Draggoo Electric Co., Inc.

National Labor Relations Board - Board DecisionsNov 11, 1974

214 N.L.R.B. 847 (N.L.R.B. 1974)

DRAGGOO ELECTRIC CO., INC. Draggoo Electric Co., Inc . and John T. Wilkerson and Local Union No. 153, International Brotherhood of Electrical Workers, AFL-CIO. Cases 25-CA-5956, 25-CA-5956-2, 25-CA-6009, and 25-CA-6009-2 November 11, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On June 28, 1974, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs, and Respondent also filed a reply 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 and briefs and has decided to affirm the rulings, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order, as modified here- in. We disagree with the Administrative Law Judge's dismissal of the 8(a)(1) allegations pertaining to Keith Draggoo's November 13 solicitation of griev- ances from the employees and his promises to adjust them. In determining whether such solicitations and promises of adjustment violate the Act, the Board examines an employer's past practices, but this factor alone is not determinative. Proof of the absence of such a past practice is not the sole condition prece- dent to the finding of an 8(a)(1) violation. An employer's past practice is instead one of several fac- tors which we consider and weigh in making a deter- mination. As succinctly stated in Sears, Roebuck and Co., 182 NLRB 491, 498 (1970), reversed on other grounds 450 F.2d 56 (C.A. 6, 1971): Determination of this issue turns on the entire congeries of facts in each case, including such factors as the employer's true motive in solicit- ing and correcting the grievances, his past poli- cies and practices, and the nature of the correc- 1 Members Kennedy and Penello agree that a bargaining order is appro- priate herein as a part of the remedy However , in accordance with the views they expressed in Steel- Fab, Inc , 212 NLRB 169 (1974), they do not adopt the Administrative Law Judge 's finding of an 8(aX5) violation upon which he predicated the recommended Order They would instead rely soley on the serious and extensive 8(a)(1), (3), and (4) violations committed by Respondent as the basis for such a bargaining order For the reasons stated in his dissent in Steel-Fab, Inc, supra, Member Jenkins dissents from the dismissal of the Administrative Law Judge's 8(a)(5) finding 847 tive action-the basic criterion being whether the employer's conduct was calculated or had the reasonable tendency to induce employees to forsake the union. An examination of the entire record in this case leads us to conclude that Keith Draggoo's November 13 solicitations and promises did unlawfully tend to in- duce employees to forsake the Union. First, the November 13 meeting was unprecedent- ed even in terms of Respondent's own past practices. It appears that Draggoo did have a policy of con- ducting periodic meetings with employees. Such meetings, however, were not regularly scheduled but were called whenever Draggoo could spare the time and felt he had some relevant information for the employees. During the meetings, Draggoo would sometimes inquire as to employee problems or sug- gestions. It seems clear that these meetings were rela- tively informal and were designed primarily as a fo- rum for the exchange of information. The November 13 meeting, on the other hand, was admittedly called in response to the employees' orga- nizing efforts 2 and was billed from the outset as a gripe session. During the meeting Draggoo extensive- ly discussed several employee complaints and then finally requested that each employee submit in writ- ing a list of complaints which he had. According to the credited testimony, Draggoo promised to take care of the complaints. Any doubt that Draggoo's requests and promises were calculated to induce the employees to forsake the Union are disspelled by his admission that during the meeting, "I just told the guys that I didn't believe in unions and that I didn't want a union in my shop." Moreover, it is important to bear in mind that the meeting was conducted one day following a discrimi- natory layoff and during a week in which Keith Draggoo was engaging in numerous other indepen- dent violations of Section 8(a)(1). Under such circumstances, we conclude that Respondent's November 13 solicitation of grievances and express promise of adjustment violated Section 8(a)(1). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Draggoo Electric Co., 2 As found by the Administrative Law Judge , Draggoo admitted that had he been unaware of the employee support for the Union he probably would not have called the meeting 214 NLRB No. 120 848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., Elkhart, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Delete the existing text of paragraph 1(b) and substitute therefor the following: "(b) Conducting meetings with and questioning employees for the purpose of soliciting their griev- ances or complaints and directly or impliedly prom- ising them benefits or improved working conditions from such grievance solicitation, where an object thereof is to discourage its employees from support- ing or voting for Local Union No. 153, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization." 2. Substitute the attached notice for that of the Administrative Law Judge. about their union views or activity. WE WILL NOT threaten employees with loss of future employment, or other adverse conse- quences, if they support a union. WE WILL NOT promise employees future ad- vancement for refraining from supporting a union. WE WILL offer John Wilkerson full reinstate- ment to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for his loss of earnings, with 6 percent interest. WE WILL bargain collectively with the Union above named as the exclusive collective-bargain- ing representative of our employees in the unit of: APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all these things. WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT discriminate against employees by laying off or terminating them in order to discourage membership in Local Union No. 153, International Brotherhood of Electrical Work- ers, AFL-CIO, or any other union. WE WILL NOT conduct meetings with and ques- tion our employees for the purpose of soliciting their grievances or complaints and directly or impliedly promise them benefits or improved working conditions from such grievance solicita- tion, where an object thereof is to discourage our employees from supporting or voting for Lo- cal Union No. 153, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. WE WILL NOT coercively interrogate employees All employees of Draggoo Electric Co., Inc., at its Elkhart, Indiana, establishment; but ex- cluding office clerical employees, office em- ployees, professional employees, guards and supervisors as defined in the National Labor Relations Act, as amended. DRAGGOO ELECTRIC CO., INC. DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: These cases involve a small electrical contractor who resisted unionization of his employees. It is claimed that in doing so he committed numerous unfair labor practices. Briefly these claims fall in the following categories: (a) that he threatened, coerced, and restrained his employees by ques- tions about union activities, threats of reprisals such as dis- charge, promises of benefits such as raises, solicitation of grievances and promises to adjust them, and a warning against filing unfair labor practices or testifying for the Labor Board; (b) that one man was fired because of his union activity and because he gave testimony to the Labor Board and that four others were repeatedly laid off (and one of these eventually fired) because of their union activi- ty and because two of them gave testimony to the Labor Board ; and (c) that the Employer unlawfully refused to bargain with the Union which represented the employees. These unfair labor practice proceedings began on No- vember 19, 1973, with the filing of the initial charges in Case 25-CA-5956 by John T. Wilkerson against Draggoo Electric Co., Inc. (herein Respondent). On December 19, 1973, Local Union No. 153, International Brotherhood of Electrical Workers, AFL-CIO (herein the Union) filed the charge in Case 25-CA-6009. On January 8, 1974, the Union filed the charges in Case 25-CA-6009-2 and on January 11 Wilkerson filed the charges in Case 25-CA- 5956-2 DRAGGOO ELECTRIC CO, INC Based on these charges the General Counsel of the Na- tional Labor Relations Board (herein the Board) on behalf of the Board issued a consolidated complaint on January 16, 1974 alleging that Respondent had committed unfair labor practices forbidden by Section 8(a)(1), (3), (4), and (5) of the National Labor Relations Act, as amended (the Act). Respondent answered the complaint, admitting the jurisdictional allegations but denying all alleged unfair la- bor practices. The issues posed were tried before me at Elkhart, Indiana, on March 6, 7, 8, 12, and 13, 1974. Upon the entire record, my observation of the witnesses, and consideration of the briefs filed by the General Coun- sel and Respondent, I make the following: FINDINGS OF FACT 1. THE EMPLOYER INVOLVED Respondent is an Indiana corporation engaged at Elk- hart, Indiana, as an electrical contractor in the construc- tion industry and providing electrical maintenance for in- dustrial, commercial, and household customers During the year preceding the issuance of the complaint it purchased and received at Elkhart, Indiana, goods and materials val- ued at over $50,000 which were transported to it directly from outside Indiana. It is an employer engaged in com- merce. Respondent is controlled by its president, Keith Drag- goo. His wife Linda is secretary-treasurer of the corpora- tion and also works in the office. The Company has been in operation about 5-1/2 years. Historically it has operated in two departments; the construction department perform- ing construction contracts under the immediate supervi- sion of Keith Draggoo, and the service department per- forming industrial and household maintenance work under the supervision of Foreman Thomas Barrett. Although Barrett is a working foreman, he is a supervisor within the meaning of the Act.' The distinction between the work of the two depart- ments is chiefly a matter of degree The construction jobs are usually of longer duration, for substantial dollar amounts, and involve a greater degree of supervision of the crews. Contracts are obtained by advance bidding. The work is scheduled. The crews often work out of a jobsite trailer. By contrast the service department performs a larger number of smaller, short-term jobs accepted on an ad hoc basis. Service employees work from trucks which are self-contained service units. The employees require a mini- mum of supervision. They are on call 24 hours a day, 7 days a week. More recently Respondent has endeavored to develop a third department to provide lighting mainte- nance service on a contract basis. At the time of the hear- ing this department was still in an embryonic stage. II. THE LABOR ORGANIZATION INVOLVED The Union is an organization which admits to member- ship employees engaged in electrical work, including em- ' Barrett assigns work to others in the service department In Draggoo's absence he is in charge of the business 849 ployees of Respondent, and which represents employees in collective bargaining. It is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Union Activities 1. Past relations between Respondent and the Union In 1967 Keith Draggoo was himself employed as an elec- trician in a factory. He became a member of the Union and remained a member through 1969. In 1968 he estab- lished Respondent's business and on behalf of Respondent entered into a collective-bargaining agreement with the Union covering its electrician employees. The term of that agreement does not appear in the record. In late 1970 and early 1971, while the agreement was still in effect, disputes developed between the Union and Keith Draggoo re- specting his individual membership in the Union and be- tween the Union and Respondent respecting payment of contributions for fringe benefits under the agreement. In early 1971 the Union, in support of its positions, notified Respondent's employees that Respondent was in violation of the agreement and that their continued employment with it would subject them to penalties from the Union. At the time Respondent employed five electricians including Kenneth Rice, one of the alleged discnminatees in the pre- sent matter. Three of these employees, including Rice, opt- ed to remain with Respondent. Two electricians left. Thereafter Respondent paid the claimed indebtedness for the fringe benefits. The Union took no further steps to enforce the agreement and at the end of the contract term made no effort to renew it. At various times during 1972 the Union picketed con- struction sites at which Respondent was performing electri- cal work and where other unionized construction trades also were engaged in work. According to the uncontradict- ed testimony of Keith Draggoo the last occasion of such picketing occurred over a 3-week period ending October 28, 1973, at the premises of the Elkhart Foam Company. Respondent's employees John Wilkerson and Steven Baughman, both alleged discriminatees in the present mat- ter, worked for Respondent on the Elkhart Foam job dur- ing that picketing 2. Current union activity among the employees According to Keith Draggoo in mid-October 1973 a management consultant informed him, based on informa- tion acquired from employees regarding their dissatisfac- tion, that Respondent had a "labor problem." The counsel was apparently accurate because on October 24, five of Respondent's employees (Kenneth Rice, Steven Baugh- man, Paul Kemble, Bernard Robbins, Jr., and Joseph Smet) met with Union Business Manager Lloyd Robinson to discuss the value of the Union representing them. At that meeting all five signed cards authorizing the Union to represent them. The next day John Wilkerson, who did not attend the meeting, also signed an authorization card. All of these employees except Smet (who was employed as a 850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchasing clerk) worked in Respondent's construction de- partment. At the end of October or the beginning of November Robinson, in an effort to set up a meeting, called at Respondent's office during Keith Draggoo's absence. He left a message that the Union had signed a majority of Respondent's electricians and asked that Draggoo call him. Draggoo did not do so. About a week later on November 8, Assistant Business Agent Donald Rink again came by Respondent's office while Keith Draggoo was away. In a later telephone conversation that same day Rink informed Keith Draggoo that the Union had signed a majority of his employees and he endeavored to set up a meeting. As de- tailed later herein, no meeting resulted. On November 14 the Union filed a petition (Case 25-RC-5547) seeking a Board election among Respondent' s electricians . Thereaf- ter an election was scheduled for December 21, but the holding of the election has been blocked by the unfair la- bor practice charges in the present matter. B. Alleged Threats, Coercion, and Restraint 1. The allegations in the complaint The complaint alleges numerous independent violations by Respondent of Section 8(a)(1) of the Act. These include interrogation of employees regarding union activity by Keith Draggoo on eight occasions; promises of raises or other benefits on four occasions and on two occasions threats of reprisals made for the purpose of inducing em- ployees to abandon the Union; solicitation of employee grievances and promises to correct them; and one incident of a warning to an employee against filing charges with the Board or testifying. The evidence relating to these allega- tions is treated below. 2. The conversation with Kenneth Rice About November 8, while Kenneth Rice was on vaca- tion and after the Union had contacted Respondent, Keith Draggoo telephoned Rice at home and asked if he knew anything about the union activity and what his feeling was respecting it. Rice indicated that he had been offered more money and Draggoo replied he didn't blame him for want- ing more money. According to Rice, whom I credit, Drag- goo added that the shop in any case would not go union. He told Rice to turn in all the keys he had until the trouble was over. According to Rice, whom I also credit in this regard, Draggoo then commented, "In the past I have always looked out for the men and I have tried to make sure they have always had work in the winter. But I'm not going to do that any more." According to Draggoo he said, "Ken, this couldn't have come at any worse time because we just don't have any work." He denied saying that he had pro- vided work in the past in the winter and would no longer do so. I credit Rice instead of Draggoo chiefly because Draggoo admittedly had a number of conversations with various employees while Rice had this single conversation with Draggoo and it seems more likely that it would be impressed in his recollection. I find that on November 8, Keith Draggoo unlawfully interrogated Rice about his opinion respecting the Union and because of employee union activity threatened that during the coming winter work would not be provided in the same manner as in the past. Such conduct violated Section 8(a)(1) of the Act. 3. The conversation with Paul Kemble On the evening of November 8, Keith Draggoo also tele- phoned Paul Kemble asking him if he knew that there was a labor problem in their shop. Kemble admitted he did. Draggoo then said that he had just learned of it the first of the week and that he had talked to Rice, but did not know how far Rice had become involved. He then asked Kemble if he had signed a union card. Kemble admitted he had. Draggoo said he would not allow a union shop to come in under any circumstances. He told Kemble the timing of the union organizing effort was inopportune. According to Kemble he seemed afraid of a walkout and indicated that he would not allow a walkout to happen; that he would farm out his contracts; that he would do anything but he absolutely would not have a union shop. Draggoo denied generally that he had ever asked any employee if they had signed a union card but I do not credit this general denial. Based on the foregoing incident involving Kemble I find that on November 8 Keith Draggoo interrogated him about his knowledge of the union organizing and whether he had signed a union card. I also find that he threatened to farm out future work in the event the Union achieved representative status in the shop and that in effect he there- by threatened the employees with a loss of future employ- ment if they chose the Union. In these regards Draggoo violated Section 8(a)(1) of the Act. The next day, Friday, was a payday. On that occasion Keith Draggoo instructed all employees to turn in their keys to the shop and jobsite trailers. He announced that there was a union problem, that he was going to get to the bottom of it, and until then he was going to protect his own interest by locking up. 4. The conversation with Stephen Baughman According to Keith Draggoo, whom I credit in this re- gard, around November 8 or 9 he called Stephen Baugh- man to his office and told him he thought there might be a walkout. He asked Baughman, "If the guys walk out are you going to walk out with them?" Baughman said he would not. Draggoo also asked Baughman if he was in- volved in the Union. He told Baughman that the Company had a lot of work coming up and he could advance as rapidly as anyone. In his testimony Baughman gave a much more detailed account, but he seemed uncertain as to when the conversa- tion occurred, or how many occurred, and his testimony at the hearing is in some respects inconsistent with a prehear- ing affidavit given a Board investigator. In the circum- stances I credit the account given by Keith Draggoo. As with Rice and Kemble, Draggoo clearly interrogated Baughman in an unlawful manner respecting his union ac- DRAGGOO ELECTRIC CO, INC 851 tivity and views . He also in this conversation held out to Baughman the possibility of promotion in an expanding organization . Coupled with his unlawful interrogation and antiunion comments , this offer of future advancement car- ried an implied condition that Baughman refrain from sup- porting the Union . I find that this was an unlawful offer of future advancement and employment and together with the interrogation violated Section 8(a)(1) of the Act. 5. The meeting of November 13 On November 12, Keith Draggoo laid off John Wilker- son. The next day, November 13, Draggoo called a meeting in the office of all employees. He testified, "I called the meeting for the simple fact to see what the status of everybody's problems was," and "If someone has a grape I want to hear about it, that's the only reason the meeting was called." He denied that he called the meeting because the Union had been organizing among the employees. However, in another point in his testimony he admitted, "I Just told the guys that I didn't believe in unions and that I didn't want a union in my shop." He also admitted he called the meeting because of an overall bad attitude of the employees in the shop and that if he had not known at that time that the Union had signed up a majority of the em- ployees that he probably would not have called the meet- ing. In the same breath he testified on the one hand that he did not want the employees to join the Union but there was nothing he could do about it, and on the other hand that he called the meeting in order to head them off from joining. The degree of his tolerance was aptly expressed in his own words; "I told the men they were free to go union if they wanted but not in my shop." Keith Draggoo opened the meeting by stating that they had a labor problem and he wanted to get to the bottom of it. At some point during the meeting he said they might have a walkout. He posed the question what benefits would be derived from belonging to a union. His query was met by a period of silence . The silence was broken by Kenneth Rice who suggested that one benefit would be more mon- ey. At that point Linda Draggoo (wife of Keith Draggoo and secretary-treasurer of Respondent's corporation) en- tered the room and interrupted the discussion to vehe- mently denounce Rice for taking that position According to Paul Kemble, whom I credit, the discussion continued with Keith Draggoo observing that anyone of the employ- ees present was better than any union electrician. He said, "You do a better job." To this Kemple replied, "If we are that much better why don't we get the money they are getting." Baughman commented that the thing that both- ered him most was the lack of materials when they were needed on the job. In the continuing discussion Kemble expressed himself concerning the need of older employees for protection from being passed over for younger employees. Keith Draggoo asked each employee what they thought. Not all responded. But of all those present, only two, Larry Buck- master and William Kelley, expressed themselves in oppo- sition to the Union. Buckmaster said that he thought unions were communistic. Kelley said he knew a lot of union men who goofed off on the job. To this Rice re- sponded that one could not set the example by just a cou- ple of men because there were good and bad in every orga- nization. Joseph Smet testified, and I find, that Draggoo stated the employees were mistaken if they thought the Union was going to get in. At the end of the meeting Keith Draggoo asked all the employees to individually put in writing their complaints and ideas on what could be done to improve conditions of the shop. He wanted any gripes, comments on good points, vacation plans, and anything else they wished to mention. Rice testified, and I find, that Draggoo said that he would take care of the complaints. I find that in the November 13 meeting Keith Draggoo engaged in a mass interrogation of employees respecting their union views with the result that he was able to sepa- rate out those who were definitely antiunion (Buckmaster and Kelley). Such interrogations were in violation with Section 8(a)(1) of the Act. The General Counsel contends that Respondent further violated Section 8(a)(1) at the meeting by soliciting griev- ances and promising to adjust them. I find that Respon- dent did solicit grievances and promise to adjust them However, in the circumstances of this case, I find that the evidence is insufficient to establish this was a violation of the Act. I reach this result because the evidence indicates Respondent followed a practice of calling employees meet- ing every month or so. At some of these past meetings Keith Draggoo solicited grievances and it appears that all such meetings were available to employees for the purpose of airing grievances. Board precedent suggests that absence of such a past practice is essential for finding an 8(a)(1) violation. Thus, in Reliance Electric Company, 191 NLRB 44 at 46, the Board said: Where, as here, an employer, who has not previously had a practice of soliciting employee grievances or complaints, adopts such a course when unions engage in organizational campaigns seeking to represent em- ployees, we think there is a compelling inference that he is implicitly promising to correct those inequities he discovers as a result of his inquiries and likewise urg- ing on his employees that the combined program of inquiry and correction will make union representation unnecessary. See also Hadbar, Division of Pur 0 Sil, Inc., 211 NLRB 333 (1974). 6. The conversations with Joseph Smet Subsequent to the November 13 meeting Keith Draggoo had two discussions with Joseph Smet who at that time was employed as purchasing clerk. The first of these conversa- tions was on about November 15 and occurred in Respondent's shop. Keith Draggoo, in the presence of his wife Linda, asked Smet whether he had signed a union card. At that time Smet denied that he had. Regarding the Union, Keith Draggoo commented that, "You are either for or against me." On the second occasion, at a time not specifically estab- lished in the record, Keith Draggoo in effect again asked Smet if he had signed a union card by saying to him, "Joe, 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I thought you didn't sign a card?" This time Smet admitted that he had signed a card. Draggoo said he did not see how he could have since he was under management and it would not do him any good to sign a card. It was apparent- ly during this conversation that Draggoo observed that it was not the time for the Union to come in and that in his prior experience with the Union they had done him wrong. I find that on these two occasions Keith Draggoo inter- rogated Joseph Smet as to whether he signed a union au- thorization card and thereby violated Section 8(a)(1) of the Act. As found later herein John Wilkerson was laid off on November 12. In mid-December, sometime after the De- cember layoffs of Robbins and Rice, Keith Draggoo told Smet that if the Union had not come in there would not have had to have been any layoffs. This statement, made to an employee who was still actively employed, was calculat- ed to interfere with his statutory rights to engage at will in union activity and was a further violation of Section 8(a)(1) of the Act. c. The Alleged Discriminations 1. The layoff and discharge of John Wilkerson John Wilkerson had been employed by Respondent as an electrician for about 15 months prior to his layoff on November 12, 1973. For the first 3 months of his employ- ment he worked as a service electrician in the service de- partment. Thereafter he worked in the construction depart- ment doing construction work and on occasion some ser- vice work. Keith Draggoo testified credibly that he first tried out Wilkerson in the service department to see if he could handle that work, and when it developed that he could not handle it to the satisfaction of Draggoo, he was transferred to construction work. Wilkerson was classified by Respondent as an electrician second class. During his tenure with the Company he ac- quired a Michigan journeyman' s license. He received num- erous increases in pay. Thus on January 2, 1973, he re- ceived a 25-cent-per-hour increase to $4.75 and shortly thereafter on January 29 another 25-cent-per-hour increase to $5. On June 4 he received a 30-cent-per-hour increase to $5.30 and July 2 a 50-cent-per-hour increase to $5.80. On October 8, not long before his layoff, he received another 25-cent-per-hour increase to $6.05. This was the top rate paid by Respondent. Wilkerson's work in construction was generally satisfac- tory. He was put in charge of "running" a number of jobs; that is, he was designated as the lead electrician on the job and was responsible for its performance. Keith Draggoo would go over the job with him, tell him what and how he wanted it done and then Wilkerson and whoever was as- sisting him would take it from there, subject to two daily inspections by Keith Draggoo. In this sense Wilkerson, while in the construction department was "in charge" of the following jobs: Cash Industries, Road King, Cavalcade Industries, Elkhart Foam, and ESI Meats. From time to time Keith Draggoo complimented him on his work. Wilk- erson testified that he was never reprimanded but I do not credit this testimony because the weight of the evidence indicates that Draggoo did criticize some aspects of his work. Nevertheless, all in all he was considered a satisfac- tory and competent employee as shown by the steady in- crease in his compensation. Keith Draggoo testified to a problem on the Cash Industries job, which he attributed to Wilkerson, but he admitted that he had given him no other reprimands and in fact had commended him from time to time for his work. Kenneth Rice testified that while he had on occasion heard Keith Draggoo complain about Wilker- son doing some things a little differently than most people would have done them, Draggoo had complimented Wilk- erson a couple of times. "He said John was doing a hell of a good job." And Steven Baughman, who worked with Wilkerson on four of the above-mentioned jobs, testified that he never heard Draggoo reprimand Wilkerson. At the time he hired Wilkerson, Keith Draggoo inter- viewed him. He learned that he was then not working be- cause the employees at the factory where he was employed had walked out in a dispute over wages. Draggoo asked him how he felt about the Union, observing that Draggoo had a nonunion shop and he preferred to keep it that way. Wilkerson replied that he had no preference either way, that if an employer had a good relationship with his em- ployees, the Union probably was not necessary. Thus, from the beginning Respondent was on notice that on his prior job Wilkerson had walked out in support of concerted or union action among the employees. Wilkerson was not among those who attended the union meeting at Mishawaka on October 24. He did, however, sign a union authorization card the next day and turned it in to Steven Baughman . On Friday, November 9, after Keith Draggoo learned that the Union claimed a majority of Respondent's employees, he had everyone turn in their keys, announcing that they had a union problem which he was going to get to the bottom of. At the end of the work day on November 12 Wilkerson was called into the office by Keith Draggoo and was laid off. In addition to Wilkerson and himself, Keith Draggoo had asked office employee Barbara Cashen to be present at the layoff meeting. She took no part in the discussion and apparently was only there as a witness. Keith Draggoo in- formed Wilkerson that Mrs. Cashen was present because of the labor problems. Wilkerson testified that in explain- ing Mrs. Cashen's presence Draggoo stated that he did not want Wilkerson running to the Labor Board. Both Keith Draggoo and Mrs. Cashen denied that he made any refer- ence to the Board. I credit their version. Draggoo then told Wilkerson he was laying him off be- cause business was slow and he did not have any work for him. Wilkerson asked, "Why me? Why are you picking on me?" Draggoo denied he was "picking on him." He said his job was completed and, therefore, Wilkerson was the first to be laid off. Wilkerson then asked why not lay off Kelley or Robert Rider. Draggoo justified his selection of Wilkerson instead of Kelley by saying that Kelley was his housewireman (a specialist in rewiring of old residences) and he would not lay him off. He asked Wilkerson if he thought he could do residential work. Wilkerson made no reply. As to Rider, Draggoo explained that he was a main- tenance man and he did not think Wilkerson could do con- trol wiring. He asked Wilkerson if he could do that. Wilk- DRAGGOO ELECTRIC CO., INC. 853 erson made no reply to that explanation. Draggoo then directed Wilkerson to turn in his bowling shirt from the company bowling team . When Wilkerson pointed out that there were still 30 weeks of the season left, Draggoo told him to keep the shirt. As the meeting concluded Wilkerson said , "Well, it's been nice working for you." He testified credibly, and I find , that Keith Draggoo then asked him , "If I call you back you won 't come back , is that right?" to which Wilker- son answered , "Well, I have to work someplace " Draggoo then repeated, "But you won ' t come back , is that right?" Wilkerson 's final words were , "If you need me call me." Draggoo denied that he asked the final questions . Cashen's memory was very poor as to what was said at the end of the meeting . In circumstances I credit Wilkerson 's version. He was never called back to work. At the time of his layoff Wilkerson and Paul Kemble were working on the Consuelo job. Keith Draggoo testified that that job was over when he laid Wilkerson off. Howev- er, Wilkerson testified credibly that there was still work to be done on the job and that on the day of his layoff there were additional work orders relating to some job in his rack in the office . The record does not reveal how much work remained on that particular project but the weight of the evidence indicates , and I find , that some work was still available even if the end of the Consuelo job may have been in sight. The day of Wilkerson 's layoff was included in the pay period ending November 17 during which a number of em- ployees worked overtime . In the service department fore- man Barrett worked 13 hours overtime ; Buckmaster 18-1/2 hours, and Rider 9- 1/2 hours. In the construction depart- ment Kelley worked 6 hours overtime, Kemble 1 hour, and Baughman and Robbins 9-1/2 hours each . Keith Draggoo testified that service department employees were compe- tent to perform construction work but that construction department employees were not competent to perform most service work . Respondent contends it was not feasible to transfer employees from construction work to service work during slack periods . Assuming , arguendo, that this is so, Respondent 's contention does not account for the over- time in the construction department in the same pay period that Wilkerson was laid off. Respondent offered the expla- nation that Baughman and Robbins both worked 9-1/2 hours overtime in that week because they were assigned to a special job which had to be performed on a Saturday. That explanation , however , does not extend to, or explain, the overtime worked by Kelley and Kemble It appears, therefore , that Wilkerson was laid off on a Monday on the grounds that there was a shortage of work while during that same week some of his colleagues in the construction department worked overtime . This circumstance raises a substantial doubt respecting the validity of the assertion of a shortage in construction work which Draggoo gave Wilk- erson as a reason for his layoff . It appears that his layoff for that reason was not necessary . Whatever may have been the situation at a later time , on November 12 there was still some work for Wilkerson to perform . The alleged shortage of work appears to be a sham reason. At the same time Wilkerson was being laid off for lack of work, Re- spondent was running a help wanted advertisement in the local newspaper At the hearing Respondent gave additional and different reasons (noted below) for Wilkerson's layoff . The fact that these were not given to him at the time of layoff lends additional support to the conclusion that work shortage was not the real reason . Further doubt is cast upon the lack of work reason by the fact that he was never recalled al- though, as pointed out later herein in connection with other layoffs , Respondent purported to follow some kind of a rough rotation system which would distribute the lay- offs more equitably among construction employees. Con- sidering these factors, I find that the evidence is insuffi- cient to establish that lack of work was the reason for the layoff of Wilkerson on November 12. As mentioned above, at the hearing Respondent asserted additional reasons for Wilkerson's layoff . Keith Draggoo summed these up by stating that Wilkerson had a bad atti- tude or a negative attitude in that he did not follow instruc- tions. Draggoo testified , "John did the best he could. But that didn 't do away with his attitude . He couldn ' t follow orders very well." Draggoo based this judgment on three fact situations . The first involved Wilkerson 's performance on a job at Cash Industries where , according to Draggoo, he failed to follow instructions and mounted a series of boxes in the wrong location . The work had to be redone at Respondent 's expense . Wilkerson denied that the mistake was his, but I credit Draggoo . Nevertheless , this incident occurred in August or September , substantially before his layoff and apparently was not considered sufficiently seri- ous at the time to warrant layoff . And between that time and his layoff he was given an additional pay increase. The second fact situation offered by Keith Draggoo in his testimony also occurred in August or September on the Elkhart Foam job where Wilkerson and Baughman were hanging fixtures. According to Draggoo they took 30 min- utes to hang a fixture which should have taken about 12 minutes. Keith Draggoo spoke to Wilkerson about it and thereafter their performance improved to about 15 minutes for a fixture . Here again the deficiency occurred long be- fore the layoff and appeared to have been corrected. Wilk- erson received a raise subsequent to this incident. More- over , the alleged deficiency involved two employees, only one of whom was laid off on November 12. The third fact situation mentioned in Draggoo 's testimo- ny was Wilkerson 's alleged problem drinking on the job contrary to company policy. However , the evidence indi- cates there was no announced policy against drinking. Draggoo had no information indicating Wilkerson was drinking on the job His information was only that he drank beer during the lunch hour. Draggoo said that after lunch he had smelled beer on Wilkerson 's breath. This ap- pears to me to be a contrived reason because there was no announced policy against drinking beer at lunch , there is no indication that Wilkerson 's work was affected , Draggoo never criticized him for drinking beer at lunch, and on more than one occasion Keith Draggoo himself brought beer to jobsites where the crew consumed it during breaks and, on some occasions , while working. Draggoo not only did not mention beer drinking to Wilkerson on November 12 but he did not mention it in any of his pretrial affidavits given to the Board during the investigation of the present charges. 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum , these additional reasons for Wilkerson 's layoff, advanced at the hearing but not brought up at the time of layoff , appear to have been settled on after the fact as justifications for his layoff . I find that they were not con- sidered grounds for layoff on November 12 when he was laid off . I further find that the evidence falls to establish that the layoff on November 12 was for cause. On the other hand the evidence is sufficient to establish, and I find, that the layoff of Wilkerson was discriminatori- ly motivated . I base this on the fact that from his employ- ment interview Keith Draggoo knew he had been involved in union activity on his previous job and had participated in a walkout . Draggoo admittedly expected Wilkerson to walk out in support of union activity among Respondent's employees . That was his stated reason for advertising for additional help at the same time he was laying off Wilker- son. These circumstances , together with the evidence of Keith Draggoo 's strong union animus and the unfair labor practices in violation of Section 8(a)(1) which occurred prior to the layoff , warrant the finding that his layoff was motivated by a desire to squelch union activity among the employees . Accordingly , I find that the layoff of Wilkerson on November 12 was an unfair labor practice in violation of Section 8(a)(3) and ( 1) of the Act. In the months that followed Wilkerson , although ostensi- bly in layoff status, was never recalled to work . Other em- ployees were laid off and recalled from time to time and Respondent claims it made an effort to equitably distribute the work among its construction employees . But this did not extend to Wilkerson. On January 18, 1974 , Respondent sent a letter to him terminating his employment . According to Keith Draggoo he sent the letter after he learned from a Board investigator that Wilkerson had made a statement which Draggoo con- sidered to be untrue . The January 18 letter reads in part as follows: This is to inform you that you will not be considered for rehire in the future by Draggoo Electric Co., Inc. for the reasons stated below. An untrue statement was given to the N . L.R.B. re- garding a discussion between you and myself of the N.L.R.B . on November 12, 1973. This was supposedly made at the time you were laid off. A witness , Barbara Cashen, was present and can testify that the N.L.R.B. was not mentioned. The letter was signed by Keith Draggoo. From this it is clear that Wilkerson was finally terminat- ed because of what Draggoo thought he had told the Board about his layoff interview on November 12. It is of course immaterial whether the information Wilkerson gave the Board was accurate or not. The truthfulness of that infor- mation is for the Board to determine . The employer is not free to sit in judgment , with the employee's job status rid- ing on the outcome of that judgment . Accordingly, Respondent 's termination of Wilkerson because of infor- mation (whether accurate or inaccurate) he gave a Board agent about his layoff was an unfair labor practice in viola- tion of Section 8(a)(4) and ( 1) of the Act and in the circum- stances was also a violation of Section 8(a)(3) and (1). 2. The layoff of other employees During December and January there were repeated lay- offs of employees in the construction department which the General Counsel contends were discriminatory . After the layoff of Wilkerson on November 12 the employees re- maining in the construction department were Baughman, Robbins, Rice , Kemble , and Rider . All of these except Rider had signed union cards. Robbins and Rice had ex- pressed prounion sentiments at the employee meeting on November 13; Rider had expressed antiunion views. The only other card signer among the employees was Smet who during December and January was employed as purchas- ing clerk and was not assinged to the construction depart- ment. The layoffs during December and January were as fol- lows: Friday , December 7, Baughman (5 hours only) and Robbins (7 hours only); Monday, December 10, Robbins; Thursday , December 13, Baughman and Robbins ; Friday, December 14, Baughman , Robbins, Rice , and Kemble; Monday, December 17, Robbins ; (Tuesday, December 18, Baughman did not work because of illness); Thursday, De- cember 20 , Robbins and Kemble; Friday, December 21, Kemble was laid off indefinitely and did not thereafter work for Respondent ; Monday, December 24 (the day be- fore Christmas), Baughman , Robbins, Rice, and Rider; Wednesday , December 26 (the day after Christmas), Rob- bins, Rice , and Rider ; Thursday , December 27, Rice and Rider ; Friday, December 28, Rice and Rider ; Monday, December 31 (New Years Eve), Baughman , Robbins, Rice, and Rider ; Wednesday , January 2, Rice and Rider; Thurs- day, January 3, Rice and Rider ; Friday, January 4, Rice and Rider ; Monday, January 7 , Baughman and Robbins, who were indefinitely laid off , and Rider. During its 5-1 /2 year history prior to November 12 Re- spondent had never laid anyone off for lack of work. The record indicates that in general its business had been ex- panding. But during the usual midwinter slumps in con- struction Respondent had always found ways to employ its men. A month or two before Keith Draggoo had told the assembled employees that he expected plenty of work dur- ing the coming winter . Yet in November when Assistant Business Agent Rink attempted to set up a meeting with him, he declared his company would never go union and he would lay everyone off first. And after the December layoffs began he told Smet that if it were not for the Union there would not have had to have been any layoffs. Con- sidering these facts together with Respondent 's strong an- tiunion bias, the unfair labor practices in violation of Sec- tion 8(a)(1) found earlier herein, and the timing of the lay- offs within a month or two of the Union 's demand for recognition, I find that the General Counsel has made out a prima facie case of violations of Section 8(a)(3) and (1) in connection with the December and January layoffs. But the evidence does not stop there . Keith Draggoo testified that in spite of what he had said he did not in fact lay off the construction employees because of union activi- ty. The fact that he did not lay off Joseph Smet whom he DRAGGOO ELECTRIC CO, INC knew had signed a union card and the fact that he did lay off Rider who was overtly antiunion gives some corrobora- tion to his testimony. So does the evidence that he endeav- ored to spread the layoffs among the construction employ- ees. The bulk of the defense evidence, however, goes to es- tablish economic necessity for the layoffs. The evidence indicates that during the months in question the area in which Respondent operates suffered a severe economic de- cline. The principal industry in the area, production of rec- reational homes and vehicles, was put into a recession by the energy crisis. Unemployment in the area substantially increased. The evidence respecting Respondent's construc- tion work bids which were accepted indicates that the dol- lar amount and the number of projects available for Re- spondent to work on during those months was sharply re- duced and that the number of employees needed to perform the available construction work was sharply re- duced. The economic evidence as a whole leaves no substantial doubt that Respondent was faced with a serious shortage of construction work in December and January. The lay- offs occurred as the shortages developed as demonstrated by the fact that each of the alleged discriminatees was laid off when the project on which they were working came to an end or was interrupted for some reason beyond the con- trol of Respondent. Replacements were not hired for the employees laid off. Each of them was recalled when further construction work became available. It is difficult to see what Respondent, when faced with a dropoff in construction work, could have done other than lay off the construction employees unless it had adopted the course of conduct which the General Counsel contends it should have. The General Counsel contends that Re- spondent should have not limited the impact of the dropoff in construction work to employees in construction depart- ment but instead should have treated all of its employees in both the construction department and the service depart- ment evenhandedly. He points out that a commensurate reduction in available work did not occur in the service department. The General Counsel and the Union contend that an electrician is an electrician. They point to the fact that some of the alleged discnminatees had at one time or another performed some service work. They further point to the fact that there is no clear-cut line between the work performed in the two divisions; that some construction work is identical with some service work. Respondent on the other hand contends that its service employees are more highly skilled, more specialized, and more difficult to obtain, and that as a matter of business policy it would sacrifice its construction employees, whom it considers less valuable, before it would its service em- ployees. It is not necessary, however, to go that far because the record establishes plainly that the business of Respon- dent has always been organized along two lines, construc- tion and service work, and that there are rational if not compelling reasons for the delineation between the two. That this is a delineation which the Union does not recog- nize is unimportant. The fact is that a division did exist in this enterprise and at the time of the layoffs and the reduc- tion in construction work all of the alleged discriminatees 855 were employed in construction work. The General Counsel contends that laid-off construction employees could have done service work and all of the layoffs were not necessary. But even assuming such were true, switching back and forth between construction and service work was not part of the normal job function of any of the alleged discnminatees at the time they were laid off. Respondent's business was not operated that way. It is also true that some of the work performed in both depart- ments was overlapping. Service employees normally per- formed some kinds of work identical with work performed by construction employees. And they continued to do so during the periods of layoff. Such work was ordinarily inci- dental to more specialized work which was peculiarly the province of service employees. It does not appear that dur- ing the layoff Respondent used service employees to re- place laid-off construction employees. And the record does not indicate any established practice of transferring con- struction employees into service work during shortages of construction work. Assuming, arguendo, that Respondent could have done so during the layoff period, it would not be obligated to do so absent some showing that such was a normal practice. The decisional dilemma in this case is whether this vehe- mently antiunion employer is responsible for discrimina- tion which he threatened in advance and admitted after the fact, but which economic evidence suggests he actually did not engage in. If the layoffs were unlawfully motivated, they were part of a grand scheme to undermine employee support of the Union. Keith Draggoo denied that he made the layoffs for discriminatory reasons. The severe shortage of construction work which developed lends support to that testimony. I find that evidence sufficiently convincing to conclude that a preponderance of the evidence does not establish that the layoffs in December and January were unlawfully motivated. D. The Alleged Refusal To Bargain I The appropriate unit At the hearing herein the parties stipulated, and I find, that all employees employed by Respondent at its Elkhart, Indiana, facility, but excluding all office clerical employ- ees, office employees, professional employees, and guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining with- in the meaning of Section 9(b) of the Act. As found earlier herein Thomas Barrett, foreman of Respondent's service department, is a supervisor within the meaning of Section 2(11) of the Act and accordingly is not included in the unit. Joseph Smet was initially hired on November 19, 1972, as an apprentice electrician in which capacity he continued for from 6 to 8 months. Thereafter, and at the time of the events involved in this case, he worked as purchasing clerk in which capacity he ordered parts and materials as direct- ed by Keith Draggoo or as requested by the working elec- tricians . He also shelved and arranged the stock on hand in the shop and in the construction trailers, picked up and delivered parts, materials, and blueprints, and was respon- 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sable for keeping the shop clean. In February 1974 at his own request he was transferred to construction work. I find he may be included in the unit. 2. The majority status of the union As noted earlier herein, on October 24, five employees (Kenneth Rice, Steven Baughman, Bernard Robbins, Jr., Paul Kemble, and Joseph Smet) authorized the Union to represent them by executing union authorization cards. The next day John Wilkerson similarly authorized the Union to represent him. The Company payroll records in- dicate that as of October 26 employees in the appropriate unit included these card signers and also William Kelley, Larry Buckmaster, and Robert Rider. At that point six out of the unit had authorized the Union to represent them. Although layoffs occurred thereafter, the employee com- plement remained legally unchanged at least until Decem- ber 21 when Kemble was laid off indefinitely. On January 4, Rice was laid off indefinitely and on January 7 Baugh- man and Robbins were similarly laid off. Assuming, with- out finding, that the indefinite layoffs did not have a rea- sonable expectation of recall, there was no time that the union card signers did not make up a majority of the em- ployees in the unit. Wilkerson, who was laid off November 12, remained in that status until January 18 when he was finally terminated for discriminatory reasons. He was, therefore, at all times includable in the unit. On these facts I find that at all times material to the issues in this case a majority of employees in the appropriate unit had author- ized the Union to represent them. 3 The union's request for recognition At the end of October or the first part of November, after the employees mentioned above had submitted their authorization cards to the Union, Union Business Manager and Financial Secretary Lloyd Robinson visited Respondent's office and advised the girls in the office that a majority of the employees had signed authorization cards. He left his business card with instructions that Keith Draggoo should call him. Draggoo never returned the call. He testified, "I had no reason to call him" and, "I don't care to elaborate on it now but, so I didn't care how many signatures he had, I had no proof of anything." On November 8, Donald Rink, the Union's assistant business agent, also attempted to see Keith Draggoo at his office but Draggoo was out. Later in the day Rink contact- ed him by telephone. According to Rink, whom I credit, he identified himself and asked Draggoo if they could arrange a meeting between Robinson, Rink, and Draggoo. Drag- goo wanted to know for what purpose and Rink replied that they had signed up a majority of his men and would like to discuss the organization and needs of the contract with his firm. Draggoo responded that there would be no use in having the meeting because he had no intention whatsoever of becoming a union contractor. He further stated that before he would go union he would lay off all his present employees and start all over again. He indi- cated his intention of going into the plumbing and heating business and that that also would be nonunion. Rink then stated that if that was his attitude there was no sense in talking, that they would just have to go the route. Keith Draggoo gave a somewhat different version of the conversation. However, I credit the testimony of Rink be- cause he impressed me as a forthright and accurate witness and because after listening to the extended testimony of Keith Draggoo and considering all of the other facts estab- lished in the record, including his past relationship with the Union, I find it would have been in character for him to have acted as Rink reported. Keith Draggoo testified that Rink opened the conversa- tion by saying, "We have to set up a meeting." And Drag- goo asked, "Set up a meeting for what?" According to him Rink replied, "We have a majority of two-thirds of your men have signed cards. So we have to set up a meeting." Keith Draggoo at first testified that he responded to Rink by saying, "Well, I see no reason to set up a meeting. I don't have any proof that anybody did sign cards." Rink then said, "I can see that we are wasting our time." Keith Draggoo denied that Rink said anything about negotiating a contract. At a later point in his testimony Keith Draggoo stated that when Rink said the Union had signature cards from two-thirds of the employees and needed to meet with him, he replied "I don't believe it." According to him Rink did not offer to prove anything to him but only said, "If you won't agree to a meeting we will turn it over to the NLRB." However, Draggoo admitted that when he rejected the idea of a meeting, he did not know what they wanted to do at the meeting, including whether or not they wanted to prove the card majority. Still later in his testimony Keith Draggoo reported that after Rink proposed they meet and Draggoo asked what for, Rink stated, "To discuss how you are using your men. They signed, you have a majority of your men signed up." To this Draggoo replied, "I see no reason to set up a meet- ing." He testified that he refused to recognize the Union because he didn't believe what Rink was telling him. Rink then said he would take it to the NLRB. I find that Keith Draggoo had a clear understanding of why Robinson and Rink were contacting him. As the Gen- eral Counsel points out in his brief, this was not his first encounter with the Union. By his categorical rejection of a meeting with union representatives he foreclosed in ad- vance any opportunity for the Union to establish with him its majority status. The fact is that he did not care how many authorization cards the Union had because he was not going to recognize the Union in any case. He gave various reasons for his assertion that he did not believe the Union enjoyed the support of a majority of the employees. He first mentioned that his past experience with Robinson indicated that he was not to be trusted. It is difficult to understand, however, how he could transfer this mistrust to Rink. He testified generally that he could not believe that his employees, each of whom he had person- ally trained, would join the Union. He reported that an- tiunion talk in the shop was common among all employees except Baughman. As late as October Baughman and Wilkerson had worked behind a union picket line. At the time of his prior difficulties with the Union Rice had left the Union to continue his employment with Draggoo. But DRAGGOO ELECTRIC CO., INC. whether these reasons amount to a reasonable doubt is im- material. Draggoo cut off any contact beyond the tele- phone call from Rink and thereafter proceeded to engage in substantial unfair labor practices. On November 14 the Union filed with the Board a peti- tion for certification upon consent election (Case 25- RC-5547). Thereafter a Board election in a unit substan- tially as described above was scheduled for December 21. The holding of an election was blocked, however by the filing of the unfair labor practice charges in the present matter. As set forth above, I find that Respondent, follow- ing the Union's effort to obtain recognition, engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act. The extensive violations of 8(a)( 1) in- volved a number of employees in the bargaining unit. The violations of Section 8(a)(3) and (4) involved in the layoff and termination of Wilkerson provided, and will continue to provide, the employees with a convincing lesson of the hazards to employees of exercising the rights which the Act supposedly assures them. These unfair labor practices, to- gether with Respondent's vehement antiunion attitude, make the likelihood of a fair election in the representation proceeding very slight. Thus Respondent, by first flatly re- fusing to even meet with the Union and then engaging in unfair labor practices, effectively foreclosed the orderly resolution by the Board in a representation proceeding of any doubts as to the Union's majority status. In the cir- cumstances the cards given to the Union by a majority of employees in the unit authorizing it to represent them is a better indication of employee will than an election would be. By its whole course of conduct Respondent has rejected the concepts of employee representation and collective bargaining. In doing so it has refused to bargain and has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. See N. L. R. B. v. Gissel Packing Co, Inc., 395 U.S. 575 (1969). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic and commerce among the several States and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2), engaged in commerce within the meaning of Section 2(6) and (7), of the Act 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees about their union activity, threatening loss of future employment or other adverse consequences if they supported the Union, and promising advancement for refraining from supporting the Union, Respondent interfered with, restrained, and coerced em- ployees in the exercise of rights guaranteed in Section 7 of 857 the Act and thereby committed, and is committing, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By laying off John Wilkerson on November 12, 1973, and not thereafter recalling him, and by terminating him on January 18, 1974, and not thereafter reinstating him, Respondent committed, and is committing, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By terminating John Wilkerson on January 18, 1974, and not thereafter reinstating him, Respondent committed, and is committing, unfair labor practices within the mean- ing of Section 8(a)(4) and (1) of the Act. 6. All employees of Respondent at its Elkhart, Indiana, establishment but excluding office clerical employees, of- fice employees, professional employees, guards and super- visors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 7. At all times since November 8, 1973, the Union has been the exclusive bargaining representative of the employ- ees in the aforesaid appropriate unit within the meaning of Section 9(e) of the Act. 8. By refusing to recognize and bargain collectively with the Union as exclusive representative of employees in the aforesaid appropriate unit, Respondent since November 8, 1973, has engaged in, and is engaging in, unfair labor prac- tices within the meaning of Section 8(a)(5) and (1) of the Act. 9. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor practices, I recommend that it cease and desist therefrom, and take certain affirmative action to effectuate the poli- cies of the Act. I recommend that Respondent be ordered to offer John Wilkerson immediate and full reinstatement to his former job or, if that job is not available, to a sub- stantially equivalent position, without prejudice to his se- niority and other benefits and privileges, and that he be made whole for any loss of earnings he may have suffered by reason of his layoff or termination by paying to him a sum of money equal to that which he would have earned in wages from the date he was laid off to the date of reinstate- ment, less his net earnings during such period, backpay to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at 6 percent calculated according to the formula set forth in Isis Plumbing & Heating Co, 138 NLRB 716 (1962). I also rec- ommend that Respondent preserve and make avaliable to Board agents, upon request, all pertinent records and data necessary in analyzing and determining whatever backpay may be due. Inasmuch as Respondent's violations of Section 8(a)(I), (3), and (4) of the Act have undermined the Union's major- ity and caused an election to be a less reliable guide to employee free choice than the signed authorization cards by which they designated the Union to represent them, and because Respondent in failing to recognize and bargaining 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union while engaging in such unfair labor practic- es violated Section 8 (a)(5) and ( 1) of the Act , I recommend that as an appropriate remedy Respondent be required to recognize and to bargain with the Union as well as to rem- edy the other unfair labor practices found . See Federal Pre- scription Service Inc., and Drivex Co., 203 NLRB 975 ( 1973), enfd . 496 F .2d 813 (C.A. 8, 1974). I further recommend that Respondent post appropriate notices. Upon the foregoing findings of fact , conclusions of law, and the entire record in this case , and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER2 Respondent, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off or terminating employees or otherwise discriminating in any manner with respect to their tenure of employment, or any term or condition of employment, because they engaged in activity on behalf of Local Union No. 153, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor organization. (b) Failing and refusing to bargain collectively in good faith with that Union as the exclusive bargaining represen- tative of all its employees constituting the unit herein found to be appropriate for the purpose of collective bar- gaining. (c) Coercively interrogating employees about their union views or activity. (d) Threatening employees with loss of future employ- ment, or other adverse consequences, if they support a union. (e) Promising employees future advancement for re- fraining from supporting a union. (f) In any other manner interfering with, restraining, or coercing employees in the exercise of the right to self-orga- nization, to form labor organizations, to join or assist the above Union or any other labor organization, to bargain collectively through representatives of their own choosing, 2 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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 and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring member- ship in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer to John Wilkerson immediate and full rein- statement to his former job or, if such job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for loss of earnings in the manner set forth in the section herein entitled "The Remedy." (b) Preserve and make available to the Board or any of its agents, upon request, all records necessary to analyze the amount of backpay due Wilkerson under the terms hereof. (c) Upon request, recognize and bargain with the above- named Union as the exclusive representative of all the em- ployees in the bargaining unit described above and, if an understanding is reached, upon request embody such un- derstanding in a signed agreement. (d) Post at its premises in Elkhart, Indiana, copies of the attached notice marked "Appendix."3 Copies of said no- tice, on forms provided by the Regional Director for Re- gion 25, after being duly signed by Respondent's author- ized representative, shall be posted by the Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicious places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 25, in writ- ing, within 20 days from the date of the receipt of this Decision, what steps the Respondent has taken to comply herewith. IT IS FURTHER RECOMMENDED that the allegations in the complaint of unfair labor practices not specifically found herein be, and they hereby are, dismissed. 3In 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 "