea- soning" for determining that the employer's unlaw- ful conduct so undermined the union's strength that a fair election would be unlikely, that the employ- er's conduct was likely to continue, and that tradi- tional remedies would be inadequate to ensure a fair election We find no merit in the Respondent's contention and hold that the judge properly con- cluded that a bargaining order is warranted here At the outset we note that the First Circuit's re- quirements are no different from those established by the Supreme Court in NLRB v Gissel Packing Co 2 There, the Court identified two categories of cases in which the bargaining order would be ap- propriate The first involves "exceptional cases" marked by unfair labor practices which are so "outrageous" and "pervasive" that traditional rem- edies cannot erase their coercive effects with the 1 The Respondent has excepted to some of the judge s credibility find 'rigs 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 2 395 U S 575 (1969) result that a fair election is rendered impossible The second category involves "less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process- es" The Supreme Court stated that in the latter sit- uation a bargaining order should issue where the Board finds that "the possibility of erasing the ef- fects of past practices and of ensuring a fair elec- tion (or a fair rerun) by the use of traditional reme- dies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order" Id 613, 614-615 In the case before us, the judge did not place the Respondent's conduct in either category because he determined that in any event a bargaining order was warranted We agree with the judge's ultimate conclusion that, here, employee sentiment, once ex- pressed through authorization cards, is better pro- tected by a bargaining order Thus, regardless of whether the Respondent's misconduct falls within the first category, it unquestionably comes within the second category of cases, and must be reme- died by a bargaining order As the judge found, the Respondent engaged in numerous unfair labor practices of the type which the Board has long held to be extremely coercive The Second Circuit Court of Appeals character- ized such conduct as "hallmark" violations and held that "their presence will support the issuance of a bargaining order unless some significant miti- gating circumstances exist" NLRB v Jamaica Towing, 632 F 2d 208 (1980) The court stated that these "hallmark" violations "include such employer misbehavior as the closing of plant or threats of plant closure or loss of employment, the grant of benefits to employees, or the reassignment, demo- tion or discharge of union adherents in violation of § 8(a)(3) of the Act In such cases the seriousness of the conduct, coupled with the fact that often it represents complete action as distinguished from mere statements, interrogations or promises, justi- fies a finding without extensive explication that it is likely to have a lasting inhibitive effect on a sub- stantial percentage of the work force" Id 212-213 The Respondent's conduct, as the judge found, falls within the category of "hallmark" violations By 11 May 1983, 3 just 2 days after employees Christopher Heinz and Albert Solomon had suc- cessfully solicited union authorization cards, the employees were apprised of the nature of the Re- spondent's opposition to union representation by the conduct of President Joe Ryan Between 11 a All subsequent dates are 1983 272 NLRB No 33 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and 13 May Ryan unlawfully interrogated five em- ployees concerning their union activities and issued threats to two employees that he would "close the doors if the union came in." On 13 May, after con- firming his suspicions that Heinz and Solomon were principal union adherents, Ryan discrimina- torily discharged Heinz. On 14 May Ryan unlaw- fully changed Solomon's duties and hours of work by reassigning him to guard duty with work hours from 11 p.m. to 7 a.m. (Solomon routinely worked as a van driver from 8 a.m. to 5 p.m.) Thereafter, the Respondent actively sought to repulse the union organizational thrust by, inter alia, imple- menting new working conditions for all warehouse employees, granting overtime, changing work hours, and instituting the issuance of paystubs. The Respondent also, on 18 May, threatened employee Solomon with discharge by telling him that "when this is over, I will clean house." Finally, on 28 May the Respondent unlawfully discharged Solomon, falsely informing him that he was being terminated because the Respondent was discontinuing that portion of its business serviced by vans. It is clear that the Respondent's conduct struck at the very core of the employees' organizational efforts since it involved virtually all of the "hall- mark" violations delineated by the Jamaica Towing court. The seriousness of the Respondent's conduct is further underscored by the small size of the unit and the level of the management official involved. There were only 12 employees in the unit, and the Respondent's highest official, President Ryan, com- mitted all of the unfair labor practices at issue here. At least 6 of the 12 unit employees were direct tar- gets of Ryan's interrogations, threats, or adverse actions. The pervasiveness of the Respondent's conduct is, therefore, specifically demonstrated. The effectiveness of this unlawful conduct is, as the judge noted, also demonstrated on this record. When interrogated by Ryan after the discharge of a principal union adherent, several employees, who had earlier signed authorization cards, stated that they would support the Company. The responses of these employees proves a principle long held by the Board: the lingering effects of a respondent's unfair labor practices will be particularly acute where, as here, the individual engaging in the threats and other unlawful conduct is the owner of the business.4 Nor can we discern any circumstances which could mitigate the seriousness of the misconduct here. The Respondent's conduct was not isolated or engaged in by low-level supervisors. The Re- spondent's highest official made threats of plant 4 Philadelphia Ambulance Service, 238 NLRB 1070, 1071 (1978) closure to groups of employees, discharged the two known principal union initiators, changed working conditions in response to union activity, and inter- rogated employees individually and in groups, causing some employees who had previously signed union cards to express a change in loyalty. Taken individually, these acts are the type of severe coercion that the Board and the courts have found to have lingering effects not readily dis- pelled. Viewed as a whole, particularly in the con- text of such a small unit of employees, the Re- spondent's misconduct is so severe that we, like the judge, are compelled to find the possibility of eras- ing its effects and ensuring a fair election by the use of traditional remedies is, at best, slight. Accordingly, we find, in agreement with the judge, that by refusing to recognize and bargain with the Union, on and after 14 June, while engag- ing in the above-mentioned unfair labor practices, the Respondent violated Section 8(a)(5) and (1) of the Act, and that the policies of the Act will best be effectuated by imposition of a bargaining order to remedy the violations. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Horizon Air Services, Inc., Logan Airport, East Boston, Massa- chusetts, its officers, agents, successors, and assigns, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge. The above-consolidated matter was heard in Boston, Massa- chusetts, on September 26-28, 1983. The charge in Case 1-CA-21011 was filed by Christopher D. Heinz, an indi- vidual (Heinz), on May 16 and served on Respondent, Horizon Air Services, Inc., on May 17, 1983. The charge in Case 1-CA-21031 was filed by Albert Solomon on May 23, 1983, and served on May 24 with an amended charge filed and served on July 6, 1983. The charge in Case 1-CA-21148 was filed and served by International Association of Machinists and Aerospace Workers, AFL-CIO (the Union), on June 29, 1983. An order con- solidating cases and consolidated complaint, and notice of hearing was issued by the Regional Director for Region 1, on August 17, 1983, and duly served on Re- spondent. Thereafter, Respondent filed an answer to the consolidated complaint wherein it admitted various alle- gations, denied others, and denied the commission of al- leged unfair labor practices. The consolidated complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act, inter alia, in the unlawful discharge of Heinz and Solomon, the commission of certain independ- ent violations of Section 8(a)(1) of the Act, and, in viola- HORIZON AIR SERVICES 245 tion of Section 8(a)(5), Respondent's unlawful refusal to recognize and bargain, on the Union's request, with the Union At the hearing, the General Counsel and Respondent were represented by counsel who had full opportunity to call and examine witnesses, introduce testimony and other evidence, to argue orally on the record, and to submit posthearing briefs At the conclusion at the re- ceipt of all evidence, the parties waived oral argument and submitted timely briefs which have been duly con- sidered The record also shows that on June 14, 1983, the Union filed a petition for certification in a unit of Re- spondent's employees in Case 1-RC-17932 That petition has not been withdrawn On the entire record, including the briefs, and on my observation of the demeanor of the witnesses as they tes- tified, I make the following FINDINGS OF FACT I THE BUSINESS OF RESPONDENT The complaint alleges, Respondent admits, and I find that at all material times, Respondent has been and is a Massachusetts corporation with a principal office and place of business at Logan International Airport, Boston, Massachusetts, where it has been and is continuously en- gaged in the warehousing and forwarding of air freight In the course of said business, Respondent annually per- forms services outside the Commonwealth of Massachu- setts valued in excess of $50,000 per annum and annually purchases goods at its Boston facility directly from points outside the Commonwealth of Massachusetts valued in excess of $5000 Respondent admits and I find that it has been, and is, engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II THE UNION AS A LABOR ORGANIZATION The complaint alleges, Respondent admits and I find, that the Union at all material times, has been, and is, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The complaint alleges, Respondent admits, and the evidence shows that Joseph Ryan, Respondent's sole shareholder and president, and Mary Tun111, its vice president-dispatcher are supervisors of Respondent within Section 2(11) of the Act There is no question that they are also Respondent's agents and are the two super- visors who, on a daily basis, manage Respondent's busi- ness Further, during the course of the hearing, the parties entered into the following stipulations (1) that Respond- ent has operated a van operation since May 26, 1983, (2) that notwithstanding Respondent's pleaded denial, the complaint's pleaded unit in which the Union requested bargaining is a unit appropriate for bargaining within the meaning of Section 9(b) of the Act "All full-time and regular part-time warehousemen, drivers and warehouse- men-drivers employed by Respondent at its Logan Air- port, East Boston, Massachusetts location, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act", (3) that Respondent's weekly payroll period is from Thursday through Wednesday of each week, (4) that as of Friday, May 15, 1983, the following 12 employees comprised the employees in the appropriate bargaining unit as above specified Ron Bergeron, Michael Fazio, Michael Cutillo, John Everton, Albert Solomon, Robert Wiebold, James Quist, Tom Wessell, James Kirk, Christopher Heinz, John Barry, and James Barry, (5) that Respondent never had a permanent layoff for lack of work, (6) up to May 19, 1983, Respondent had never issued any written warn- ings, (7) that a petition was filed by the Union on June 14, 1983, with the National Labor Relations Board in Case 1-RC-17932 in the above unit, now admitted to be appropriate, (8) that by letter dated June 9, 1983, to Re- spondent, the Union requested recognition and bargain- ing on behalf of Respondent's employees in the above appropriate unit and Respondent did not respond to this request which it received on June 14 by certified mail, (9) that since about the time of receipt of the above re- quest for recognition, Respondent has refused to bargain with the Union, (10) that in 1983 employee Michael Cu- till° worked the following overtime hours per-week in the weeks ending as follows week ending May 31, 11 hours overtime, June 6, 13 hours overtime, June 14, 12 hours overtime, June 21, 11-1/2 hours overtime, June 28, 9 hours overtime, July 7, 10-1/2 hours overtime, July 18, 10 hours overtime, July 12, 9-1/2 hours overtime, July 26, 10-1/2 hours overtime, August 3, 11 hours overtime, August 9, 9 hours overtime, August 16, 6-1/2 hours overtime, August 23, 7-1/2 hours overtime, August 29, 10-1/2 hours overtime, and September 6, 10-1/2 hours overtime It was further stipulated, that in the following weeks earlier in 1983, Cutillo worked the following overtime hours week ending March 14, 0 hours over- time, March 22, 4-1/2 hours overtime, March 29, 10-1/2 hours overtime, April 5, 5-1/2 hours overtime, April 12, 8 hours overtime, April 19, 8 hours overtime, April 26, 4 hours overtime, May 3, 8-1/2 hours overtime, May 10, 5- 1/2 hours overtime, May 17, 17-1/2 hours overtime, May 24, 14-1/2 hours overtime As above noted, Respondent is in the air freight pickup and delivery business, operating a warehouse at its East Boston facility No labor organization has repre- sented any of Respondent's employees since it started op- erations sometime in January 1978 Respondent's oper- ations originally used vans to pick up and deliver freight As Respondent gained further business, it commenced in- troducing "straight job" trucks and about the present time, it has reduced its van operations and increased its use of trucks, adding a tractor-trailer truck In its pickup and delivery business at Logan Airport, Respondent's employees deal on a daily basis with the freight employ- ees of the national and international airlines, including Swiss Airlines The evidence showed that Respondent has continued the regular operation of one to two vans at all material times in the pickup and delivery of freight 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Union Activities among Respondent's Employees and Ryan's Response Albert Solomon was hired as a van driver in February 1983, and discharged on May 26, 1983. After Solomon was employed, Respondent hired Michael Cutillo, also a regular van driver and a warehouseman. The evidence also showed that Tom Wessell, though principally a warehouseman, also drives a van at the airport for pickup and delivery purposes. There was no dispute that Cutillo had less seniority than Solomon and, pursuant to the stipulation, continued to drive a Respondent van after Solomon was discharged on May 26. On Friday, May 6, 1983, Solomon had his first contact with the Union and thereafter, together with Union Rep- resentative Celona and co-employee Christopher Heinz, met with the Union on Monday, May 9, about 7 a.m. in a coffeeshop near the airport. At the coffeeshop, the union representative gave them blank union membership application cards, explained the methods of soliciting em- ployees into membership, and Heinz and Solomon divid- ed up the blank cards. The union agent instructed Heinz and Solomon to place the signed cards in an envelope provided by the Union and send the cards to the Union as fast as possible. On May 9, Solomon signed his own card and gave a card to Cutillo who signed it and re- turned it that day On the next day, May 10, Solomon gave a card to employee James R. Quist who signed and returned the card that same day.' Notwithstanding that Solomon distributed only two cards and signed his own, he acquired a total of seven (7) signed cards. He re- ceived signed cards from Quist and Cutillo and also from. Heinz, a card distributor, signed on May 9; Mi- chael Fazio signed on May 9; James Kirk signed on May 10; and Tom Wessell signed on May 9. Solomon sent all seven signed cards to the Union during the week of May 9. On May 10 (Tuesday), President Ryan telephoned Leonard Torto, a former employee, at Torto's work place at Swiss Airlines, also at Logan Airport. Torto had been employed by Respondent for 4 years as a driver in the period January 1980 through March 1983 when he left for employment by Swiss Air Cargo. In gaining this Swiss Air Cargo job, he asked Ryan to give him a rec- ommendation and Ryan did so. Regardless of any con- trary suggestions by President Ryan at the trial, Torto's 1 The IAM card, which Respondent concedes to be unambiguous (R. Br, p 5), reads as follows YES, I WANT THE IAM I, the undersigned, an employee of (Company) hereby authorize the International Association of Machinists and Aerospace workers (IAM) to act as my collective bargaining agent with the company for wages, hours and working conditions NAME (print) DATE ADDRESS (pnnt) CITY STATE ZIP DEPT SHIFT PHONE Classification SIGN HERE X NOTE This authorization to be SIGNED and DATED in EM- PLOYEE'S OWN HANDWRITING YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW demeanor and testimony clearly showed Torto to be friendly to Ryan, especially in view of Ryan's recom- mendation which, according to Torto, helped him get a better job at Swiss Air Cargo when he left Respondent. Respondent's drivers pick up and deliver at Swiss Air Cargo. When Ryan telephoned Torto on May 10, Torto was not there but he found a message showing that Ryan had called him. Torto then returned the call but was unable to reach Ryan between May 10 and 12. Ryan testified he telephoned Torto to see how he was getting along at Swiss Air Cargo and to discover whether there were any "grumblings" or unhappiness among his employees and the nature of such grumblings or unhappiness. He specifi- cally denied any knowledge of union activities at that time among his employees and denied that his telephone call had anything to do with his employees' union activi- ties. At any rate, on the morning of Friday, May 13, 1983, Ryan again telephoned Torto at Swiss Cargo. Ryan asked if Torto had heard any grumbling among Re- spondent's employees who, from time to time, made pickups and deliveries at Swiss Air Cargo Torto told Ryan that there was always "grumbling" among employ- ees including Respondent's employees. Torto testified (and Ryan specifically denied) that Ryan then asked him whether Torto had heard anything of union activities among Respondent's employees (Tr. 129-130). Torto told Ryan that he was busy and could not talk with him but would meet him at Torto's lunch break later that day.2 About noon on Friday, May 13, Torto, as promised, visited Ryan at Respondent's facility at lunch time. Torto told Ryan that these fellows that were "planning 2 As I observed and compared Ryan and the General Counsel's wit- nesses, Ryan's testimony, from the beginning, demonstrated evasiveness in answering questions Thereafter, this evasiveness turned Into an inabil- ity to define terms used by Ryan in his own testimony in describing his employees For instance, he described Heinz as "disruptive" and his defi- nition of "disruptive" finally related only to criticism of Respondent's vice president, Mary Tunlli With regard to Solomon, he used expres- sions like "violent" and "disruptive" and at first was unable to describe what he meant by those terms and then said that he took action against Solomon because he feared for Solomon's physical safety wherein he also admitted that there had been no threats from any employees or elsewhere against Solomon's physical safety Thereafter, It appeared that Ryan's tes- timony contradicted the testimony of employees then currently employed by Respondent on the most particular and significant matter, i e, discus- sions and threats relating to employees engaging in union activities On the basis of Georgia Rug Mill, 131 NLRB 1304-1305 fn 1 (1961), I would, under the circumstances present in this case, credit the employees where Ryan contradicted them concerning Ryan's statements and threats concerning the employees engaging in union activities Apart from this, I would credit Leonard Torto's testimony, the testimony of a witness with no apparent interest, over Ryan's contrary testimony, in that Torto was a witness personally friendly to Ryan notwithstanding that Ryan tned to explain away and water down Torto's show of gratitude Ryan was Re- spondent's sole witness In short, I do not credit Ryan's testimony and his various explanations for conduct where they contradict the testimony of other witnesses, especially Torto and the employees who were called by the General Counsel to testify concerning Ryan's various acts of interro- gation and threats. Their mutually corroborative testimony also, in part, corroborated Heinz' and Solomon's testimony Consistent with this con- clusion, I generally credit the testimony of the alleged discnminatees Heinz and Solomon, where it conflicts with Ryan's Their demeanor and testimony Impressed me favorably. HORIZON AIR SERVICES 247 this activity" were former coworkers and friends and that anything they told him in privacy he would not di- vulge (Tr 130-131) While Ryan did not seek to have him divulge any information, I conclude that Torto's ref- erence to "planning this activity" was understood by Ryan to mean union activity When Ryan asked him what the employees were complaining about and what improvements could be made in the terms and conditions of employment, Torto told him that the employees were complaining about their "paystubs" and about the failure to pay them for hours worked 3 Nothing further was said overtly regarding unions Torto also testified that van operations were an impor- tant part of Respondent's overall operation in the entire period through March 1983 when he last worked there, that truckdnvers drove vans and van drivers drove trucks on occasion, and that at no time in his employ- ment through March 1983, did Ryan or Mary Turin' ever promise to issue paystubs which would show hours worked and terms of payment Torto also recalled that in spite of at least one heated discussion with Ryan in late 1982, Ryan never disciplined him or anybody else for any conversations with, or complaints to, Ryan In addi- tion, he had never heard of Respondent giving written warnings for any misconduct In cross-examination, Torto testified that, prior to this luncheon conversation, paystubs were not discussed with Ryan although the proper payment of overtime was dis- cussed, and that at the end of this Friday, May 13 con- versation, Ryan said that there is "a cancer' in the Com- pany and he [Ryan] had to cut it out" (Tr 143) Ryan, though later called to the witness stand, did not deny Torto's testimony with regard to the existence of a "cancer" which had to be "cut out" by Ryan In the ab- sence of any contrary or other meaning, I find that Ryan was referring to employee union activities as the "cancer " Lastly, Torto recalled that after the fall of 1982, Ryan often expressed ,unhappiness with Chris Heinz 4 Ryan, like Torto, recalled that only one employee had ever been discharged by Respondent "for cause" Allen Bagwell, a driver, was discharged for driving while in- toxicated with an improper license in 1982 On Wednesday, May 11, 1983, the day after Ryan's first phone call to Leonard Torto, and after the signing of the seven union cards by Respondent's employees,5 3 The evidence shows that prior to the period commencing May 16 (ending with the pay date of Thursday, May 19) Respondent did not issue to its employees, along with paychecks, the paystubs showing the hours worked including overtime hours and the payment for such hours 4 Ryan s conversation with Torto appears to demonstrate violation of Sec 8(a)(1) of the Act in interrogating Torto concerning union activity among Respondent's employees and the threat to cut out the "cancer That Torto, an employee of Swiss Air Cargo, was not an employee of Respondent at the time of the coercive interrogation and threat is imma terial Brtnkman Southeast, 261 NLRB 204, 210 (1982) While the corn plaint allegation regarding Ryan's unlawful interrogations is not limited to Respondent's employees, I need not rule on the interrogation of Torto since other findings of coercive interrogation herein render it merely cu mulative 5 As will be noted hereafter, Respondent did not object to the receipt of these cards in evidence based on their authenticity but attacked the cards' weight" for purposes of their being counted towards a majority in the unit Ryan called employees into his private office immediate- ly upon their reporting for work at or about 8 a m While it is unknown what his 10-minute conversation was with the first employee (Ron Bergeron) known to be in the office, as the second employee, John Everton, was leaving the office, he told Christopher Heinz who was about to enter "Don't tell Joe [Ryan] I said anything about unions—tell him [only] what's wrong with the company" Ryan and Heinz were then alone in Ryan's private office Ryan said that he did not know "why I'm talking to you because you're not going to be here much longer" He then asked Heinz why the guys were "upset" Heinz answered that it was because the failure of Respondent to issue its employees' paystubs along with their paychecks, the length of driving that the em- ployees did, the failure of Respondent to pay them for the 1-hour lunch period, and the incompetency or inad- equacy of Respondent's vice president, Mary Turilli, in planning the drivers' runs Heinz told Ryan that the driv- ers often needlessly crossed each other's paths in making pickups and deliveries Ryan, according to Heinz, then asked Heinz "What do you think of unions ?" Ryan denies asking the question I credit Heinz for the reasons above stated Heinz credibly answered that he did not like the Teamsters Union Ryan then said "I've always Maintained that the first time a union organizer showed up, I'd shut the doors and close the company I'm a crazy enough guy to do it and I'm stubborn enough to do that" Ryan denies making this remark I credit Heinz and reject Ryan's denial 6 Ryan then directed Heinz to return to work He did so B May 13 The Meeting with the Employees and the Discharge of Christopher Heinz About December 1982, Ryan called a meeting of Heinz and Torto with regard to errors in warehousing functions It is undisputed that Heinz had nothing to do with errors Torto and Heinz voiced objections and mis- givings with the way Ryan and Mary Tunlli were run- ning the business As a result, Ryan told them that al- though he would keep them employed until they found other jobs, they both should start looking for work else- where In January through April, Ryan had discussions with Heinz (Torto quit in March to work for Swiss Air Cargo) concerning his progress in finding other work 6 Ryan admitted to a past practice of speaking to employees in groups rather than individually (as he did, as hereinafter noted on May 13), but stated that he spoke to four employees (Heinz, Everton, Bergeron, and a fourth employee whose name he could not recall) on May 11 individual ly ' because 'he wanted to When it was pointed out to Ryan that this might not constitute a sufficient explanation for his deviating from an ad mated past practice, Ryan said that he spoke to them individually be cause he wanted to determine if there were any problems, not union problems, among his employees This of course, is not a pertinent expla nation in view of the fact that It not only deviated from past practices but on May 13, 1983, he met with employees as a group In any event, I do not credit Ryan s denial and find that he coercively interrogated Heinz concerning Heinz' feelings about unions, violating Sec 8(a)(1) of the Act, and I also discredit the reason Ryan advanced for calling employees Into his office individually rather than speaking to them as a group I also find that he unlawfully threatened to close the doors and go out of business, again violating Sec 8(a)(1) of the Act 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ryan recalled that in two meetings in February and April 1983, Heinz repeatedly told him that Vice Presi- dent Mary Turin' was incompetent, did not know her job and did not know how to deal with or treat the driv- ers. Ryan answered that he supported Mary Turi111 and if anyone could not get along with her they should get an- other job Although Ryan admits speaking to Heinz and three other employees on May 11, untruthfully denying men- tioning the Union, 7 denying a threat to close down in the event that the Union appeared, denying telling Heinz . "I don't know why I'm talking to you," but ad- mitting speaking to the employees about "problems" they were having, he testified that on the evening of Thursday, May 12, he told Vice President Mary Tun111 to make up Heinz' paycheck on Friday morning, telling her that he would discharge Heinz on Friday evening, May 13 (Tr. 409). He testified he told Mary Tun111 on Thursday evening that he could no longer work with Heinz and that he had come to the conclusion to fire Heinz because Heinz had become "disruptive." Ryan, in the face of direct inquiry, could not explain why, if Heinz was "disruptive" and if the decision to terminate him was based on Heinz' months' old, continued disrup- tive influence and his repeated questioning of Vice Presi- dent Mary Turilli's performance, he was not terminated at an earlier opportunity at least at the end of the pay period, Wednesday, May 11 (Respondent's pay period runs from Thursday of each week to Wednesday with payday being on Thursday) or why Heinz, indeed, was terminated suddenly in mid-pay period. Nor could Ryan explain why, if Heinz was "disruptive" he was permitted to work all day Friday, being discharged on Friday night. The most Ryan could say was he did not want to "cause disruption" (Tr. 415). Michael Fazio, a driver presently employed by Re- spondent, testified that sometime after 6 p.m. in the evening of May 13, 1983, on the same day that Christo- pher Heinz was discharged, but before the discharge, Ryan called him into Ryan's private office. He testified credibly (I reject Ryan's denial of this testimony) that Ryan asked him if he knew anything of the Union, whether cards were being passed around and particularly whether Heinz "had anything to do with it?" He also asked Fazio whether he had signed a union card and, when Fazio told him that he had, he not only asked Fazio who else had signed union cards, but specifically whether Heinz and Solomon "were the people instigat- ing the Union." On cross-examination, Fazio testified that he told Ryan that he did not know who were the "instigators." Since he had received his union card from Albert Solomon through employee Tom Wessell and had returned the card to Solomon at a designated and agreed place, it was clear that Fazio was falsely denying, to Ryan, knowledge of who the union card distnbutors and "instigators" were. Fazio testified that his meeting with 7 On May 10, as noted above, Ryan telephoned Torto to inquire, inter alit', of "grumblings" among his employees Ryan lasted 10 to 15 minutes and that he could not leave Ryan's presence until Ryan finished questioning of him.8 Fazio sat in Ryan's office while Ryan left to have other employees come into the office. Later, with the employees (Wessel, Kirk, Fazio, and Bergeron) in the office, he met with them as a group, sitting in Ryan's in- terior private office Heinz appeared in the outer office Ryan became very upset and left the inner office to speak to Heinz. Fazio heard Ryan tell Heinz to "hurry up and put his paper work away and get out of the office." Ryan then admittedly returned to the group meeting and asked the assembled employees if they had signed union cards. Although Ryan had already spoken to Bergeron, Tom Wessell was the only one who said that he had signed a card. Ryan already knew that Fazio had signed a card. Fazio credibly further testified that Ryan asked the group whether there was going to be an election and whether the employees were "with me?" Ryan then said that he did not "want anyone coming in and telling him how to run his business; that he would not stand for it." Ryan testified that he first learned that cards had been passed around from employee Bergeron after 7:30 p.m. on May 13. Ryan particularly testified that he knew nothing about union activity among his em- ployees until the meeting of May 13, after he discharged Heinz, when Bergeon told him that union cards were being circulated among unit employees. I do not credit Ryan's testimony in this regard Fazio further credibly testified, contrary to Ryan's fur- ther denial, that in the week following this Friday, May 13 meeting, on Monday or Tuesday, May 16 or 17, Ryan asked him: "Can I count you on my side?" Fazio said that he told Ryan: "Yes." About the same time on May 16 or 17, as Fazio was walking by Ryan's office, Ryan asked him again whether he could "count on" Fazio. Ryan was holding a sheet of paper with a list of names on it concerning who had signed cards for the Union. Fazio saw him jotting names down and saw Ryan put Fazio's name down on the list. Thus, it was about 7:30 p.m., May 13, when Heinz re- turned to Respondent's facility and, as Fazio testified, had a conversation with Ryan in the outer office while the other employees were in Ryan's inner office. Ryan had already interrogated Fazio concerning Heinz and Solomon as union "instigators." Ryan left the inner office and approached Heinz in the outer office, saying to him: "If you have anything to present to me and these guys, you'd better do it now." Heinz answered: "I don't know what you mean. I have nothing to say to you" Ryan, very angry, then said to him: "You're finished here, Mister, its all over. . . . If you had a tenth of the moral fiber. . . ." Heinz said that Ryan stopped in mid- sentence at this point and said: "You'll never run this company; I'll cut this company up into ribbons before you'll get your hands on it." Ryan then handed Heinz an envelope which Heinz thereafter discovered had 3 weeks' severance pay in it. 8 Ryan told him to take the 8 Although Respondent's answer pleaded denials to the General Coun- sel's allegations of Independent 8(a)(1) violations, Respondent's brief does not address such Issues 9 No explanation was offered why Heinz, discharged for misconduct as a "disruptive" employee, was tendered 3 weeks' severance pay HORIZON AIR SERVICES 249 envelope Heinz answered "Keep it" Ryan said "You have no moral integrity" Heinz answered "That's funny because for the last 9 months; you have been telling me exactly the opposite" Heinz then asked him why he was being fired and Ryan answered "You'll get no informa- tion from me You can call my lawyer on Monday morn- ing" At this point, Ryan jotted down the telephone number of his lawyer and gave it to Heinz Heinz never received a reason for his discharge At the hearing, how- ever, Respondent's attorney stated that Heinz was being fired for "poor work performance" and for his "atti- tude" It was at this point, as Fazio testified, that Ryan told Heinz to finish up his paper work and to leave Heinz testified, without contradiction, that Ryan never criticized Heinz' performance of his work in the last 6 months of employment On the contrary, Heinz testified, again without contradiction, that on at least five occa- sions, Ryan told him, in conversations regarding Heinz' performance, that Heinz was not a "complainer" and was doing his work very well Indeed, according to Heinz' credited testimony, Ryan told him this 3 to 4 weeks before he was discharged Heinz testified that when Ryan inquired of his problems on the job, he told him that Mary Turin' was incompetent but denied telling him that she should be fired or that a woman could not do the job Ryan testified that after Heinz refused to come into the inner office on Ryan's demand on the evening of May 13 (Ryan puts the time between 7 and 7 30 p m and therefore after the time that Fazio credibly testified that Fazio had a private conference with Ryan, with Ryan asking if Heinz and Solomon were union instigators, in Ryan's inner office (Tr 426-428)), Ryan handed Heinz an envelope and told him that he was discharged Ryan says he never told Heinz what was in the envelope and denies asking Heinz whether he had anything to present to the group Ryan recalls that after Heinz had left to put his paperwork away, he returned the envelope un- opened and put it on Ryan's desk Ryan could not recall whether he said anything about moral fiber or asking Heinz asking him for a reason, in a written statement, for his discharge Ryan specifically denied saying anything about Heinz getting his hands on the Company or Ryan's cutting the Company to ribbons before permitting Heinz to get his hands on it I credit Heinz' version of the dis- charge interview and do not credit Ryan's denials While it is true that Fazio, overhearing only some of the con- versation (Tr 436), did not fully corroborate Heinz, yet Fazio describes Ryan's anger in discharging Heinz In the absence of another credible basis, I conclude that the source of Ryan's otherwise unexplained anger was the union animus described above in Heinz' credited testimo- ny Fazio's testimony, which I credit, also demonstrates that Ryan coercively interrogated him in the private office before, rather than after, discharging Heinz Respondent's defense, essentially, is that Ryan decided to discharge Heinz as early as May 12, i e , before these unlawful threats and interrogations of May 13 I do not credit this defense Insofar as Ryan telling Mary Tunlli to get Heinz' pay- checks made up on the evening of May 12, I do not credit this testimony in view of the failure of Mary Tur- illi to appear as a witness to corroborate it or to identify the discharge documents as having been the result of a May 12 direction Even if Ryan's testimony on this point were credited, I would nevertheless infer that Ryan knew or suspected, prior to the May 13 interrogation of Fazio, that Heinz and Solomon were union "instigators" As above noted, Ryan denied that his May 10 phone call to Leonard Torto had anything to do with his em- ployees union activities but only to question Torto as to (1) how he was getting along at Swiss Air and (2) any "problems" or "rumblings" among Respondent's drivers Ryan testified that Torto had told him only that his em- ployees were upset with regard to the failure to receive paystubs and to be paid properly for overtime Lastly, Ryan testified that he kept no list of employees and denied asking Fazio whether Fazio was "with him" and putting his name down on a list I credit Fazio and do not credit Ryan in this testimony Nor do I credit Ryan that Torto was "mistaken" in his testimony that Ryan's inquiry of May 13 concerned union activities among Re- spondent's employees Moreover, I find that Ryan's May 10 phone call to Torto regarding "problems" or "grum- blings" among Respondent's drivers related to their union activities James Kirk, like Fazio, a driver employed by Re- spondent at the time he gave his testimony, relunctantly corroborated Fazio's testimony He recalled that while he was in Ryan's office with coemployees on the evening of May 13, between 6 and 8 p m, Ryan told them that he did not want a union, that it was not in their best interest, that he did not want people telling him "how to run his business", and that "he'd close if the Union came in" Like Fazio, Kirk, contradicting Ryan, testified that after the May 13 meeting, Ryan asked him if he were "on his side about this union" Like Fazio, Kirk told him "yes" Unlike Fazio, Kirk saw no sheet of paper with a list of names on it C Ryan's Explanation of the Discharge (1) Ryan testified and Respondent's counsel asserted, that he discharged Heinz because he was "disruptive" in that he continually criticized Mary Turrilles perform- ance The second of two acts of criticism occurred in April 1983 (Tr 402) Ryan testified that he discharged Heinz before he spoke to the four employees on May 13 when he asked them if they had signed union cards He testified that he made up his mind to discharge Heinz on May 11 and on the evening of May 12 told Vice President Mary Tunlli to make up Heinz' paycheck so that he could be dis- charged on the evening of May 13 As above noted, Mary Tunlli failed to testify, thus failing to corroborate any Ryan communication to her of his May 11 decision to discharge Heinz on May 13 and also failing to cor- roborate Ryan's testimony that Ryan told her as early as the evening of May 12 that he was going to discharge Heinz on the evening of May 13 Thus, Ryan, allegedly having decided on Wednesday, May 11, to discharge Heinz, could not explain why he permitted this "disrup- tive" employee, Heinz, to work all day Thursday and all day Friday (May 12 and 13) nor why the discharge was 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not executed earlier or at least coextensive with -the end of the pay period on Wednesday, May 11, or why he gave him severance pay. Ryan admitted that Heinz and he had an understanding that Heinz would remain as an employee until he found another job and Heinz had never given a date for leaving Respondent or told Ryan that he had found another job; nor did Ryan establish a terminal date for Heinz remaining as an employee. In ad- dition, Ryan admitted that it was possible that Heinz had told him that even if he found another job, he would work part time for Respondent. (2) Ryan admitted that he did not give Heinz , a reason for his being discharged on the evening of May 13. When Ryan, on the witness stand, was asked why he did not give him a reason (when counsel for Respondent had already stated that the reasons for Heinz' discharge were Heinz' poor work performance and Heinz' "attitude"), Ryan responded: "I can't answer that." (3) With regard to his telephone conversation with Leonard Torto, Ryan testified that while he could not recall when he had previously last phoned Torto, a "6th sense" caused him to 'call about grumblings among his employees. I do not believe that Ryan enjoyed occult powers of perception and I regard such testimony as un- worthy of a serious man of affairs. Although Ryan testi- fied that this May 10 telephone call to Torto was to in- quire of Torto's progress as an employee at Swiss Air Cargo, he testified that, when he actually spoke with Torto on the morning of May 13, he asked Torto if the employees were grumbling. There was no mention in that phone call of Torto's progress as an employee. Al- though Ryan's testimony repeatedly adverts to Heinz' questioning Mary Turilli's ability and competence and while this may well be a matter of Heinz' "bad attitude," there is nothing in Ryan's testimony remotely supporting counsel for Respondent's assertion that one of the rea- sons, apart from Heinz' "attitude," for Heinz' discharge was Heinz' "poor work performance." Nothing in the evidence relates to any misdeed or lack of ability in Heinz' work On the contrary, Heinz' testimony, regard- ing consistent Ryan praise for Heinz' work, stands unre- futed. D. Implementation of Changed Working Conditions on and after Monday, May 16, 1983 The complaint (par. 8(e)) alleges that on or about May 16, 1983, Respondent implemented new working condi- tions by granting overtime to warehouse employees, changing work hours for the drivers and warehousemen and instituting paystubs. President Ryan admitted that effective May 16, show- ing up in the paychecks of May 19, Respondent institut- ed the practice of delivering to its employees along with their paychecks, paystubs showing their weekly pay, with the number of regular hours worked, the number of overtime hours worked, and the pay therefore. Ryan fur- ther testified that this had never been done before and had been implemented on May 16 because, on May 11, employee Everton told him, and on May 13, former em- ployee Leonard Torto told him, that the employees were grumbling over their failure to receive paystubs and the failure to show the overtime and the overtime pay. The credited testimony of Michael Fazio in this matter shows .that prior to Monday, May 16, employees re- ceived their paychecks showing only the gross amount of pay. The normal working hours for the drivers and warehousemen were from 8 a.m. to 5 p.m. This is a 9- hour period including 1 hour for lunchtime. The employ- ees were paid for 8 hours of work for this 9-hour period. Commencing May 16, as reflected in the May 19 pay- check, the employees in fact were directed to work only from 8 a.m. to 4 p.m. rather than 5 p.m. The prior prac- tice was, for Respondent to pay overtime at apparently straight-time rates for work performed after 5 p.m. Com- mencing May 16, overtime was paid at the rate of time- and-a-half the regular rate, after 4 p.m Similarly, Mi- chael Cutillo testified that before May 16, overtime was paid for hours worked after 5 p.m. and that, prior to that time, the ninth hour of work, from 4 to 5 p m., was paid at the regular rate. Leonard Torto testified that, while he was employed by Respondent, neither Ryan nor Turilli had ever promised to issue paystubs or show hours of overtime to the employees. Torto further testified that, in the past, the failure of Respondent to issue paystubs was not discussed between himself and Ryan but that the problem of the failure of Respondent to pay for the lunchtime hour was discussed. It thus appears uncontra- dicted that commencing on May 16, the employees in the unit were' paid the same pay for 40 hours including the lunch hour that they had been paid for 45 hours thereto- fore. In addition, for the first time they were issued pays- tubs which paystubs showed the number of overtime hours and the payment for overtime. Lastly, commenc- ing May 16, 1983, the employees were paid for overtime commencing after 4 p.m. rather than after 5 p.m. E. The Change in Working Hours of the Written Warning to, and the Discharge of Albert Solomon As above noted, Solomon was employed from Febru- ary 1983 until his May 26 discharge. He was the senior van driver of the two steady van drivers employed by Respondent in this period. The other steady van driver was Michael Cutillo. The other employee who drove a van from time to time was warehouseman Tom Wessell. It was Solomon who first contacted the Union on May 6, and on Monday, May 9, together with Heinz, met with union agents and received union membership appli- cation cards for distribution to the unit employees. Again, it was on May 9 and 10 that Solomon and Heinz distributed union cards to 7 of Respondent's 12 unit em- ployees and thereafter sent the seven signed cards to the Union. Also, it was on May 10 that Ryan first tele- phoned Leonard Torto about Respondent's employees "grumbling" and it was on May 11 that Ryan interrogat- ed Heinz concerning Heinz' knowledge of and sympathy for a union. Lastly, it was on May 13 that Ryan, after interrogating Fazio with regard to union activities among the employees and specifically questioning him on whether Heinz and Solomon were the union "instiga- tors," discharged Heinz. On the next day, Saturday, May 14, Ryan telephoned Solomon at his home early in the morning but Solomon was not available. When Solomon returned the call later HORIZON AIR SERVICES 251 in the morning, Ryan told him that he was giving Solo- mon new hours and a new job He was to be made a guard at the warehouse with hours from 11 p m to 7 a m starting on the following Monday, May 16 When Solomon told him that Solomon had inconsistent respon- sibilities at home, Ryan answered "Tough" Ryan then hung up I conclude that Respondent, having, as noted hereafter, unlawfully discharged employee Heinz on the evening of May 13, now sought to unlawfully isolate Solomon, the other union "instigator," on the next day, May 14 On Monday, May 16, Solomon telephoned Ryan about 8 30 a m (according to Ryan's instructions of May 14, Solomon was not supposed to work until that night at 11 p m) and asked Ryan "May I please have my job back?" Ryan said he would have to speak to his lawyer [sic] first At about 2 p m, Ryan telephoned Solomon, told him that he had spoken to his lawyer, and instructed Solomon to report to work at his old job the next day, Tuesday, with hours of 8 a m to 4 p m He told Solo- mon that there would be "no overtime, no nothing for you" Prior to this time, Solomon had worked, and re- ceived pay for, overtime hours Solomon returned to his regular job on Tuesday, May 17, working 8 a m to 4 p m It is undisputed that Ryan paid Solomon for the entire prior day of Monday, May 16, notwithstanding that Solomon did not work at all on that day No expla- nation, was offered for Ryan's change of mind on job as- signment or his payment of a day's pay for no work per- formed On the next day, Wednesday, May 18, Solomon was sick and did not work He testified that, on several occa- sions, he tried to telephone to notify Respondent of his illness and his inability to come to work but that he could not reach Respondent because his telephone calls were met by busy signals While I credit Solomon's testi- mony that he attempted to telephone Respondent on sev- eral occasions, I do not credit his further testimony that he had made a good-faith effort on that day to contact Respondent I do not believe, even crediting his testimo- ny, that he was so ill that he could not pick up the tele- phone after the busy signals and contact Respondent The record is unclear as to whether or to what extent Solomon worked the next day, Thursday, May 19 In any event, commencing May 20, when Solomon again reported to work, I credit his testimony that there was a noticeable cold chill in the office emmating from Mary Tunlli Notwithstanding that he told Ryan that he tried to telephone him and could not get through, that morn- ing Mary Turilli typed up and Ryan presented to Solo- mon a written warning (G C Exh 8) for his failure to contact Respondent because of illness on Wednesday, 10 The wntten warning reads as follows May 20, 1983 TO Albert Solomon FROM Joseph Ryan Horizon Air Services, Inc is now placing you on notice for not call mg in nor coming in on May 18, 1983 Each and every employee has always been required to call in if there is a problem with their coming to work Therefore, if this happens in the future, immediate termination will take place Your cooperation in this matter would be appreciated May 18 Ryan asked him to sign the written notice and he did so 10 With regard to this May 20 written warning to Solomon, Ryan admitted that there had never been a written warning issued to any employee for any purpose prior to this time, that he had issued the written warning with the advice, and at the direction, of his lawyer, and that the reason that a written rather than a verbal warh- ing was issued was because Ryan was faced with new "parameters " Ryan testified that these "new parameters" included his being faced with union organization among his employees When Solomon was in Ryan's office signing the writ- ten warning, Ryan told Solomon that he had "no future in the company" and "when this is over, I will clean house" Ryan told Solomon that he should go home and that there was no work for him on that day Solomon thanked him and left, first punching out When Solomon next reported for work on Monday, May 23, Ryan told him that there was no work for him and that he should go home Solomon punched out The same thing happened the next day, on May 24, when Ryan told him to go home and that there was no work for him There is no dispute that Ryan told him on each occasion that he would be paid for the full day but that there was no work for him and that he should go home Ryan admitted, however, that on each such day, there was work for Solomon Indeed, the evidence shows, ac- cording to Michael Cutillo's credited testimony, that Cu- tillo performed the van driver work that Solomon would have performed had he been permitted to work On May 23 or 24 when Solomon reported for work in the morning, after he had loaded his truck and executed his paperwork, Mary Turilli threw his pickup list and a pen on the floor forcing Solomon to pick them up She slammed the door as she was leaving Solomon yelled after her Ryan then called Solomon to his office and was yelling at Solomon for his yelling at Turilli and giving her a "hard time" Solomon testified credibly that he told Ryan three times in the office to get Mary Turilli "off my back" Ryan said "No" It is undisputed that Solomon then told Ryan that if he did not get Mary Tur- illi off his back he would go to the Union and file charges of harassment for Respondent's misconduct Ryan told him to do what he had to do Solomon then drove to the nearby union office and explained the situa- tion to the union agents who told him to return to work When he returned to work at 9 30 a m, his truck had been driven off by another employee and Ryan told him that there was no work for him As with the previous days when Ryan had told him to go home, Ryan told him that he would be paid for the full day His paycheck shows that he was paid for the full day On Wednesday, May 25, when Solomon reported for work, Ryan again told him that there was no work for him and as Solomon was punching out, Ryan told him " The consolidated complaint alleges (par 8(1)) that on or about May 23, 1983, Ryan told its employees "there was no chance of you working here when this is over and when it is over, I am going to clean house" The complaint alleges that this constitutes a violation of Sec 8(a)(I) of the Act 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that he should not "bother coming in until this is over" Ryan told him that he would pay him for his time Solo- mon then punched out and went home On Saturday, May 28, Solomon received a letter from Respondent dated May 26, 1983 Dear Mr Solomon After much consideration, we have made the deci- sion to phase out that portion of our business serv- iced by the vans It has become apparent to us over a period of time that our business is going in a di- rection away from the use of vans Consequently, your services will no longer be needed Your cooperation in returning your company uni- forms as soon as possible would be greatly appreci- ated F Respondent's Explanation for its Conduct with Regard to Albert Solomon As above noted, it was stipulated that Respondent has continued its van operation since May 26, 1983, notwith- standing Ryan's above letter to Solomon Indeed, the un- contradicted and credited testimony of van driver Mi- chael Cutillo is that the van operation, at all times since his employment commencing March 1983, has not changed, that at the time of the hearing, Respondent was operating one van on a regular basis with several drivers, that Solomon's work was still being done and that he, Cutillo, was doing Solomon's work Indeed, over the 1983 summer, an additional part-time summer van driver had been hired He noted that Solomon was more senior in employment than himself Thus, it is clear that, con- trary to Respondent's written explanation of why it dis- charged Solomon (phasing out the use of vans) the evi- dence shows that several persons continue to drive Re- spondent's van Respondent therefore offered a false reason for discharging Solomon, its most senior van driver Further, Ryan testified that when Solomon, on May 20 signed the written warning, Ryan admittedly told him "I want no more problems and no more trou- ble from you" At the hearing, Ryan, for the first time, stated that what he meant by this was that Solomon's "personal safety" was part of the "problem " Finally, in discussing the discharge, Ryan said that he discharged Solomon because he was phasing out the van operation anyway and he felt alarmed for Solomon's "safety" He testified that he thought Solomon would be "better off outside the company" Contrary to Cutillo's testimony, Ryan testified that Re- spondent still had two vans and that it was Solomon's "volatility" around the other employees that caused him to be "not well liked" It was this joint problem of Solo- mon not being well liked and his "volatility" that caused him to be not only discharged but, on May 14, caused Ryan to attempt to segregate Solomon from the other employees Indeed, on cross-examination, Ryan said that he was afraid for Solomon's safety and therefore as- signed him on May 14 to work a shift from 11 p m to 7 a m alone in the warehouse In explanation of Ryan's fear for Solomon's safety, he testified that employees Bergeron and Everton did not like Solomon because they told him, in discussions on the evening of May 13, that Solomon was "a new boy on the block" and "had too much to say" Ryan admitted that he had never heard any employee, or anyone else, make any statement concerning a physical threat to Solomon Nor did Ryan explain why, after contacting his lawyer, he permitted Solomon to return to his former job Ryan further ex- plained that on each occasion that he sent Solomon home, it was Ryan's fear for Solomon's physical safety that caused him to do this just as it had been Ryan's fear of Solomon's physical safety that led him to assign Solo- mon to a warehouse job, working alone, from 11 p m to 7 a m Finally, Ryan again testified that he discharged Solomon because of his "volatility" and because he was a "divisive factor" Solomon's being a "divisive factor" stemmed from his not being well liked by employees and Mary Turilli and fears for Solomon's physical safety G The Alleged Violation of Section 8(a)(5) of the Act The complaint alleges and, at the hearing, Respondent stipulated that the unit alleged in the complaint was a unit appropriate for bargaining within the meaning of Section 9(b) of the Act The complaint (par 13) also alleges that on or about May 11, 1983, a majority of the employees of Respond- ent in the appropriate unit designated or selected the Union as their representative for the purpose of collec- tive bargaining with Respondent In view of the stipulation that at all material times, and particularly as of May 13, 1983, there were 12 named employees 12 in the unit, and there being proof that on May 9 and 10, 7 of the named employees signed "single- purpose" union cards designating the Union as their bar- gaining representative, it is clear that the allegation of paragraph 13 was prima facie proven It was also stipulated that, by letter of June 9, 1983, the Union requested Respondent to bargain in the afore- said unit and that Respondent, commencing with the June 14 receipt of the letter requesting bargaining, has consistently refused to bargain There remains at issue the question of whether, pursu- ant to the 7 employees out of 12 (a majority) having signed cards designating the Union as their majority rep- resentative, and in the absence of an election, the Union is the "exclusive representative of all the employees in said unit for the purpose of collective bargaining" within the meaning of the allegations in paragraph 14 of the consolidated complaint and of Section 9(a) of the Act In this regard, Respondent argues that, notwithstand- ing that a majority of employees in the unit signed the above "single-purpose" cards (no mention of an election appears on the face thereof)," the Union should not be found to be the majority representative because the em- ployees signed the cards on the misleading assertion that the execution of the cards would lead to a Board-con- ducted election and that the intent of the signers, there- " Ron Bergeron, Michael Cutillo, Albert Solomon, James Quist, James Kirk, John Barry, Michael Fazio, John Everton, Robert Wiebold, Tom Wessell, Christopher Heinz, and James Barry 13 The card signer "authorize[s] the [Union] to act as my collective bargaining agent" (G C Exhs 3-7 and 10 and II) HORIZON AIR SERVICES 253 fore, was not the designation of the Union as their bar- gaining representative Further, Respondent argues that on the date of the demand for recognition by the Union, certainly no earli- er than June 9, and more appropriately June 14 (the date of the receipt by Respondent of the Union's June 9 re- quest for bargaining), both Solomon and Heinz had been lawfully discharged and therefore on the date of demand for recognition only 5 of 10 remaining employees in the unit had signed cards and therefore the Union did not represent a majority It is clear that, if both Solomon and Heinz were lawfully discharged, the Union would not have a majority of employees designating the Union in the unit Assuming all cards demonstrate union designa- tion, then if one of the two employees were unlawfully discharged, there would be 6 employees who signed cards of 11 remaining in the unit and thus a majority For this purpose, there is no question that the Board rule is that for majority purposes, an unlawfully discharged employee remains a unit employee to be counted for pur- poses of determining whether there was a union majority as of the time of the demand Dutch Boy, Inc , 262 NLRB 4, 8 (1982), Jaybil Steel Products, 258 NLRB 1108, 1195 (1981), Robin American Corp, 245 NLRB 822, 841 (1979) Similarly, if any other card is not counted, for any reason, then notwithstanding the inclusion of the two cards of the alleged discriminatees, there would be no majority While Michael Cutillo testified that when Solomon gave him the card, Solomon told him that signature of the card would authorize the IAM to come into Horizon as "a representative" and that nothing was said about an election, and while Michael Fazio testified that, when he signed the card given to him by Tom Wessell from Al Solomon, nothing at all was said about the purpose of the card, there was no question that other employees heard, from Solomon and Heinz, the word "election" prior to signing their respective cards (1) James Kirk testified that he received his card from Jim Quist who had been given the card by Heinz Kirk testified that Quist told him, when he gave him the card, that Heinz had asked Quist to give it to him, that it was about the Union, that it was to get someone from the Union down to "talk about a union vote", that the card should be returned to Quist Kirk testified that he read it, signed it, and returned it to Quist (2) Tom Wessell testified that Heinz gave him the union card on May 9 and he signed it 2 hours after Heinz had given it to him, that he did not recall reading the card before he signed it, and he signed it without dis- cussion with Heinz at the time he signed it Wessell kept the card overnight and returned it on May 10 to another employee whose name he did not recall He also testified that It was possible that he did read it before signing it (3) James R Quist testified that when he signed the card on May 9, 1983, Heinz had given it to him, that he read it, that he signed it at home, and that previously Heinz had told him that the employees needed 51 per- cent to have a union come down and talk to them and after that there would be a vote Solomon testified that when he gave the cards to Cu- tubo and Quist, he told them that the cards would be mailed to Washington for representation by the Union, that a union representative would be in touch with them, told them to return the cards signed as soon as possible and that an election would be "part of this" Heinz testified that on May 9 and 10, when he gave the union cards to Cutillo and Quist, he asked them if they wanted to sign cards for the IAM which would get them benefits and the cards were for the Union to "rep- resent us" and there would be an election "down the line" in 3 weeks or a month Discussions and Conclusions A Violations of Section 8(a)(1) of the Act 1 Coercive interrogation and unlawful threats to close down the business The complaint (par 8(a)) alleges unlawful interroga- tion by President Ryan on May 11 and 13, 1983 Ryan's interrogation of Heinz on May 11 at 8 15 a m took place in Ryan's private office wherein Ryan opened the con- versation by saying that he "didn't know why he was talking to [Heinz] because you're not going to be here much longer" He asked Heinz why everyone was so angry and what Heinz thought about unions There was no legitimate reason for Ryan to call any employee into his office to find out what the employee thought about unions This violated Section 8(a)(1) of the Act In the same conversation (as alleged in par 8(b)), Ryan told Heinz that "the first time a union organizer shows up, I'll close the doors—I'm stubborn enough and crazy enough to do it" This constituted an illegal threat to close the business because of the advent of the Union, and violated Section 8(a)(1) of the Act Similarly, Ryan's May 13 inquiry of Fazio, alone in Ryan's office, concern- ing not only whether Fazio signed the union card and who else signed cards, but whether Heinz and Solomon were the union "instigators," also constitutes unlawful coercive interrogation in violation of Section 8(a)(1) as alleged Similarly, James Kirk, substantially corroborat- ing Fazio's testimony (that Ryan on May 13 told him that he did not want the Union and would close the doors if a union came in), testified that Ryan, on May 13 said that unions were not in the employees' best interest, that he did not want "people telling him how to run his business", and that he would close the doors if a union came in Lastly when, in the week following May 13, Ryan asked Fazio and Kirk whether they were "on his side about this union" and they told him that they were, this nevertheless constituted coercive and unlawful inter- rogation in violation of Section 8(a)(1) Joseph Ryan ad- mitted that on May 13 he asked the assembled employees in his office who had signed union cards This too is al- leged to be unlawful interrogation of employees within the meaning of Section 8(a)(1) as alleged in paragraph 8(c) of the complaint I so find See generally NLRB v Laredo Coca-Cola Bottling Co, 613 F 2d 1338 (5th Cir 1980), cert denied 449 U S 889 (1980) In short, I find that, as alleged, Respondent violated Section 8(a)(1), unlawfully interrogated employees about their union activities, and about their signing union cards on May 11 and 13, and on the same dates sought to dis- 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cover whether employees Heinz and Solomon were the union "instigators" and unlawfully threatened to close down the business because of the advent of the Union as alleged in paragraph 8(b) of the consolidated complaint 2 Implementation of new working conditions on May 16 Further, I find, as alleged in subparagraph 8(e) of the consolidated complaint that on May 16, 1983, Respond- ent implemented new working conditions in violation of Section 8(a)(1) of the Act There was no dispute that, commencing May 16, Respondent paid employees the same amount of pay for working from 8 a m to 4 p m as it had paid them from 8 a m to 5 p m Thus, it gave them an hour's extra straight-time pay It also, for the first time, pursuant to employees' complaints, instituted the practice of giving them paystubs showing the break- down of what they were paid for and also, beginning at that time, changed their working hours from 8 a m to 5 p m to 8 a m to 4 p m with overtime being paid after 4 p m rather than after 5 p m The only question is what the motivation was for these changes and improvements Respondent's sole witness, Joseph Ryan, testified that there had been mention of changing these working con- ditions prior to this time Assuming, arguendo, that there had been discussions of employee unhappiness and dis- gruntlement over such working conditions, as Ryan and Leonard Torto testified, there had never been a Re- spondent commitment to making any of these changes The only intervening event that occurred was the advent of the Union and Joseph Ryan's solicitation from his em- ployees and from Leonard Torto as to what the employ- ees were grumbling about He discovered it was the question of their receiving proper overtime, being paid for the lunchtime, and receiving paystubs He initiated these changes in their working conditions on the first working day after discharging Heinz (found unlawful below), after unlawfully interrogating and threatening his employees because of the advent of the Union I find and conclude that, whether or not these changes had been discussed previously, they were not instituted pursuant to a decision made prior to Respondent's knowledge of its employes' union activities and were implemented on May 16 because of the advent of the Union, to discour- age union support among employees, in violation of Sec- tion 8(a)(1) of the Act Arrow Elastic Corp, 230 NLRB 110, 112 (1977), NLRB v Rich's of Plymouth, 578 F 2d 880, 883 (1st Cir 1978) 3 Ryan's May 23, 1983 threat of discharge to Solomon The complaint (par 8(0) alleges that on May 23, President Ryan stated to his employees "that there was no chance of you working here when this is over and when it is over, I'm going to clean house" I have cred- ited Solomon's testimony over Ryan's denial regarding Solomon's conversation" with Ryan at about 8 15 a m 14 One week prior to this conversation, on May 13 Ryan similarly told Leonard Torto, according to Torto's undefiled testimony that there was a "cancer" growing on Respondent and that Ryan would "cut it out" As noted, the "cancer referred to the Union on May 20, about the same time that he was signing and acknowledging the written warning for his failing to call in or report for work on Wednesday, May 18 At this time, Ryan told him that he had "no future in the com- pany and when this is over (i e, when the union prob- lems are not present) I will clean house " Consistent with the allegation, this testimony is an unlawful threat of dis- charge coming well after Respondent suspected that Sol- omon was an "instigator" for the Union Ryan's state- ment that Solomon had no future in the Company and that Ryan would "clean house" is a clear implication that he would discharge or terminate Solomon I find that this conduct, as alleged, violates Section 8(a)(1) of the Act as an unlawful threat Self Cycle Distributor Co, 237 NLRB 75 (1978) B Violation of Section 8(a)(3) of the Act The May 13, 1983 Discharge of Christopher Heinz Paragraph 9(a) of the consolidated complaint alleges the unlawful discharge of Christopher Heinz on May 13, 1983 At the hearing, Ryan admitted that he was op- posed to the Union becoming representative of his unit employees As noted above, he also admitted, that on May 13, 1983, he interrogated his employees concerning who had signed union cards I have found this admitted inquiry, made against a background of union animus, to be unlawful coercive interrogation I have further found, above, that on May 11, 1 day after the distribution and signature of the seven union membership application cards, he unlawfully interrogated Heinz regarding Heinz' feelings about the Union and about 6 p m on May 13 asked employee Michael Fazio, in a private interroga- tion, whether Heinz and Solomon were the "union insti- gators" I have also found that on and after May 11, by other unlawful coercive interrogation, by threats of closedown and by his admission that he was against the Union becoming the representative of his employees for purposes of collective bargaining, Ryan committed unfair labor practices and demonstrated union animus with regard to his employees' union activities In addition, I conclude that, by his coercive interrogation of employee Fazio in the early evening of May 13 (around 6 p m) and prior to Heinz' discharge (between 7 and 7 30 p m), Ryan had confirmed" his earlier suspicion that Heinz and Solomon were "instigators" for the Union among his employees His questioning of Fazio had that explicit confirmatory purpose The fact that Fazio falsely denied knowledge as to who the instigators were does not de- tract from my conclusion that, by whatever means, on Fazio's credited testimony, Ryan had already accurately singled out who, in this small, 12-man unit, the union "instigators" were among his employees The inference i5 I conclude that prior to any alleged May 12 direction (and I do not believe that such direction existed) by Ryan to Mary Turin' to fire Heinz on May 13, Ryan already knew that Heinz and Solomon were union Instigators His 6 pm, May 13 Interrogation of Fazio was only sub sequent corroboration In short, Ryan could not have reasonably put the question to Fazio if he did not already suspect or believe that Heinz and Solomon were the Instigators I find support for this conclusion in that Ryan, in the noon of May 13, had already threatened Torto that he must cut out the [Union] cancer' growing among Respondent s employees HORIZON AIR SERVICES 255 of Ryan's knowledge is manifest St John's Construction Corp, 258 NLRB 471, 480 (1981) With such a concur- rent show of union animus and unfair labor practices, considering the timing of the Heinz discharge on May 13, 4 days after the first distribution of union cards and Respondent's knowledge of who the "union instigators" were among its employees (Heinz and Solomon), I con- clude that the General Counsel proved a strong prima facie case This prima facie case was strengthened by the fact that (1) Respondent admittedly failed to give Heinz, who requested a reason, a reason for the discharge at the time of the discharge and referred him to Respondent's attorney The Board rule is that the failure to give a reason for the discharge in the face of a prima facie case not only tends to undermine the strength of a "defense" first advanced at the hearing, but constitutes further evi- dence in support of an inference of illegality Moreover (2) the reasons advanced by Respondent at the hearing for the discharge of Heinz (poor work performance and "disruptive" attitude) are not at all supported with regard to his poor work performance The credited evi- dence is that Ryan repeatedly praised Heinz' perform- ance While it is true that Heinz' "attitude" included his repeated complaints about the performance of Respond- ent's vice president, Mary Turilli (albeit, according to Heinz' uncontradicted testimony, these complaints only resulted from questions by Ryan concerning problems that Heinz was having in his work), there is no contra- diction of Heinz' testimony that Ryan repeatedly praised the quality of his work and complimented him on the fact that he was not a "complainer" Furthermore, if Heinz' continuous poor attitude and performance result- ed in a May 11 decision to discharge Heinz, why was he kept in employment for 2 days and discharged without warning Moreover, Ryan admitted that Heinz' last com- plaint against Turilli was in April (Tr 402) Why dis- charge him 2 weeks later? In sum, Respondent failed to give a reason for the dis- charge when it could have, and when, at the hearing, it did come up with reasons for the discharge, at least one of them (poor work performance) was unsubstantiated, and disruptive "attitude," apart from being ambiguous, related only to two complaints by Heinz against Turilli (Tr 402), the second of which was at least 2 weeks before discharge These complaints, at least in part, were solicited by Ryan himself on the credited evidence I find that even if Ryan was vexed by Heinz' complaints against Turin', these complaints resulted in no immediate discipline There is no reason for the delay in discipline and the facts supporting Respondent's reasons were not sufficient, in my judgment, to constitute anything more than a contrived pretext conjured up by Ryan to explain an otherwise clearly unlawful discharge in the face of a prima facie case which can only be characterized as "strong "1 6 Last, it should be noted that Mary Turilli did not testi- fy in this proceeding Her failure to testify, therefore, caused a failure to corroborate Ryan's statement that he decided on Wednesday, May 11, that he intended to ter- 16 I conclude that a motivating factor' in Heinz' discharge was his union activity Wright Line, 251 NLRB 1083 (1980) =ate Heinz While it is true that Turilli told Heinz at 11 45 a m on May 13 that he should stop in to see Ryan before he left work that night, there is no proof what Tunlli had in mind in telling him to see Ryan or wheth- er, in particular, it had anything to do with Heinz' dis- charge Even assuming, however, that it did have some- thing to do with Heinz' discharge, there _is no easily available corroboration from Turilli that Ryan toldt her that he made up his mind on May 11 to discharge,Heinz All it proves, on this record, is that Ryan's wish to see Heinz occurred before Ryan, in his private interrogation of Fazio at 6 p m, inquired of Fazio to confirm that Heinz and Solomon were the "union instigators" What the Fazio testimony indicates is that no later than an hour prior to the discharge, Ryan identified Heinz and Solomon as the "union instigators" Just how far prior to his May 13 noon conversation with Torto, when he threatened to cut out the union "cancer," is not clear from the record and is not dispositive What is clear is that early in the morning of May 11, he had already un- lawfully interrogated and threatened Heinz concerning Heinz' sympathies with unions In the face of this strong prima facie case and Re- spondent's failure to prove, by a preponderance of credi- ble evidence, a defense (or by its creation of a pretext as a defense), I conclude that the General Counsel has proved by a preponderance of the evidence that Re- spondent, on May 13, 1983, discharged Christopher Heinz in violation of Section 8(a)(1) and (3) of the Act 17 NLRB v Transportation Mgt Corp, 462 U S 393 (1983), Wright Line, supra, Limestone Apparel Corp, 255 NLRB 722 (1981) C Violations of Section 8(a)(3) with Respect to the Employment of Albert Solomon With regard to Albert Solomon, the complaint alleges (pars 9(b) through (e)) that Respondent, on May 17, 1983, unlawfully reduced Solomon's working hours, eliminating overtime, on May 19 issued him an unlawful written warning, on May 19, 20, 23, and 24, 1983, re- fused to permit him to work, and on May 26, unlawfully discharged him As above noted, Respondent, in violation of Section 8(a)(1) and (3) of the Act, threatened to change and did change Solomon's working hours from 8 a m to 5 p m as a driver to 11 p m to 7 a m as a warehouseman in order to segregate him as an employee and to keep him away from other unit employees because of Solomon's activities on behalf of the Union That Ryan thereafter changed his mind after consulting counsel does not con- stitute legal disavowal or vitiate the coercive action 17 Respondent did not take the position that Heinz had ever given up his employment with Respondent Indeed, the evidence showed that while Respondent repeatedly suggested that if Heinz were dissatisfied with his job, he would seek another Job and that Respondent was willing to help him do so, but Heinz remained an employee Heinz credited testi mony is that he received, on several occasions, within 3 to 4 weeks of his discharge, praise from Ryan concerning the quality of Heinz' perform ance In short, the motivating force behind the sudden, unexplained May 13 discharge was Heinz' being a union instigator' rather than any Ryan irritation flowing from Heinz' bad attitude resulting from his two com plaints to Ryan concerning Tunlh's performance 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD against Solomon in violation of Section 8(a)(1) and (3) by the original action. Passavant Memorial Hospital, 237 NLRB 138 (1978). Ryan's subsequent unlawful conduct (the May 26 Solomon discharge) is dispositive of any at- tempted repudiation. The credited Solomon testimony shows that on May 16, in the telephone call with Ryan, Ryan said that he had already spoken to his lawyer and that Solomon could return to his old job but that it would be from 8 a.m. to 4 p.m. with no overtime. Solomon credibly testi- fied that prior to this time he worked overtime hours and was paid for them. Thereafter, he was to be paid only on an 8-hour-per-day basis. At the hearing, it was stipulated that Cut'llo, in the period subsequent to May 17, 1983, worked considerable overtime. Thus, for the week ending May 17, Cutillo worked 17-1/2 hours overtime and, more particularly, in the week ending May 24, he worked 14-1/2 hours over- time, the week of May 31, 11 hours overtime, and he worked overtime in each and every week between May 31 and September 6, 1983. The paychecks given to Albert Solomon dated May 26, 1983 (G.C. Exh. 9), and their accompanying paystubs, consistent with Ryan's ex- planation at the hearing, show that he was paid this money as both regular pay and severance pay. In the first check in the gross sum of $265, the stub shows it was his regular pay for the week ending May 26, there is no notation for the payment of overtime and only a nota- tion of regular pay week. There was also a notation of 40 regular hours with a blank showing in the place for overtime hours. Since Cutillo credibly testified, without contradiction, that on and after the time of Solomon's not working, he did Solomon's work, it would appear that Respondent, consistent with Solomon's credited tes- timony of what Ryan said to him on May 16, refused to permit him to work overtime or to pay him overtime. Whether the overtime hours that Solomon would have worked would have been the same as, greater than, or less than the overtime hours Cutillo actually worked, on this record, are matters for future backpay proceedings if the issue is contested. There is no doubt, on this record, that Respondent, consistent with Ryan's unlawful threat, eliminated paying Solomon any overtime which was the past practice. I find that in doing so, Respondent, as al- leged in paragraph 9(b) of the complaint, thereby violat- ed Section 8(a)(3) and (1) of the Act. With regard to the written warning, the evidence showed that it occurred on May 20, 1983, rather than as alleged, May 19, 1983. Consistent with the stipulation of the parties, Ryan admitted that this had been the first written reprimand ever issued by Respondent in its more than 4 years of existence. While in the past, there had been verbal reprimands, Ryan testified that he issued Sol- omon a written reprimand only after consulting his attor- ney. Consultation with the attorney, of course, does not provide an immunity blanket for Respondent's actions. Rather, it is admitted that this was the first written repri- mand ever given to any employee. While it is unneces- sary to answer the question whether Solomon's less than adequate efforts to contact Respondent in his failing to either call in or appear for work on May 18 rated a rep- rimand, there is no question that the inauguration of a written reprimand system constituted a new disciplinary tactic by Respondent. The question remains as to the motive for this newly implemented disciplinary action. Ryan gave the answer. He said that he inaugurated the use of a written reprimand against Solomon because he was faced with not merely personnel problems but new "parameters" of problems. He admitted that the new "parameters" of problems were the advent of the Union among his employees. The inauguration of a new, and perhaps more serious, reprimand system and its imple- mentation against his employees based on the advent of the Union, on Ryan's own admission, as alleged, clearly violates Section 8(a)(3) and (1) of the Act. I so find. Paragraph 9(d) alleges that on certain dates in May 1983, Respondent refused unlawfully to employ Albert Solomon at its Boston facility. As noted above, on May 14, 1983, Respondent threat- ened to segregate Solomon from its other unit employees because of his union activities, a violation of Section 8(a)(1) of the Act. Ryan admitted that on the days he sent Solomon home (actually May 20, 23, 24, and 25) he did so by falsely telling Solomon that there was no work for him. According to Ryan, his actual motive was his fear for Solomon's physical safety and because Solo- mon's continued presence among coemployees made the situation "volatile." Ryan nevertheless admitted that there had been no physical threats to, much less actions against, Solomon's safety. In addition, I find that Ryan's attempt to segregate Solomon by changing his job and isolating him in a warehouse on a night shift when he might be successfully attacked shows the incredibility of Respondent's defense that it was concern for Solomon's safety that caused his being (a) segregated at night in the warehouse and (b) sent home each day, asserting there was no work. Again, there had been no threats from anyone concerning Solomon and his physical safety. At best, Ryan could only testify that the employees (Ber- geron and Everton) did not like him. This is not a reason to send an employee home and to prevent him from working. The motive for this is clearly, as Solomon's May 14 attempt to segregate him implied, Solomon's union activities In passing, it should be noted that Ryan's attempt and desire to segregate Solomon on May 14 came only 1 day after Solomon and Heinz had been identified as "union instigators" in the private interroga- tion of Michael Fazio. I conclude that, as alleged, on May 20, 23, 24, and 25, Respondent refused to permit Solomon to work because of his union activities, which action violated Section 8(a)(3) and (1) of the Act. Last, the complaint alleges that on May 26, 1983, Re- spondent, in violation of Section 8(a)(3) and (1) of the Act, unlawfully discharged Solomon. As with Heinz, Ryan, in his May 13 unlawful interrogation of employee Michael Fazio, confirmed Solomon to be a "union insti- gator." On May 14, in violation of Section 8(a)(1) of the Act, Ryan attempted to segregate Solomon by isolating from other employees as a warehouseman on the night shift In further violation of Section 8(a)(1) and (3) of the Act, it issued him a written warning on May 20 and re- fused to permit him to work although there was work HORIZON AIR SERVICES 257 available for him commencing May 20 It discharged him on May 26 In view of the timing, Respondent's animus, Respondent's unlawful acts generally, and Respondent's identification of Solomon as a union instigator and subse- quent unlawful acts directed against Solomon and Heinz in particular, I conclude that the General Counsel proved a strong prima facie case regarding the May 26 discharge of Albert Solomon Respondent's defense, composed as early as the day of his discharge (May 26, 1983, G C Exh 2), is that the de- cision to discharge him was based solely on Respondent's decision to "phase out that portion of our business serv- iced by the vans" Notwithstanding that Respondent's business tends more and more to use heavier trucking, in- cluding tractor-trailer trucks, there is no question that at the time of the Solomon discharge, allegedly because of the abandonment or the "phasing out" of the use of vans, Respondent kept in employment a less senior employee, Michael Cutillo, who testified credibly and without con- tradiction that he took over and continued Solomon's van driving functions Respondent's declared reason for discharging Solomon ("phasing out" van operation) is also in direct contradiction to the stipulation that Re- spondent continued its van operation after May 26 Thus, I conclude that the reason advanced as a defense by Re- spondent is false In addition, Cutillo worked many over- time hours in performing his van function, and Respond- ent used sometimes two vans after Solomon's discharge in effectuating Respondent's business activities Nowhere in Respondent's written contemporaneous reason for the termination of Solomon (phasing out of vans) is there another reason suggested At the hearing, however, Respondent for the first time voiced a further reason for the discharge, its fears for the physical safety of Albert Solomon Ryan admitted that there had never been a threat by any person or any employee concerning the physical well-being of Solomon I therefore conclude that the new reason of "physical well-being" was as un- supported as the previous written reason Moreover, if Solomon's physical well-being caused Ryan to send him home and not permit him to work, and to discharge him, there was no reason why Ryan would isolate him in the warehouse on a night shift where anyone who was vio- lently disposed against him could more easily get at him In short, the written reason advanced by Respondent on May 26 for Solomon's discharge (the phasing out of vans) and the testimonial reason first advanced at the hearing by Ryan were not supported by any evidence on the record Thus, in the face of the General Counsel's strong prima facie case, Respondent's defenses on its dis- criminating actions against Solomon were either un- proved in toto or pretextual Neither of these cases (Heinz and Solomon) is an actual "mixed motive" case Rather, in the face of the General Counsel's strong prima facie cases wherein the General Counsel proved that it was Heinz' and Solomon's union activities being the sub- stantial if not the sole motivating factor for their dis- charges and for Respondent's other unlawful conduct against them, Respondent failed to credibly rebut that testimony with palpable defenses In short, Respondent did not support its burden to show that it would have taken the same action against Heinz and Solomon re- gardless of their engaging in protected conduct See Wright Line, 251 NLRB 1083 (1980), NLRB v Transpor- tation Management Corp, 462 U S 393 (1983) I find and conclude that Respondent failed to show by any credible evidence, much less than by a preponderance, that it would have taken its actions against Heinz and Solomon for any of the reasons advanced by Respondent I therefore conclude that on May 26, 1983, in violation of Section 8(a)(3) of the Act, Respondent unlawfully dis- charged Albert Solomon D Violation of Section 8(a)(5) of the Act 1 Refusal to bargain, union majority in an appropriate unit (a) The unit has been stipulated as appropriate for pur- poses of Section 9(b) of the Act (b) The record, without contradiction, shows that on May 9 and 10, 7 of the 12 unit employees signed "single- purpose" cards for the Union This is prima facie proof of a unit majority, as of May 11, 1983, designating the Union as bargaining representative Respondent received the Union's June 9 request for recognition on June 14, 1983 (c) Respondent's essential defense is that at least three cards were signed for the purpose of having an election rather than to designate the Union as the employees' col- lective-bargaining representative, and that these three cards should not be counted for card-majority purposes (d) All 7 of the 12 employees (except Wessell) signing these cards testified that they signed them after reading them On the admissions of both Heinz and Solomon, and putting aside Cutillo and Fazio (who signed the cards without anyone mentioning the word election), Heinz and Solomon testified that they mentioned to coemployees that the signing of the cards would bring a union agent among them to explain the Union and that there would be an election "somewhere along the line" The Board rule under the Cumberland Shoe Doctrine, 144 NLRB 1268 (1963), enfd 351 F 2d 917 (6th Cir 1963), as approved by the Supreme Court in NLRB v assel Packing Co, 395 U S 575, 608 (1969), (expressly adopting the Cumberland rule), is that single-purpose cards will be counted toward establishing a majority of union support unless it is proved that the employee was told that his card was to be used solely for the purpose of obtaining an election The Board and courts have contin- ued to enforce that strict rule, e g, NLRB v Keystone Pretzel Bakery, 696 F 2d 257 (3d Cir 1982) Although the Supreme Court in Gissel warned that the Board not give "mechanical application" to the Cumberland rule, Levi Strauss case, 172 NLRB 732 (1968), enfd 441 F 2d 1027 (D C Cir 1970), there is no suggestion here that any of the solicitors of the cards, including Quist, Heinz, and Solomon, ever told any of the signers that the cards would be only for an election In particular, here, as in Photo Drive Up, 267 NLRB 329 (1983) and cases cited therein, the fact that the solicitor stated to the card sign- ers that the cards would be used to get an election cannot be construed as misrepresenting the purpose of the card as unambiguously stated thereon Since none of 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the card solicitors urged the signers to disregard "single- purpose" card language or suggested that these single- purpose cards would be used only to secure an election, but that the cards would get a union official to address them and that there would be an election, does not un- dermine the face of these cards which states that the pur- pose was to secure the IAM as the collective-bargaining representative of the unit employees The cards, there- fore, should be counted as demonstrating that a unit ma- jority wanted union representation for collective-bargain- ing purposes 18 I find on the basis of the above evidence that, at all material times from May 11 through at least June 14, when Respondent received the union demand for recog- nition and bargaining, the Union represented a majority of the Respondent's employees in an appropriate unit In so concluding, I include the cards of Heinz (discharged May 13) and Solomon (discharged May 26) because, as 18 To oppose the General Counsel's proof that the cards show major' ty status in the unit, Respondent essentially attacks the weight to be ac corded to three cards (1) Respondent notes that Wessell testified he had no recollection of having read the card before signing It and that the card solicitor, Heinz, said that signing the cards ' would get a union representative to talk to the employees and would get us a vote " Yet Wessell also testified that he knew it was a union card he was signing and that it was "possible" (Tr 170) that he did read the card before signing it I observed that Wes sell was a highly perceptive and careful witness I credit his latter recol lection and find that he did read the card before signing it The Board has explicitly held, that a card be counted notwithstanding that the solici tor told the signer that the card was to get a Union representative to come down and talk to the employees" and that "signing the card did not mean the signer was joining the Union " Dresser Industries, 248 NLRB 33, 36 (1980) (card of S D Lindsay), enfd 654 F 2d 944 (4th Cir 1981), Photo Drive Up, 267 NLRB 329, 364 (1983) ( the fact that the solicitor stated that the cards would be used to get an election cannot be con strued as misrepresenting the purpose of the card as unambiguously stated thereon") Under the above-cited authority interpreting NLRB v Gissel Packing Co, 395 U S 575 (1969), Wessell's card should be counted for majority purposes In this regard, I am also mindful of the Board s specific admonition to its judges, on this very point, to count such a card (signed after being told it would secure a vote ) and the enforcing court s specific emphasis that the card be counted except where it can be said that the solicitor states that the only purpose is to secure an election Compare Hach:tier Mfg Co , 243 NLRB 927 (1979), enfd per curiam in NLRB v Hitch:tier Mfg Co, 634 F 2d 1110 (8th Cir 1980) In the face of such emphatic Board and court determinations, under the Gissel rule, I am constrained to reject Respondent s argument (R Br, pp 7-10) that, to count these cards would fly in the face of the Gissel Packing and Levi Strauss (172 NLRB 57 (1968)) warnings against magic words" and me chanical application of the Cumberland Shoe Corp, 144 NLRB 1286 (1963) rule (2) Quist was given his union card by Heinz Quist read the card before signing It He testified that Heinz told him that "they" needed "51 per cent or better to have a vote, and a Union representative will come down and talk to us about the Union And after such time, we'd have a vote When Quist was pressed by the General Counsel whether he understood the card, he admitted that he knew the card said "I want it' (i e, the Union), but it was his "impression" that it was 'to get a vote" (Tr 177) The Supreme Court, in Giza Packing, warns against relying on this type of employee testimony of subjective motivation in his signing a union card when he, as here, is testifying in the presence of his employer who, as here, has threatened, and taken, repnsals against union supporters On the basis of the above precedents, Quist s card should be counted (3) Last, Kirk testified that Quist gave him the union card, that he read it and fully understood it at the time he signed the card (Tr 166), and that Quist told him that the card was to get an election, and we d have a Union representative come to talk to us about it" (Tr 165) On the basis of the above precedents, and specifically in the absence of evidence suggesting that Quist told him the card was only for an election, I shall count the card unlawfully discharged employees who were card signers, they too must be considered as part of a majority See generally Photo Drive Up, 267 NLRB 329 (1983), (Ellen Starbird's card), Robin American Corp, 245 NLRB 822, 841 (1979) Respondent admits the lawfulness and the appropriate- ness of the unit, I have found that at all material times on and after May 10, 1983, the Union represented a majority of Respondent's employees in that unit, on June 14, Re- spondent received the Union's request for recognition, and Respondent admits that at all times thereafter it has refused to bargain with the Union Having found, con- trary to Respondent's arguments, that the membership authorization cards of a majority (i e, 7) of unit employ- ees demonstrate that an uncoerced majority of the 12 employees designated the Union as the collective-bar- gaining representative, I conclude that Respondent's re- fusal to recognize and bargain with the Union, on the Union's request of June 9, received June 14, violates Sec- tion 8(a)(5) of the Act 2 Bargaining order as remedy As noted in Photo Drive Up, supra, the Supreme Court has held that an employer has a right to a Board election so long as he does not undermine the election process Summer & Co v NLRB, 419 U S 301 (1974) In NLRB v Gissel Packing Co, 395 U S 575 (1969), the Supreme Court approved the Board's use of a bargaining order to remedy an employer's independent Section 8(a)(1) and (3) violations which so undermined a union's majority status that they fatally impeded the holding of a fair elec- tion In Gissel, the issuance of bargaining orders by the Board was found to be appropriate in two situations the first involves unfair labor practices which are so "outra- geous" and "pervasive" that traditional remedies, includ- ing an election, cannot eliminate their coercive effect The second, described in Gissel, supra at 614-615 is where the unfair labor practices are less pervasive but nonetheless still have the tendency to undermine majori- ty strength and impede the election processes The court further stated that If the Board finds that the possibility of erasing the effects of past practices and of ensuring a fair elec- tion by the use of traditional remedies, though present, is slight, and that employees' sentiments once expressed through cards would, on balance, be better protected by a bargaining order, then such an order should issue Respondent's unfair labor practices have been wide- spread, charged with animus, and designed to eliminate union organization among unit employees It is vain to place Respondent's conduct in either Gissel category It is enough that in the presence of unlawful actions by an employer during an organizational campaign such as threats to close down, threats of discharge, changes in working conditions, and unlawful discharges themselves, a bargaining order has been found particularly appropri- ate because of these "hallmark" violations NLRB v Ja- maica Towing, 632 F 2d 208 (1980) Where, as here, Re- spondent has unlawfully discharged the leading union HORIZON AIR SERVICES 259 proponents, the appropriateness of a bargaining order is even clearer Hitchiner Mfg Co, 243 NLRB 927, 928 (1979) 19 In the instant case, the presence of the aforementioned "hallmark" violations is widespread Not only did Ryan, Respondent's highest official, Ohio New & Rebuilt Parts, 267 NLRB 420 (1983), threaten to close down the plant in his May 13 outburst to gathered employees, but in their very midst, discharged Heinz whom they and Ryan knew to be one of the two "union instigators," and thereafter, 2 weeks later, after an illegal, abortive attempt at isolating him, discharged Solomon on false grounds On this record, I conclude that these discharges, threats, interrogations, etc made to employees in a small unit cannot escape employee memory in a Board election General Stencils, 195 NLRB 1109, 1110 (1972) Hence, a Board election may not reflect uncoerced employee con- victions Other evidence strongly supports this conclu- sion Michael Fazio and James Kirk, both card signers, testified that in the week following Ryan's unlawful threats, interrogations and the discharge of Heinz on May 13, Ryan asked them, individually, whether he could "count on them" and whether they were on "my side" against the Union Both of them, on this record, answered "yes" Since there were only seven cards signed in a total unit of 12 employees, it is apparent that if the election were held with the same employees in the unit, these two of the seven card signers, on this record, might have defected from the Union In addition, upon my observation of the sophisticated Tom Wessell, and es- pecially his testimony that he could not recall whether he read the card before signing it, testimony which I have rejected as incredible, I would conclude that even a third employee who signed a card might have changed his mind I lay the evidence of these possible defections at the feet of Ryan's unfair labor practices and I con- clude, therefore, that there is substantial evidence that Ryan has been successful in his attempt to break the back of union support In such a situation, the holding of an election would be futile On this further ground, I would recommend to the Board that a bargaining order be issued IV THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As the unfair labor practices committed by Respond- ent are serious and go to the very heart of the Act, I shall recommend that it cease and desist therefrom and in any other manner from interfering with, restraining, and coercing its employees in the exercise of the rights guar- anteed to them in Section 7 of the Act 20 Having found that Respondent unlawfully discharged Christopher Heinz and Albert Solomon, it is recom- mended that Respondent offer each of them immediate and full reinstatement to their former positions, or if said 19 Huchiner at p 928 "We doubt that the lesson of the [discharges] will be soon forgotten by the employees" 20 Hickmott Foods, 242 NLRB 1357 (1979) positions no longer exist, to substantially equivalent posi- tions, without loss of seniority or other benefits, dis- charging any employee hired in their stead, if necessary, and make each of them whole for any loss of pay result- ing from the discrimination against them 21 by payment to each of them of a sum of money equal to the amount which each would normally have earned as wages from the date of their respective discharges to the date of a bona fide offer of reinstatement, less net interim earnings The backpay due under the terms of the recommmended Order shall be computed in the manner prescribed by the Board in F W Woolworth Co, 90 NLRB 289 (1950), with interest as described in Florida Steel Corp, 231 NLRB 651 (1977) 22 In view of Respondent's extensive and pervasive unfair labor practices which were calculat- ed to destroy, and may have destroyed, Union's previous majority status, and since I am persuaded that the appli- cation of traditional remedies, including a direction for a Board-conducted election, cannot eliminate the lingering and restraining effects thereof, I shall recommend the is- suance of a bargaining order Respondent received the Union's June 9, 1983 request for recognition on June 14 and Respondent admittedly refused to bargain after that date I shall therefore rec- ommend to the Board that the Respondent's bargaining obligation commence from June 14, 1983, coextensive with the formal Section 8(a)(5) violation since it appears that, and I assume, all of Respondent's statutory viola- tions occurring prior to that date have been alleged by the General Counsel and remedied by my recommended Order Ferland Mgt Co, 233 NLRB 467 (1977), Trading Port, Inc , 219 NLRB 298 (1975) See Peaker Run Coal Co, 228 NLRB 93, 95 (1977) Respondent having admit- tedly rejected the Union's June 9 request to bargain, I shall not order the Union again to request bargaining but will oblige Respondent to immediately notify the Union of Respondent's willingness to recognize and bargain CONCLUSIONS OF LAW 1 Respondent, Horizon Air Services, Inc , is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act 2 International Association of Machinists and Aero- space Workers, AFL-CIO (the Union) is a labor organi- zation within the meaning of Section 2(5) of the Act 3 Respondent, commencing May 11, 1983, has inter- fered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, and is thereby engaged in unfair labor practices in violation of Section 8(a)(1) of the Act and has thus en- gaged in unfair labor practices which have a close, inti- mate and substantial relationship to trade, traffic, and commerce among the several states, tending to lead to " To the extent that Solomon was not fully paid for the days on which Respondent unlawfully prevented him from working (May 20, 1983, et seq ), he should be made whole Similarly, Respondent's prior unlawful refusal to permit Solomon to work overtime must be rectified by calculating how many overtime hours he would have worked and been paid for post May 14 had Respondent not unlawfully discriminated against him 22 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor disputes burdening and obstructing commerce and the free flow thereof by: (a) Coercively interrogating employees regarding their own and other employees' union activities and sympa- thies and their execution of union membership authoriza- tion cards. (b) Threatening its employees with discharge and plant closure if they engage in union activities or supported the Union, or if the Union became their collective-bar- gaining representative. 4. By discharging, on May 13 and May 26, its employ- ees, Christopher Heinz and Albert Solomon because of their union activities and refusing to reinstate them, Re- spondent has unlawfully discriminated against employees and has thereby engaged in unfair labor practices in vio- lation of Section 8(a)(3) and (1) of the Act. 5. By on and after May 16, 1983 implementing new working conditions among its employees, isolating an employee from coemployees, granting employees over- time after 8 hours rather than after 9 hours, changing their working hours, and instituting the issuance of pays- tubs, for the purpose of discouraging support for and membership in the Union, Respondent has unlawfully discriminated in the terms and conditions of employment of its employees, thereby violating Section 8(a)(3) and (1) of the Act. 6. By issuing a May 20 written warning to and reduc- ing the working hours of Albert Solomon prior to his being unlawfully discharged, for the purpose of discour- aging his support of the Union, Respondent unlawfully discriminated against him, thereby violating Section 8(a)(3) and (1) of the Act. 7. All full-time and regular part-time warehousemen, drivers and warehousemen-drivers employed by Re- spondent at its Logan Airport, East Boston, Massachu- setts location, but excluding all office clerical employees, professional employees, guards and supervisors as de- fined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 8. Since May 10, 1983, the Union has been and is the exclusive collective-bargaining representative of all em- ployees employed in the above appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 9. By refusing on and after June 14, 1983, to recognize and bargain with the Union as the collective-bargaining representative of the employees in the above appropriate unit, Respondent has violated Section 8(a)(5) and (1) of the Act. 10. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed23 23 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 ORDER The Respondent, Horizon Air Services, Inc., Boston, Massachusetts, its officers, agents, successors, assigns, shall I Cease and desist from (a) Coercively interrogating its employees regarding their own and other employees' union activities and sym- pathies including whether any such employees have exe- cuted membership authorization cards for the Union or any other labor organization. (b) Threatening its employees with discharge, plant closure, loss of benefits, or any other retaliation, if they engage in union activities, become union members or support the Union or any other labor organization. (c) Threatening to change or changing the work hours, place of work, or other terms and conditions of employment of employees because they engage in union activities. (d) Discouraging membership or support for Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO or for any other labor organization by initiat- ing a written reprimand system, discharging employees, granting benefits and changes in terms and conditions of employment, or otherwise unlawfully discriminating against them in their wages, hours or other terms and conditions of employment (e) Refusing to recognize and, upon request, to bargain with International Association of Machinists and Aero- space Workers, AFL-CIO as the exclusive collective- bargaining representative of its employees in the follow- ing appropriate unit: All full-time and regular part-time warehousemen, drivers and warehousemen-drivers employed by Re- spondent at its Logan Airport, East Boston, Massa- chusetts location, but excluding all office clerical employees, professional employees, guards and su- pervisors as defined in the Act. (0 In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them under Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Christopher Heinz and Albert Solomon, and each of them, immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substan- tially equivalent positions, discharging, if necessary, any replacements, without prejudice to their seniority or other rights and privileges previously enjoyed. (b) Make Christopher Heinz and Albert Solomon, and each of them, whole for any loss of pay suffered by each of them by reason of Respondent's unlawful discrimina- tion against them found herein, in the manner described in the section herein entitled "The Remedy." (c) Expunge from the files of Christopher Heinz and Albert Solomon any reference to their respective unlaw- ful discharges of May 13 and 26, 1983, and any reference to the May 20, 1983 written warning to Solomon, and notify each of them, in writing that this has been done and that evidence of these unlawful acts against them HORIZON AIR SERVICES 261 will not be used as a basis for future personnel actions against either of them (d) Forthwith notify the Union of Respondent's will- ingness to immediately recognize and bargain in good faith with the Union, effective June 14, 1983, as the ex- clusive collective-bargaining representative of its em- ployees in the appropriate bargaining unit set forth above, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an un- derstanding is reached, embody such understanding in a written, signed agreement, and specify reasonable times and places where Respondent will engage in such bar- gaining (e) 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 and the terms and conditions of em- ployment of employees as of May 13, 1983, and thereaf- ter (f) Post at its Logan Airport, East Boston, Massachu- setts facilities copies of the attached notice marked "Ap- pendix "24 Copies of the notice, on forms provided by the Regional Director for Region 1, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material In view of the above disposition wherein I have found that a Board-conducted election can no longer be expect- ed to reasonably reflect the uncoerced desire of the unit employees, and having recommended that the Board therefore issue a bargaining Order to remedy both Re- spondent's violation of Section 8(a)(5) of the Act and other unfair labor practices, IT IS FURTHER ORDERED that the Union's petition for certification in Case 1-RC-17932 be dismissed 24 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 Na tonal Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities WE WILL NOT do anything that interferes with, re- strains or coerces you with respect to these rights More specifically, WE WILL NOT coercively interrogate you regarding your own or other employees' union activities or sympa- thies or whether any of you have executed union mem- bership application cards WE WILL NOT threaten you with discharge, plant clo- sure or changes in your working conditions or wages if you engage in union activities or support the union WE WILL NOT discriminate against you by discharging you, issuing written warnings, or changing your wages, hours or other terms and conditions of employment be- cause you are members of the Union or because you sup- port the Union in order that we discourage you from supporting the Union WE WILL NOT in any other manner interfere with, re- strain or coerce you in the exercise of your rights guar- anteed by Section 7 of the National Labor Relations Act WE WILL NOT refuse to recognize and bargain with International Association of Machinists and Aerospace Workers, AFL-CIO as your collective-bargaining repre- sentative WE WILL offer Christopher Heinz and Albert Solomon immediate and full reinstatement to their former jobs, or if those jobs no longer exist, to substantially equivalent positions, discharging, if necessary, any replacements, without prejudice to their respective seniority and any other rights or privileges previously enjoyed, and WE WILL make each of them whole for any loss of earnings or other benefits resulting from our discriminatory con- duct against them, plus interest WE WILL rescind and expunge from our personnel and other records any reference to the discharges of Christo- pher Heinz and Albert Solomon, respectively, on May 13 and 26, 1983, and all reference to any wntten warning of May 20, 1983, issued to Albert Solomon, and notify each of them, in writing, that this has been done and that evidence of these unlawful acts against them will not be used as a basis for future personnel actions against them WE WILL, forthwith notify the Union of our immedi- ate willingness to recognize and bargain collectively with the Union as your exclusive representative, which bargaining will be retroactive to June 14, 1983, in the ap- propriate bargaining unit as follows All full-time and regular part-time warehousemen, drivers and warehousemen-drivers employed by us at our Logan Airport, East Boston, Massachusetts location, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the National Labor Relations Act HORIZON AIR SERVICES, INC