Axton Candy & Tobacco Co.

National Labor Relations Board - Board Decisions

Apr 20, 1979

241 N.L.R.B. 1034 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Axton Candy and Tobacco Company and General
Drivers, Warehousemen and Helpers, Local Union
No. 89, Affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 9-CA 11721, 9-CA
11815, and 9-CA-12310
April 20, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENEI.O
On December 27, 1978, Administrative Law Judge
George Norman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief and a motion to reopen the
record. The General Counsel filed a memorandum in
opposition to Respondent's motion.
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 of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
We agree with the Administrative Law Judge that
the course of conduct engaged in by Respondent sub-
sequent to its acquisition of information that an orga-
nizing campaign was being conducted among its em-
ployees sufficiently infringed these employees'
statutory rights that Respondent was no longer free to
reject the Union's recognition demand of September
19, 1977.3 In view of the unfair labor practices found
herein, and for the additional reasons stated below,
we find that Respondent has precluded the holding of
a free and fair election and that the Union's card
majority of 12 employees,4 out of a unit of 17, ob-
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. it is the Board's established policy not to over-
rule 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 Dro Wall Products, Inc.. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 We shall modify the recommended Order to indicate that benefits
granted to employees are not to he rescinded.
3Unless otherwise indicated, all dates are 1977.
Although three of the authorization cards introduced into evidence may
have been signed on dates different from those indicated on the cards, there
is no evidence that these cards had been purposely misdated. In an) event,
the misdating of cards does not affect their validity as a showing of union
support. Ultra-Sonic De-Burring, Inc. of Texas, 233 NLRB 1060. 1067 (1977).
Likewise, the fact that some of the unfair practices predated the signing of a
few of the cards does not affect our finding of the need for a bargaining order
herein, as the record shows that additional unfair labor practices occurred
after all cards had been signed. More importantly, the fact that some cards
tained before the Union's demand for recognition,
provides a more reliable test of employee representa-
tion desires than would an election.
The facts are set forth in detail in the Administra-
tive Law Judge's Decision. On Friday, September 2,
Supervisor Farrell discovered that employees Wil-
liams and Bloom were engaged in an attempt to orga-
nize Respondent's employees.5 Over the weekend,
Williams and Bloom solicited authorization cards and
succeeded in getting from 7 to 10 such cards signed
prior to the next workday, September 6. When they
arrived at work on September 6, Williams and Bloom
were immediately called to President Axton's office.
Williams went in first and was told by Axton that he
was doing an excellent job and that he was getting a
$15-a-week raise and time and a half for overtime.6
After Williams left, Bloom went into the office and
was told by Axton that he was fired.
We agree with the Administrative Law Judge that
Bloom's discharge was discriminatory. Bloom's pre-
cipitous discharge immediately after he initiated the
organizing efforts clearly had the effect of informing
Respondent's employees that Respondent looked on
this attempt with extreme disfavor? While Respon-
dent's union animus might have been revealed more
blatantly had it discharged both Bloom and Williams,
it chose to exercise its power in a more subtle manner
through an additional well-timed grant of a wage in-
crease to Williams. The close juxtaposition of the pay
raise for Williams and the discharge of Bloom clearly
served to instruct Bloom, Williams, and other em-
ployees that Respondent's beneficence and wrath
were interrelated. Such "fist inside the velvet glove"
tactics8 were also demonstrated to other employees in
that employees Hart and Bryant, who signed cards,
also received raises that day.9 Further, Respondent
announced on September 6 that all employees would
be paid at the rate of time and a half for overtime
are signed after unfair labor practices does not detract from the necessity of
a bargaining order. Id., sl. op. at p. 16; Richard Tischler, Martin Bader and
D)onald Connells. Sr., a Limited Partnership d/b/a Devon Cables Nursing
Home, 237 NLRB 775 (1978).
' Farrell's conduct on September 2 was not alleged in the complaint as
violative of Sec. 8(a( I). While Respondent excepts to the Administrative
Law Judge's purported finding that Farrell unlawfully interrogated employ-
ees, the underlying Decision makes no such ending and relies on Farrell's
September conversation with employees solely as background evidence.
The Administrative Law Judge did find, however, that Supervisor McGrath
engaged in illegal interrogation on September 7.
6 Williams had been earning a salary of $135 a week with approximately
half pay for overtime.
Hambre Homhre Enterprises, Inc. d/b/a Panchito's, 228 NLRB 136, 137
(1977).
8N L R.B. v. Exchange Parts Co., 375 U.S. 405, 409 (1964).
9 The fact that Bryant, Hart, and Williams had each requested raises sev-
eral weeks earlier does not establish that the raises were solely in response to
these requests, particularly as no clear responses had been given to the em-
ployees at the times of their requests. Williams denied that he had earlier
been told of any forthcoming wage increases.
241 NLRB No. 163
1034
AXFON ('ANDY & ()BA('('O() CO.
work, whereas, as noted above, they previously had
not been given premium pay for overtime. We find
that Bloom's precipitous discharge, the granting of
raises to several employees, and the general modifica-
tion of its overtime policies were each designed to
erode support for the Union."'
Respondent continued its unlawful conduct by
statements made by Supervisor McGrath between
September 6 and the scheduled date for the election,
November 4.11 As found by the Administrative Law
Judge, these remarks included the interrogation of
employees about their union activities and desires
and threatening them with loss of benefits and more
onerous working conditions if the employees chose to
be represented by the Union. Although the Adminis-
trative Law Judge did not expressly find that Respon-
dent threatened to close down its operations, the
credited testimony indicates that Supervisor
McGrath informed employees of a projected sce-
nario, should the Union be selected, which included
the loss of benefits, a walkout, and the conclusion that
the "company couldn't run like that." Such a refer-
ence to a threatened closure has uniformly been con-
sidered the type of interference with an organizing
campaign whose effects are severe and linger on after
they have been made.12 When such remairks as were
made by McGrath follow the discharge of one of the
initiators of the organizing drive, the employees are
not likely to subject themselves to similar treatment
by utilizing our election procedures in an uncoerced
manner. For these additional reasons, we agree with
the Administrative Law Judge that a bargaining or-
der is necessary.
In its motion to reopen the record, Respondent has
asked us to take cognizance of additional evidence
that Supervisor McGrath has been discharged and
that several employees who supported the Union vol-
untarily quit their employment with Respondent. We
reject Respondent's motion. Although documents in
support of Respondent's motion indicate that
McGrath has been terminated, the stated reason for
his discharge was not his involvement in unfair labor
practices, but a result of a refusal to perform assigned
work. His discharge. in these circumstances, does not
1m Respondent defends the propriety of the change n its oertime polic as
being responsise to complaints from Iruckdriiers prior Io the rganizing
drive. Respondent does not adequately explain, however. the 2-month dclis
between these comnplaints and the announcement of the change We there-
fiore find this delense insufficient to overcome the compelling inference to be
draw n from the sequence of eents here depicied Furthermore. hile Re-
spondenl contends that some emplosees could receise less pay a a result of
its change in tne overtime policy, as it no longer guaranteed employees it
minimum salary, no showing has been made that any employee suffered such
a loss. It any event. as Respondent admnits that the two changes %:ere related.
any losses incurred by employNees as a result ot the changes constitute conm-
pensable losses due to Respondent's o:erall course of conduct designed t,
undermine support for the I non among its emploees
I'he electiton was not held in view of the initial charges filed herein
2 ('handlr .Mtotor. In, 236 NLRB I 5. 1566 ( 1978)
constitute even an attempt by Respondent to remed
its unfair labor practices but is merely an unrelated
event which does not serve to neutralize the effect of
its coercive conduct." Furthermore. with respect to
the attrition of original card signers, we have uni-
formally held that employee turnover is not sufficient
to eliminate or dissipate an employer's coercive con-
duct.4 Accordingly. Respondent's motion does not
state grounds sufficient to warrant to reopening of the
record.
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 Or-
der of the Administrative Law Judge. as modified be-
low, and hereby orders that the Respondent. Axton
(Cand and Tobacco Company, Louisville. Kentucky.,
its officers. agents. successors. and assigns. shall take
the action set forth in the said recommended Order.
as so modified:
I. Add the following sentence at the end of para-
graph I(b): "Provided, however. that nothing herein
shall he construed as requiring Respondent to vary or
abandon any economic benefit which it has hereto-
fore established."
2. Substitute the attached notice for that of the
Administrative Law Judge.
i" We note idditionalls that Respondent has not et attempted to remcds
the more flagrant iolatlion found herein: the dscnminator\ discharge ot
employee Bloom
14 S. V'rriuln Sons, ecrriman Mtungemi'nl S,rri,- In, 219
NT RB 972 1975): 4thlis Engrine Uerk. I tnc 181 NlRB 52. 53. In It(197111.
enld. 435 F 2d 558 f6th ('ir 19701. cert. denied 402 1 S. tW (1971):
N.. R.B Iou D oung's Market Bctr, In.. 430 f:.2d 912 (6th ('ir
19701. enfg. 181 N.RB 35 (1970)1.
APPEN[)IX
No-i( F To EMPI.( )YOtLS
P)srIt) BY ORDER OF fIIl
NAII()NAI. ABOR REIAT()NS BOARD
An Agency of the United States Government
'[The law states that employees shall have the right to
form. join, or assist labor organizations; to bargain
collectively through representatives of their own
choosing: to engage in other concerted activities for
the purpose of collective bargaining or other mutual
aid or protection: and to refrain from any or all such
activities except as ma\ be required b a legal agree-
ment between an employer and the representative of
the employees.
Wi- VIt11 I) r discharge or take any other
form of' reprisal against emplo-\ees because they
engaged in concerted activit for the purpose of
collective bargaining.
1035
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. Wll.. NOT interrogate employees about
their union activities and desires or threaten em-
ployees with loss of benefits or more onerous
working conditions if the Union is recognized, or
grant unscheduled wage increases or change
wages or working conditions in order to discour-
age membership in or activities on behalf of the
labor organization.
WiL Wll.. NOT refuse to recognize and bargain
with General Drivers, Warehousemen and Help-
ers, Local Union No. 89, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of
the employees in the appropriate bargaining unit
described below with regard to wages, hours,
working conditions, and other terms and condi-
tions of employment, provided, however, that
nothing herein shall be construed as requiring us
to vary or abandon any economic benefit which
we have heretofore established. The unit is:
All full-time and regular part-time truckdriv-
ers and warehouse employees, including jani-
tors, employed by Axton Candy and Tobacco
Company at its establishment located at 4310
Curtis Avenue Louisville, Kentucky, but ex-
cluding all office and clerical employees, sales-
men, professional employees, guardsmen and
supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
National Labor Relations Act, as amended.
WE WILL offer Thomas Bloom immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent po-
sition, without prejudice to his seniority or other
rights and privileges, and make him whole for
any loss of earnings he may have suffered by rea-
son of the discrimination against him, plus inter-
est.
WE WILL recognize and, upon request, bargain
collectively with General Drivers, Warehouse-
men and Helpers, Local Union No. 89, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representa-
tive in the appropriate unit described above with
regard to the wages, hours, working conditions,
and other terms or conditions of employment of
our employees and, if an understanding is
reached, embody such understanding in a signed
agreement.
AXTON CANDY AND TOBACCO COMPANY
DECISION
STArEMENI OF THE CASE
GEORGE NORMAN, Administrative Law Judge: This case
was heard before me at Louisville, Kentucky, on February
24, March 22 and 23, and May 16, 1978. The charge in
Case 9-CA-11721 was filed by General Drivers, Ware-
housemen and Helpers, Local Union No. 89, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein called the
Union, on September 8, 1977. The charge in Case 9-CA-
11815 was filed by the Union on October 12, 1977, and the
charge in Case 9-CA-12310 was filed by the Union on
March 16, 1978. The complaint was issued on November
18. 1977.1 in Cases 9-CA-11721 and 9-CA-11815, and the
complaint in Case 9 CA-12310 was issued on April 14,
1978. 2 The complaints allege, in substance, that Axton Can-
dy and Tobacco Company (herein called the Company or
Respondent) violated Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, as amended (herein called the
Act). The Company's answer denies the commission of the
alleged unfair labor practices. All parties were afforded full
opportunity to participate, to present relevant evidence, to
argue orally, and to file briefs.' Upon the entire record in
the case and from my observation of the demeanor of the
witnesses, and having considered the briefs submitted by
the parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a Kentucky corporation whose principal
office and place of business is located in Louisville, Ken-
tucky, is engaged in the wholesale distribution and sale of
candy, tobacco, and sundries from its Louisville, Kentucky,
facility. During the past 12 months, a representative period,
Respondent purchased and received goods and materials
valued in excess of $50,000 which were shipped to its Lou-
isville, Kentucky, facility directly from points outside the
State of Kentucky. I find, and the Company admits, that it
is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
The principle issues in this case, reduced to their simplest
form, are whether (I) Respondent violated Section 8(a)(3)
' All events herein occurred in 1977. unless otherwise indicated.
2 On May 2. 1978, 1 issued an order granting motion to reopen record for
further hearing and to consolidate Cases 9-CA 11721 and 9-CA- 11815 with
Case 9-CA- 12310.
Upon reopening the record in Case 9-CA-12310, counsel for Respon-
dent was told that inasmuch as he had already submitted a brief in the
earlier cases and did not at the time have the benefit of a brief from counsel
for the General Counsel, he would be permitted to file a reply brief after the
close of the hearing. A reply brief was filed,
103(6
AXTON CANDY & TOBACCO CO.
and (1) of the Act by discharging Thomas Bloom: (2) cer-
tain statements by Respondent's foreman, Jerry McGrath,
violated Section 8(a)(1) of the Act: (3) Respondent violated
Section 8(a)( 1) of the Act by granting wage increases to the
employees to discourage their membership in the Union;
(4) the Union, at the crucial time, represented a majority of
Respondent's employees in the appropriate unit: and (5)
Respondent engaged in conduct violative of Section 8(a)(5)
of the Act requiring a remedial Order that Respondent rec-
ognize and bargain with the Union.
A. The Facts
The Company is engaged in the wholesale distribution of
candy, tobacco, and other products at its premises located
at 4310 Curtis Avenue, Louisville, Kentucky. Basically, the
business consists of assembling orders and delivering them
to customers. The Company maintains a warehouse at its
Louisville facility for the storage and loading of its delivery
trucks with its merchandise. The facility also has a sales
department.
Robert Tracy Axton, Jr., is the Company's president,
who is in charge of all of its day-to-day operations. He does
the Company's hiring, firing, and disciplining of employees
and granting of wage increases. No other supervisor has
such authority except to recommend to Mr. Axton, who
decides whether or not to accept the recommendations.
The Company's other supervisors are Sales Manager
Randy Collier, First-Shift Supervisor Larry D. Farrell, and
Second-Shift Supervisor Jerome "Jerry" McGrath. The em-
ployees on the first (or day) shift report to work at 7 a.m.
and work until their assignments are completed. They load
trucks, receive freight, and stock the warehouse shelves with
the incoming merchandise. Mr. Farrell mostly works from
6:30 a.m. until 4 p.m., although he is usually at work until 6
p.m. on Monday, which is the Company's busiest day. Mr.
Farrell assists the employees on his shift in the actual per-
formance of their work.
The second-shift (or night-shift) employees fill customers'
orders by pulling merchandise from shelves in accordance
with invoices and placing it in boxes on a conveyor line for
loading onto the Company's trucks. The second-shift em-
ployees usually report to work at I p.m. Similarly, the sec-
ond-shift employees work until they have completed filling
the orders for the next day, which may be any time from 8
p.m. to midnight, or even later. Mr. McGrath also works
alongside his employees filling orders, primarily those call-
ing for cigarettes.
In addition to the supervisors, the Company employs 6
salesmen, 8 office clerical employees, 6 delivery truckdrivers
and from 12 to 13 warehouse employees. The truckdrivers
and the warehouse employees constitute the unit of employ-
ees whom the Union was trying to organize.
1. The Union's organization drive
During the last week of August 1977, employees Thomas
Bloom and Ricky Williams began discussing the unioniza-
tion of Respondent's employees, asking several other em-
ployees if they would be willing to sign authorization cards,
and they received favorable responses. On Friday, Septem-
ber 2, Bloom and Williams went to the office of the Union
and told Representative Kenneth Howell that they were
interested in organizing Respondent. Howell gave each of
them a card, which they signed, and about 15 or 20 addi-
tional cards. Bloom and Williams then went directly from
the Union's office to Respondent's warehouse to begin their
regularly scheduled shift, which was the second shift. Dur-
ing the first part of the shift, they told several employees
that they had obtained authorization cards and that they
would get together with these employees over the weekend
so they could sign them. During one of these conversations.
Supervisor Larry Farrell, who was standing nearby, asked
Williams, "What union?" Williams replied, "The union we
are trying to get in here." Bloom told Farrell that the union
was Local 89 and said that he had been a member of that
union for years. Farrell then asked Williams why they
needed a union, and Williams replied that a union was
needed for better pay and benefits.' On Saturday, Septem-
ber 3, Bloom went to the homes of two employees, David
Bryant and Alan Collard. and obtained their signatures on
authorization cards.
The Union mailed a recognition demand letter to the
Company on September 19 and filed an election petition in
Case 9 RC-12215 which was received by the Board on
September 20. Subsequently, counsel for the Company and
the Union executed an election agreement and an agreed
eligibility list.' On November 4 a delegation of Company
employees presented Union Representative Howell with a
petition dated November 4, stating that the employees who
signed it "petitioned that the election for a union be can-
celled forever because we do not want it. "
2. Thomas W. Bloom's discharge'
Thomas W. Bloom and Supervisor Jerry McGrath have
been long-time friends whose wives attended high school
together. The Blooms and the McGraths visited each oth-
er's homes frequently, especially during the summer of
1977. Some time ago, McGrath was influential in obtaining
a job for Bloom at a bakery where McGrath also worked.
Bloom left that job after I week. In April Bloom had been
working in liquor stores for over a year. Mrs. Bloom was
instrumental in persuading Mrs. McGrath to speak to Mr.
McGrath about getting Bloom a job at the Company.
Supervisor Farrell denied having any such conversation on September 2.
He said he did not learn of the union organizing activities until September 7,
when he overheard Williams saying to employee Dale Fegett that he won-
dered if Axton had gotten the letter from the Union yet. and that Farrell
then went on Mr. Axton and found out that he had received Howell's letter
that very day. Both Williams and Bloom testified as to that conversation
with Farrell. Their testimony was consistent and credible: I credit them over
Mr. Farrell, who denied having such conversation.
5 The eligibility list did not contain the name Thomas Bloom even though
the charge in Case 9-CA-I 1721 had been previously filed protesting his
discharge. The election agreement called for an election on November 4. The
election was canceled on October 28 inasmuch as no request to proceed in
Case 9-CA-11815 was filed. Union Representative Howell had previously
filed a request to proceed in Case 9-CA-11721. The election in Case 9-RC-
12215 is now being held up pending the outcome of these unfair labor prac-
tice cases.
' The Company has not engaged in the practice of giving formal written
warnings to any of its errant employees, nor did Mr. Axton receive any
written reports from his supervisors about the employees' work performance.
In addition. the Company has no formal records of its reasons for discharg-
ing employees.
1037
I)l('CISIONS OF NATIONAI. LABOR RELATIONS BOARD
When a job opened in April, Mr. McGrath called Bloom at
the liquor store where he was working and suggested that
he contact Mr. Axton about the job.
The next day, Bloom talked to Mr. Axton and was hired
by Axton on the basis of McGrath's recommendation. Evi-
dently, at the time, McGrath believed Bloom to be capable
of performing the work in the Company warehouse. Bloom
was hired by the Company on or about April II and was
assigned to the second shift, under McGrath's direct super-
vision. McGrath gave Bloom the job of filling cigarette or-
ders, which is considered by some to be the easiest job in
the warehouse. McGrath testified that he spent most of his
time trying to train Bloom to perform his task properly for
a period of about 1-1/2 months, until McGrath transferred
to the first shift in June.
Mr. Bloom was considered slow by other employees. In
fact, employee Daniel S. Baldwin testified that the other
employees would joke and kid about Bloom's slowness and
even nicknamed him "Tom Turtle." However. Baldwin said
that Bloom's slowness never caused problems. even on the
Company's busiest day. Monday. Baldwin said that Bloom
did not have the speed that he should have had in the time
that he worked for the Company. He also said he should
have picked up more speed. Employee Williams also said
that Bloom was "a little slow" and that McGrath told
Bloom that Bloom "had to pick up a little speed." McGrath
also made similar comments to Baldwin. Bloom testified
that McGrath told him so often he had to pick up his speed
that he "got kind of tired of hearing it." After McGrath had
worked at trying to train Bloom for about a month and a
half, he finally came to the conclusion that he had made a
mistake getting Bloom a job with the Company, and he so
informed Mr. Axton. At about that time. McGrath trans-
ferred to working on the first shift due to an influx of sea-
sonal merchandise which he had to handle. However, he
still had the responsibility for the work of the second shift,
and his working hours overlapped with those of the second
shift. McGrath remained on that schedule through the
months of June, July, and August. During the time that
McGrath was on the second shift, David Bryant and
Danny Baldwin were in charge of the work. Both Bryant
and Baldwin complained to McGrath throughout the sum-
mer about Bloom's slowness: McGrath in turn reported
these complaints to Mr. Axton. Baldwin also talked to
Bloom about his slowness and urged him to pick up his
speed.
Bloom was given a $10-per-week wage increase effective
the week of May 20, more than a month after he was hired.
I According to the testimony of several witnesses, a person should be able
to learn to perform a job in the company warehouse in 2 or 3 weeks.
This training included instructions to Bloom as to the proper and most
accurate and efficient way in which to fill orders. The employee is to hold the
clipboard with the invoices on it in his left hand with his thumb on the item
being pulled. Then the employee is supposed to pull the item with his right
hand and put it in a box on a roller-type conveyor line in the approved
manner. When his cigarette order is completed, it goes down the line to a
checker if the order covers only cigarettes. However, if the order calls for
other merchandise in addition to cigarettes, then the box goes down the line
to other employees to complete filling the order. The importance of continu-
ing to hold the clipboard with the thumb on the item in the left-hand margin
while filling the order is that this is the surest way for an employee to keep
his place and thus not make any mistakes by having his eyes skip over
similar-appearing items. The clipboard must he put down, however, when
the invoice calls Ibr an order of a half case or a whole case of particular item
Respondent claims that this was an automatic increase
which is given to all employees 4 to 6 weeks after they were
hired regardless of their per/brmance.0 Supervisor McGrath
was on vacation during the week of July 18. Bloom was
absent from work on July 18 because of a domestic dispute
with his wife. Bloom's absence was reported on that date to
Mr. Axton along with the report that Bloom intended to
quit his job and leave town. Bloom stated in his testimony
that he contemplated leaving town that day. His wife testi-
tied that she believed he had left home forever and would
not return. Because of these reports Axton believed that
Bloom had quit his job.
Mrs. Bloom called McGrath twice on July 18 to discuss
the situation with him to see if he knew where Bloom was.
McGrath suggested to Mrs. Bloom that she call Mr. Axton.
McGrath testified that he told Mrs. Bloom by phone that
Bloom's walking away and leaving the place when a man is
on vacation "throws everybody behind and everybody has
to do a little extra work." McGrath stated further, "I had
warned Pat that this would kind of hurt his job out there at
work because we weren't satisfied with his speed and accu-
racy out there."
Mrs. Bloom called Axton the next morning and set up a
meeting for her and her husband to meet with him in his
office at about noon that day. She told Axton that they
wanted to talk to him about Bloom keeping his job. Mrs.
Bloom, who did most of the talking, told Axton that she
and Bloom had had some kind of a domestic problem and
that he threatened to leave but that they had since worked
out their problem, and she wanted to know if there was any
way they could come to his office and discuss Bloom keep-
ing his job.
About an hour later they came to Axton's office. She said
Tom had been under a great deal of pressure and had lost
his head temporarily and that they now had things back
together. and he wanted to come back to work, but at the
same time he wanted to have the rest of the week off. He
oflered to take the rest of the week off without pay, if Axton
would allow him to keep his job, so that they could con-
tinue to get the rest of their personal problems straightened
out. Axton told Mrs. Bloom that she would have to discuss
it with Bloom's supervisor "before he would take him
back." Axton testified that he discussed it with Supervisor
Farrell, and that afternoon Axton told Mrs. Bloom by
phone that he would take Bloom back under the condition
that his work would improve.'0 The Company contends that
inasmuch as the Company was in the middle of its vacation
"Regardless of their performance" are rather strong words which, taken
literally, could mean that an increase would have been given even though the
performance amounted to malfeasance, misfeasance or nonfeasance.
' It is noted that the request for a week off was granted to Bloom by
Axton while McGrath was on vacation. McGrath testified that when one
enmployee is on vacation, another employee should not be absent, because
that causes a slowdown and requires the other employees to work that much
harder. Axton's agreement to permit Bloom to take a week off, albeit without
pay. at a time when McGrath was on vacation is inconsistent with
McGrath's testimony concerning vacation time absences. In addition, it did
not appear that Axton was that dissatisfied with Bloom's slowness if when he
had the opportunity to discharge him he instead agreed to retain him on
condition that he would improve. Axton had in Bloom an employee who, his
longtime friend Supervisor McGrath and others testified, should have
learned the job in 2 or 3 weeks but who after 6 weeks was still considered too
slow. McGrath wras disgusted to the point of telling Axton that he didn't
want Bloom on his shift.
1038
AXTON CANDY & TOBACCO CO.
season, it could not afford the additional time to train a new
employee to replace Bloom immediately. It decided to take
him back on a "probationary" basis on the condition that
his work would have to improve."
Bloom returned to work on July 25 and apparently
showed no improvement, as contended by Respondent.
McGrath informed Mr. Axton sometime in late Julv that he
did not want Bloom on his shift when he returned to the
second shift after Labor Day. Axton assured McGrath in
the second or third week of August that Bloom would be
replaced so that he would not be on McGrath's shift after
Labor Day. McGrath was scheduled to return to the second
shift on September 6, the Tuesday after Labor Day.'"
Axton testified that he made the final decision to dis-
charge Bloom on Thursday, September 1. The following
day, Friday, September 2, was the end of the workweek and
the pay period. Bloom engaged in union activities on Fri-
day and Saturday. September 2 and 3. Bloom reported to
work at his regular time on Tuesday, September 6. Shortly
thereafter he was summoned to Mr. Axton's office by
McGrath. Mr. Axton then told him that he was sorry but
that he had hired two replacements for him.'" Bloom
thanked Mr. Axton and walked out. Mr. Axton testified
that he reminded Bloom that he had been reinstated on a
probationary basis and that, nevertheless, his speed had not
picked up even though he had been given a more than fair
opportunity to improve. Mr. Bloom testified that Mr. Ax-
ton told him that he was not performing his work in a
satisfactory manner, his supervisors had been complaining
because he was too slow, and the Company had to termi-
nate him, since he (Axton) did not think he would work
out.'4
3. The wage increases in September
The Company's position is that it has a policy of granting
general, across-the-board wage increases every year in ei-
1 Here the company president, in the middle of its vacation season, per-
mitted Mr. Bloom to take I week off on a job that takes 2 or 3 weeks of
training and decided to take back a "slow" and "unsatisfactory" employee
who didn't improve his speed in over 6 weeks rather than take a chance on a
new employee during that period, who would learn the job in 2 or 3 weeks.
12 Before the July 19 interview, Mr. Axiton helped Bloom get a mortgage
loan. He filled out a questionnaire from the Greater Louisville Savings &
Loan Company concerning Mr. Bloom's employment status in connection
with his application for a loan for the purchase of a house. When questioned
about this, Mr. Axton responded, "The only thing that I can recall and this
is my policy and always has been, if an employee wants to purchase a home
from a mortgage company we will not stand in his way or give him an
unfavorable report, if he is regularly emplosed with our Company " In view
of that statement and the controverting testimony of both Mr. and Mrs
Bloom concerning the July 19 interview and in view of Supervisor Farrell's
testimony that he did not recall ever discussing Bloom with Axton following
that July 19 interview, I credit Mr. and Mrs. Bloom and not Mr. Axton. I do
not believe that Mr. Axton placed Mr. Bloom's return to his employment as
either conditional or temporary.
l) The Company contends that these two re lacements were hired over the
Labor Day weekend. I is interesting to note that one replacement is Paul
Shuck, a brother of employee Jerry Shuck. Upon returning from the union
hall with Williams, Bloom and Williams had a conversation on September 2
about the Union with employees Jerry Shuck and Dale Fegett. Shuck's
brother was hired that weekend to report the following Monday, September
6.
14 In the past, the Company discharged 10 other employees for various
reasons, during the period from June 1975 through February 1978. Of the 10.
2 were terminated for working too slow, one in 1976 and the other in 1977.
after he had been employed for the Company for more than 6 months
ther January, February, or March. Those increases are re-
ferred to as annual increases. In addition to those annual
increases. Mr. Axton grants "merit increases" during the
year to those employees who he believes deserve an increase
for various reasons. There is no set pattern for these in-
creases, and Axton gives an employee several or none of
these increases in a year. Effective September 6, Axton gave
a $15-per-week increase to David Bryant, Timothy Hart.
and Ricky Williams. On September 20 he gave a $17-per-
week increase to William Stivers and a $12-per-week raise
to Alan Collard, effective September 30.'5 Williams testified
that after he had received his automatic increase in May
1977. he asked Mr. Axton for yet another raise. He said Mr.
Axton told him that he would talk it over with McGrath
and get back with him Williams further testified that he
later followed up on his request by asking McGrath twice if
he had talked to Axton about the raise. and McGrath re-
plied he had not. The September 6 raises to Hart. Bryant,
and Williams were made effective on that date. and each
individual was also informed on that date that he would get
an increase. Williams said that Axton never mentioned the
Union in connection with his increase.
Prior to September 6 the Company gave all of its employ-
ees a guaranteed weekly salary which was paid to them
regardless of whether or not they worked 40 hours or more
or less than that in any particular week. They' were paid
halftime, at a rate obtained by dividing their salary by 80,
for all hours over 40. On September 6 a change was made
from a salary to an hourly wage basis. effective that date.
After the change they were paid time and a half for all work
over 40 hours a week.', The Company claims that it did not
learn of the union organizing activity until the receipt of
}lowell's letter on September 7, after the new wage system
was installed.
B. The .4 lleged 8(a)(l) Violations
The consolidated complaint alleged only three indepen-
dent violations of Section 8(a)(1) of the Act.'7
After learning of Bloom's discharge, Ricky Williams
asked Foreman Jerry McGrath why Bloom had been fired.
McGrath replied that Bloom was not doing his job. Wil-
liams then told McGrath that he felt that Bloom was fired
because of his union activities. McGrath denied that this
was the reason. Later that day Williams told McGrath
again that he felt Bloom had been fired for union activities,
and McGrath neither affirmed nor denied it.
On September 7 McGrath approached Baldwin and
asked him if he knew who started the Union, and Baldwin
replied that he had just heard some talk around the shop,
but he didn't know who started it. McGrath then asked
Baldwin if Tom Bloom got it started. and Baldwin replied
that he couldn't say. Later that day, while on a break,
McGrath told some employees, including Baldwin. that if
01 Bryant. Hart. and Williams individually requested increases several
weeks prior to September 6.
16 This resulted in some employees making more money per week. depend-
ing on the amount of work that was available for that categor of emplo ees
in any particular week
i The General Counsel was permitted to introduce testimoiny oer the
Company's objections as to other alleged incidents or conversations.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union got in, the employees had "a lot to lose"; that
they would lose their Christmas bonus and retirement bene-
fits, and "the first thing you know we would have a walkout
and a company couldn't run like that." On several other
occasions during breaktime, McGrath repeated those re-
marks to Baldwin and his fellow employees. Those conver-
sations, according to Baldwin, occurred through September
and October and possibly November.
Shortly after Bloom was fired on September 6, Ricky
Williams asked Supervisor McGrath why he had been fired,
and McGrath said that it was because Bloom was not doing
his job. Williams said that he felt like "he got fired for
union activities." McGrath said, "No, he didn't." Subse-
quent to that time Williams again said to McGrath that he
thought "Tom had been fired for union activities," and
McGrath neither denied nor affirmed it. On the following
day Williams had another conversation with McGrath re-
garding the reasons for Bloom's discharge. McGrath ap-
proached Williams and told him he couldn't understand
why Williams and Tom Bloom wanted to get a union in, an
he said that "he felt like Tom was a backstabber because he
had got Tom a job and Tom turned around and stabbed
him in the back by trying to get the Union in." Williams
also testified that in and around mid-September, McGrath
said that if the Union got in, he, McGrath, "would have to
be a bastard," that the employees "couldn't stand around
smoking cigarettes and drinking Coke or use the tele-
phone." He said McGrath made those remarks on several
other occasions.
C. The Union's Demandfor Recognition and the
Employees' Petition
On about September 19 the Union sent Respondent a
letter requesting recognition as a bargaining agent for its
employees in the following unit:
All full-time and regular part-time truckdrivers and
warehouse employees employed by [Respondent] at its
4310 Curtis Avenue, Louisville, Kentucky facility, in-
cluding janitors; but excluding all office clerical em-
ployees, salesman, professional employees, guards and
supervisors as defined in the Act.
On September 20 the Union filed a representation petition
with the Board. And pursuant to an agreement between
Respondent and the Union, an election was scheduled for
November 4. On October 28 the election was cancelled due
to the filing of an unfair labor practice charge by the Union
against Respondent in Case 9-CA-11815, one of the
charges in the instant proceeding.
On November 4, the date upon which the election had
been scheduled, two of Respondent's employees appeared
at the Union's office and presented Union Representative
Howell with a document dated November 4 wNhich con-
tained the following statement:
We the undersigned of Axton Candy and Tobacco
Company petition that the election for a union be can-
celled forever because we do not want it.
Below that statement were 14 signatures, 10 of which had
appeared on authorization cards which had been returned
to the Union. One of the employees who presented the list
to Howell said, "We have already received what we would
receive from the Union."
IV. DISCUSSIONS AND CONCLUSIONS
A. The Discharge of Thomas Bloom
The question presented is: Was Bloom discharged be-
cause he was too slow, or was his discharge prompted by his
union activities?
The evidence shows that Bloom and Williams obtained
authorization cards on September 2 and then went to work
and discussed the signing of cards with several fellow em-
ployees. The evidence also shows that Foreman Larry Far-
rell overheard the conversation between Bloom and Wil-
liams and fellow employees and interjected, "What union?"
He also asked them why they wanted a union, and Bloom
replied that the Union was Local 89 and that he had been a
member for years, and Williams told Farrell that they were
discussing the union that they were trying to get into the
plant. Farrell denied having this conversation with Bloom
and Williams, but I credit Bloom and Williams over Far-
rell, inasmuch as Farrell's testimony contained inconsisten-
cies and lapses of memory. Thus, through Foreman Farrell,
a supervisor and part of management, Respondent had
knowledge of Bloom's union activities on September 2. On
the following day Bloom discussed the Union with two
other employees, one of whom was the brother of one of the
two replacements for Bloom who were hired that very
weekend.
The evidence is clear that Bloom was slow, but the evi-
dence is insufficient to show that his slowness was the cause
of his discharge. As previously discussed, during the July 19
meeting between Mr. and Mrs. Bloom and Mr. Axton, Mr.
Axton agreed to continue Bloom's employment, he also
agreed to let Bloom take I weeks leave without pay during
company vacation time, a time during which Respondent
contends the presence on duty of as many employees as
possible is very important. Respondent also helped Bloom
get a mortgage loan to buy a house, stating that it was
policy to do so for regular employees. The latter action does
not manifest doubt with respect to Bloom's continued regu-
lar employment with Respondent or dissatisfaction with his
slow performance.
The timing of Bloom's discharge without any prior notice
to him, inasmuch as I credit Mr. and Mrs. Bloom and not
Axton with respect to the July 19 claimed "conditional"
retention of Bloom, simultaneously with Respondent's
abrupt change in the method of payment of its employees
were divided from salary to wages (wherein employees'
weekly salaries by 40 to arrive at the hourly wage rates and
they were to be paid time and a half for work in excess of
40 hours, whereas prior to that change employees had re-
ceived only half of their regular rate of pay for work in
excess of 40 hours), in addition to the sudden granting of
"merit" $15-per-week increases to Williams, Hart, and Bry-
ant, effective on the same day, all following a weekend
(starting September 2) of union activity by Bloom, I find to
be more than mere coincidence.
1040
AXTON CANDY & TOBACCO CO.
I find that Respondent had knowledge of Bloom's union
activities prior to his discharge and that such activities were
the cause of his discharge. the increase in wages, and the
change in the wage system. Respondent's animus against
the Union and the conduct of union activities on the part of
its employees was demonstrated by Foreman McGrath's
statement to employee Baldwin that Bloom had "stabbed
him in the back" by trying to get the Union in. In addition,
the interrogation and threats by Foreman McGrath and the
interrogation by Foreman Farrell are further evidence of
Respondent's animus.
B. Is a Bargaining Order Appropriate?
The General Counsel contends that the only appropriate
remedy in this case would be a bargaining order. I agree.
The appropriate unit as set forth in the Stipulation for
Certification Upon Consent Election executed by the
Union and Respondent on September 27, 1977, in Case 9-
RC-12215 is as follows:
All full-time and regular part-time truckdrivers and
warehouse employees, including janitors, employed by
Axton Candy and Tobacco Company at its establish-
ment located at 4310 Curtis Avenue, Louisville, Ken-
tucky but excluding all office clerical employees, sales-
men, professional employees, guards and supervisors
as defined by the National Labor Relations Act, as
amended.
Also on September 27, the Union and the Respondent
executed a written agreement setting forth a list of 16 eligi-
ble voters in the stipulated unit.'
The Union demanded recognition by letter dated Sep-
tember 19, which was received by Respondent on Septem-
ber 21, and Respondent refused to recognize the Union by
letter dated September 21. At the time the Union made its
demand for recognition, 12 employees out of the unit of 17
Am During the instant proceedings Respondent and the General Counsel
stipulated that the 16 listed employees constituted the appropriate bargain-
ing unit at all times relevant to the proceedings in the instant case. Since
Thomas Bloom, whom I have found to have been unlawfully discharged in
violation of Sec. 8(aX3) of the Act, was excluded from the agree-upon list of
16 employees constituting the appropriate unit, he will be included in the
bargaining unit, thus making the count 17, and his card will be counted.
Employees, such as Bloom, who are subject to pending unfair labor practice
proceedings alleging their unlawful discharge are permitted to vote in an
election subject to challenge, with the eventual determination of their eligi-
bility being made, if necessary, on the basis of findings regarding the legality
of the discharges. Advance Industrial Security. Inc., 217 NLRB 17 (1975);
Grand Lodge International Association of Machinists and Aerospace Workers.
AFL CIO, 159 NLRB 137 (1966). The fact that Bloom's name does not
appear on the eligibility list agreed to by the Union and Respondent does not
exclude him from the bargaining unit, since his exclusion would clearly be
contrary to established Board policy of including unlawfully discharged em-
ployees in the bargaining unit. Norris Thermidor Corporation, 119 NLRB
1301 (1958). Furthermore. I agree with the General Counsel that Bloom's
testimony that he "thinks" Union Respresentative Howell said something
about using the cards to petition the NLRB for an election does not invali-
date the card, particularly in light of the clear language of the card, which is
entitled "Application for Membership" and states only that the person sign-
ing it is applying for membership in the Union and designating it as his
collective-bargaining representative. American Cable Systems, Inc., 161
NLRB 332 1966); H & H. Plastics Mfg Co. 158 NLRB 1395. 1397 (1966).
employees had designated it as their bargaining representa-
tive by signing authorization cards.'?
The evidence shows clearly that the Union represented a
majority of Respondent's employees at all critical times. To
determine whether or not a bargaining order should issue,
as part of the remedy, the seriousness of the Employer's
misconduct and its impact on holding of a fair election
must be evaluated, and, in effect, by issuing a bargaining
order the Employer's violations that have dissipated the
Union majority and prevented the holding of a fair election
are remedied. Steel-Fab, Inc., 212 NLRB 363 (1974).
In this case the Respondent's numerous and egregious
violations of Section 8(aXl) by interrogations, threats,
grants of benefits, and changes in wages and working condi-
tions and its violation of Section 8(aX1) and (3) by discrim-
inatorily discharging employee Bloom, occurring before the
scheduled election, clearly dissipated the Union's majority,
and such conduct has created an atmosphere in which a
free and fair election could not take place. Therefore, in the
circumstances, it is apparent that the traditional remedies
cannot eradicate the impact of Respondent's unlawful con-
duct, and the only available effective remedy is a bargain-
ing order. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(19691.
V. THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take appropriate affirmative action
designed to effectuate the policies of the Act.
As I have found that Respondent discharged Thomas
Bloom because he engaged in union activities, in violation
of Section 8(aX3), I shall recommend that Respondent be
ordered to offer him immediate and full reinstatement to his
former or a substantially equivalent job, without prejudice
to seniority or other rights and privileges, and to make him
whole for any loss of earnings suffered as a result of the
discrimination by payment of a sum equal to that which he
would have earned, absent the discrimination, with back-
pay and interest computed in accordance with the Board's
established standards contained in F. W. Woolworth Com-
pan)', 90 NLRB 289 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977)2
I will further recommend that Respondent be ordered to
recognize and bargain with the Union as the exclusive col-
lective-bargaining representative of the employees in the
above-described bargaining unit.
CONCLUSIONS OF LAW
1. Axton Candy and Tobacco Company is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
" The authenticity of three employees' signed cards, those of Gephart,
Hart. and Baldwin. were challenged by Respondent. Inasmuch as the deter-
mination of the authenticity of those cards would not effect the attainment of
the majority of the unit of 17 employees, it is not necessary to make a
determination with respect to the authenticity of those cards.
0 See. generally. Isis Plumbing & Heating Co. 138 NLRB 716(1962).
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. General Drivers, Warehousemen and Helpers, Local
Union No. 89, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By discharging employee Thomas Bloom because he
engaged in union activities, Respondent has violated Sec-
tion 8(a)(3) and (1) of the Act.
4. By interrogating employees about their union activi-
ties and desires and by threatening employees with loss of
benefits and more onerous working conditions if the Union
got in and by granting unscheduled wage increases and by
introducing an hourly compensation system with time and
a half for hours worked in excess of 40 hours per week in
place of its salary system, Respondent has violated Section
8(a)(1) of the Act.
5. All full-time and regular part-time truckdrivers and
warehouse employees, including janitors, employed by Ax-
ton Candy and Tobacco Company at its establishment lo-
cated at 4310 Curtis Avenue, Louisville, Kentucky, but ex-
cluding all office clerical employees, salesmen, professional
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
6. Since September 21, 1977, the Union has been and is
the exclusive collective-bargaining representative of Re-
spondent's employees in the unit herein found appropriate
within the meaning of Section 9(8) of the Act.
7. By refusing to bargain with the Union as the collec-
tive-bargaining representative of its employees in an appro-
priate unit on or after September 21, 1977, Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of
law and upon the entire record and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER"2
Respondent, Axton Candy and Tobacco Company, Lou-
isville, Kentucky, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against em-
ployees because they have engaged in union activities.
(b) Interrogating employees about their union activities
and desires or threatening employees with loss of benefits or
more onerous working conditions if the Union is recog-
nized, granting unscheduled wage increases, or changing
wages or working conditions in order to discourage mem-
bership in or activities on behalf of a labor organization.
(c) Refusing to recognize and bargain with General
21 In the event no exceptions are filed as provided in Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and Order herein shall, as provided in Sec. 102.48 of the Rules
and Regulations, be adopted by the Board and become its findings, conclu-
sions, and Order, and all objections thereto shall be deemed waived for all
purposes.
Drivers, Warehousemen and Helpers, Local Union No. 89,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the
exclusive collective-bargaining representative of the em-
ployees in the appropriate bargaining unit described below,
with regard to wages, hours, working conditions, and other
terms and conditions of employment. The unit is:
All full-time and regular part-time truckdrivers and
warehouse employees, including janitors, employed by
Axton Candy and Tobacco Company at its establish-
ment located at 4310 Curtis Avenue, Louisville, Ken-
tucky, but excluding all office clerical employees, sales-
men professional employees, guards and supervisors as
defined in the Act.
(d) In any other manner interfering with, restraining, co-
ercing, or discriminating against its employees in the exer-
cise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer Thomas Bloom, whom the Employer has been
found to have discriminated against, full and immediate
reinstatement to his former job, or, if that job no longer
exists, to a substantially equivalent position of employment,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for any loss of pay suffered as a
result of the discrimination against him in the manner set
forth here and above in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary or useful to a determination of the amount of backpay
due under the terms of this Order.
(c) Post at its Louisville, Kentucky, facility copies of the
attached notice marked "Appendix."2' Copies of such no-
tice, to be furnished by the Regional Director for Region 9
of the Board, shall be duly signed and posted 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 Employer to insure that
such notices are not altered, defaced, or covered by any
other material.
(d) Recognize and, upon request, bargain collectively
with General Drivers, Warehousemen and Helpers, Local
Union No. 89, affilated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative in the
appropriate unit described above with regard to the wages,
hours, working conditions, and other terms or conditions of
employment of the unit employees and, if an understanding
is reached, embody such understanding in a signed agree-
ment.
(e) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps have
been taken to comply herewith.
12 In the event that this Order is enforced by a judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
L.abor Relations Board.
1042