Rudy Patrick Co.

National Labor Relations Board - Board DecisionsJun 27, 1973

204 N.L.R.B. 564 (N.L.R.B. 1973)

564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rudy Patrick Company and Truck Drivers & Helpers Local Union No . 728. Case 10-CA-9657 June 27, 1973 DECISION AND ORDER By MEMBERS FANNING, KENNEDY, AND PENELLO On March 13, 1973, Administrative Law Judge Maurice S. Bush issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions 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 I and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order, as corrected 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 as corrected and hereby orders that Respondent, Rudy Patrick Company, Atlanta, Georgia, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order as so corrected: The Administrative Law Judge inadvertently omit- ted from that part of his Decision entitled "Order" the paragraphs dealing with Respondent's affirmative ac- tion necessary to effectuate the policies of the Act. Insert the following as paragraphs (a) and (b) in said recommended Order and reletter the remaining para- graphs accordingly: i Respondent's request for oral argument is hereby denied , as the record and brief adequately present the issues and positions of the parties 2 Respondent only excepted to the Administrative Law Judge 's findings that its discharges of four employees violated Sec 8(a)(3). In the absence of exceptions thereto, we adopt pro forma thPitdministrative Law Judge's con. clusions that Respondent independently violated Sec . 8(a)(1) and violated Sec. 8(a)(4) We note and correct the following minor error in that section of the Administrative Law Judge 's decision entitled "Conclusions" which in no way affects the result of this case . The Administrative Law Judge incorrectly stated that Elliot was employed for 16 months rather than 3 months In affirming the Administrative Law Judge 's 8(a)(3) findings we do not rely on his findings that Blackstock 's having higher seniority than Wood, a driver who was not discharged , shows that Respondent was illegally motivated in discharging Blackstock, and we disavow his findings that Respondent 's rein- statement offer made to Elliott and McCrackin was an admission of their discriminatory discharge "(a) Offer John Blackstock and Mitchell White im- mediate, full, and unconditional reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights, and make them whole for any pay losses which they may have suf- fered by reason of the discrimination practiced against them in the manner set forth within this Deci- sion. "(b) Make James Elliott, Sr., and Robert McCrac- kin whole for any pay losses which they may have suffered by reason of the discrimination practiced against them in the manner set forth within this Deci- sion." DECISION STATEMENT OF THE CASE MAURICE S. BUSH , Administrative Law Judge: The above- named Respondent Company is engaged in the warehous- ing and sale of seed products at Atlanta, Georgia, among other locations, but its Atlanta location is the only such plant here involved. In the early part of June 1972, the Company became aware of union activities among its eight warehouse and truckdriver employees at the Atlanta ware- house. Under date of June 19, 1972, the above-named Union by telegram notified the Company that a majority of its Atlanta employees were serving on an "in-plant organiz- ing committee" and warned the Company against any viola- tions of the employees' rights under Section 7 of the National Labor Relations Act. On June 20, 1972, the Com- pany laid off one of its truckdrivers, John Blackstock, and on June 23, 1972, laid off two other truckdrivers, Mitchell White and James Elliott, Sr., and one warehouse laborer, Robert McCrackin, all of whom are alleged discriminatees. Under the above skeletonized but undisputed facts, there are essentially four categories of issues in this proceeding. The first is whether prior to the above-noted layoffs the Company engaged in various independent violations of Sec- tion 8(a)(1) of the Act (1) by unlawful interrogations into the union activities of its employees, (2) by directing an employ- ee to get back his union authorization card, (3) by prohib- iting employees from talking abdut the Union at any time at the plant, (4) by threatening its employees that those who did not sign union authorization cards would receive priori- ty in wage increases , (5) by threats of discharge or layoffs for union activities, and (6) by threatening its employees that it would close its plant or move if the Union got in.' The second category of issues involves the question of whether the Respondent discriminatorily discharged or laid off the four above-named employees in violation of Section 8(a)(3) and (1) of the Act. The third category of issues involves the question of whether the Respondent is in violation of Section 8(a)(4) and (1) because of its alleged refusal to reinstate the afore- 1 The above alleged violation was not pleaded in the complaint , but testi- mony thereon was received in evidence without objection and accordingly tried by consent. Monroe Feed Stores, 112 NLRB 1336 204 NLRB No. 98 RUDY PATRICK CO. 565 mentioned Robert McCrackin because he filed an unfair labor practice charge against the Respondent. The fourth and final category of issues involves the ques- tion of whether the Union represented a majority of the employees in the stipulated appropriate unit at Respondent 's plant at the time it made its telegraphic repre- sentation to that effect to the Respondent . An incidental issue to this broader issue is whether an office employee, Louise O'Neal, who spends only about 10 percent of her time filling small seed orders in the warehouse , and ware- house employee Edward Bailey , claimed by Respondent to be a supervisor , should be included in the stipulated unit of "truckdrivers , warehousemen , forklift operators and all pro- duction and maintenance employees excluding all office clerical employees . . . supervisors. . .." The complaint herein was issued on August 10, 1972, pursuant to a charge filed on June 28, 1972, an amended charge filed on July 20, 1972, and a second amended charge filed on August 7, 1972, with copies of the original and amended charges duly served on Respondent. The Company's answer denies the alleged unfair labor practices and affirmatively alleges that the above-named dischargees were discharged "for cause and economic reasons." For reasons hereinafter indicated , the Respondent will be found in violation of the Act as alleged in the complaint. Upon the entire record in the case and from my observa- tion of the witnesses , I make the following: FINDINGS OF FACT I JURISDICTIONAL FINDINGS Respondent Rudy Patrick Company, a Delaware corpo- ration , is engaged in the warehousing and wholesale sale of seed products at its place of business and office in Atlanta, Georgia. Although the Company maintains similar ware- houses and sales offices at other locations, the only such facility here involved is its Atlanta warehouse and office. During the past calendar year, a representative period, the Company purchased and received products valued in excess of $50,000 directly from suppliers located outside the State of Georgia and by reason thereof, as admitted, the Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED Georgia and Mississippi under General Manager Jim Burns Ford, none of which have ever been operated under collec- tive-bargaining agreements. Each plant has a plant manager who in turn reports to Ford who works out of the Respondent's plant at Columbus, Mississippi. By stipulation it is established that Respondent's Atlanta plant has an appropriate unit for purposes of collective bargaining consisting of all its truckdrivers, warehousemen, and forklift operators, but excluding all office clerical em- ployees, professional employees, supervisors, and guards as defined in the Act. On June 19, 1972, at 12:42 p.m., the Charging Party, Local Union No. 728, sent a telegraphic notice to Respondent's Atlanta plant manager, Jerry Malcom, that "a majority of your employees have of their own free will and choice volunteered to be active on the Teamsters Local No. 728...." It is stipulated, however, that Local No. 728 has never made demand for recognition upon the Respon- dent. I am informed that this is the reason the complaint does not allege a Section 8(a)(5) violation. Nevertheless, counsel for General Counsel seeks an 8(a)(5)-type remedy herein on the ground that "Respondent's unfair labor prac- tices had the tendency to undermine the Union's majority strength and made the holding of free election impossible." It is an admitted fact that oral notice of General Counsel's intention to request an 8(a)(5) remedy was given to counsel for Respondent some 6 weeks prior to the hearing of this proceeding. Because of this early notice, Respondent does not claim that its preparation for trial was prejudiced by General Counsel's oral request at the trial for an 8(a)(5) remedy. At the date of the Union's wire to the Respondent, the Company had in its employment at the Atlanta plant four warehouse employees and four truckdrivers. There is a dis- pute as to whether one of the four warehouse employees, the aforementioned Edward Bailey, should be included in the stipulated appropriate unit. General Counsel contends that he is not a supervisor and therefore includable in the unit. Respondent contends that he is a supervisor and according- ly not includable in the unit. The facts with respect to Bailey, a black man commonly referred to as "Biggun" because of his weight of approxi- mately 300 pounds, are these. Although no longer employed by the Company,3 at the times here involved Bailey had worked for the Company for 7 years and had the greatest seniority as a warehouse employee. He was carried on the The Charging Party, Truck Drivers and Helpers Local Union No.728, is a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. Background, Stipulated Appropriate Unit, Eligibility for Inclusion of Employees Bailey and O'Neal in Unit, and Majority Support for Union Respondent's wholesale seed plant at Atlanta , here in- volved, is one of five such facilities it operated at the times here pertinent2 at various towns in a management unit in 2 The "times here pertinent" relate to certain dates within the month of June 1972 on which the complaint alleges that the Respondent committed various violations of Sec 8(a)(1), and (3) and (4) of the Act. As of July 1, 1972, Rudy Patrick merged into Northrup King Company, a major national seed company of Minneapolis , Minnesota , and thereafter the former Rudy Patrick Company became known as the Sawan Seed Division of Northrup King, a trade name (Sawan) under which Rudy Patrick Company also had been known since 1957, when the Patrick firm appears to have absorbed Sawan Incorporated by merger Counsel for General Counsel gave careful consideration to my suggestion that the complaint be amended to show Northrup King as the successor-owner of Respondent Rudy Patrick Compa- ny, but concluded not to seek the amendment because if an order were issued herein it would not only extend to the Rudy Patrick Company but would also routinely extend to "its successors and assigns." 3 Bailey was discharged in early July 1972, but is not here involved as an alleged discrimmatee under the complaint 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD books of Respondent as a "foreman" and received an hour- ly wage of $2.50 as against $2 for the next most senior warehouse employee and $ 1.75 for all other warehouse em- ployees . Although Bailey denied that he was a foreman or had supervisory authority, the record as a whole leaves no doubt that during the course of his employment he told other employees what work to perform, occasionally hired additional warehouse laborers as needed when his superior was away, had the authority to recommend the hiring and firing of warehouse personnel , and that his recommenda- tions were generally followed by his superiors. The credited testimony of Gay Guthrie, warehouse superintendent and Bailey 's immediate superior , establishes that Bailey on one occasion "on his own" fired a warehouse employee because he refused to take orders from him. From all the evidence of record , I find that Bailey at all times here material was a supervisor within the meaning of the Act and accordingly not a member of the stipulated bargaining unit which expressly excludes supervisors from the unit. Another questionable member of the bargaining unit is Louise O'Neal who did not testify in this proceeding. The record shows that O'Neal is in charge of all the office work in the Atlanta office and is also personal secretary to Plant Manager Jerry Malcom. The testimony of Assistant Plant Manager Ralph Waters shows that "sometimes she [Louise] might go out in the warehouse and get up an order , garden seed or something , if all of them [warehouse employees] were busy ." Based on the time O'Neal spends getting up orders in the plant, estimated by the plant manager to be approximately 10 percent of her worktime , the Respondent contends that O'Neal should be found to be a member of the bargaining unit. I find that the limited and sporadic time that O'Neal spends getting up small orders in the warehouse is too insig- nificant to give her a "substantial community of interest" with other members of the bargaining unit of full-time ware- house laborers and truckdrivers. Sullivan Mining Company, 101 NLRB 1366. Accordingly, I find O'Neal not entitled to be included in the stipulated bargaining unit. With the exclusion of Bailey and O'Neal from the bar- gaining unit , the Company had in its employment three warehousemen and four truckdrivers at its Atlanta plant on June 19, 1972, when as aforenoted the Union wired the Company that "a majority of your employees have of their own free will and choice volunteered to be active on the Teamsters Local No. 728...." These seven employees constituted the entire membership of the stipulated appro- priate unit at the time of the Union's wire. It is undisputed, the record shows , that at the time of the Union's telegram to the Company, the Union had in its possession valid union representation authorization cards from six of the seven employees in the unit. I accordingly find that the Union had cards from the majority of the employees in the unit at the time of its wire to the Company. The only employee in the unit who did not give the Union an authorization card to represent him was Byron Wood, an over-the-road truck- driver who declined to give the Union a card. On the basis of these evidentiary findings , I find and conclude that on the date of the Union's wire of June 19, 1972, the Union was the exclusive representative for collective -bargaining pur- poses of Respondent's employees in the stipulated appropri- ate unit. Following the Union's telegram of June 19, the Company terminated truckdriver Blackstock on June 20 and truckdri- vers Elliott and White and warehouseman McCrackin on June 23, the alleged discnminatees herein. B. Alleged Independent Violations of Section 8(a)(1) The complaint sets forth numerous allegations of inde- pendent 8 (a)(1) violations which are denied in Respondent's answer. None of the testimony offered by counsel for General Counsel in proof of these alleged independent 8(a)(1) viola- tions was denied or contradicted by Respondent. The record shows that efforts to organize Respondent's Atlanta plant were initiated by truckdrivers Elliott and Blackstock in May 1972. Blackstock contacted Local No. 728's office and obtained a supply of union representation authorization cards. Thereafter, between the two of them, they spoke to and sought the support of all of the employees in the unit for the Union. They obtained signed cards from all of the employees they believed belonged in the unit including warehousemen Bailey (found above to be a super- visor) except for truckdriver Wood who as aforenoted de- clined to sign a card. They received a total of six countable valid cards out of the seven employees in the stipulated bargaining unit: these are the figures found above in anoth- er connection. Elliott's card bears the date of May 30, 1972; the other cards were signed between June 14 and 19, 1972. Bailey's card, invalid because of his supervisory status, was signed on June 17, 1972. Plant Manager Malcom got early wind of the union activ- ity at the plant. The credited and undenied testimony of Elliott shows that Malcom on or about June 5, 1972, looked him up in the warehouse and asked him, "James, do you know what's going on?" When Elliott professed ignorance, Malcom asked him how he felt about the Union. Elliott replied that he was a 100-percent union man. Later that same day Malcom called Elliott into his office and again asked him how he felt about a union and received the same reply. The credited and undenied testimony of Elliott shows that Malcom's reply to Elliott's comment that he was a "100% Union man" was, "Well, I can't stop you from sign- ing the Union cards, but the ones that don't sign a Union card . . . will get the priority of raises over the man who does." Some 2 or 3 days later Elliott telephoned Malcom at his home to complain about a work assignment . Elliott's credited and undenied testimony shows that Malcom re- plied that he "couldn't work a man that paid attention to a Union man instead of him." The undenied and undisputed testimony of discharged truckdriver White shows that on June 22, 1972, Malcom called White and Elliott into his office and there in the presence of all the supervisors except Bailey asked White and Elliott what their "kick with the Company" was. White complained that he was not being paid enough for his work. Malcom thereupon made reference to and read to White and Elliott the aforementioned telegram the Union had sent him under date of June 19, 1972. The undenied and undisputed testimony of Foreman Bai- RUDY PATRICK CO. ley shows that on or about the date of the Union's same telegram Malcom called him and three other warehouse employees , Robert McCrackin , Donald Cummings, and Larry Tramplin , into Malcom 's office where , in the presence of Assistant Manager Waters and Warehouse Superinten- dent Guthrie , Malcom addressed the four warehouse em- ployees on the subject of the Union as follows . Malcom told the four employees that he had received the Union's wire and was aware of the union talk around the plant and then flatly told the employees that the Company could not afford to pay union wages . He further told the men that if the Union got in the Company would have to close down or perhaps just go out of business . He then asked them why they wanted a union . Cummings alone replied indirectly that he was tired of working for the Company at only a little more per hour than the wage he received when he began his employment with the Company some 3 or 4 years ago. Malcom next asked each of the four employees individually if they wanted the Union . All said they would forget about the Union except for McCracken . He stated he would "stick" with the Union. The undenied , undisputed , and credited testimony of Bai- ley shows that the next day, June 20, 1972, Malcom, who had learned that Bailey had signed a union card, asked Bailey why he had signed up, stating that he did not think that Bailey "would do me that way." After learning that Bailey had received his card from Blackstock , Malcom or- dered Bailey to get his card back . Bailey attempted to get his card back from Blackstock, who was fired an hour or so later, but was unable to do so because the card had already been turned in to the Union . When Bailey passed this infor- mation on to Malcom , he was told by Malcom , "Okay, don't be talking about no more Union ." This testimony by Bailey was corroborated by former employees McCrackin and Elliott who were present when Malcom ordered Bailey to get his card back . Elliott's undenied and undisputed testi- mony adds an important fact overlooked by Bailey. Accord- ing to Elliott 's credited testimony , Malcom when he heard that Bailey had got his card from Blackstock , said , "Black- stock is an instigator to the whole thing." The undenied and undisputed testimony of Bailey further shows that at a subsequent time Malcom advised him to tell the men in the unit that if they kept insisting upon having a union they would lose their jobs. Bailey passed the mes- sage around for the men to keep their mouths shut about the Union "until the time comes." Similarly , the record shows that Warehouse Superinten- dent Guthrie, like his superior, Malcom , also engaged in interrogations of the employees at the plant on their union activities. The undenied and undisputed testimony of aforemen- tioned truckdriver Elliott shows that on June 20 , 1972, just prior to his layoff of June 23 , Guthrie called him aside and interrogated him on the identities of the employees who had signed union cards. The undenied and undisputed testimony of former ware- house employee Donald Cummings shows that on June 15, 1972, Guthrie twice asked him if he had signed a union card. Finally the undenied and undisputed testimony of dis- charged warehouseman McCracken shows that Guthrie on June 19 , 1972, also asked him if he had signed a card to which McCrackin replied , "Yes." Conclusions 567 From the undisputed and undenied testimony set forth above which I fully credit , I find and conclude that the Respondent has engaged in numerous unfair labor practices in independent violations of Section 8(a)(1) of the Act as alleged in the complaint. C. Alleged Unlawful Terminations The Union as shown above notified the Respondent by its June 19, 1972, telegram that a majority of their employ- ees had volunteered to be active on the Union's in-plant organizing committee . On June 20 , the Company dis- charged truckdriver Blackstock and on June 23 discharged truckdriver Elliott , the two employees in the unit who had spearheaded the movement to organize the plant . On June 23, the Company also laid off or discharged truckdriver Mitchell White and warehouse laborer McCrackin . In each case , except Blackstock 's, the Company's only stated reason for the layoff or discharge was "lack of work." In Blackstock's case , the stated reason for his discharge was lack of work and an alleged agreement that his employment was to continue only until June 1972. At the trial, Respon- dent sought to show that there were also additional reasons for the layoffs. On August 14, 1973, the Company by wire offered Elliott and McCrackin "immediate reinstatement with backpay minus interim earnings" which they declined. As the Respondent 's above-noted independent violations of Section 8(a)(1) of the Act are necessarily interrelated to the discharges here under consideration , they will require some reiteration below. The Union's success in obtaining the majority support of the bargaining unit was primarily due to employee dissatis- faction with the company policy of not granting significant periodic pay raises. When asked by Plant Manager Malcom why he had signed a union card , long-time warehouse em- ployee Cummings replied as aforenoted, ". . . after working there for 4 years and making $2 an hour, I felt that I was being mistreated and [should ] be making more than that " Similarly , discharged truckdriver White, when asked by Malcom what "kick" he had against the Company, com- plained that he "needed . . . more money for the job" he felt he was doing. The Company, on the other hand, as the undisputed and uncontradicted testimony shows, opposed the Union on the stated ground that it could not afford to pay union wages and even threatened to close its plant down or go out of business if the Union got in. The following are the pertinent facts with respect to the layoff or discharge of James Elliott , Sr. Elliott was hired as a truckdriver in February 1971, and was laid off by Plant Manager Malcom on June 23 , 1972, for the alleged reason of lack of work. As shown above, Elliott and truckdriver Blackstock were the instigators of the drive to organize the bargaining unit at Respondent's Atlanta plant . Elliott was the first of the employees to sign a union authorization card. His card bears the date of May 30, 1972. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Malcom, having somehow received early word of Elliott's union activity, questioned Elliott as early as June 5, 1972, as to "what's going on" and further questioned him as to how he felt about the Union, to which Elliott forthrightly replied that he was a 100-percent union man. Later that same day when Malcom was again questioning Elliott and was again told by Elliott that he was a 100-percent union man, Malcom told him , "... I can 't stop you from signing the Union cards, but the ones that don't sign a Union card ... will get priority of raises over the man who does." Some 2 or 3 days later, Malcom turned aside a complaint Elliott had about a work assignment with the remark that he "couldn't work a man that paid attention to a Union man instead of him." On the day before his layoff, Malcom called Elliott into his office where he read to him the telegram he had received from the Union and during the course of the conversation asked Elliott what his beef was against the Company to which Elliott replied that he had no beef against the Compa- ny or Malcom except that he "just need[ed] more money for what I am doing." The following day, June 23, Malcom told Elliott that he was being laid off because of instructions Malcom had re- ceived from General Manager Jim Ford to lay off three or four employees for lack of work. At the trial, Respondent claimed that a further reason for Elliott's layoff was that he "was caught reading a confiden- tial telegram on [Warehouse Superintendent] Guthrie's desk." This so-called confidential telegram was the afore- mentioned notice the Union had sent Malcom under the date of June 19, 1972, that it represented a majority of the employees in the unit. I find that the telegram was not confidential in any true sense of the word in that Elliott was one of the two ringleaders who by their successful efforts to get all but one of the employees in the unit signed up on union authorization cards laid the groundwork for the Union's telegram to the Company. The record shows by Elliott's direct and credited testimony that, on June 19 prior to 4:30 p.m., he picked up the telegram in Guthrie's pres- ence from Guthrie's desk and started to read it when Guth- rie reached out and grabbed it from his hand. As Elliott picked up the telegram in Guthrie's presence, I find that there was nothing sinister or furtive in Elliott's act as im- plied in Respondent's description that Elliott "was caught reading a confidential telegram." In the 16 months that Elliott worked for the Company prior to his layoff, he had never received any reprimands or warnings on his work and had never had any accidents in connection with his work as a truckdriver for the Company. As heretofore noted, the Company under date of August 14, 1972, offered Elliott immediate and unconditional rein- statement to his job with backpay minus interim earnings. He was again offered reemployment on August 25, 1972, but this time without mention of backpay. The pertinent facts with respect to the layoff or discharge of John Blackstock and the inferences and conclusions to be drawn therefrom are more complicated. He was hired as an over-the-road driver in January 1971 and terminated on June 20, 1972. At the time of his termination, he had the greatest seniority of service. It is again noted that with El- liott, he was a coinstigator of the union activity at Respondent's Atlanta plant . Blackstock was the one who contacted the Union and obtained from it a supply of blank union authorization cards. He succeeded in getting signed cards from all the employees in the unit he contacted except driver Byron Wood. As shown above, on June 20, prior to Blackstock's layoff later that day, Plant Manager Malcom learned from Fore- man Bailey that Blackstock had been the employee who had gotten a union authorization card from him. Thereupon Malcom declared to Bailey in the presence of Elliott that Blackstock was the "instigator of the whole thing," a mean- ing the union activity at the plant . Malcom asked Bailey to get his card back from Blackstock, but when Bailey sought to get it back Blackstock told him that he had already turned the card into the Union. Bailey passed this informa- tion on to Malcom. All of the above occurred at around noontime of the aforementioned June 20 as Blackstock was in the process of filling out his driver's daily log. When he turned the log in, he asked if there was to be any more work that afternoon and was told there was none , but would probably be the next day. Following normal authorized procedure, he turned his tractor back over to the company from which it was leased and went home. At around 12:30 that noon (June 20), Malcom telephoned Blackstock at his home that he was being laid off for lack of work and also because of a claimed agreement they had in January of that year that Blackstock 's employment was to end in June . Incredulous, Blackstock asked if others were also being laid off and received the reply, "Quite a few." He also asked if Byron Wood, the next to the most junior driver (who had refused to sign a union card ), was also laid off. Malcom said, "No." On or about June 22, 1972, the Respondent under Malcom 's signature gave Blackstock a formal "separation notice," marked ("Except for Lack of Work Only"), on a printed form supplied by the Georgia Department of Labor, Employment Security Agency. The third numbered para- graph of the form states: Explain below why the employee quit or was dis- charged. Avoid use of general terms like "Insubordina- tion," "Violation of company rules," "Absenteeism," or "Quit." Describe the act or acts of subordination, tell what rule was violated, state how often absent, or reason for quitting if know. . Under the fourth paragraph of the "separation notice," Malcom stated that Blackstock had been "discharged" be- cause: Employer and employee had a working agreement un- til June. Employee was laid off because of lack of work. The following is the genesis of Respondent's asserted "working agreement until June " with Blackstock . It is un- disputed that in January 1972 as a result of something that happened at work Blackstock attempted to give Malcom 2 weeks' notice that he was quitting. Malcom testified that he told Blackstock to either quit right there and then or agree to stay on until June as he did not want to make a change of drivers at that time. Blackstock did not quit but stayed As heretofore shown , Elliott's undemed , undisputed , and credited testi- mony shows that Malcom made the above declaration to Bailey RUDY PATRICK CO. 569 on until he was discharged on June 20 . From this incident in January and the fact that Blackstock stayed on the job, Respondent seeks to spell out a preagreement that Blackstock 's employment would come to an end in June 1972. Blackstock denies that there was any such agreement between him and Malcom . I credit his denial. From the facts set forth in the above paragraph, I find that there was no agreement between Blackstock and Mal- com that Blackstock 's term of employment would virtually automatically come to an end in June 1972, but only at most an agreement by Blackstock that he would stay on with the Company at least until sometime in June 1972. Accordingly, I find without further discussion that the asserted but non- existing agreement that Blackstock 's term of employment was to end in June could not have been and was not a bona fide reason for his discharge on June 20, 1972. Similarly I find that Respondent 's contention that Black- stock was terminated because of lack of work also does not hold up because at the time of Blackstock 's discharge there was obviously enough work for at least one truckdriver as the Respondent retained in its employment Byron Wood who had the next to the last seniority of any of the three drivers Malcom discharged in the week of June 19, 1972, that is , Blackstock , and Elliott and White , the other alleged driver discriminatees. But aside from the fact that Respondent could have re- tained the most senior Blackstock instead of Wood as the Company obviously had at least work for one driver, I will give separate consideration below to the question of wheth- er the Respondent in fact had the general lack of work it claims as primary justification for the four layoffs or dis- charges here involved. The Company also asserts a number of other "for cause" business reasons for Blackstock 's discharge aside from lack of work . The most serious of these is that Malcom suspected Blackstock of theft of grass seed from the Company which he offered for sale to one of Respondent's customers at Alamo , Georgia , at substantially less than regular wholesale price. Blackstock admits that while driving for the Rudy Patrick Company he did not have the right to engage in the sale of seeds on the side on his own account . Blackstock made a delivery of millet seed on June 5, 1972, to a ferterliz- er and seed firm, Kaiser Agriculture Chemical, at Alamo. The credited testimony of Nina Walker, bookkeeper for Kaiser, shows that during the course of his June 5 delivery to Kaiser Blackstock made her an offer of 100 pounds of Burmuda grass seed at $1 per pound as against the regular price of $1.80 per pound. As Kaiser is a small firm and Walker was alone at the time Blackstock offered her the Burmuda seed, she relayed the offer by a two-way radio to Hollis Johnson , manager of Kaiser , who rejected the offer for the reason that "we would never dispose of that many seed." On June 15 or 16, 1972, Johnson telephoned Respondent 's plant manager, Malcom , to place another seed order with him. Johnson's credited testimony shows that, during the course of placing the order, he asked Mal- com "if he had any more Burmuda grass seed he wanted to give away, that one of his drivers offered my secretary [Nina Walker] a hundred pounds of seed for a hundred dollars the last time they were through there." Malcom's reply was that he heard of some seed "being offered cheaper than that." Blackstock denies that he made an offer of Burmuda grass seed to the Kaiser firm at Alamo in June 1971, but admits making a delivery for Respondent to the firm at Alamo. His denial is not credited. It is to be noted that, although Mal- com had a report of Blackstock's offer of Burmuda grass seed to the Alamo firm at a bargain price as early as June 15 or 16, he did not fire Blackstock until June 20, the day he became convinced that Blackstock was the instigator of the union activity at Respondent's Atlanta plant. Respondent also advanced the other reasons for Blackstock's discharge. Among these is that the week before his discharge he was short 33 bags of seed corn, for which he had given receipts to dealers, out of trailer load of about 600 such bags because he had not followed proscribed pro- cedures for such pickups from dealers; that on June 13, 1972, he backed into electric and telephone wires of a customer's place of business while making a delivery, there- by causing damage in the amount of $42.90 to the customer for repairs and some damage to the air hose of the truck Blackstock was operating which he himself repaired without cost to the Respondent; that in April 1972 while driving Blackstock was negligent in not noting that the lugs on the rear tires of his trailer were working loose with result that the tires and the drum assembly which held the tires were ruined, but in this connection Blackstock's credited testimo- ny shows that he stopped his vehicle as soon as he became aware that something was going wrong with the rear tires and that it was the responsibility of the Company's mechan- ic, not his, to see that Company-owned trailers were in operable condition; that also in April 1972 Blackstock in hitching a tractor onto a trailer backed into the trailer with such force as to break one of its axles; that on December 23, 1971, Blackstock at the plant pointed the blade of a pocketknife he habitually uses for whittling wood at former employee Carl Bennett, because he was admonishing Black- stock to stop his jostling with a young warehouse employee, J. A. Trapp, with whom Blackstock was having a quarrel of undescribed origin .5 Although the Respondent contends that Blackstock's above-noted vehicular accidents constitute one of the rea- sons it fired him, the record shows that the Company re- tained in its employment driver Byron Wood who had refused to sign a union card notwithstanding the far more serious accident Wood had by trying to beat an oncoming train across a railroad track which caused the Company more than $200 in damages and could have resulted in serious personal injuries or death to Wood and others. The third or final driver to be laid off was Mitchell White. He was hired on September 20, 1971, and laid off on June 23, 1972, for alleged lack of work. His layoff was by means of a note he found on the windshield of his parked car after he had returned from a delivery at Douglasville, Georgia. The note read: M. J. White, dated June 23rd, 1972. It was most unfor- tunate today about the accident you had at Baggett's in Douglasville. These accidents are quite expensive for 5 The above -described incidents constitute all of the alleged auxiliary rea- sons worthy of note set forth in Respondent 's brief in justification for Blackstock 's discharge 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD us, not to mention inconvenience to the customer. I received a call today from Columbus advising that Kansas City is demanding that we lay off all personnel that we can possibly do without because of lack of business. I had told you I would use you in the ware- house, but find this is impossible because we also have to lay off some of the warehouse help. In lieu of vaca- tion, I will pay you through June. Jerry L. Malcom. The accident referred to in the layoff note was caused by White's accidental backing of a van truck into the doors of the new warehouse of a customer during the course of a delivery with resulting damage in the amount of $392.60. Without further discussion, I find that White's faulty ma- neuver in the tricky business of backing up a van truck at a customer 's new and apparently unfamiliar premises was far less serious that driver Wood's heretofore-mentioned wanton negligence or unlawful conduct in trying to cross a railroad track against an oncoming train for which he was arrested. It will be recalled that Wood, the only one of the four drivers who declined to sign a union authorization card, was not discharged because of his truck-train accident but on the contrary was the only driver retained by Respon- dent after June 23, 1972. In addition to the accident, the Respondent claims two other auxiliary reasons (besides the primary lack of work reason) for White's layoff or discharge. One of these is that Plant Manager Malcom had complaints from several cus- tomers in the spring of 1972 about discourteous and rude conduct on the part of White in the course of his deliveries to such customers. Malcom's testimony on these incidents, some of which came to him secondhand from others in his office, were vague, uncertain, and totally lacking in detail. The other alleged reason for White's layoff or discharge was that, when White on June 15, 1972, asked Malcom whether he had plans to use him temporarily in the ware- house when the seed season slackened, White allegedly told Malcom that he would not accept reassignment to ware- house duties unless driver Blackstock was also temporarily assigned to the warehouse. The reason for White's concern over whether Blackstock would also be assigned to ware- house duties when business slowed down is that Respondent's drivers were paid on a straight weekly basis whether there was work for them or not and were privileged to go home without loss of pay if they ran out of driving assignments whereas warehouse employees are paid by the hour and thus cannot go home before the full workday is over without loss of pay for time not on duty at the ware- house. I credit White's denial that he made his acceptance of reassignment to warehouse duties which he obviously wanted when work fell off for drivers conditional upon Blackstock's also being reassigned to warehouse work under the same conditions. At the time of the incident here under consideration, the question of whether White would be reas- signed to the warehouse when business slackened was pure- ly academic because Malcom at that time was not in the process of transferring driver White or any other drivers to the warehouse. Without further discussion I find that Respondent's auxi- liary reasons as set forth above for White's layoff or dis- charge are pretextual and without merit. White signed a union card 6 days before his layoff. On the day before his layoff, White and driver Elliott, as hereto- fore shown , were summoned to Plant Manager Malcom's office where Malcom , then in receipt of the Union 's tele- gram claiming majority support, asked the two drivers what their "kick" was against the Company. White expressed his bitter dissatisfaction with what he regarded his low pay. He was, as noted, laid off the next day by a note affixed to the windshield of his car after he returned from an over-the- road delivery. The facts with respect to the layoff of Robert McCrackin are brief. Unlike the other layoffs, who were drivers, Mc- Crackin was employed by Respondent as a warehouse la- borer, loading and unloading trucks. He is a young man in his early twenties who started working for Respondent about December 1969 when he was still in high school and continued working for the Company as a college student at Georgia State until he was laid off by Warehouse Superin- tendent Guthrie on June 23, 1972, for the alleged reason of lack of work. The record establishes that he worked as a regular full -time employee during the summer and as a regular part-time employee during the rest of the year while attending school . As might be expected from his continued employment by Respondent for more than 3 years, the rec- ord shows that McCrackin had a good work record. McCrackin 's union support was solicited by driver Black- stock at around June 14, 1972. Thereafter, he attended two or three union meetings . On June 19, he signed a union authorization card. On that same day, he was asked by Guthrie if he had signed a union card and truthfully replied, "Yes." On that same day, McCrackin and three other em- ployees , as heretofore noted , were summoned to Plant Man- ager Malcom's office where they were individually asked by Malcom if they wanted a union. McCrackin was the only employee who said he would "stick" with the Union. All the other employees said they would forget the Union, as this was obviously the answer Malcom wanted. Respondent assigns as an auxiliary reason for Mc- Crackin 's layoff his alleged absence without permission on the isolated dates of only May 19, June 6, and June 21, 1972, for the over-3-year period he worked for the Company, during which he had four distinct periods of employment. Guthrie's testimony that McCrackin was absent without permission on the indicated dates was not convincing and is not credited. I credit McCrackin 's testimony that he usu- ally called in when he could not make it to work. When Guthrie laid McCracken off, the only reason he gave for the layoff was lack of work. It will be recalled that the Respondent on August 14, 1972, offered McCrackin "immediate reinstatement, with backpay minus interim earnings ," at the same time that he made the identical offer to driver Elliott. McCrackin was again offered reinstatement on August 25, 1972, but this time without mention of backpay. D. Alleged 8(a)(4) Violation re McCrackin Following his discharge of June 23, 1972, McCrackin on July 5 called at Respondent's plant to pick up his final paycheck. While at the plant the undisputed and credited RUDY PATRICK CO. 571 testimony of McCrackin shows that Guthrie, his former supervisor who had laid him off, told McCrackin that "they were going to hire me back but, since you know, I had filed suit with the Union, that he didn't think they would hire me back." (Emphasis supplied.) The "filed suit" was a reference by Guthrie to the original charge filed with the Board on June 28, 1972, by the Union in behalf of McCracken against his discriminatory termination of June 23, 1972. Subsequent to its original charge, the Union filed its amended charge of August 7, 1972, that the Respondent "on July 5, 1972, and thereafter refused to reinstate Robert Mc- Crackin, an employee because he has filed a charge and given testimony to the National Labor Relations Board, all in violation of Section 8(a)(4) of the Act." On the basis of this amended charge the complaint herein contains allega- tions of violations of Section 8(a)(4) of the Act. Without further discussion, I find and conclude that Guthrie's remark to McCrackin that he did not think the Respondent would rehire him because he "had filed suit with the Union," that is, had brought charges against the Respondent through the Union with the Board, constitutes a violation of Section 8(a)(4) of the Act. N.L.R.B. v. News Syndicate Co., Inc., 279 F.2d 323, 334 (C.A. 2, 1959), affd. 365 U.S. 696 (1961). E. Lack of Work Defense to Terminations The Company's principal defense against the multiple discriminatory discharge allegations of the complaint is that it was compelled to discharge the four involved employees because of "seasonal lack of work." "Lack of work" was the sole stated reason given by Warehouse Superintendent Guthrie to McCrackin for his layoff and by Plant Manager Malcom to Elliott and White 6 for their layoffs. In the case of Blackstock, Malcom told him that in addition to being laid off for lack of work he was also being terminated be- cause of their purported agreement of many months ago that his term of employment would end in June. As it was found above that there was in fact no such preagreement, it follows that consideration need only be given here to Respondent's lack-of-work reason for Blackstock's dis- charge. (But as shown above, even if Respondent's sales had significantly slackened at the time of Blackstock's layoff, lack of work should not have caused his particular layoff because at the time the Company terminated Blackstock it retained in its employment the aforementioned driver, By- ron Wood, who had less seniority than Blackstock.) The best evidence of "seasonal lack of work" to justify the four nearly simultaneous discharges would have been com- parative profit-and-loss statements showing a precipitous decline in sales in the Atlanta plant in late June 1972 when the discharges took place, as compared with prior years when no such -ass layoffs occurred. 6 In the layoff note Malcom placed on the windshield of White's car, Malcom expressed displeasure with the accident White had had that day by backing into doors of a customer 's warehouse but gave as his sole reason for White's layoff a call received that day "from Columbus advising me that Kansas City is demanding that we lay off all personnel that we can possibly do without bec-use of lack of business" Respondent presented no such evidence . Instead, at the trial the Respondent relied principally on a three -page inter- office mimeographed letter appeal dated March 30, 1972, sent by President B. H. Melton of the Company's head- quarter office in Kansas City to Plant Manager Malcom of the Atlanta plant , among other such plants at other loca- tions, on the subject of "Fourth Quarter Expenses" as justi- fication for the discharge of the four involved employees. It appears from the letter that the Company operates on a fiscal year basis ending June 30 . The letter states, "The first eight months of this year , due to crop failure in the Wash- ington area and other causes have caused us to run behind in our sales forecast as a Company almost $2 .5 million." The letter adjured the plant managers to make every ef- fort to increase sales and "concurrently" to keep expenses down as much as possible , with major emphasis on econo- mies in keeping tomporary help at a minimum . None of the four dischargees here involved were temporary help. Jim Burns Ford , the aforementioned regional general manager of the Company 's plants in the southeastern States, includ- ing the Atlanta plant , testified that , pursuant to President Melton's directive , he talked to Malcom weekly to "keep the business running, [with] as few [employees] as possible ...." Notwithstanding this, Ford's testimony shows that from March 20, "because most our business was still in front of us," the Atlanta plant did not lay off any employees in March , April, or May, but on the contrary it increased from time to time the number of employees at the plant as re- quired by the fluctuating volume of its sales. Ford's testimony further shows that with the normal de- cline in Respondent's seasonal business beginning in May there would be "a gradual downward flow" of the number of employees on the payroll of the Atlanta plant. The record shows that the Atlanta plant in June 1972 did not follow this normal pattern of prior years or gradual reduction of em- ployees on its payroll but that it precipitously discharged the four employees here involved , virtually simultaneously, on the heels of its telegraphic notice from the Union that it represented a majority of its employees . As a result of the mass discharges , the Atlanta plant on June 24 , 1972, had only one nonsupervisory warehouse employee , Cummings, and one nonsupervisory driver, Wood, who had refused to sign a union card , as compared to six warehouse employees and four drivers in the last week in June 1970 and four warehouse employees and four drivers in the last week of June 1971 . These differences cannot be accounted for by any backwardness of seasonal planting weather as Ford's testimony shows that the growing season of March through June 1972 for the seed dealers served by the Atlanta plant was normal. President Melton's letter of March 20 , 1972, urged all plant managers "to put airairtight lid on anything but abso- lute emergency expenditures from here until July 1, 1972." The four dischargees here involved were regular full-time experienced employees , not "emergency" employees. The record shows that Plant Manager Malcom had planned to keep the three discharged drivers on temporarily as ware- house employees during the brief slack between seasons so that he could have a needed staff of experienced drivers on hand as soon as the next season opened . Instead , the three 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers and one warehouse employee (McCrackin), known vocal supporters of the Union, were discharged virtually en masse almost simultaneously with the Company's receipt of the Union 's telegraphic notice that it represented a majority of the employees in the Atlantic plant . Moreover , the dis- charges took place only about a week prior to President Melton 's own let-up date of July 1, 1972 (i.e., the beginning of a new fiscal year), on the requested curtailment of operat- ing expenses wherever possible. It is again noted that Respondent offered reinstatement to Elliott and McCrackin on August 14, 1972, with backpay from the date of their discharges on June 23, 1972. Discussion and Conclusions re Discharges From the above evidentiary findings, I find and conclude that Respondent failed to show by any competent and cred- itable evidence that its discharges of the four alleged discri- minatees was motivated by a "lack of work" for them, seasonable or otherwise. With respect to Elliott and Mc- Crackin, I infer and find an admission by Respondent of their discriminatory discharge frorp its offer of August 14, 1972, to reinstate the two employees with backpay from the date of their discharges on June 23, 1972. Similarly I do not credit any of the various other alleged business reasons given for the discharge of the four employ- ees, such as driver accidents, or because of McCrackin's alleged absences from work without permission on only 4 days of the more than 3 years he worked for Respondent, or of driver White's alleged discourtesies, or of Blackstock's suspected theft of Burmuda grass seed from the Company's warehouse. Even in the case of Blackstock, the record sup- ports the conclusion that the thing that triggered his dis- charge on June 20, 1972, was the conclusion that Plant Manager Malcom reached that day that Blackstock was the instigator of all the union activity at the plant rather than the suspicion of his theft of grass seed from the warehouse as Malcom did not fire Blackstock or even question him on June 15 or 16 when he received a report from a dealer- customer of Blackstock's offer in early June to the customer of unordered Burmuda grass seed at almost half of its regu- lar selling price. It is again noted that none of the above-described excuses or reasons for layoffs were given to the discharged employ- ees at the time of their discharge as might have been rea- sonably expected if such alleged reasons played any bona fide part in their terminations. It is also again noted that the vehicle accidents that Re- spondent now claims as auxiliary reasons for the discharge of drivers Blackstock and White were far less serious than the accident Wood had in trying to cross a railroad track against an oncoming train and yet Wood, who refused to give the Union an authorization card to represent him, had not been discharged because of his far more culpable acci- dent. I also find and conclude that most of the employee incidents that Respondent seized on at the trial as auxiliary reasons for the discharges have been condoned by Respon- dent due to their remoteness in time from the date of the terminations. I find and conclude from the absence of any credible lawful cause for the terminations and from the conjunction of the discharges with company knowledge of the involve- ment of the dischargees in organizing its plant and the offi- cial notice the Company got from the Union of its majority representation that the four dischargees were discriminato- rily discharged because of their union activities in violation of Section 8(a)(3) and (1) of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent, Rudy Patrick Company , is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union, Truck Drivers and Helpers Local Union No. 728, is a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By interrogating employees concerning union meet- ings and union activities, by directing an employee to get back his union authorization card, by prohibiting employ- ees from talking about the Union at any time in the plant, by threatening employees that those who did not sign an authorization card would receive priority in wage increases, by threatening employees they would be discharged or laid off, and that the plant would be closed or moved, the Re- spondent has interfered with, restrained and coerced em- ployees in the exercise of rights guaranteed them in Section 7 of the Act, and has thereby engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By laying off, discharging, and/or terminating the em- ployment of James Elliott, Sr., John Blackstock, Mitchell White, and Robert McCrackin as set forth above, Respon- dent discriminated against them in regard to their tenure of employment, and the terms and conditions thereof, to dis- courage membership in the Union, and thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By discriminating against Robert McCrackin because he caused the Union to file a charge with the National Labor Relations Board, Respondent engaged in and is en- gaging in unfair labor practices affecting commerce within the meaning of Section 8(a)(4) of the Act. 6. Louise O'Neal is an office clerical and as such is ex- cluded from the appropriate unit. 7. Edward Bailey is a supervisor within the meaning of Section 2(11) of the Act and as such excluded from the appropriate unit. 8. On June 19, 1972, the Union was the exclusive repre- sentative for collective-bargaining purposes of Respondent's employees in the unit described as follows: All truckdrivers, warehousemen, and forklift operators employed by the Respondent at its Atlanta, Georgia, place of business, but excluding all office clerical em- ployees, professional employees, guards, and supervi- sors as defined in the Act. RUDY PATRICK CO. 573 The aforesaid unit was, and is, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act and any subsequent loss of such status is the result of the Respondent's unfair labor practices heretofore found above. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1), (3), and (4) of the Act, I shall recommend that the Respondent cease and desist therefrom and from any other manner infringing upon its employees ' Section 7 rights , and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily ter- minated and discharged the above -named employees on June 20 and June 23 , 1972, it will be recommended that it offer to each of them immediate , full, and unconditional reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights, privileges , or working conditions , and make each of them whole for any loss of earnings suffered by reason of the discrimination against them , by paying to each a sum of money equivalent to the amount he would have earned from the date of the discrimination against them until such discri- mination has been fully eradicated , less his net earnings during the period of such discrimination, backpay with in- terest at the rate of 6 percent per annum shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Company, 138 NLRB 716.E General Counsel requests an 8(a )(5)-type remedy herein, notwithstanding the fact that the complaint alleges only 8(a)(1), (3), and (4) violations and does not allege an 8(a)(5) violation , due to the fact that the Union did not make the requisite demand for recognition and bargaining . Interna- tional Van Lines, 177 NLRB 353, is authority for the grant- ing of an 8(a)(5) remedy where the complaint alleges only 8(a)(1) and (3) violations . Under the "Remedy" section of that decision , the Board justified and directed the granting of an 8 (a)(5) remedy therein as follows: Having concluded that the Respondent . . . engaged in unfair labor practices violative of Section 8(a)(3) and (1), we are further persuaded that such conduct demon- 7 Under the compliance stage of the Order herein , recognition should be given to the fact that Respondent 's period of discrimination against employ- ees James Elliott , Sr., and Robert McCracken terminated on or about August 14, 1972, when Respondent offered the two employees full reinstatement to their former positions with backpay from the dates of their discharge minus interim earnings. strates that Respondent had completely rejected the collective-bargaining principle and its violations could only have had the effect of destroying conditions need- ed for a fair election. As the Union did represent major- ity of the employees in an appropriate unit prior to the discriminatory discharges, we conclude that only a bar- gaining order can adequately restore as nearly as possi- ble the situation which would have existed but for the Respondent's unfair labor practices. Accordingly, we shall order Respondent, upon request, to bargain with the Union in the unit herein found appropriate. In a footnote to the above paragraph, the Board stated: While the Union made no formal demand on Respon- dent for recognition such demand is not a prerequisite to our granting a bargaining order in these circum- stances. Western Aluminum of Oregon, Incorporated, 144 NLRB 1191, 1192; L. B. Foster Company, 168 NLRB 83. In N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 576, 594 (1969), Supreme Court states that ". . . the key to the is- suance of a bargaining order is the commission of serious unfair labor practices that interfere with the election pro- cesses and tend to preclude the holding of a fair election." Expanding on this test for the issuance of a bargaining order, the opinion at page 614 states, "The Board itself .. . has long had a similar policy of issuing a bargaining order, in the absence of a section 8(a)(5) violation or even a bargaining demand, when that was the only available, effective remedy for substantial unfair labor practices...." (Emphasis sup- plied.) There is thus ample authority for the granting of an 8(a)(5)-type remedy where the complaint alleges only 8(a)(3) and (1) violations, to say nothing about an additional 8(a)(4) violation, as herein found. Accordingly, having found that the Union was the major- ity-designated representative of the Respondent's employ- ees in an appropriate unit on June 19, 1972, and that the Respondent, by engaging in unfair labor practices aimed at destroying the union majority, discloses a disposition to evade its obligation to bargain, it is found that a simple cease-and-desist order would not prevent Respondent from profiting from its unlawful conduct and that only a bargain- ing order can restore, as nearly as possible, the situation which would have obtained but for Respondent' s unfair labor practices. Therefore, it will be recommended that Re- spondent bargain with the Union upon request as the collec- tive-bargaining representative of its employees in the appropriate unit and, if an agreement is reached, embody such agreement in a signed contract. In view of the nature and extent of the unfair labor prac- tices found to have been engaged in by the Respondent, which indicate its determination to interfere with its em- ployees' right of self-organization and its interference with the principle of collective bargaining, I shall recommend a broad cease-and-desist order herein. Upon the basis of the foregoing findings of fact and the entire record in this proceeding, I make the following rec- ommended: 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER' Respondent, Rudy Patrick Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union meetings and union activities; requesting or directing employees to get back their union authorization cards; pro- hibiting employees from talking about the Union at any time in the plant; threatening its employees that those who do not sign an authorization card will receive priority in wage increases; threatening its employees that they will be discharged or laid off if they continue their support of the Union; threatening its employees that the plant will be closed down or moved if the Union is successful in its orga- nizational attempts. (b) Discriminating against an employee because he has caused a union to file charges or given testimony under this Act. (c) Discouraging membership of any employee in the Union or any other labor organization by discharging or in any other manner discriminating against any employee with regard to his hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively with Truck Drivers and Helpers Local Union No. 728 as the exclusive representative of the employees in the appropriate unit set forth in the "Conclusions of Law," above, and embody in a signed agreement any understanding reached. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Atlanta, Georgia, location copies of the attached notices marked "Appendix." s Copies of the no- tice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's authorized rep- resentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 8In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections hereto shall be deemed waived for all purposes. 9 In the event the Board's Order is enforced by a Judgment of the 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 " (d) Notify the Regional Director for Region 10, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, bargain collectively with Truck Drivers and Helpers Local Union No. 728 as the exclu- sive representative of our employees in the unit de- scribed below, with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. The bar- gaining unit is: All truckdrivers, warehousemen, and forklift opera- tors employed at the Employer's Atlanta, Georgia, location, but excluding all office clerical employees, professional employees, guards, and supervisors as defined in the National Labor Relations Act, as amended. WE WILL offer to John Blackstock and Mitchell White immediate, full, and unconditional reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs without prejudice to their seniority or other rights, privileges, or working condi- tions, and make them each whole for any loss of pay that they may have suffered as a result of the discrimi- nation practiced against them. WE WILL make James Elliott, Sr., and Robert McCrac- kin whole for any loss of earnings they may have suf- fered between their unlawful discharge on June 23, 1972, and August 14, 1972, when they were offered but refused reinstatement of their old jobs. WE WILL NOT discharge employees or otherwise discrimi- nate against them because of their union activities. WE WILL NOT discharge, threaten to discharge, or in any other manner discriminate against any employee be- cause he has caused a union to file charges or given testimony under the National Labor Relations Act. WE WILL NOT question or interrogate our employees about their membership in, sympathy for, or activities on behalf of any union. WE WILL NOT threaten to discontinue our business or to move our business or to discharge or lay off any of our employees or to take reprisals against them because of their membership in, or activities on behalf of, any labor organization. WE WILL NOT direct any employee to get his union au- thorization card back from the Union. WE WILL NOT prohibit employees from talking about the Union at any time in the plant. WE WILL NOT threaten our employees that those who do RUDY PATRICK CO. not sign authorization cards for the Union will receive pay wage increases. WE WILL NOT in any manner, interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form unions , tojoin , assist , or sup- port Truck Drivers and Helpers Local Union No. 728, or any other union, to bargain collectively through rep- resentatives of their own choosing, or to engage in any other concerted activities for the purpose of mutual aid or protection, as guaranteed by Section 7 of the Na- tional Labor Relations Act as amended, or to refrain from any or all such activities. All our employees are free to become and remain, or to refuse from becoming or remaining, members of Truck Drivers and Helpers Local Union No. 728, or any other union. Dated By 575 RUDY PATRICK COMPANY (Employer) (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, Peachtree Building, Room 701, 730 Peachtree Street NE, Atlanta, Georgia 30308, Telephone 404-526-5760.