J.H. Patterson Co.Download PDFNational Labor Relations Board - Board DecisionsMay 20, 1975217 N.L.R.B. 1030 (N.L.R.B. 1975) Copy Citation 1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD J.H. Patterson Company and General- Chauffeurs, Helpers and Salesdrivers Local Union No. 325, Cases 38-CA-2035, 38-CA-2037, and 38-CA-2088 May 20, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, J. H. Patterson Company, Freeport and Loves Park, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recom- mended Order. DECISION On January 16, 1975, Administrative Law Judge John F. Corbley issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions, a supporting statement, a brief in support of the Decision, and a motion to correct the Decision. Respondent filed exceptions, a supporting brief, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, briefs, and motion' and has decided to affirm the rulings, findings,' and conclusions3 of the Administrative Law Judge and to adopt his recommended Order. i We hereby grant the General Counsel's motion to correct the Decision The corrections are incorporated in the Administrative Law Judge's Deci- sion. 2 Respondent contends that the Administrative Law Judge exhibited bias in crediting the General Counsel's witnesses. In this connection, Respond- ent states, inter aba, that the Administrative Law Judge found that David T Rudy, manager of the Freeport yard, met with Sam Giardono, the Union's business agent, on May 28, 1974, rather than the next day, in the mistaken belief that the latter so testified Although the evidence shows that it was Rudy who correctly testified as to the May 28 date, we find upon an analysis of the entire record no basis for the allegations of bias and partiality merely because the Administrative Law Judge resolved important factual conflicts in favor of the General Counsel's witnesses For, as the Supreme Court stated in N.L R.B. v Pittsburgh Steamship Company, 337 U.S 656, 659 (1949), ". . [T]otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." It is also the Board's established policy not to overrule the Administrative Law Judge's resolu- tions with respect to credibility unless the clear preponderance of all rele- vant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A. 3, 1951) We find no basis for reversing his findings 3 Member Kennedy does not agree that Bruce Harvey, manager of the Loves Park Yard, violated Sec. 8(a)(1) during his June 3 address when he explained to the Loves Park employees that they had four options available to them: (1) resignation from the Union; (2) an election to determine their desire for continued representation; (3) strike; and (4) work while bargain- ing Harvey's comments were nothing more than a factual appraisal of several alternatives available to the employees They contained no direct or implied threat of reprisal or force, or promise of benefit Accordingly, they are protected by Sec. 8(c) Contrary to Member Kennedy, Members Fanning and Penello rind for the reasons set forth by the Administrative Law Judge that the last two options were presented as nonviable alternatives and therefore did not ex- culpate Respondent from its unlawful conduct in suggesting the first two options STATEMENT OF THE CASE JOHN F. CORBLEY, Administrative Law Judge: A hearing was held in this case on October 9, 10, and 11, 1974, pursuant to a charge filed by General Chauffeurs, Helpers and Sales- drivers Local Union No. 325, hereinafter referred to as the Union, on June 21, 1974, and served on Respondent by regis- tered mail on or about June 22, 1974; on another charge filed by the Union on June 24, 1974, and served on Respondent by registered mail on or about June 25, 1974; and a third charge filed by the Union on or about August 12, 1974, and served on Respondent by registered mail on or about August 13, 1974; on an order consolidating cases and consolidated com- plaint and notice of hearing issued by the Acting Officer-in- Charge of Subregion 38 on July 31, 1974; which was there- after served on Respondent by registered mail on the same date and on an order further consolidating cases, amended consolidated complaint and notice of rescheduled hearing issued by the Officer-in-Charge of Subregion 38 on September 13, 1974, which was served on Respondent by registered mail on September 13, 1974. The complaint, as finally amended and consolidated, alleges that Respondent by its supervisors and agents promised its employees benefits, if they refrained from supporting the Union; solicited employees to withdraw from the Union; threatened employees with loss of employ- ment if they continued to support the Union; implemented improved wage increases and other benefits to discourage employee support of the Union; suspended and later dis- charged Frank E. DeBoer, because of his union and other concerted activities; refused to sign collective-bargaining agreements at two business locations and has also refused to bargain collectively concerning wages, hours, and working conditions at each of these locations; retained certain strike replacements in order to dilute the Union's strength; and bargained individually with employees and gave them wage increases in excess of wage increases offered to the Union at an earlier time, engaging in both such actions in order to undermine the Union. The complaint as finally amended and consolidated alleges that by these activities, Respondent, variously, has violated Section 8(a)(1), (3), and (5) of the Act. In its answer to the complaint as finally amended and con- solidated, Respondent, although admitting certain of the fac- tual allegations of the complaint, has denied the commission of any unfair labor practices. For reasons which appear hereinafter, I find and conclude that Respondent has violated, and is violating, Section 8(a)(1), (3), and (5) as alleged in certain aspects of the com- 217 NLRB No. 175 J H. PATTERSON COMPANY plaint. As will appear, I further find that Respondent has not committed certain other violations of Section 8(a)(1) and (5) as also alleged in the complaint. At the hearing the General Counsel and Respondent were represented by counsel and were given full opportunity to examine and cross-examine witnesses , to introduce evidence and to file briefs. The General Counsel and Respondent waived oral argument at the conclusion of the hearing. Briefs have subsequently been filed by both these parties and have been considered. Upon the entire record' in this case including the briefs and from my observation of the witnesses , I make the follow- ing: FINDINGS OF FACT2 I THE BUSINESS OF RESPONDENT Respondent is, and has been at all times material herein, an Illinois corporation engaged in retail sales of lumber and building material products with its principal office and place of business in Rockford, Illinois. Respondent also has various other retail outlets located throughout Illinois, including re- taill stores located at Loves Park, Illinois, herein sometimes referred to as the Loves Park yard and at Freeport , Illinois, herein sometimes referred to as the Freeport yard. The Loves Park and Freeport yards are the only locations involved in this proceeding. Respondent, during the past 12 months, which- period is representative of all times material herein , had, in the course and conduct of its business operations , gross sales in excess of $500,000. Also during the past 12 months, which period is representative of all times material herein, Respondent, in the course and conduct of its business operations, purchased goods and materials valued in excess of $50 ,000 and trans- ported said goods to its places of business in Illinois directly from States other than the State of Illinois. Based on the foregoing , I conclude that Respondent is, and has been at all times material herein , an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Respondent has, admittedly , entered into collective-bar- gaining agreements with the Union covering Respondent's employees at both the Loves Park and Freeport yards, the most recent of which expired at each location in May 1974. The record indicates that Respondent engaged in further collective bargaining with the Union during that month. The I I hereby grant the General Counsel 's motion to correct the record. In granting the motion , I have corrected certain obvious typographical errors in it and have added two corrections which are consistent with the motion. In so doing I note that Respondent has agreed to the motion with certain exceptions which I have adopted and that said exceptions were themselves subsequently agreed to by the General Counsel Also in correcting the record to the extent requested I am not unmindful of the position of Respon- dent's counsel that there are yet other errors in the record (although he does not ask that I correct any other specific ones) However, in my judgment-other than the corrections which have been made-the record sufficiently preserves the substance of the testimony and events of the heating so as not to require any further correction. 2 All dates occur in 1974 unless otherwise noted 1031 record indicates that certain employees at both locations have been members of the Union and some continue to be. I, accordingly, conclude that the Union is, and was at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III RESPONDENT'S HIERARCHY The complaint (as finally amended) alleges, the answer admits and I find that, at all times material herein , the follow- ing named persons occupied the positions set opposite their respective names, have been and are now agents of Respond- ent, acting on its behalf and are supervisors within the mean- ing of Section 2(11) of the Act. Lloyd Gates Bruce B. Harvey Roger Lundgren David T. Rudy Glenn Gale President of Respondent Manager of the Loves Park yard Assistant Manager of the Loves Park yard Manager of the Freeport yard Yard foreman at the Freeport yard IV THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events Although Respondent operates a number of lumber yards, the only two involved in the present case are the Freeport and Loves Park yards. Inasmuch as each has its own work force and the bargaining histories are separate , I will treat the chronology of events at each location separately . To the ex- tent that the events at one yard may affect those at the other this will, of course, be-pointed out. 1. The events at the Freeport yard Since an unknown date several years ago but no later than' 1967, when Rudy became the manager of the Freeport yard, Respondent had recognized the Union as the exclusive bar- gaining representative of all its employees engaged in loading, unloading , storage and delivering services, including all truckdnvers , helpers, and yard laborers employed by Re- spondent at the Freeport yard , but excluding supervisors as defined in the Act. Respondent and the Union have entered into a series of collective-bargaining agreements covering these employees, the most recent of which was due to expire on May 23, 1974, unless automatically renewed for 1-year periods thereafter. Automatic renewal was forestalled by a letter from the Union to Respondent dated March 11, 1974, in which the Union timely advised Respondent that it desired to negotiate changes in this agreement . At the time of the expiration of this agreement all five bargaining unit employees at Freeport were members of the Union.3 In bargaining for these employees , Respondent had oper- ated through an employer association known as the Freeport Retail Lumber Bargaining Committee which, as of early May 3 The Union's majority will be discussed in detail in my "Concluding Findings." 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1974, included Respondent, Fullerton Lumber Company and Freeport Material Service. The first meeting to negotiate a new contract was held on May 9, 1974. In attendance were Respondent's Freeport yard manager, Rudy, a representative of the Fullerton Lumber Company by the name of George Didier, and Sam Giardono, a union business agent. When the meeting began Giardono inquired about the absence of a representative from Freeport Material Service and was told that the latter did not usually attend negotiating sessions but generally went along with whatever agreement was reached. Giardono thereupon passed out bargaining proposals to the employer representatives present and proceeded to go over the proposal article by article. No agreement was reached on any article of the proposal during this meeting with the exception of the Union's proposal for union security with a voluntary checkoff arrangement for union dues and its proposal that the contract be of 3 years' duration.4 Another negotiating session was held on or about May 23, 1973, pursuant to a telephone call between Rudy and Giardono.s In attendance at this meeting, which was also held at the Holiday Inn, were Rudy and Giardono. At the outset of the meeting, Rudy advised Giardono that Fullerton Lumber Company and Freeport Material had with- drawn from the bargaining group. Although Giardono took the position that those employers were still part of the group, he proceeded to discuss a counterproposal offered by Rudy. This included pay increases of 23, 25, and 28 cents, respec- tively, for each of the next 3 years, and improved vacation, sick day, and holiday benefits. There was agreement at this time on an additional week's vacation after 10 years and an additional sick day. There was disagreement on Rudy's offer of an additional holiday and the wage increase as well as other matters. Some union demands were dropped at this meeting. After the meeting Respondent's latest proposal was pre- sented to the employees who voted to reject it and to go on strike. The strike began on May 24, 1974, which was the day after the expiration of the prior contract covering the Freeport' yard. All five of the employees of this yard went on strike. They were Frank DeBoer, Clarence Brinkmeier, Randy Schulz, Bob Gale, and Buck Huett, each of whom was a union member at the time. One or more of these employees picketed Respondent's Freeport yard during the time of the strike. On May 24 or 25, 1974, Rudy spoke to Giardono and Robert Gale on or near the picket line outside the Freeport yard at which time Giardono went over the contract propos- als with Rudy. During this discussion agreement was reached on the extra holiday previously offered by Rudy, certain prior agreements were reviewed' and other union demands were 4 This finding is based on the credible testimony of Giardono in this regard. Rudy testified merely that an agreement was not reached at this meeting He did not deny that accord was reached on any specific proposals, Didier did not testify I will comment later in this decision about the credi- bility of Rudy 5 The date of this meeting is based on the credible testimony of Rudy in this regard Rudy testified, and Giardono corrborated, that when the meet- mg began, Rudy advised Giardono that Fullerton and Freeport Material had withdrawn from the Association Rudy was not informed of these withdraw- als until May 22 and May 23, hence the meeting could have taken place no earlier than May 23. dropped. Giardono did not accept Rudy's wage offer, which was unchanged from the previous meeting, and Rudy refused to agree to inclusion of a seniority provision in the contract. This meeting took about an hour and a half. After the meet- ing with Rudy had concluded, Giardono discussed the latest wage offer with the men on the picket line but they rejected it and the strike continued.' On May 28, 1974, Rudy again met with Giardono and Robert Gale at the Holiday Inn in Freeport. Rudy announced at this meeting that he had a better offer to make but he would not present it unless Giardono agreed to bargain with Respondent individually and not with the Freeport Commit- tee as a group. Giardono declined to bargain on this basis and the meeting broke up.' On May 29, Glenn Gale9 spoke to DeBoer on the picket line and told DeBoer that Respondent was willing to offer employees more than the new contract wage rates previously offered to Giardono, if the employees withdrew from the Union. Glenn Gale also told DeBoer that the employees could use their vacation time to cover for the time that they were on strike and that he, Gale, would see to it that the employees would be paid for the Memorial Day holiday.10 Another meeting was scheduled by Giardono with all the members of the Freeport Committee on May 31, 1974. Full- erton was the only company represented at this meeting and no bargaining occurred. On June 3, 1974, Respondent sent an identical letter to each of the five striking employees, which all later received. In this letter Rudy advised the employees of the progress of the collective-bargaining sessions up to that time including the disagreement over whether employer bargaining should be on a group or individual basis. The letter stated that it was Respondent's position that its employees should have been permitted to work while this dispute was being resolved. Respondent further informed the striking employees in this letter that it intended to hire permanent replacements for the positions the strikers had "vacated." In further regard to Respondent's proposal to hire replacements, the letter con- cluded that: ' 6 Giardono spoke of a number of these agreements-such as that on a third week of vacation after 10 years-as having been newly reached at this meeting However, in the light of his other testimony that agreement was reached on these items at an earlier meeting, I conclude that these prior agreements were merely reviewed as Rudy and Giardono proceeded through the list of the Union's proposals on this occasion 7 These findings are based essentially on the credible testimony of Giar- dono in this regard. Rudy admitted going over the contract proposals at this time and did not deny that agreement was reached in respect to any of them There is a dispute as to the date of the meeting. Giardono testified it occurred on May 24 and Rudy was certain it took place on May 25. The testimony of both agreed in respect to place and the subject matter of the meeting Although Robert Gale testified in behalf of Respondent, he was not asked any questions about this incident 8 There is no essential dispute as to the foregoing details of this meeting except the date Rudy testified it occurred on May 29-Giardono said it occurred on a day earlier. My finding that the meeting occurred on May 28 coincides with the date appearing on the charge which the Union filed shortly thereafter in Case 38-CA-2012 alleging that the Freeport Retail Lumber Bargaining Committee was refusing to bargain as a group These charges were later withdrawn by the Union effective June 11, 1974. 9 Glenn Gale is the brother of Robert Gale 15 These findings are based on the credible testimony of DeBoer in this regard Glenn Gale, in his testimony, did not deny making these remarks in this conversation J. H. PATTERSON COMPANY It is with great reluctance that we take this step but you [sic] have little other alternative. If you personally wish to reconsider you present status we would be pleased to reinstate your employment with all your company pro- grams intact prior to the hiring of your replacement. Respondent hired replacements on June 3 and 4, and all of them actually began work by June 4. On June 4, Giardono visited the Loves Park yard with union president, Russell Olson, and then learned that the Loves Park employees had submitted to the Union their resig- nations from it. On the evening of June 5, 1974, Glenn Gale, a conceded supervisor within the meaning of the Act, who is also the brother of Robert Gale, admittedly discussed with Rudy the possibility of talking to each of the striking employees in- dividually and Rudy stated he would do this. On that same evening Robert Gale made arrangements with each of the strikers to meet with Rudy on the following morning. After DeBoer was contacted by Robert Gale he telephoned Giar- dono and informed the latter that the men were getting "shaky."" At 7:45 a.m. on June 6, 1974, Glenn Gale informed Rudy, when the latter arrived at the Freeport yard, that the striking employees wished to speak to him and Rudy agreed to be available. At 8:02 a.m. on the same morning Giardono telephoned Rudy and told Rudy that the Union was going to withdraw the picket line that morning, send the men back to work and negotiate either individually or with the Freeport bargaining committee as a group depending on what the Board decided in respect to the Union's already filed charge against the Freeport committee. When Giardono told Rudy he was send- ing the men back to work, Rudy told Giardono that he, Rudy, did not believe that Giardono represented the men. Giardono then asked what Rudy was talking about and Rudy repeated what Rudy had just said. To this Giardono rejoined "We'll see" and hung up.12 Giardono thereupon prepared a letter to Rudy confirming that the picket line was "officially removed" effective 9 a.m. There is a considerable dispute in the record whether these meetings were arranged at the request of Robert Gale and the other employees, sua sponte, or whether they were sought by Rudy I find it unnecessary to resolve this question. For, while the complaint alleges (and Respondent denies) that Robert Gale was its agent within the meaning of Sec 2(13) of the Act during this period and General Counsel contends that Robert Gale arranged these meetings at the behest of Rudy, the complaint does not allege any unfair labor, practices by either Rudy or Robert Gale in the matter of setting up the individual discussions with the employees . It is rather Rudy's participation in the discussions themselves which is alleged to be an unfair labor practice. 12 These findings are based on the credible testimony of Giardono in this regard Telephone company records show that a telephone call was placed to Respondent 's Freeport yard at this time from the union office. Giar- dono's side of the conversation is essentially corroborated by another union ^ business agent, Carl Holder. I do not credit Rudy's denial that this telephone conversation occurred . I was not, as a general proposition , favorably inn- pressed with Rudy's manner in testifying-which was in my judgment too defensive and deliberate to have the ring of credibility. That is, he went to some lengths , on several occasions , to provide self-serving explanations of the surrounding circumstances of events as well as of his feelings and con- duct which, in my judgment, went well beyond the needs of responding to questions posed to him . I also found him to be a nervous witness, rubbing his thumbs, snapping a knuckle on his hand and moving his foot while on the witness stand 1033 on June 6, 1974, pending the Board decision. The letter also stated that the employees had been instructed to return to work" and that negotiations would resume as soon as possible." Meanwhile, Rudy began his individual meetings with the five striking employees at the Freeport yard sometime after 9 a.m. on June 6. The first meeting was with Robert Gale. Rudy told Gale he would like the men to return to work but could not make them any offers of pay increases , insurance benefits or the like. Rudy opined to Robert Gale that Re- spondent was a small company and could negotiate without a union . Rudy then outlined several choices the employees had. The basic choice was to return to work or not to return to work. In the event the employees decided not to return to work, Rudy said they could do so with the Union's permis- sion, without it, or they could sever their relationship with the Union and come to work as an independent employee. Gale agreed that they could negotiate but stated he would think about the matter some more and left. Rudy presented the same options to each of the other four striking employees. All such meetings were attended by the employee and Rudy only, although Supervisor Glenn Gale was in and out several times and stated that "it would be nice if we could get this worked out somehow." The next employee to whom Rudy spoke on this occasion was Clarence Brinkmeier. In addition to outlining the options Rudy told Brinkmeier that Respondent was dropping the Union at the Freeport yard. Brinkmeier told Rudy he would like to resign from the Union and return to work immedi- ately. After Brinkmeier, Rudy spoke to Schulz. Rudy told Schulz, inter alia, that the Freeport yard no longer desired to be in the Union. Schulz also agreed to resign from the Union and return to work immediately. Rudy then spoke to DeBoer at the loading dock at a nearby railroad siding, because DeBoer had declined to cross the picket line to speak to Rudy on company property. Rudy told DeBoer that the other men were going to resign from the Union. DeBoer, however, told Rudy that he, DeBoer, had been a union man since 1949 and that he would not return to work under nonunion conditions because he was afraid Respondent could get rid of him on the basis of a picket line incident which occurred earlier." Rudy stated that anything which happened on the picket line was in the past. DeBoer, however did not resign from the Union. Rudy also spoke to striking employee Buck Huett at the railroad dock. Rudy told Huett that the Union would not let the employees come back to work, so he, Rudy, had been 13 There is no indication that Giardono had as yet instructed the men to return to work as the letter states, but since he did so instruct them later that morning and since the instruction would be consistent with the Union's determination to end the picketing , I conclude that this statement in the letter merely anticipated what would soon follow By the time Respondent received this letter on June 8, 1974, the employees had been informed to return to work. '" Mary Grant, the union receptionist, recalled typing this letter and remembered that it was mailed on June 6, 1974, by certified mail, and that she prepared the certified receipt, which is dated June 6. Mail is normally picked up by the postman at the union office once each day between 11 and 11:30 a.m. is During the strike Len Myers, a contractor who brought supplies to the Freeport yard during the strike, got into an argument with DeBoer, called DeBoer names and struck DeBoer . DeBoer hit Myers back. 1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD required to hire other employees to take their places. Rudy told Huett that Respondent felt it did not need the Union any longer. Rudy added that three employees were resigning from the Union, were sending letters to that effect and that he, Rudy, would also like Huett "to send a letter." Rudy further told Huett that he would like the employees to come back to work. Huett told Rudy that he wished to think the matter over during the weekend. Although Huett returned to work on the following Monday he has not resigned from the Union. 16 The meetings between Rudy and individual employees concluded about 10:30 a.m. on June 6. Giardono was delayed and did not arrive at the Freeport yard until between 10:30 and 11 a.m. on that same morning. He was accompanied by Charles Gagliono, the secretary treasurer of the Union. DeBoer and Huett were still picketing the premises. Giardono spoke to DeBoer and told him that the picket line was being taken down and the men could return to work. Giardono then spoke with Robert Gale, Brinkmeier, and Schulz at a tavern half a block away and told them the same thing. In this conversation Robert Gale told Giardono that they were withdrawing from the Union in order to go back to work. Giardono told the men that it was not necessary for them to quit the Union in order to return to work, Giardono also informed them that he, Giardono, had telephoned Rudy that morning and told Rudy that the Union was withdrawing the pickets and sending the men back to work. Robert Gale responded that Rudy had not men- tioned any such conversation but that he, Robert Gale, would like to ask Rudy whether such a call had been made. Giar- dono then told the employees that they had his permission to speak to Rudy. Robert Gale, Brinkmeier, and Schulz then went back to Rudy's office at the Freeport yard where they asked Rudy if there had been a telephone call from Giardono. Rudy denied receiving such a call. The three employees then went back to meet Giardono and told him that they were going to abide by their decision to withdraw from the Union." After receiving this response, Giardono and Gagliono went to Rudy's office at the Freeport yard. Rudy was leaving the yard in his car at the time they arrived. In Rudy's absence they advised Glenn Gale that the Union was taking down its picket line and was continuing negotiations pending the NLRB's decision (in respect to the Union's charge against the Freeport bargaining committee). Glenn Gale requested Giar- dono and Gagliono to write down the message, which Gag- liono did. Gagliono then gave this message to Glenn Gale and 16 The findings as to these individual meetings is based on a composite of the testimony of the five employees and Rudy and Glenn Gale Neither Rudy nor Gale denied that Rudy made any statements attributed to Rudy during the course of these meetings as found above 17 These findings are based on the credible testimony of Giardono in this regard. I do not credit the somewhat contrary version of Robert Gale. Robert Gale admittedly lied to the Board agent investigating the case about the arrangements for the employee meetings that morning Giardono's ver- sion is also supported by the sequence of events, Le, the action of the employees in going back to see Rudy to verify Giardono's statement that they did not need to quit the Union to return to work and also to verify Giardono's explanation of that statement, i e., Giardono's claim to them that he had already telephoned Rudy that morning to arrange for them to return to work the two Union representatives left the premises."S The mes- sage stated: Pickets have officially been removed. The men are due to return to work pending negotions (sic) and_ labor board decision. When Rudy returned from lunch he was given the Union's message by Glenn Gale. According to Rudy, after the interviews with the men had concluded on the morning of June 6, Robert Gale told Rudy that Robert Gale, Brinkmeier, and Schulz were going to re- sign from the Union and wanted to know how this could be done. Rudy said that the resignations would have to be in the men's own words but that Respondent could not help them. Also, according to Rudy, the men informed him that they were going to be at Schulz' house that afternoon and they invited him to stop at Schulz' house after lunch to see them. Rudy went to Schulz' home that afternoon and asked the employees to provide him with a letter for the Company's file setting forth their resignation from the Union. Rudy then suggested the language to be used in this letter, to wit-that the employees had resigned and no longer wished to be represented. Rudy also asked the three men to sign the letter. Schulz wrote the letter as instructed and the three men signed the letter in Rudy's presence. Rudy-did not tell the men about the above-described note which Gagliono had left at Rudy's office earlier that day, even though Rudy had al- ready received that note. Also sometime on June 6, Schulz, Brinkmeier, and Robert Gale wrote separate letters of resignation from the Union and mailed them to the Union's office. These letters were delivered at the Union's office at 9:08 a.m. on June 7, 1974, but the delivery was refused by--the Union receptionist, Mary Grant, apparently at the direction of Gagliono. The envelopes containing the letters were re- turned to the three employees unopened on June 8, 1974. The envelopes were opened at the hearing. After leaving the Freeport yard on June 6, Giardono re- turned to the Union office and prepared a letter to the Re- spondent accepting its latest contract proposal of May 23, 1974. This letter was mailed on June 7, 1974, and received by Respondent on June 11, 1974.19 Also on June 7, the Union received a letter dated June 6 from Respondent's counsel, Fahy, in which Fahy agreed to continue bargaining negotiations on a group or individual employer basis. Brinkmeier, DeBoer, Schulz, and Robert Gale returned to work on June 7. Huett returned to work on June 10. Neither DeBoer nor Huett resigned from the Union. The Union's charge against the Freeport bargaining com- mittee was withdrawn with the approval of the Officer-in- Charge of Subregion 38 on June 11. As previously noted, by June 4 four strike replacements had begun work. These replacements were not discharged 11 I do not credit Giardono's further testimony that he told Glenn Gale that the Union was accepting Respondent's latest contract proposal. This testimony directly conflicts with the note left by Gagliono which stated that negotiations would continue and with the testimony of Glenn Gale which is consistent with the text of the note. Gagliono did not testify 19 My findings as to the sending and delivery of this letter are based on the stipulation of the parties. J. H. PATTERSON COMPANY when the strikers returned to work but instead continued their employment thereafter at least over the summer of 1974. There was work to keep both the strikers and the replace- ments busy over the summer,20 particularly in view of the transfer of Robert Gale to different work (driving a transfer truck which travels from yard to yard) and the fact that Respondent normally hires at least one summer replacement, in any event. In its brief Respondent concedes that two of the replacements were to return to college in the fall. I so find. On June 12, at Rudy's request Schulz solicited and ob- tained a letter from the four replacements in which they stated they did not wish to be represented by the Union. On June 14, Giardono received a letter, dated June 13, from Respondent's counsel acknowledging Giardono's letter of June 7 in which Giardono accepted the Respondent's last offer. In Respondent's June 13 letter it advised the Union that no agreement existed in the circumstances that the employees had informed the Union it no longer represented them, that more than half of them had resigned from the Union and because the letter contained no offer by the Company but rather included unspecified provisions unacceptable to the Freeport yard. On June 17, Respondent filed with Subregion 38 an RM Board election petition. In view of the subsequent issuance of the Section 8(a)(5) complaint in this case, I conclude that this petition has been dismissed. On July 11, Rudy sent a letter to all of the Freeport yard employees. This letter outlined Respondent's rejection of the Union's claimed acceptance of Respondent' s last offer, the basis therefor, the filing and avoidance of Respondent's elec- tion petition, the Union's unfair labor pi actice charge and the requirement for the Board to investigate the charge. The letter concluded with the exhortation to vote the Union out when, an election was held, after which, the letter added, Respondent and its employees could have a "normal relation- ship" without' interference from the Union. On August 5, 1974, Giardono in the company of Holder delivered to Rudy a completely typed out collective-bargam- ing agreement which Giardono had already signed. Rudy refused to execute this contract and no Respondent represen- tative has executed it. The contract presented to Rudy con- tained a union-security provision but no dues checkoff ar- rangement. The omission of the latter clause, according to Giardono, was due to his mistake. In the meantime on August 2, Respondent granted the five returned strikers a pay increase of 28 cents per hour, effective July 22, 1974, and retroactive to May 23, 1974. This was followed by a further 15-cent increase effective July 29. The four new employees at the Freeport yard were given no ret- roactive pay but were instead provided with a 43-cent-per- hour wage increase effective July 29. Rudy announced the foregoing wage increases at a meeting of all the Freeport yard employees on August 2. This meeting began about 5 p.m. After passing out the checks and after explaining the increases to the employees, Rudy gave them a notice, dated July 31, announcing that the Board was going to issue a complaint against Respondent "unless Respondent agreed to bargain with the Union." Rudy told the employees that Respondent could do more for the men than the Union 20 Huett credibly so testified 1035 and that the Union "didn't give a damn" about the men its only interest in them being the collection of their union dues. DeBoer broke in at this point and told the men they would be fools to let Rudy convince them to withdraw from the Union because without it they would have no pro- tection and could be removed whenever Rudy felt like it. Rudy went on that in the future he would hold monthly meetings of the employees and, if anyone had any sugges- tions, he should feel free to come to Rudy and discuss them. DeBoer disagreed, saying that this would do no good since he, DeBoer, had tried making suggestions in the past without effect. Rudy responded that to keep the Union out he, Rudy, would personally see to it that something was done about the suggestions, There then followed a disagreement between Rudy and DeBoer as to how long it would take to process the charges in the present case-Rudy saying it would be 1 to 2 years and DeBoer taking the position that it would only be 6 months. Robert Gale then inquired how many days off the employees would now get. After Rudy told Robert Gale that he would get one more sick day plus his birthday off, DeBoer again spoke up and said that this was a lot less than what Robert Gale had originally wanted.21 On August 3, an article appeared in a local newspaper which reported the issuance of the complaint in the present case against Respondent. Both Rudy and Glenn Gale were named in the article. DeBoer cut out the article, mounted it on a larger piece of white paper, captioned the entire poster "Notice," underlined the names and the (originally sched- uled) date for the hearing herein and added a few attention-getting words and pictures on the margin. DeBoer took this poster to work on the following Monday, August 5, and attached it to a bulletin board next to the timeclock. Robert Gale and William Gale (a Respondent employee who is another brother of Robert and Glenn Gale) were present when DeBoer did this. Shortly thereafter, Glenn Gale came into the room, noticed the poster and asked who put it there. DeBoer acknowledged his responsibility for it. Glenn Gale then went to the nearby restroom and, when Glenn Gale returned, DeBoer informed Glenn Gale (un- truthfully) that DeBoer had permission from the Union to put the notice on the bulletin board. Glenn Gale then went up to the board, looked at the notice again and said that he didn't "give a damn" if DeBoer did have permission. With this Glenn Gale proceeded to tear down DeBoer's poster. DeBoer thereupon also tore down a Green Bay Packer poster which Glenn Gale had put on the bulletin board. Seeing this Glenn Gale lunged at DeBoer and hit DeBoer in the mouth. DeBoer reacted by putting his hand in Glenn Gale's face and scratched Glenn Gale's face in the process. Glenn Gale pushed DeBoer back into the corner and wrapped his arms around DeBoer for a few moments until Robert and William Gale separated them. Glenn Gale thereupon returned to the restroom, washed the blood from his face and called DeBoer a pussy. He also told DeBoer that, if it weren't for DeBoer's 21 These findings are based on a composite of the testimony of DeBoer and Huett both of whom testified in a forthright and straightforward man- ner. To the extent this testimony disagrees with that of Rudy (in regard to the proposed monthly meetings) I do not credit Rudy I have already com- mented on Rudy's credibility 1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD head operations, he would beat DeBoer's head in.22 At some point m this incident Glenn Gale picked up DeBoer's now tom notice off the floor and threw it in the trash barrel .21 At or about 8 a.m. that same morning, Glenn Gale re- trieved the pieces of DeBoer's poster from the trash barrel, showed them to Rudy, and reported the incident to him. Glenn Gale and Rudy then went to speak to DeBoer. In the presence of Glenn Gale, Rudy told DeBoer he was being suspended for 3 days without pay. When DeBoer asked the reason Rudy said the reasons were the notice that DeBoer put on the bulletin board and for fighting with Glenn Gale. DeBoer denied fighting with Glenn Gale, stating instead that Glenn Gale had fought with him. Ignoring this explanation Rudy continued that the bulletin board was not for the em- ployees but was for the use of Glenn Gale. DeBoer replied that this was news to him because employees had posted articles on this bulletin board and nothing was ever said about it. Rudy added that DeBoer didn't need to post such a notice on the bulletin board since it would be bad for business. DeBoer then asked Rudy if he could exchange a sick day and holiday coming to him for 2 of the 3 days he was to be off, but Rudy refused this offer. DeBoer was not at work for the remainder of that day and for the next 2 days.24 The bulletin board has been used by DeBoer and other employees including one Bowers to post notices of general interest and even cartoons. The notices remained on the board for substantial periods without action by Respondent. Bower's notice was still on the board when DeBoer posted his. Neither Huett nor DeBoer were ever previously told that it was Glenn Gale's bulletin board nor that employees had no right to use it. The bulletin board is not visible to customers and is in an area where employees hang up their coats and eat meals. To the surprise of Rudy, DeBoer returned to work at 7:30 22 DeBoer had head operations in 1957 and 1962 to correct cerebral hemorrhages DeBoer is still under treatment and medication for this condi- tion. 23 These findings are based primarily on the credible testimony of DeBoer in this regard and are not essentially disputed by Glenn Gale's testimony except in two particulars Gale claimed he merely put his hand on DeBoer to restrain DeBoer when DeBoer tore down the Packer's poster However, even this would show beyond cavil that Glenn Gale physically -struck DeBoer at such time Hence DeBoer was within his rights to defend himself Glenn Gale also claimed that DeBoer later struck him after Glenn Gale accused DeBoer of being a pussy. I do not credit the latter testimony of Glenn Gale which is not confirmed by DeBoer I believe it improbable that DeBoer would take such action in the presence of Glenn Gale's brothers, neither of whom testified in respect to the incident Further, whereas DeBoer later charged Glenn Gale with assault, Glenn Gale did not state that he filed any such charge against DeBoer Finally, I was not favorably im- pressed with Glenn Gale as a witness He looked away when I swore him in and assumed an argumentative attitude on the stand at one point when I told him to wait until counsel asked him a question. And, as will appear, his explanations for his handling of DeBoer's work assignments on the day of DeBoer's discharge are too confusing to be plausible This last factor, in my judgment, coupled with his animus against DeBoer , colors Glenn Gale's entire testimony I have already commented on DeBoer's credibility 24 These findings as to DeBoer's suspension interview are based on the credible testimony of DeBoer in this regard. This version is not disputed by Rudy except that Rudy stated he permitted DeBoer to tell his side of the story before suspending him Significantly, Rudy did not deny giving DeBoer the two reasons for his suspension. Glenn Gale also testified that Rudy heard DeBoer's version and then suspended DeBoer Glenn Gale likewise did not dispute that Rudy gave DeBoer the aforementioned reasons for the suspension. a.m. on August 8.15 Before describing the events of that morning which cul- minated in DeBoer's discharge, some knowledge of Respon- dent's truck driving assignments is helpful to an understand- ing of the circumstances surrounding the discharge. DeBoer had for some 21/2 years up until the day of this dis- charge always driven the same truck. He had indeed driven it since it had been purchased by Respondent. No other em- ployee had ever been assigned to drive this truck except when DeBoer was absent from work, such as on his sick days or during his vacation. DeBoer, at Rudy's request, took care of having the truck serviced, made repairs on it himself, and kept it clean inside. The truck was known as DeBoer's truck.26 After reporting to work on August 8, 1974, DeBoer went to the front office to pick up a delivery order and returned to the lumber yard to find his truck. When he located it he notic- ed that one of the strike replacements, Wendell Boyer, was unloading some materials from it which had been placed on it the day before. DeBoer proceeded to assist Boyer in unload- ing the truck. At this point Glenn Gale came over and told DeBoer to give DeBoer's order to Boyer and get another order. DeBoer then put the order book in the cab of the truck.27 There is a dispute in the testimony as to the precise se- quence of events thereafter. DeBoer testified that he went to get another order and was met by Rudy who directed him to drive another truck which will be described. Glenn Gale testi- fied that he had originally directed DeBoer to use the other truck before he, Glenn Gale, told DeBoer to give the order to Boyer. Glenn Gale also said the assignment of DeBoer to the other truck was his, Gale's, decision. Rudy said he spoke to DeBoer after Glenn Gale had called on the phone to report that DeBoer had refused to drive the other truck. In any event, Rudy in his encounter with DeBoer made it clear that Deboer was directed to drive the other truck that day and that the idea originated with Glenn Gale. DeBoer protested pointing out that the other truck had a broken hoist and, therefore, just about all materials had to be loaded and un- loaded from it by hand. He then asked Rudy whether Rudy proposed to have the truck fixed but Rudy stated Respondent had no such intention., DeBoer then told Rudy that since the truck was not operating properly, he, DeBoer, refused to drive it. After DeBoer made his refusal clear, Rudy dis- charged him.28 Shortly thereafter on September 16, DeBoer asked Rudy to reinstate him but Rudy refused, even though DeBoer has not been replaced. 25 Rudy testified that his surprise derived from the fact that during the intervening period since DeBoer's suspension the latter had filed an assault charge against Glenn Gale which had required Glenn to go to the police station. Rudy felt that consequent embarrassment to DeBoer would keep DeBoer from returning to work. 26 DeBoer credibly so testified In his testimony, Glenn Gale also referred to this truck as "Frank's truck " 27 The testimony of DeBoer and Glenn Gale agree as to what happened up to this point 28 The findings as to this confrontation between Rudy and DeBoer are based upon the credible testimony of DeBoer which is not essentially dis- puted by Rudy in his testimony DeBoer testified that Glenn Gale witnessed this incident, however, Glenn Gale, as Gale testified, was some 200 yards away at the time and obviously out of earshot J. H. PATTERSON COMPANY 2. The events at the Loves Park yard Beginning at least March 4, 1953, the Union has been the certified collective-bargaining representative of all employees engaged in loading, unloading, storage and delivery services, including truckdrivers, helpers, and yard laborers, employed by Respondent at its Loves Park yard but excluding supervi- sors as defined in the Act. Since that time Respondent and the Union have entered into a series of collective-bargaining agreements the last of which was due to expire on May 16, 1974, unless automatically renewed. Automatic renewal was precluded by a letter from the Union to Respondent dated March 1, 1974, in which the Union timely advised Respond- ent of the Union's intention to negotiate changes in the agree- ment. At the time of the expiration of the agreement all six of the employees in the Loves Park bargaining unit were members of the Union.29 The collective-bargaining agreement covering the Loves Park unit was a separate and distinct contract from that which covered the Freeport yard. The Union business agent who handled the Loves Park bargaining negotiations, at least in 1974, was Union President Russell Olson. Bruce Harvey was the manager of the Loves Park yard and Roger Lundgren was its assistant manager at that time. On May 13, 1974, Olson came by the Loves Park yard and left certain proposals for a new contract on Harvey's desk. Harvey was not present when Olson came by. On some date between May 14 and 16, Harvey called Olson and briefly discussed the Union's proposals. A later meeting at the Loves Park yard was requested by Harvey to continue this discussion. The meeting took place on May 17. Present were Harvey, Olson, and Lundgren. The Union's proposals were reviewed in detail by those present but no agreement was reached except for Harvey's acceptance of the Union's demand for separate vacation paychecks. Another negotiation meeting was held at Loves Park on May 22 with the same individuals in attendance. At this meeting Harvey offered a 27- or 28-cent-per-hour wage in- crease but Olson refused even to take this offer back to the employees. No agreement was reached on any items at this meeting although the management representatives stated that they would like to study the proposed grievance procedure. They also stated that Respondent was looking into the possi- bility of improving insurance for all its employees. On May 24, Olson and Lundgren again met at Loves Park and conducted negotiations in the absence of Harvey who was ill. Lundgren rejected all the other bargaining demands presented by Olson except for a seniority provision which Lundgren said was acceptable to him but had to be approved by Respondent's president, Gates. Lundgren also offered the Union a 45-cent-per-hour wage increase and two additional sick days on a 1-year contract. In the alternative, Lundgren 29 These findings are based on the undisputed testimony of Union Presi- dent Olson that, at the time of negotiations on May 17, the Union had six members at the Loves Park yard, coupled with the fact that five later withdrew their union membership and one declined to do so Since the Loves Park contract, which expired on May 16, 1974, contamed a union- security clause, and since six were then union members, I conclude that six was the total number of unit employees at that time. Further, since there were seven employees in this unit at the time of the hearing, it follows that the normal unit complement is six or seven employees. 1037 offered a 3-year contract with different wage increases each year. Olson rejected the 3-year contract offer but stated that he would present the 1-year proposal to the employees during the following week. Olson did not, however, present the offer to the employees during that week. In the meantime the strike at the Freeport yard had begun on May 24. For their part the Loves Park employees voted not to go on strike and did not, in fact, do so during the events in question here. On June 3, Harvey held a meeting of the Loves Park em- ployees to discuss the strike at the Freeport yard. During this meeting Harvey read from notes he had prepared that morn- ing but he also made further remarks not reflected in these notes. He told the employees that Freeport employees were on strike and that Respondent had commenced hiring strike replacements at Freeport. Harvey mentioned that there was a dispute between Respondent and the Union at Freeport over the issue of group employer or individual employer bar- gaining with the Union taking the position that the negotia- tions should be on a group employer basis. He advised the employees that the Union had failed to give the Respondent proper notice of the Freeport strike. Harvey said that Rudy would accept one or more of the old employees back to work but it was Harvey's understanding that these old employees could not cross the picket line without being fined. According to Harvey's notes, which he admittedly read to the Loves Park employees, he further told them that some of the Free- port drivers were, in fact, free to return to work "on their own by resigning from the Union." Harvey added that Respond- ent would welcome the men back as union or nonunion. Harvey then outlined the options to the Loves Park em- ployees. These options were, according to Harvey's notes: (1) man has a right to resign from the Union; (2) then call an election to vote on whether to retain the Union or vote it out; (3) strike; (4) work while bargaining. Harvey then discussed with the employees Respondent's last offer which was represented to Olson on,May 24, 1974. Harvey told the employees that Respondent had offered a 1-year contract with a 45-cent-per-hour raise and 2 sick days or a 3-year contract with wage increases of 40, 30, and 30 cents. Harvey noted that Olson had promised to present this offer to the Loves Park employees, but had apparently gone on a 2-week vacation instead. At or about this point one of the employees asked about how the employees could resign from the Union and Harvey said they would probably have to get a lawyer. Another employee, Schoenhardt, asked whether, if the men resigned from the Union, they could expect more wages . Lundgren who was present replied simply that the Respondent would always pay good help.3o Sometime later that afternoon Olson telephoned Lundgren and told Lundgren that Giardono might extend the picket line from Freeport to Loves Park. Olson then asked Lundgren to get in touch with Respondent's president to get 30 The findings as to this meeting are based on a composite of the tes- timony of Harvey and Terry Johnson and of Harvey's notes The notes specifically include a comment about Olson going on vacation at a time when Olson should have presented Respondent's offer to the employees 1038 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rudy on the ball at Freeport so that Rudy and Giardono could negotiate for the employees at that yard. If this oc- curred, Olson said, he didn't believe that Giardono would extend the picket line. Lundgren proceeded to pass on this information to Harvey. Harvey thereafter contacted at least one employee, Terry Johnson, and told him about the Union's intentions in respect to picketing the Loves Park yard. Johnson expressed surprise at this, telling Harvey that the Loves Park employees had voted against a strike. To this Harvey replied that the Union was apparently ordering a picket line anyway and the em- ployees couldn't do anything about it. Johnson rejoined that, if such was true, he was going to quit the Union. Johnson again asked Harvey how the Union could put up a picket line. Harvey stated that he could not help Johnson but offered to give Johnson a name (apparently of someone who could help Johnson). Johnson did not accept the offer." Also during that same afternoon Harvey called another employee meeting at his office. In attendance besides Harvey were employees Terry Johnson, Snyder, Kleck, and Milton Johnson. Harvey told the employees about the expected picket line at Loves Park and stated that this had evidently been decided upon without the employees' consent. Harvey advised the employees that they were not to come into work if a picket line were mounted at the Loves Park yard on the following morning. Harvey said that only the office help and the yard foreman were to cross the line. He finally told the employees that if they felt they were being poorly represented they could resign from the Union.32 On the evening of June 3, Milt Johnson telephoned Olson and, in the circumstances, I conclude that Milt Johnson told Olson about the employee meetings which Harvey had con- ducted at Loves Park on that day. On June 4, the employees reported to work at the Loves Park yard. There was no picket line. At or about 8 a.m. or 8:30 a.m. Harvey spoke to Terry Johnson in the molding room of the Loves Park yard and asked Johnson if Johnson had given any thought to resigning from the Union. Johnson replied that he had consulted a lawyer who had suggested that Johnson seriously consider not resigning.33 On the afternoon of June 4, 1974, Harvey met with em- ployee Milt Johnson. Harvey told Milt Johnson that Johnson would have to retain an attorney to file a petition to decertify the Union and Harvey gave to Milt Johnson the name of Steven Ellis, a lawyer formerly associated with the law firm which represented Respondent in this proceeding. Milt John- son thereafter met with Ellis on the three or four occasions in connection with the decertification petition. In their tes- timony both Harvey and Milt Johnson denied that Respond- ent was paying for Ellis' services. However, at the time of the 31 The findings as to this incident are based on the credible testimony of Terry Johnson in this regard and are not disputed by the testimony of Harvey - 32 The findings as to this meeting are based upon the credible testimony of Terry Johnson in this regard. Harvey admitted telling employees in- dividually or in groups not to cross any picket line on the following day He did not deny holding the instant meeting He stated only that he did not recall it. 33 The findings as to this incident are based on the credible testimony of Terry Johnson in this regard Harvey did not dispute Johnson's testimony as to this incident hearing more than 4 months after Harvey referred Milt John- son to Ellis, Johnson had not received a bill from Ellis. At or about 2:30 in the afternoon of June 4, I find, Olson telephoned the same question to Olson. Olson then told Lundgren he thought he could trust Lundgren and Lundgren responded vice versa. Olson then stated he could make up a proposal and get it typed but he wasn't sure he would get it to the yard that day. There followed a brief discussion of the term of the contract proposal and the discussion ended.34 Also on June 4, at or about 4:30 p.m., employees Milton Johnson, Edward Kleck, Frank Schoenhardt, Edward Sny- der, and Terry Johnson each sent a letter to the Union resign- ing from it. Later in the afternoon of the June 4, Olson in the company of Giardono visited the Loves Park yard and spoke to em- ployees Schoenhardt, Terry Johnson, and Leon Dill. Schoenhardt reminded Olson that the employees had voted against a strike and then accused Olson of making them strike anyway and of putting him, Schoenhardt, out of work. To this Olson said there would be no strike merely an extension of the Freeport picket line. Schoenhardt responded that this amounted to the same thing. After quitting time on June 4 Olson continued his discus- sion with Dill and Terry Johnson. The latter told Olson all of the men had signed letters resigning from the Union. At this Dill spoke up and denied that he, Dill, had signed such a letter. Terry Johnson then asked Olson if Olson was going to put up a picket line. Olson said he didn't know but eventu- ally admitted that this was a bluff. On learning of the bluff Johnson asked Olson why Olson hadn't mentioned this when he and Olson had spoken on the telephone the night before. Olson replied that he had not mentioned it because he was afraid that it would get back to the Respondent and would then have no effect in getting Respondent back to the bargain- ing table at Freeport. Terry Johnson rejoined that it was too late anyway because the employees had already signed the letters of resignation from the Union and sent them by regis- tered mail. On the morning of June 5, 1974, Olson had what he be- lieved to be the Respondent's last contract proposal typed up and, in the company of the Union business agents, Holder and Wilson, Olson delivered five copies of the proposal, un- signed, to Harvey at Harvey's office. The proposal contained, inter alia, a seniority provision. Harvey declined to execute the agreement at that time, but told Olson that he would get back to Olson later.35 In explaining his failure to sign the 34 I make these findings based on the credible testimony of Lundgren as to what was said in the conversation I do not credit Lundgren's statement as to the date which was suggested to him in the question by Respondent's counsel I conclude that the call to Lundgren was prompted by Milt John- son's telephone call to Olson the night before in which, I have further found, Milt Johnson advised Olson of what took place in the employee meeting on June 3 I conclude that Olson's call to Lundgren was, in the circumstances, made on the very next day after Olson had heard what had occurred, rather than on June 5, as Lundgren testified Lundgren appeared to testify in a generally forthright manner as to the contents of this telephone call with Olson In denying that such a call occurred Olson was hesitant at first, as the record shows. I do not credit the denial 35 There is no dispute as to what happened in this incident. Harvey testified he marked his copy of the agreement with the date and time when he received the agreement, which according to him, was on June 6. How- ever, his independent recollection of the date was confused as the transcript J. H. PATTERSON COMPANY contract at the time, Harvey testified that he never signed a contract without first checking it over and usually showing it to Respondent's president . In any event , Harvey did not tell Olson his refusal was based on the resignations from the Union of a majority of the yard employees. After leaving Harvey's office, Olson returned to the union office. Upon his arrival he learned that the Union had re- ceived individual letters of resignation from five of the six employees in the Loves Park unit. On June 6, 1974 , Milt Johnson brought Harvey a docu- ment purportedly signed by five of the six Loves Park unit employees stating that they no longer desired to be repre- sented for collective-bargaining purposes by the Union. Also on June 6, Attorney Ellis wrote the Union stating that a decertification petition was being filed with the Board by Ellis' law firm. The petition was filed on June 7 but was dismissed on July 30, 1974, by the Acting Officer-in-Charge of Subregion 38. On June 7 Olson sent a letter to Harvey accepting Respon- dent's last contract offer of 45 cents per hour, 2 sick days, and a "tentative seniority clause," about which more will be said hereinafter . The letter was not received by Respondent until June 11. For his- part, on June 7, Harvey sent a letter to Olson advising Olson-for the first time-that prior to Olson's delivery of the proposed contract Respondent had received notice from five of the employees that they no longer sought to have the Union represent them. The letter concluded that, in the circumstances , it would be improper to negotiate or sign a new agreement. On June 13, Respondent 's counsel sent a letter to the Union stating that no contract - existed between Respondent and the Union for the employees of the Loves Park yard. This letter noted that "prior to June 7" a substantial majority of the employees in the bargaining unit had resigned from the Union. On June 26, Respondent sent a letter to all the employees of the Loves Park yard setting forth Respondent 's position in respect to the events in question as well as one of the charges, which gave rise to the present proceeding , and the decertifica- tion petition. On July 29, the bargaining unit employees at Loves Park received a wage increase of 45 cents per hour retroactive to May 17, 1974 . Harvey announced this increase in a letter dated July 31 , 1974, to all employees in that bargaining unit. This letter also advised that the NLRB was going to prose- cute the Union's charges against Respondent and that Re- spondent was going to defend itself. Even assuming that effect be given to the withdrawals of five employees whose letters of resignation were received by the Union on June 5, 1974, the Union represented four of the seven unit employees employed-in the Loves Park unit on shows His further recollection that the delivery of the agreement came on a day when Lundgren was not present is contradicted by the testimony of Olson who said he saw Lundgren when he, Olson , delivered the contract. While . Olson's affidavit says June "5 or 6" and the charge in Case 38-C A-2090 recites the Union's acceptance as occurring on June 6, Olson testified that this event occurred on June 5. His testimony is corroborated by that of Holder who established the date from a schedule of events he had recorded on his calendar In all the circumstances , and particularly in reliance on the testimony of Holder , I credit Olson 's and Holder 's testimony as to the date of this event 1039 October 10.36 For Synder rescinded his withdrawal on Octo- her 8, 1974, and Terry Johnson rescinded his withdrawal on September 29, 1974. New employees John R . Goodrich and David A. Scales signed membership applications and check- off authorizations for the Union at Scales' home on October 9, 1974. Concluding Findings Preliminary: Respondent contends that sections 5(e) and 9(b) of the complaint should be dismissed because the allega- tions therein are not an extension of any unfair labor practices alleged in the underlying charges in the case . Section 5(e) alleges that Respondent improved its wage structure at Free- port on August 2 in order to discourage membership in the Union. Section 9(b) alleges this increase was in excess of that offered to the Union. The complaint avers that each of these alleged acts of Respondent is violative of Section 8(a)(1) and (5) of the Act. I reject Respondent's foregoing contention that these two allegations of the complaint should be dismissed . This con- duct is related to the basic refusal-to-bargain allegations of the charge in Case 38-CA-2037. That charge merely set the Board's investigative process in motion. Thereafter the Gen- eral Counsel was free to make full inquiry into the entire course of events in accordance with his broad powers under the Act. There is no justification for confining his inquiry to the precise particularizations of the charge nor to preclude him from issuing a complaint bearing on related conduct occurring thereafter.37 The Loves Park yard: Before proceeding to an analysis of the alleged unfair labor practices at this yard I will first determine the appropriate unit there and the Union 's repre- sentative status in that unit. For each of these matters is a sine qua non to the General Counsel 's principal contention that Respondent undermined the majority beginning on June 3, 1974, and that it thereafter unlawfully refused to bargain with the Union. The complaint alleges, the answer admits , and I find that all employees engaged in loading, unloading , storage and delivery services , including truckdrivers, helpers, and yard laborers, employed by Respondent at its Loves Park yard but excluding supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. There were six employees at the Loves Park yard in the unit as of June 4, 1974 . Because five of them sent letters on that date advising the Union that they were resigning from the Union and the sixth employee elected not to resign, it follows that all six had union membership from which they could resign. I so find. Since the Union was the certified representative of this unit and all employees in the unit were union members at least as of June 3, 1974, I conclude that the Union was the exclusive and majority representative of the employees in that unit on that date. The five resignations of June 4 followed various group and individual meetings of Yard Manager Harvey and/or Assist- 36 The seven employees in the bargaining unit as of October 10, 1974, as admitted by Harvey at the hearing, were Terry Johnson, Milt Johnson, Ed Snyder, Ed Kleck, Frank Schoenhardt, David Scales, and John Goodrich 37 N.L.R B. v. Fant Milling Co, 360 U S 301 (1959). 1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ant Manager Lundgren with employees on June 3 or 4. The question is whether the decision to resign constituted the free choice of each of these employees or whether it rather derived from the unlawful interference of the Respondent . I conclude the latter. The most noteworthy item presented by Harvey at the first employee meeting of June 3 was his unsolicited advice to the employees , outside of the presence of their collective-bargain- ing representative , as to what their choices were in respect to the Union. He first suggested to them that each had a right to resign from the Union. He next suggested that they could obtain an election to vote on whether or not to retain the Union or vote it out. In the interest of analysis , I will not-for the moment-review the other choices but I will rather point out that, as a general proposition , it is a violation of Section 8(a)(1) of the Act for an employer actively to solicit an em- ployee to withdraw from a union38 and it is likewise viola- tive of Section 8(a)(1) for an employer to initiate and encour- age an employee petition to decertify a Union.39 And the vice of such misconduct is compounded where the employees, are here, already have an exclusive bargaining representative which would thus be undermined.4° . The principal issue in this aspect of the case is whether Harvey's further mention of two other choices-that of strik- ing or working while bargaining-exculpates Respondent from this otherwise clearly unlawful conduct. I conclude in all the circumstances-and particularly later related events- that it does not. For these last two choices were barely given lip service by Harvey and, in any event, he presented them as nonviable alternatives. That is, if the employees struck they could see from Respondent's course of action at the Freeport yard, as described by Harvey, that they were subject to being replaced. And if they continued to bargain, it would be through a Union which , per Harvey , had taken an intransigent legal position and had called a strike without notice at the other yard. Further, per Harvey, this Union's local bargaining rep- resentative , Olson , with callous unconcern for his employee constituency , had gone on vacation rather than present to them the Respondent 's bargaining offer-an offer which, Harvey told the employees, included a 45-cent-per-hour wage increase .41 This added fillip prompted one employee to in- quire what the employees could expect in the way of wages without a Union . Lundgren's neutral response that Respond- ent would always pay good help left this carrot and its stick entirely undisturbed . (This wage increase, as I have already found , was later put into effect.) Having thrust the opening wedge between the Union and its supporters, Harvey proceeded to drive that wedge home by his later activities that day and the next. Thus, when he learned of Olson's proposal to extend the Freeport picketing to the Loves Park yard he quickly informed employee Terry 3' E g .,Caprtal Distributing Co., 147 NLRB 1138 (1964); Montgomery Ward & Co., Inc, 154 NLRB 1197 (1965), enfd. as modified , sub nom. Retail Clerks International Association, AFL-CIO, 373 F.2d 655 (C.A D.C., 1967); Nickey Chevrolet Sales, Inc, 142 NLRB 23 (1963) 11 E.g, Sperry Gyroscope Company, 136 NLRB 194 (1962) 40 Nickey Chevrolet Sales, Inc., supra. 41 I specifically conclude, based on Harvey's notes, that he so advised the employees about Respondent 's offer sua sponte. and not in response to any question by any of them. Johnson of Olson 's intention. Terry Johnson replied that the Union could not do this because the Loves Park employees had voted against a strike. Johnson added that if this hap- pened he would quit the Union-an endeavor that Harvey offered to assist by giving Johnson "a name." But Johnson declined the name. Armed with this intelligence in respect to the no-strike vote at this yard, Harvey proceeded to call another employee meeting that afternoon and advised the employees that they were not to cross the picket line if the Union put up such a line at Loves Park the following day. Harvey's explanation at the hearing that he so advised the employees because he was afraid of trouble does not withstand analysis. For by his own statement the bargaining relationship with the Union at this yard had heretofore been a harmonious one with no big prob- lems and with no violence . Harvey's direction of his em- ployees to honor that line, was, I conclude , based upon his desire to frustrate their no-strike vote and to blame the Union for their inability to work . That this was his intention is made yet more manifest by his reminder to the employees that this picket line was apparently put up without their consent and by his repetition to them at this same meeting of his earlier suggestion that the employees could resign from the Union if they were not satisfied with their representation . But he did not repeat the "choices" mentioned earlier , that the em- ployees could go on strike or continue bargaining without a strike. The next day Harvey continued to press for abandonment of the Union. He asked Terry Johnson if Johnson had given any thought to resigning from the Union . Johnson replied that a lawyer had advised him to consider not doing so. But Johnson apparently changed his mind later that day. Also on June 4, Harvey told employee Milt Johnson that he, Milt Johnson, would have to hire a lawyer to file a petition to decertify the Union, and Harvey gave Johnson the name of an attorney who had formerly been associated with the law firm which has represented Respondent for some time. Finally I am constrained to observe that on the heels of Harvey's foregoing activities , five of the six employees at Loves Park sent letters of resignation to the Union on June 4 and a decertification petition was filed by employee Milt Johnson on June 7. At least a part of the proof of Respon- dent's objective , it seems to me, inheres in the pudding of its accomplishment. On the basis of the foregoing I conclude that Respondent through Harvey and Lundgren unlawfully solicited its em- ployees to resign from the Union and seek decertification of it, in each instance violating Section 8(a)(1) of the Act, and I conclude that Respondent engaged in this conduct for the purpose of undermining the Union as the employees ' collec- tive-bargaining representative , thereby also refusing to bar- gain with the Union in violation of Section 8(a)(5) and (1) of the Act.42 I further conclude that Respondent's indication of its last bargaining offer to the Union , in the context of its efforts to persuade its employees to resign from the Union and to decertify it, constituted a premeditated effort on Re- spondent's part to bypass the employees' collective -bargain- ing representative and to bargain with the employees directly, 42 Sperry Gyroscope Company, supra, Nickey Chevrolet Sales, Inc, supra; West American Rubber Co, 201 NLRB 92 (1973) Cf American School Supply Company, 157 NLRB 473 (1966), enfd. 382 F.2d 52 (C.A. 10, 1967). J. H. PATTERSON COMPANY thereby violating Section 8(a)(5) and (1) of the Act on this basis as well. Inasmuch as the letters of resignation from the Union, which were mailed on June 4, were the fruit of Respondent's unfair labor practices, and were not based on the free and untrammeled choice of these employees, it follows that the Respondent may not rely on this loss of majority by the Union as a basis to justify its refusal to bargain with it.43 Thereafter, as I have found, Olson delivered to Harvey on June 5, 1974, unsigned copies of a new collective-bargaining agreement embodying what Olson believed to be Respon- dent's latest bargaining proposal. Again on June 7, Olson sent Respondent a letter accepting Respondent's last offer. Both the unsigned agreement and the letter mention a seniority provision. No such seniority provision was, however, ever agreed to by Respondent. Accordingly, I conclude that the Union, contrary to its letter, has not accepted Respondent's last offer. I accordingly further conclude that Respondent's declina- tion to sign this contract for the Loves Park employees on and after June 5 did not violate Section 8(a)(5) of the Act. On the other hand, in Harvey's letter of June 7 to the Union, Respondent also refused to negotiate a new agreement. In all the foregoing circumstances I conclude that, by his refusal to negotiate further, Respondent has violated, and continues to violate, Section 8(a)(5) and (1) of the Act, and, as I have already held, this refusal to bargain cannot be excused on the basis of the defection of a majority of the employees from the Union, because such defection was caused by Respondent's unfair labor practices. Finally, I conclude that Respondent's implementation at its Love Park yard of the wage element of its last contract offer to the Union further violates Section 8(a)(5) and (1) of the Act. For this wage increase was granted on July 29, 1974, retroactively to May 17, 1974, when the last contract expired and it was not granted pursuant to further negotiations with the Union, although Respondent continued to have the obli- gation to negotiate at the time the increase was put into effect.44 I likewise conclude that the wage increase was intended further to undermine employee support for the Union and that the increase thereby violated Section 8(a)(5) and (1) of the Act for this reason as well. For the letter announcing that the increase had been granted was couched in terms which related unmistakably to the efforts of Respondent to per- suade the employees to abandon the Union. Thus that letter told the employees that Respondent had declined to settle the unfair labor practice charges against it, but reminded them that the Union no longer represented a majority of them and repeated to them Respondent's position that they were enti- tled to an election. Inasmuch as the Union's loss of majority and the filing of the decertification election petition both resulted from Respondent's unlawful acts, I conclude, in the circumstances, that the coupling of the wage increase with these reminders was a further effort on the part of Respond- ent to reinforce the effects of its earlier unlawful campaign to 43 Daisy's Originals, Inc., of Miami, 187 NLRB 251, 255-256 (1970); Hoyt Motor Co,, Inc, 136 NLRB 1042 (1962). 44 N.L.R.B v Benne Katz, etc., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962) 1041 rid itself of the Umon.45 The Freeport yard: Before proceeding on an analysis of the unfair labor practice allegations at this yard, I will, as with the Loves Park discussion above, first determine the appro- priate unit at Freeport and the Union's representative status in the unit. The complaint alleges, the answer admits, and I find that all employees engaged in loading, unloading, storage, and delivery services including all truckdrivers, helpers, and yard laborers employed by Respondent at its Freeport yard but excluding supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. - At some unknown date Respondent voluntarily recognized the Union at its Freeport yard and the Union has, from at least 1967 to the time of the events in question here, been the bargaining representative of the employees in the above- described unit at the yard. During this period, Respondent and the Union have entered into a series of collective-bargain- ing agreements, the most recent of which expired on May 23, 1974. As of June 5, 1974, the unit consisted, inter alia, of five striking employees all of whom were union members.46 There were also four strike replacements as of that date. In the absence of any showing that the latter were union mem- bers, I conclude that they were not. I further conclude that two of them were only temporary employees in view of Re- spondent's admission in its brief that these two individuals would return to college in the fall of 1974. This means that the Union's majority as of June 5, 1974, was 5 to 247 in the unit including the strike replacements. While Robert Gale was transferred to other duties after the strike ended, the Union's majority would have still remained at least 4 to 2 without the subsequent defection of Brinkmeier and Schulz. I accordingly conclude that the Union was the majority and exclusive bargaining representative of this unit as of June 5, 1974. Before proceeding to the matter of these defections and their effect on Respondent's obligation to bargain I will now treat with the matter of the continued employment of the four strike replacements after the strike was terminated on June 7. Each was hired while the strike was still going on to do unit work (which at least two of them were still performing at the time of the hearing). Inasmuch as it was not alleged that the strike was an unfair labor practice strike and since I find no basis upon which to decide that it was, I conclude that the strike was an economic one. In such circumstances Respond- ent was within its rights to hire these replacements to do striker's work. Further, in view of Huett's testimony which 45 See, e.g., Borg-Warner Controls, etc., 128 NLRB 1035, 1051 (1960); Insulating Fabricators, Inc., 144 NLRB 1325, 1332-33 (1963), enfd. 338 F.2d 1002 (C.A. 4, 1964). Moreover, the increase granted at this time was in the same amount of Respondent's last offer to the Umon-an offer, as I have found, about which Respondent told the employees at the meeting of June 3, when it began its unlawful campaign to solicit their resignations from the Union 46 I reach this conclusion because three of the five resigned their union membership on June 6 and a fourth, Huett, was asked to do so on June 6, all of which presupposes that these four had been union members up to that time The fifth, DeBoer, also declined to resign from the Union on June 6, thus showing that he also was a member at that time. 47 As temporary employees, these individuals are excluded from the col- lective-bargaining unit. E.g., B.J. Carney Co., 157 NLRB 1285 (1966). 1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I have credited, that strikers and replacements had sufficient work to keep them busy over the summer of 1974, I con- clude that Respondent did not continue the employment status of the replacements during that time in order to dilute the Union's majority status, as the complaint alleges. Accord- ingly, I conclude that neither their hire nor retention by Respon- dent was in violation of Section 8(a)(5) and (1) of the Act, and I shall recommend dismissal of these allegations of the complaint. The principal question for me to decide, however, is whether the defection of three of the five union members at Freeport was caused by Respondent's unfair labor practices. I conclude that it was. Respondent's campaign to undermine the Union began with Glenn Gale's confrontation with DeBoer on the picket line on May 29. In this incident, Glenn Gale told DeBoer that Respondent would give employees more than it had offered the Union in negotiations, if the employees would withdraw from the Union. Glenn Gale also told DeBoer that the em- ployees could use their leave to cover strike time and that he, Gale, would see that they were paid for the Memorial Day holiday, I conclude that, by Glenn Gale's conduct in this instance , Respondent sought to solicit his resignation from the Union, promised him economic benefits if he did so, and that Gale's effort was by its very nature calculated to under- mine the Union. And on each of these bases I further con- clude that Respondent violated Section 8(a)(5) and (1) of the Act.48 By his entire course of conduct on June 6 it is likewise clear that Rudy actively solicited the withdrawal of the Freeport yard employees from the Union. In examining this course of conduct I will first consider his individual meetings with employees that morning. While there was a dispute at the hearing as to whether these meet- ings were requested by Rudy or by the employees, what is of concern to us here is rather what took place in the meetings. Rudy admitted that he assumed that the purpose of the meetings was to discuss the last paragraph of his June 3 letter to the unit employees at this yard. That paragraph dealt with Respondent's plans to hire permanent strike replacements and the paragraph concluded with the offer: If you personally wish to consider your present status we would be pleased to reinstate your employment with all your Company programs intact prior to the hiring of your replacement. And Rudy stated that in each interview he outlined to the employees that they had two basic choices, i.e., to strike or to return to work. He told them that, if they decided to return to work, they could do so with union permission or without it or they could withdraw from the Union. From all the foregoing, it is clear that Rudy is claiming that his objective in participating in these meetings was to discuss whether or not the employees were to remain on strike. But at the time the meetings took place on the morning of June 6, Rudy already knew from Giardono's telephone call on the same morning that the strike was going to be called off by the Union. Hence after Giardono's telephone call the meetings could no longer have as their purpose the discussion of the C' American School Supply Company, supra; Marion Mills (Division of Munsingwear, Inc.), 124 NLRB 56 (1959). strike, but rather something else. I conclude that the "some- thing else" was Rudy's effort to persuade the employees to abandon the Union. What occurred at each meeting-all of which took place out of the presence of the employees ' bargaining representative-further suggests that this purpose was effec- tively carried out. Thus, in outlining the now academic choices facing each employee in respect to his continued participation in the strike , Rudy told Brinkmeier and Schulz, variously , that the Respondent was dropping the Union at Freeport and that the Freeport yard no longer wanted to- be in the Union . That Brinkmeier and Schulz decided to with- draw from the Union in the teeth of their Employer's sum- mary rejection of it is not surprising . Before speaking to Schulz and Brinkmeier Rudy had already told Robert Gale that Respondent was a small company and could negotiate with employees without a Union-the obvious implication being that individual bargaining could take place after the employee withdrew from the Union . The alternatives of leav- ing the Union or remaining in it were not presented by Rudy to Robert Gale until after the opportunity to bargain - in- dividually was first suggested to him . DeBoer in his interview was told by Rudy that three other employees were going to resign from the Union , which obviously implied that DeBoer should take the same action . DeBoer certainly thought so, because he immediately began explaining why he could not resign from the Union. Huett, the last man interviewed, was directly requested by Rudy to resign from the Union. Huett said he would think it over. Later Rudy took additional action to secure the employees' withdrawal from the Union . Thus after the interviews and also after the employees had spoken to the late arriving Giar- dono, Rudy told Brinkmeier, Schulz, and Robert Gale-in response to their inquiry-that Giardono had not telephoned, Rudy that morning to call off the strike. This response of Rudy was, as I have found, contrary to the fact. It also was the final determination in the decision if at least one employee , Robert Gale , were to withdraw from the Union49 and could not help but cement the intentions of Schulz and Brinkmeier . Still later in the afternoon Rudy met with Robert Gale, Brinkmeier, and Schulz and suggested to them that they write a letter to the Respondent, advising it they had resigned from the Union and he suggested the ap- propriate language to be used in this letter . In this meeting he did not tell them that after his meeting with them that morning (when he denied receiving the phone call from Giar- dono) Giardono had left him a note (again ) advising him that the strike was called off.50 . I find on the basis of the foregoing that Rudy actively solicited and later reinforced the withdrawals of Schulz, Brinkmeier and Robert Gale from the Union out of the pres- ence of their lawful bargaining representation and that Re- spondent through Rudy engaged in such conduct for the purpose of undermining that representative. By such con- 49 Robert Gale testified at the hearing that at this point he first told Rudy his, Gale's, decision to quit the Union, whereas he had told Rudy during his interview in the morning that he wished to think the matter over. 50 In evaluating Rudy's objectives in speaking to the employees about the Union, I have stated that I have considered his entire course of conduct. Hence , I am further constrained to note that, still later after the meeting at Schulz' house , Rudy persuaded Schulz to obtain a statement from the four strike replacements that they did not want the Union to represent them J. H. PATTERSON COMPANY duct, I conclude that Respondent has violated Section 8(a)(5) and (1) of the Act.5i As I have found, the Union in its letter of June 7 to the Respondent accepted the Respondent's latest contract proposal of May 23. This letter was received by Respondent on June 11. In its letter dated June 13 to the Union, Respond- ent refused to sign a contract based on Respondent's claim that the Union no longer represented a majority of the em- ployees and because the Union's letter contained unspecified proposals unacceptable to Respondent. However, as I have found, the Union's letter accepted Respondent's offer of May 23, which I further conclude embraced those items already agreed to in the absence of any showing to the contrary. As to the Union's claimed loss of majority Re- spondent cannot rest its refusal to sign an agreement on this ground since the defection of the employees from the Union directly resulted from Respondent's unfair labor practices. I accordingly conclude that Respondent's declination to sign a contract on June 13, 1974, and its later refusal to execute the agreements proffered by the Union on August 5, 1974, constitute unlawful refusals to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act.52 In reach- ing this last conclusion I am not unmindful that the agree- ment presented to Respondent on August 5 omitted a dues checkoff provision. Since it is clear from the testimony of both sides that the latter provision had been agreed to, I consider its omission to be an inadvertence which does not justify the refusal to execute an agreement nor obviate a remedy requiring Respondent to- execute a contract contain- ing such a provision. I further conclude that Respondent violated Section 8(a)(5) and (1) of the Act on August 2, 1974, by unilaterally increasing the wages of the employees in the bargaining unit at the Freeport yard (effective July 22, 1974, retroactive to May 23, 1974) at a time when its obligation to bargain with the Union continued in effect .13 I conclude that by the additional wage increase effective July 29, 1974, which exceeded the last offer made to the Union and was announced by Rudy at an employee meeting on August 2, 1974, and by the contemporaneous granting of monthly employee meetings to discuss employee suggestions, Respondent has yet further violated Section 8(a)(5) and (1) of the Act. For Rudy made it clear in announcing the wage increases that Respondent could do more for the men than a union. He also stated that he would personally see to it that, to keep the Union out, suggestions presented in the monthly meetings would be acted on. By granting these wage increases and concessions in the context of Rudy's foregoing remarks an obvious purpose of the improvements was yet further to 51 American School Supply Company, supra Nickey Chevrolet Sales, Inc., supra, West American Rubber Co, supra,, Cumberland Shoe Company, 160 NLRB 1256 (1966) I find no evidence that Rudy did in fact individually bargain with employees during these discussions nor that Glenn Gale unlaw- fully participated in them and I shall, accordingly, recommend dismissal of the complaint in respect to these allegations Nor do I find that on June 3, 1974, Rudy unlawfully threatened employees with loss of employment if they continued to support the Union and I shall likewise recommend dis- missal of the allegation of the complaint to that effect 52 Daisy's Originals, Inc., of Miami, supra; Hoyt Motor Co., Inc, supra; Aircra,j? Specialities, Inc., 148 NLRB 1127 (1964), enfd. 360 F.2d 600 (C A. 6, 1966) 53 N.L R.B. v Katz, et al, supra. 1043 undermine the Union by dampening the employees' alle- giance to it.54 The suspension and discharge of DeBoer There is no issue that DeBoer was a vigorous and vocal union supporter and that he exhibited these feelings to Rudy as recently as at the employee meeting on Friday, August 2. Insofar as this record shows DeBoer was the only employee at this meeting who sided with the Union. For his part Rudy demonstrated at this same meeting the continued strong animus of Respondent towards the Union as heretofore re- counted. On Monday, August 5, 1974, DeBoer was suspended for 3 days after the altercation with Glenn Gale. When Rudy suspended DeBoer, DeBoer was told that the reasons for his suspension was his use of "Glenn Gale's bulletin board" and for fighting. Neither reason stands up under analysis. The employees were not told it was Glenn Gale's bulletin board and they had used it freely to put up articles of general interest in the past. At least one notice put up by an employee was still hanging on the board at the time of the incident herein. As to the fight, it was, as I have found, started by Glenn Gale and DeBoer's part in it was an effort to defend himself. In these circumstances I conclude that the reason for DeBoer's suspension was DeBoer's vigorous support for the Union and that, by suspending DeBoer for this reason, Re- spondent violated Section 8(a)(1) and (3) of the Act. DeBoer was discharged on August 8, 1974, shortly after he returned to work from his suspension. His termination oc- curred after he refused to drive a truck with a broken hoist as he was directed to do by Rudy at the request of Glenn Gale. He was assigned to drive the latter truck rather than the truck which he had invariably driven for the past several years and which he had personally kept in good repair. Use of the truck with the broken hoist would have required more onerous manual labor in loading and unloading than would use of the truck DeBoer regularly drove. In examining the basis for this discharge, I note that there are two elements which clearly emerge from Glenn Gale's otherwise confused testimony" in explanation of the cir- cumstances of DeBoer's unusual driving assignment on this occasion. One is Gale's determination to have someone else drive DeBoer's truck on that morning. The other is that the decision to assign DeBoer to drive the truck with the broken hoist was a decision which Glenn Gale made on his own. Further in view of DeBoer's regular use of his own truck, which was in good repair, Glenn Gale well knew what De- Boer's reaction would be to an assignment on the defective truck. 54 American School Supply Co., supra, Borg-Warner Controls, supra, In- sulating Fabricators, Inc, supra 55 In his testimony, reported at pp 440-443 of the transcript, Glenn Gale at one point suggests that there was a request that another employee, Wen- dell Boyer, make a delivery with DeBoer's truck Later, however, Gale admitted he didn't know the circumstances why Boyer was given the order. At still another point Gale testified it was his intention to give Boyer the order of DeBoer's truck Still later he said that, if he hadn't given the order to Boyer, he would have changed Boyer's order. Even Respondent's counsel was confused by this Byzantine apologia, as the record shows. However, Gale's last statement in his testimony is not difficult to understand. It was "It was very clear to Frank [DeBoer] to get an order on the other truck." i e., the one with the broken hoist. 1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I therefore conclude, in all the circumstances, that this more onerous assignment was made by Respondent to DeBoer with the studied anticipation that he would refuse it and with the intention by Respondent to seize upon the refusal as a convenient, but invalid, pretext upon which to remove the last vocal union advocate at the yard. I, accord- ingly, further conclude that Respondent's discharge of DeBoer was because of his well known union allegiance and that Respondent thereby violated Section 8(a)(3) and (1) of the Act.56 In reaching the foregoing determination I also rely on the fact that, by being discharged on the claimed ground that he had refused a work assignment, DeBoer was treated differ- ently from Robert Gale. Thus, on another occasion, Robert Gale refused a work assignment but was not disciplined for his refusal. V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occurring in connection with the operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VI THE REMEDY The recommended Order herein will contain the conven- tional provisions for cases involving the types of interference, restraint and coercion, unlawful discharge, and unlawful refusal to bargain or unlawful refusal to sign a contract which occurred in this case and which, variously, resulted in viola- tion of Section 8(a)(1), (3), and (5) of the Act. This Order will require Respondent to cease and desist from the unfair labor practices found and to post a notice to that effect which will also state the affirmative action Respondent will be required to take to remedy its unlawful acts. Thus, in respect to the suspension and discharge of DeBoer, Respondent will be required to offer DeBoer rein- statement to his former or substantially equivalent position without prejudice to his seniority or other rights and privi- leges. DeBoer will be made whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he would have earned during his 3-day suspension and an additional sum of money equal to that he would have earned from the date of his discharge to the date of of reinstatement, less net earnings, if any, during the period of his suspension or during the period after his discharge, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with 6-percent interest thereon as pre- scribed by Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The recommended Order will also require Respondent to bargain, upon the Union's request, at its Loves Park yard 56 United Service Corporation d/b/a Forest Park Ambulance Service, 206 NLRB 550, 557-559 (1973), (Roncalli) and cases cited therein at fn. 39; Capital Electric Power Association, 171 NLRB 262, 283 (1968), Davis Transport, Inc, 169 NLRB 557, 559-560 (1968), enfd 433 F 2d 363 (C A 6, 1970) and, if agreement is reached, to embody that agreement in a signed contract. Respondent will be required to execute and sign a contract covering the employees at the Freeport yard consistent with its last offer which was accepted by the Unions? This last recommendation is made, however, with the express understanding that Respondent be ordered not to abandon or vary any wage rates or other benefits or emolu- ments now in effect at the Freeport yard where such wage rates, benefits, or emoluments exceed the contract's requirements.58 Similarly Respondent will not reduce any of the benefits unilaterally put into effect at the Loves Park yard after Respondent's refusal to bargain in the unit at the yard on June 7, 1974. In view of the relationship, in time and circumstances be- tween Respondent's unlawful activities at the Freeport yard and the Loves Park yard, it will be recommended that the same notice be published at both yards. Finally, in view of the nature of the unfair labor practices in which Respondent has engaged (see N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4)), it will be recommended that Respondent be ordered to cease and desist from infring- ing in any manner upon the rights guaranteed employees by Section 7 of the Act. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce and the Union is a labor organization within the meaning of the Act. 2. By suspending and later discharging Frank DeBoer be- cause of his union activities and sympathies towards the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By refusing to bargain with the Union as the exclusive bargaining representative of the employees in the appropriate unit as the Loves Park yard; by declining to execute a con- tract covering the employees in the appropriate unit at the Freeport yard; soliciting the employees' withdrawal from the Union at both yards; assisting in the filing of a decertification petition in the unit at the Loves Park yard; bargaining with the employees directly at the Loves Park yard; and unilater- ally instituting wage increases or other improved benefits or concessions at both these yards, in the manner found in this Decision, Respondent has violated, and is violating, Section 8(a)(5) and (1) of the Act. 4. The following employees constitute units appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees engaged in loading, unloading, storage and delivery services, including all truck drivers, help- ers, and yard laborers employed by Respondent at its Freeport yard but excluding supervisors as defined in the Act. All employees engaged in loading, unloading, storage and delivery services, including truck drivers, helpers, and yard laborers, employed by Respondent at its Loves 57 The agreement to be signed will be that which was received into the record on G C _ Exh 2(g) with the addition of the agreed upon checkoff provision contained in G C Exh. 2(b) (as the first paragraph of Art III) 58 Eklund's Sweden House Inn, Inc, 203 NLRB 413 (1973) J. H. PATTERSON COMPANY Park yard but excluding supervisors as defined in the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in unfair labor practices other than those found herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER59 Respondent , J. H. Patterson Company, Freeport and Loves Park , Illinois, its officers , agents, successors, and as- signs , shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with General Chauffeurs , Helpers and Salesdrivers Local Union No. 325, as the exclusive representative of its em- ployees in the following units found to be appropriate for the purposes of collective bargaining: All employees engaged in loading, unloading, storage .and delivery services , including truck drivers, helpers and yard laborers employed by Respondent at its Free- port yard but excluding supervisors as defined in the Act. All employers engaged in loading, unloading , storage and delivery services , including truck drivers , helpers and yard laborers employed by Respondent at its Loves Park yard but excluding supervisors as defined in the Act. (b) Soliciting employees to withdraw from membership in the Union. (c) Suggesting , encouraging , and assisting the filing of union decertification petitions by employees. (d) Bargaining individually with employees instead of through their exclusive collective-bargaining representative. (e) Unilaterally changing employees' wages, hours, or other terms and conditions of employment without first ob- taining the agreement of their exclusive collective -bargaining representative. (f) Discouraging membership in, or activities in behalf of, General Chauffeurs , Helpers and Salesdrivers Local Union No. 325 by discriminating in regard to hire and tenure of employment or in any other manner in regard to any term or condition of employment of any of Respondent 's employees. (g) In any other manner interfering with , restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent such rights may be affected by an agreement requiring membership in a labor organization , as authorized in Section 8(a)(3) of the Act, as amended. 59 In the event no exceptions are filed as provided by Sec . 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order , and all objections thereto shall be deemed waived for all purposes 1045 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of all the employees in the aforementioned appropriate unit at Respondent's Loves Park yard with respect to rates of pay, wages, hours, and other terms and conditions of employment and reduce to writing any agreement reached as the result of such bargaining; provided , however, that Respondent will continue in full force and effect any improved emoluments and benefits which it may have granted its employees during the period of its unfair labor practices and the pendency of these proceedings. (b) If so requested by the Union, forthwith sign the Free- port yard agreement tendered to it in writing on August 5, 1974, and include therein the employees dues checkoff provi- sion previously agreed to; also at appropriate times here- inafter bargain collectively , upon request, with the above- named Union as the exclusive bargaining representative of its Freeport yard employees and, if an understanding is reached, embody such an understanding in a signed agreement; pro- vided, however, that Respondent will continue in full force and effect any improved benefits and emoluments which it may have granted its employees during the period of its unfair labor practices and the pendency of these proceedings. (c) Offer Frank DeBoer immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered as the result of his discriminatory suspension and his dis- criminatory discharge, in the manner set forth in "The Remedy" section of the Administrative Law Judge 's Decision herein. (d) Preserve and, upon request, make available to the Board or its agents , for examination and copying , all payroll records, social security payment records , timecards , person- nel records and reports , and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its Freeport and Loves Park yards copies of the attached notice marked "Appendix .`0 Copies of said no- tices and forms provided by the Officer-in-Charge of Subre- gion 38, after being duly signed by the Respondent ' s represen- tative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (f) Notify the Officer-in-Charge of Subregion 38, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is , dismissed insofar as it alleges unfair labor practices not found herein. 60 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals , the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence it has been decided that we, J. H. Patterson Com- pany, have violated the National Labor Relations Act and we have been ordered to post this notice. The National Labor Relations Act gives you these rights: To self-organization To form, join, or help unions To bargain collectively through a representative of your own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all such activities. Accordingly, we give you these assurances. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with General Chauffeurs, Helpers and Sales Drivers Local Union No. 325 as the exclusive bargaining representative of you, our employees, in the appropriate collective-bargaining units appearing below, rather WE WILL bargain collectively with that Union, upon request, and embody any understanding reached in a signed agreement. The units are: All employees engaged in loading, unloading, stor- age and delivery services, including truck drivers, helpers and yard laborers employed by us at the Free- port yard but excluding supervisors as defined in the Act. All employees engaged in loading, unloading, stor- age and delivery services, including truck drivers, helpers and yard laborers employed by us at the Loves Park yard but excluding supervisors as defined in the Act. WE WILL NOT solicit our employees to withdraw from Union membership. WE WILL NOT encourage or assist our employees to file a decertification petition against the above-named Union. WE WILL NOT bargain individually with you, our em- ployees, but WE WILL bargain through your exclusive bargaining representative. WE WILL NOT change your wages, hours, or other terms and other conditions of employment without first bargaining with the above-named Union; but WE WILL continue in full force and effect any wage increase or other emolument or benefit you have received since May 1974. WE WILL NOT do anything which interferes with your rights outlined above under the National Labor Rela- tions Act, except with respect to any provision that you be union members as required by a collective-bargaining contract authorized by law. WE WILL NOT suspend you or discharge you because you join, support, or engage in organizational activities on behalf of the above-named Union. WE WILL, if requested by the above-named Union, forthwith sign a collective-bargaining agreement with that Union covering the wages, hours, and terms and conditions of employment of the employees in the above- described unit at Freeport yard. WE WILL offer to reinstate Frank DeBoer to his for- mer or substantially equivalent position with full seniority and all other rights and privileges, as the Board has found that he was suspended and later discharged because he supported and assisted the above-named Union. WE WILL also make up all pay which Frank DeBoer lost with 6-percent interest. J. H. PATTERSON COMPANY Copy with citationCopy as parenthetical citation
