Ruby Concrete Co.

National Labor Relations Board - Board DecisionsSep 27, 1974

213 N.L.R.B. 724 (N.L.R.B. 1974)

724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ruby Concrete Company and Chauffeurs , Teamsters and Helpers, Local 215, affiliated with the Interna- tional Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. Cases 9-CA-8138 and 9-RC-10286 IT IS FURTHER ORDERED that the election conducted in Case 9-RC-10286 be, and it hereby is, set aside, that said proceeding be, and it hereby is, vacated, and that the petition filed therein be, and it hereby is, dismissed. September 27, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 31, 1974, Administrative Law Judge Wal- ter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting 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 brief and has decided to affirm the rulings, findings,' and conclusions, as modified herein,2 of the Administra- tive Law Judge and to adopt his recommended Or- der. AMENDED CONCLUSIONS OF LAW 1. Delete paragraph 5. 2. From paragraph 6, delete "By the Acts and con- duct set forth in Conclusion of Law No. 5 herein,." ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Ruby Concrete Company, Madisonville , Kentucky, its officers , agents , succes- sors , and assigns , shall take the action set forth in the said recommended Order. ' The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board 's established policy not to overrule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant 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 have carefully examined the record and find no basis for reversing his findings. 2 For the reasons stated by the majority in Steel-Fab, Inc., 212 NLRB No. 25, (1974), we do not adopt the Administrative Law Judge 's finding that Respondent violated Sec . 8(a)(5) of the Act, but rather enter a bargaining order as a remedy for the serious unfair labor practices committed by Re- spondent. Member Jenkins , for the reasons stated in his concurring and dissenting opinion in Steel-Fab, would find the violation of Sec . 8(a)(5) and base the bargaining order on that section as well as Sec. 8(axl). DECISION 1. FINDINGS OF FACT WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing in Madisonville , Kentucky , before me upon an unfair labor practice complaint ,' issued by the Acting Regional Director of the Board 's Region 9 , alleging that the Respondent 2 herein violated Section 8(a)(1) and (5) of the Act . The complaint was consolidated for hearing with certain objections to an election, conducted on November 7, 1973 , which were filed with the Acting Regional Director by the Charging Party herein . The complaint alleges that, during the period prior to the aforementioned representa- tion election , Respondent illegally interrogated employees, threatened to close the plant if the Union won the election, promised benefits for opposing the Union , and threatened individual employees with loss of employment in the event of a union victory . The General Counsel requests that the results of the election be set aside and that the Respondent be directed to bargain with the Union on the basis of pre- election designation cards .3 Respondent denies the commis- sion of unfair labor practices , and, in the alternative, suggests that any unfair labor practices which might be proven are insufficient to warrant a Gissel remedy . Respon- dent also contends that the Union 's demonstration of ma- jority status by designation cards is insufficient to support a bargaining order . Upon these contentions , the issues here- in were joined. A. Background Respondent employs about 22 men in manufacturing and 1 The principal entries in the formal papers in the complaint case are as follows : Charge filed against the Respondent by Charging Party on Novem- ber 13, 1973, and amended on December 10, 1973, and on January 2, 1974; Complaint issued on January 31 , 1974: Respondent 's answer filed on Febru- ary 11, 1974 ; hearing held in Madisonville , Kentucky, on March 27, 1974; briefs filed with me by the General Counsel and the Respondent on April 29, 1974. The principal formal papers in the representation case are as fol- lows: tally of ballots in a stipulated election, dated November 7, 1973; Petitioner 's objections to employer conduct affecting election , filed Novem- ber 13, 1974; revised tally of ballots, dated January 30, 1974, showing 9 votes cast for Petitioner and 10 votes cast against it; order directing hearing, consolidating cases, transferring case to the Board, and notice of hearing, dated February I, 1974 2 Respondent Ruby Concrete Company is a Kentucky corporation which maintains its principal place of business at Madisonville, Kentucky, w,here it is engaged in the manufacturing and distribution of concrete blocks, ready- mix concrete, and related items . During the past 12 months , Respondent has manufactured and shipped from its Madisonville , Kentucky , plant to point and places, outside the Commonwealth of Kentucky products valued in ex cess of $50,000, and, during the same time has performed services outside the Commonwealth of Kentucky valued in excess of $50,000 . Respondent is an employer within the meaning of Section 2(2), (6), and (7) of the Act. Local 215, International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America (herein called Union) is a labor organization within the meaning of Section 2(5) of the Act. 3 N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 ( 1969). 213 NLRB No. 103 RUBY CONCRETE COMPANY delivering concrete blocks, ready-mix concrete, and related building materials. On September 8, 1973, its employees began to organize and to sign cards designating the Union as their bargaining agent. On that date, three employees journeyed 52 miles to the Union office at Evansville, Indi- ana, and signed cards at a private meeting which they held with union officials. They took additional cards back to Madisonville and began to pass them out to other employ- ees. On September 11 and again on September 17, two meetings of Respondent's employees were conducted under union auspices at Sebree, Kentucky, a town located about 19 miles from Madisonville. One or two cards were signed at these meetings. The vast bulk of cards were signed either at employees' homes or on company premises by solicita- tions conducted by individual employees. As discussed hereinafter in more detail, between September 8 and 19, the Union obtained some 17 designation cards in a unit stipu- lated to have contained, at that time, some 22 employees. On September 12, 1973, the Union dispatched a letter to Respondent's president, Harry Waide, in which it demand- ed recognition. The letter, signed by Union President and Business Manager C.K. Arden, was received by the Respon- dent on September 13. It read: This is to advise you that the Chauffeurs and Team- sters Local Union No. 215 of the International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America has been duly designated as collec- tive bargaining representative by a majority of your employees in a collective bargaining unit composed as follows: All laborers, truck drivers, fork lift drivers and mechanics, excluding office clerical, all guards, pro- fessional employees, all others, and all supervisors as defined in the Act. We hereby request to be recognized as collective bargaining agent for the employees in the above- named unit and we ask that you now designate time and place when we can meet to open negotiations on a collective bargaining agreement. At such meeting designated by you, we will be happy to prove our ma- jority status by any means which may be mutually agreeable. We look forward to an early meeting with you. On September 14, 1973, Waide replied as follows: This is to acknowledge receipt of your letter of Sep- tember 12. After investigation of the factors of your letter we have the following reply to make: We have a good faith doubt in law and in fact as to whether or not your Union represents a majority of our employees in any collection bargaining unit appropriate for these purposes. In addition we should state that we do not believe any form of assurance of majority status that you now claim would be valid for any lawful purposes. This is particularly so since the designations you have may well have been obtained under circum- stances indicating they are worthless for any purpos- es. Because of the above and of facts which we feel are not necessary to disclose at this time, we must 725 deny all requests contained in your letter. It would be our suggestion that you take this matter up with an appropriate administrative agency for processing if you choose to do so. On September 13, the Union filed a representation peti- tion. The parties hereto agreed to an election in a unit composed of all laborers, truckdrivers, fork-lift drivers, me- chanics, machine operators, plant men, cubers, and convey- or operators, with the usual exclusions. The Respondent admitted in its answer that this unit is appropriate for pur- poses of collective bargaining. B. Violations of Section 8(a)(1) of the Act Between September 13 and the election on November 7, the Respondent engaged in a determined effort to defeat the organizing drive by conduct which is hereinafter described. Everett Eastwood has been employed by the Respondent for several years as a laborer. During the summer of 1973, he had a break in service. Eastwood labors under the handi- cap of being unable to read or write, other than being able to write his signature. He signed a union card which was presented to him by his uncle, Arlice "Doc" Vickers. About 2 weeks before the election, Roy Massey, his foreman, en- gaged Eastwood in a conversation near a railroad spur where he was working. Massey told Eastwood that the Com- pany did not need a union and that, if the Union came in, Eastwood would be the first to be laid off. Massey was summoned to testify but was not examined concerning this conversation with Eastwood. I credit Eastwood, and in so doing, conclude that the Respondent unlawfully threatened Eastwood with discharge in violation of Section 8(a)(1) of the Act. At or about this same point in time, Company President Waide spoke to Eastwood as Eastwood was cleaning up sand near the railroad spur. According to Eastwood, Waide mentioned that the employees of another concrete compa- ny, Madisonville Concrete, had voted a union in but that, while they won the battle, they lost the war. Waide further stated that the men at Ruby Concrete would lose their jobs if the Union won the election. Waide recalls speaking with Eastwood on this occasion because he saw that Eastwood was talking with a stranger and was curious about what the stranger was doing on company premises. He did not ask Eastwood to identify the stranger. Waide testified that the Union was probably discussed in this conversation but that he did not recall what was said. He flatly denied saying to Eastwood that employees would lose their jobs in the event of a union victory. Waide was a most unimpressive witness. I credit Eastwood's version, and, in so doing, conclude that the Respondent thereby unlawfully threatened employees with discharge in violation of Section 8(a)(1) of the Act. At or about this same period of time, Massey also said to Eastwood that, if he was still undecided as to how to vote in the election, he should talk to Waide about the subject. Massey was not examined on this conversation during his testimony. I credit Eastwood, and, in so doing, conclude that the Respondent unlawfully requested an employee to disclose his union sympathies or affiliations in violation of Section 8(a)(1) of the Act. At Massey's invitation, Eastwood went to the company 726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and spoke to Waide in his private office. In the course of this conversation , Waide asked Eastwood what he thought of the Union . Eastwood replied in effect that he was undecided whether he should support it . Waide then said that the stockholders of Ruby Concrete would not stand for a union and that the block plant would be shut down if the Union came into the plant . In his testimony, Waide denied telling Eastwood that the stockholders would not stand for a union and that the Company would shut down if a union came in . In recalling the conversation with Eastwood in his office , Waide said he did not remem- ber whether Eastwood asked him anything or whether he asked Eastwood anything as they spoke . Waide felt sure that the Union was discussed during this short meeting. Waide recalled that Eastwood wanted to know something about the union , but Waide did not recall what he told Eastwood on this occasion . He testified that he might have told him that a union was no good for Ruby Concrete. I credit Eastwood's version of this conversation , and, in so doing , conclude that the Respondent unlawfully interro- gated an employee and unlawfully threatened to close the plant in the event of a union victory, in violation of Section 8(a)(1) of the Act. Dennie Tompkins has worked for Ruby Concrete as a truckdriver for over 20 years. He signed a card on or about September 10 and gave it to fellow employee Jack Barrett. Shortly before the election, his foreman , Bobby Gene Wil- cox, approached him as he was sitting in the cab of his truck which was parked at the plant . Wilcox told Tompkins that he should not vote at the forthcoming representation elec- tion if he wanted to keep his job at the plant. Shortly before the election , Harold Reynolds, the general manager of Ruby Concrete , met Tompkins as he was deliv- ering a load of bricks at a construction site located in a shopping center on North Main Street . Reynolds asked Tompkins to talk to the other men at the plant and to ask them to vote against the union . According to Tompkins, Reynolds told Tompkins that if the Union got into the plant , the men would lose their jobs. Wilcox denies telling Tompkins that the Union was going to lose and that those who were for the Union would be out in the cold. He did not specifically address the private conversation with Tompkins which occurred at the cab of Tompkins' truck, but in response to a question relating to his conversation with Tompkins , appeared to be referring to another incident involving allegations of unlawful statements made by him to an assembly of employees at a Saturday morning meeting shortly before the election. Reynolds admitted a conversation with Tompkins involv- ing the Union which took place at a shopping center shortly before the election , but states that the only thing he said to Tompkins in the course of this conversation was to vote with the Company rather than for the Union . He denies telling Tompkins that the Company did not want a Union, and denies asking Tompkins how he felt on the subject, though he advanced the opinion that he thought that Tomp- kins was undecided on whether or not to support the Union. Reynolds stated that he talked individually with most em- ployees about the election but confined his remarks to a statement that the Union would not be beneficial to the Company. Reynolds denied telling Tompkins that if the Union came in, employees would lose their jobs. He also September II also. denied asking employees to electioneer among other em- ployees on behalf of the Company. I credit Tompkins' ver- sions of his conversations with Wilcox and Reynolds, and in so doing , conclude that the Respondent unlawfully re- quested employees to electioneer on behalf of the Company and unlawfully threatened employees with loss of employ- ment , all in violation of Section 8(a)(1) of the Act . There is no evidence that Reynolds offered Tompkins a wage in- crease in exchange for opposing the Union. Accordingly, I will recommend that so much of the complaint which alleg- es that Reynolds did so be dismissed. Employee Arlice Vickers and former employees Michael E. Wilson and James Albin 4 testified that Foreman Wilcox spoke to all employees concerning the Union at a regular Saturday morning meeting which took place at the compa- ny garage . The meeting in question took place a week before the election . Wilcox told the men that 12 employees had come to him and said they were for the Company , and that "they had it made." He further said that those who were for the other side would be left out in the cold. Wilcox admitted on the stand that he made the statement at this Saturday morning employee meeting that union supporters would be left "out in the cold" but stated that he meant something else by it. I conclude that , by these remarks , Respondent unlawfully threatened employees with discharge in viola- tion of Section 8(a)(1) of the Act. Albin also testified that , on a Saturday in October not long before the election, he was repairing a delivery truck at the company premises with employee Larry Dukes when Foreman Massey approached them . Dukes asked Massey what he thought would happen if the Union came in. Mas- sey replied that a union was all right for larger plants but that, if Ruby Concrete ever went union , everyone would be out of a job because Ruby would not let the plant go union. Massey simply denied that such a conversation ever took place . I credit Albin, and, in so doing , conclude that Re- spondent unlawfully threatened employees with plant clo- sure in violation of Section 8(a)(1) of the Act. Wilson also testified that 2 weeks or so before the election he was present at a conversation inside the stockroom in which Massey spoke to fellow employee Jack Barrett, an- other unnamed employee , and himself . Massey told these employees that the Union wasn ' t going through and that he had been told that the Company would close the plant if the election went for the Union . Massey simply denied that this conversation every took place . I credit Wilson 's testimony, and, in so doing, conclude that Respondent unlawfully threatened employees with plant closure in violation of Sec- tion 8 (a)(1) of the Act. Wilson also testified that, a week or two before the elec- tion, he overheard Foreman Wilcox talking to other em- ployees in the lot outside the company garage . On this occasion , Wilcox reportedly said that he did not think that the Union would ever go through , and, if it did , Ruby would shut the plant down. Wilcox denied making this statement. I credit Wilson's testimony , and, in so doing , conclude that Respondent unlawfully threatened employees with plant closure in violation of Section 8(a)(1) of the Act. 4 Wilson signed a union card on September It. Albin signed a card on RUBY CONCRETE COMPANY 727 Former employee Carroll Spriggs, Jr., now a Madi- sonville city policeman, testified that at a meeting of em- ployees held on a Saturday morning a few weeks before the election Wilcox told assembled employees that if the Union came in , the Company would lock the gates. As noted previ- ously, Wilcox admitted that he said that union sympathizers would be out in the cold. In his testimony, Wilcox did not specifically deny using the words "lock the gates." I credit Spriggs' testimony and regard his testimony as cumulative and corroborative of evidence of a similar nature previously found to be a violation of Section 8(a)(1) of the Act. Certain unlawful remarks were attributed by the General Counsel's witnesses to Clyde Ruby, the founder, former president, and a one-time principal of the Respondent Com- pany. The evidence shows without contradiction that Ruby ceased to be president of the Company in 1971 and that he sold all of his financial interest in the Company late in 1971. He had no financial interest and no status as a supervisor in the fall of 1973 when unlawful remarks were assertedly made him. There is no evidence that the Respondent in any way constituted Ruby a nonsupervisory agent on the occa- sions in question. Accordingly, I recommend that so much of the complaint which alleges unlawful conduct by the Respondent through the statements of Ruby be dismissed. C. The Union's Majority Status The General Counsel and the Respondent agree that the unit here in question was composed of some 22 named individuals from September 12, 1973, through and including September 19, 1973. This stipulation also notes the fact that one employee, Everett Eastwood, did not rejoin the bargain- ing unit after his break in service until September 13. Admit- ted in evidence without objection by the Respondent were the Union designation cards of 11 of the named members of this unit .5 The cards of six other employees were admitted over the Respondent's objections. Some of those objections will be addressed individually, although it would serve no purpose to discuss all of them. The cards of all employees upon whose designations the General Counsel relied to establish majority status con- tained, with one exception, the time-and-date stamp of the Board's Regional Office, Region 9, in Cincinnati on the reverse side of each card. The Union submitted designation cards to the Regional Office in two batches. The first batch, bearing the September 13 time-and-date stamp, were sub- mitted with the representation petition. Additional cards, bearing the stamp of September 21, were later submitted to the Regional Office as an additional showing of interest to support the representation petition. Of those cards admitted in evidence over Respondent's objection at the hearing, three contain the September 13 time-and-date stamp. These are the cards of James Vaught, Dennie Tompkins, and Ever- ett O. Eastwood. Two cards, signed by Dennie L. Cart- 5 The cards admitted into evidence without objection were the union desig- nations of employees James T Albin, William M Babb, Jack E Barrett, Larry W Dukes, Larry D Ford, James Harris, Luther Knight, James Ogles- by, Carroll Spriggs, Arlice Vickers, and Michael Wilson The cards of Ogles- by, Dukes, and Knight have the September 21 Board stamp on them The other eight bear the September 13 Board stamp Wright and Chester L. Tibbetts, contain Region 9 September 21 stamp on their reverse sides. One card admitted into evidence over objection-that of John R. Childress-con- tains no Board stamp. The proffered card of Kerry N. Rust was rejected by me at the hearing because the signature was not sufficiently authenticated. I take official notice of the time-and-date stamp of the Board's Region 9 Office, and, in so doing, conclude that the cards bearing such stamps were executed on or before the dates stamped thereon. See Fabricators, Inc., 168 NLRB 140; Area Disposal, Inc., 200 NLRB 350. The timeliness of the cards of Vaught and Tompkins under any theory of this case is established beyond peradventure by the presence of the September 13 stamp thereon. Accordingly, at the time of the Respondent's letter of refusal, the Union was in pos- session of these 10 valid designation cards in a unit of 22 employees, leaving aside any consideration of Eastwood's card, which I also believe to be valid and timely. While Oglesby's card was not submitted to the Board until Sep- tember 21, there is credited evidence in the record that it was executed by Oglesby on September 13 and thus should be counted as of that date. The only objection noted to the counting of Eastwood's card is that Eastwood is illiterate . Eastwood testified that he signed the card as it was given to him by his uncle, Arlice Vickers. On this occasion, Vickers asked Eastwood if he would sign the "Teamsters card" so that the men could be represented at Ruby Concrete. This is an adequate if not exemplary explanation of the purpose of the card. There is no requirement in the Act that an employee be able to read English in order to avail himself of the benefits of the Act. The only requirement respecting cards signed by such per- sons is that the purpose of the card be adequately communi- cated to them, and such was done with respect to Eastwood. Accordingly, his card should be counted. Benson Veneer Company, Inc., 156 NLRB 782; Yazoo Valley Electric Power Association. 163 NLRB 177; River Togs, Inc., 160 NLRB 58; N.L.R.B. v. A. J. Krajewsku Manufacturing Company, 413 F.2d. 673, 677 (C.A. 1, 1969). In its brief, Respondent suggests that the cards here in evidence should not be used to support a finding of majority status because of considerations announced by the Supreme Court in its recent Savair decision. N.L.R.B. v. Savair Corpo- ration, 414 U.S. 270 (1973). In Savair, the Supreme Court held that it was an improper electioneering tactic for a labor organization to solicit cards in an organizing campaign with the promise that those who signed before the election could avoid the payment of a $10 initiation fee. However, those who waited until after the election would have to pay the full fee in the event that the union therein were to be select- ed as the bargaining agent. The policy of the Union in- volved in the instant case is uniformly to defer any requirement by any employee to pay dues and initiation fees in a initial organizational effort until such time as the Union is successful in negotiating a contract. The union policy noted in this case has none of the sign-now-avoid-paying- later complexion which was criticized in Savair. In this case, there is no premium or economic inducement granted to those who climb aboard the bandwagon at an early date. The Union herein simply declines to charge any employees a fee for its services until it first is successful in performing 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such services. This is a far cry from Savair. Moreover, there is scant evidence that any employees were induced to sign even on the basis of this announced policy. Most employees were signed up as a result of the request of their fellow employees, not as a result of the entreaties by union business agents . Only one employee, Kerry Rust, signed at a formal union meeting at which the dues policy was discussed, and his card was rejected for reasons quite apart from the discussions which took place. Three employees signed at the union hall in a private meet- ing with union representatives, but there is no evidence that they were induced to sign by considerations relating to dues. They traveled 52 miles from their home to Evansville on their own initiative to seek out union representatives; they were not initially approached by the Union. Any discussion of the dues policy at this private meeting was casual and incidental, and in face irrelevant to their purpose in com- ing. Accordingly, I conclude that none of the cards in- volved in establishing the Union's majority status in this case were tainted by any of the considerations involved in Savair or influenced in fact by any considerations relative to the Union's dues-deferral policy. 4. Since on or about September 13, 1973, the labor orga- nization named in Conclusion of Law 2 herein has been, and continues to be, the exclusive representative of all em- ployees of the Respondent in the unit found appropriate in Conclusion of Law 3, within the meaning of Section 9(a) of the Act. 5. By refusing to recognize and bargain collectively with the Union designated above in Conclusion of Law 4, the Respondent herein has violated Section 8(a)(5) of the Act. 6. By the acts and conduct set forth in Conclusion of Law 5 herein, by threatening employees with discharge in reprisal for supporting the Union, by threatening to close the plant if the Union should win a representation election, by interrogating employees concerning their union sympa- thies and activities, by requesting employees to disclose their union activities, and by requesting employees to elec- tioneer against the Union herein, the Respondent herein violated Section 8(a)(1) of the Act. 7. The unfair labor practices recited above in Conclu- sions of Law 5 and 6 have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and 2(7) of the Act. D. The Refusal to Bargain The Union's demand for recognition was a continuing demand and has not been withdrawn to this date. Likewise, the Company's refusal to accede to the demand on Septem- ber 14 is a continuing refusal to bargain which has not abated to this moment. It is clear that the purpose of the refusal was to gain time in which to thwart the organiza- tional campaign and not for any of the reasons which the Respondent asserted to the Union in its September 14 corre- spondence. The net effect of this campaign was to render the holding of a fair and free election impossible. By tactics which violated the Act on a wholesale rather than on a retail basis, the Respondent was able to take a mid-September 17 union majority in a 22-man unit and turn it into a 10-to-9 defeat of the Union at the November 7 representation elec- tion. It is to just such situations that the Gissel doctrine is addressed. Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Ruby Concrete Company is an employer engaged in commerce within the meaning of section 2(2), (6), and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local No. 215, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All laborers, truckdrivers, fork-lift drivers, mechanics, machine operators, plantmen, cubers, and conveyor opera- tors employed by the Respondent at its Madisonville, Ken- tucky, plant, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. REMEDY The General Counsel seeks, and I will recommend, a so-called Gissel remedy , by the terms of which the Respon- dent is required to bargain collectively with the Union, not- withstanding the fact that the Union lost the representation election on November 7. Such remedies have been author- ized and are appropriate where , as here , a respondent has been particularly heavy-handed in opposing an organiza- tional campaign by the use of unlawful tactics. In such instances , the Board and the courts 6 have regarded designa- tion cards as a more reliable barometer of employee senti- ment than the representation election, because the election has been so tainted by employer misconduct as to defeat the whole purpose of a secret ballot . In this case , the Employer engaged in a campaign of intimidation which reached every employee in its small bargaining unit . Employees were ques- tioned coercively , asked to engage in antiunion conduct among their fellow employees , and most important, were given to know repeatedly , and from the mouths of several supervisors , that voting for the union was tantamount to voting themselves out of a job . In such a setting , a fair and free election cannot be conducted , and there is no likelihood that the "laboratory conditions" 7 necessary for such an election can come into being in the foreseeable future. In addition to the above-noted Gissel remedy , I will also rec- ommend that the Board issue a broad cease-and -desist or- der requiring the Respondent to refrain from any and all conduct which violates Section 8(a)(1) of the Act, N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941). 6 See, for instance , N.L.R.B. v. Mink-Dayton, Inc., 426 F.2d. 255 (C.A. 6, 1970); N.L.R.B. v. Lou DeYoung 's Market Basket, Inc., 430 F.2d. 912 (C.A. 6, 1970); G.P.D., Inc. v. N.L.R.B., 430 F.2d. 963 (C.A. 6, 1970); N.L.R.B. v. Medley Distilling Company, 453 F.2d. 374 (C.A. 6, 1971); N.L.R.B. v. Scott Gross Co., Inc. 477 F.2d. 64 (C.A. 6, 1973). 7 General Shoe Corporation, 77 NLRB 124 at 127. The Supreme Court used the phrase "laboratory conditions" in its Gissel decision , 395 U .S. 575 at 612 (1969). RUBY CONCRETE COMPANY Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the follow- ing recommended: ORDERS Respondent Ruby Concrete Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees concerning their union sen- timents or union activities. (b) Soliciting employees to campaign against the Union. (c) Requiring employees to disclose their union sympa- thies and opinions. (d) Threatening to discharge employees or to close the plant in reprisal for union activities. (e) By any means or in any manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Recognize and, upon request, bargain collectively with Chauffeurs, Teamsters and Helpers Local 215, affiliat- ed with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen, and Helpers of America, as the exclusive collective-bargaining representative of Re- spondent's cmployees in a unit consisting of all laborers, truckdrivers, fork-lift drivers, mechanics, machine opera- tors, plantmen, cubers, and conveyor operators employed by the Respondent at its Madisonville, Kentucky, plant, exclusive of office clerical employees, guards, professional employees, and supervisors as defined in the Act. (b) Post at its Madisonville, Kentucky, plant copies of the attached notice marked "Appendix." 9 Copies of said notice, to be furnished by the Regional Director for Region 9 and duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon re- ceipt thereof, and shall be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are custom- arily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of this Decision, what steps it has taken to comply herewith. IT Is FURTHER ordered that the election conducted in Case 9-RC-10286 be, and it hereby is, set aside; that said pro- 8In the event no exceptions are filed as provided by Sec 10246 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 9 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 be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 729 ceeding be, and it hereby is, vacated; and that the petition therein be, and it hereby is, dismissed IT IS ALSO FURTHER ordered that, insofar as the complaint herein alleges conduct not found to have violated the Act, the complaint be, and it hereby is, dismissed. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT interrogate employees concerning their union sentiments and union activities. WE WILL NOT request employees to campaign against the union. WE WILL NOT request employees to disclose their union sympathies. WE WILL NOT threaten to discharge employees or to close the plant in reprisal for union activities. WE WILL NOT by any means or in any manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with Chauffeurs, Teamsters, and Helpers Local 215, affiliat- ed with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of employees in a unit composed of all laborers, truckdnvers, fork-lift drivers, mechanics, machine operators, plantmen, cubers, and conveyor operators employed by the Respondent at its Madisonville, Kentucky, plant, exclusive of office cleri- cal employees, guards, professional employees, and su- pervisors as defined in the National Labor Relations Act. RUBY CONCRETE CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Office Building, Room 3003, 550 Main Street, Cincinnati, Ohio 45202, Telephone 513-684-3686.