East Side Sanitation Service, Inc.

EAST SIDE SANITATION SERVICE, INC. East Side Sanitation Service, Inc. and International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 20. Case 8-CA-9780 March 2, 1978

SUPPLEMENTAL DECISION AND

ORDER BY CHAIRMAN FANNING AND MEMBERS

JENKINS AND MURPHY On June 30, 1977, the Board issued its Decision and Order Remanding the Proceeding to the Admin- istrative Law Judge in the above-entitled proceeding, finding that the Respondent met the Board's discre- tionary standard for a nonretail enterprise and requesting a full decision on the merits.' On October 6, 1977, Administrative Law Judge Elbert D. Gads- den issued the attached Supplemental Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, 2 and conclusions of the Administra- tive Law Judge, except as modified herein, 3 and to adopt his recommended Order,4 as modified herein.

AMENDED CONCLUSIONS OF LAW

1. Delete Conclusion of Law 4 and renumber the succeeding paragraphs accordingly.

2. Delete Conclusion of Law 8 and substitute the following: "By recalling employees Russell Browning and George Miller to work and advising them not to discuss the Union, labor relations, or anything that happened during the past several months (union

230 NLRB 632 (1977).

2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibili- ty unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. Inc., 91

NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings.

3 We do not adopt the Administrative Law Judge's finding of an 8(aX I) violation based on the impression of surveillance. In our judgment the statements attributed to Office Manager Barton, whether as testified to by employee Browning or employee Dutcher. are ambiguous in nature. According to Browning. he asked Barton, after the September 26 employee meeting, if the company president knew about "it," while Dutcher's testimony implies that Barton introduced the issue of company knowledge by chiding them about not being very nice to "Elmer" and saying that he, Elmer, already knew about "it" and was waiting to hear it from them. In all the circumstances we assume that "it" referred to the Union and the

234 NLRB No. 168 activity), Respondent violated Section 8(a)(1) of the Act."

ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, East Side Sanitation Service, Inc., Genoa, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as so modified:

1. Delete paragraph i(b) and renumber the fol- lowing paragraphs accordingly.

2. Substitute the following for paragraphs 2(a) and 2(b): "(a) Offer Melvin Cogan, Terry Edwards, and Paul Stevens reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their se- niority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the discrimination against them, with interest, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). "(b) Make Russell Browning and George Miller whole for any loss of earnings suffered by reason of the discrimination against them with interest, in the manner prescribed herein."

3. Insert the following as paragraph 2(c) and reletter the subsequent paragraphs accordingly: "(c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order."

4. Substitute the attached notice for that of the Administrative Law Judge. organizing efforts, but find it unreasonable to infer that the impression of surveillance of employee union activity resulted from the Browning-Dutch. er-Barton conversation. See Byrne Dairy, Inc., 176 NLRB 312, fn. 2 (1969) Additionally, we note that the Adminustrative Law Judge inadvertently omitted Russell Browning from Conclusions of Law 8, and also failed to include discriminatee Terry Edwards in par. 2(a) of his Order. We hereby amend the Conclusions of Law and the Order accordingly. Although no exceptions were filed with respect to such omissions, we find that the issues involved were fully litigated. Finally, we shall delete the names of Paul Stevens and Melvin Cogan from par. 2(b) of the Order as the record does not show that they have been recalled.

4 The Administrative Law Judge, citing Florida Steel Corporation, 231

NLRB 651 (1977). inadvertently specified interest to be paid at 7 percent; however, there the Board stated that interest will be calculated according to the "adjusted prime rate" used by the U.S. Internal Revenue Service for interest on tax payments. See, generally, Isis Plumbing & Hearing Co., 138

NLRB 716(1962). 1099

DECISIONS OF NATIONAL LABOR RELATIONS BOARD

IT IS FURTHER ORDERED that those portions of the complaint as to which no violations have been found are hereby dismissed.

APPENDIX NOTICE To EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government

I WE WILL NOT discourage membership in Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 20, or any other labor organization:

(a) By coercively interrogating employees about their union interest or activities.

(b) By threatening employees with loss of their jobs if they do not stop organizing a union.

(c) By threatening employees with shut- down of business operations if they organize a union.

(d) By discriminatorily laying off employ- ees.

(e) By recalling employees to work and advising them not to discuss the Union, labor relations, the National Labor Rela- tions Board, or any other related organizing activity of the recent past.

(f) By advising other employees not to discuss the Union or the employees' orga- nizing activities of the past.

WE WII.L NOT in any other manner interfere with, restrain, or coerce employees in the exercise and enjoyment of rights guaranteed them by Section 7 of the National Labor Relations Act, except to the extent that such rights may be affected by lawful agreements in accord with Section 8(a)(3) of the Act.

WE WILL offer Melvin Cogan, Terry Edwards, and Paul Stevens, immediate and full reinstate- ment to their former positions or, if such positions no longer exist, to substantially equivalent ones, without prejudice to the seniority and other rights and privileges enjoyed by them, and make them whole for any loss of pay they may have suffered by reason of their layoff, with interest.

WE WILL make Russell Browning and George Miller, whole for any loss of earnings suffered by reason of the discrimination against them, with interest.

WE WILL recognize and, upon request, bargain collectively with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Local 20, as the exclusive repre- sentative of the employees found herein to consti- tute an appropriate unit, and, if an understanding is reached, embody such agreement in a written, signed contract. The bargaining unit is: All drivers, helpers and mechanics, exclud- ing office clerical employees, and profession- al employees, guards and supervisors as defined in the Act. All our employees are free to become, remain, or refuse to become or remain members of Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Local 20, or any other labor organization.

EAST SIDE SANITATION SERVICE, INC.

SUPPLEMENTAL DECISION

ELBERT D. GASDEN, Administrative Law Judge: Upon an unfair labor practice charge filed on January 29, 1976, a complaint was issued by the Regional Director for Region 8 on March 3, 1976, alleging that the Respondent inter- fered with, coerced, and restrained its employees, by giving them the impression that they were under surveillance for their union interest and/or activities, by so interrogating an employee as to create the impression of surveillance of his union interest or knowledge of union activity, and by threatening an employee with closedown of its operations if the employees designated the Union as their collective- bargaining representative, all in violation of Section 8(a)(l) of the Act; that the Respondent laid off and/or terminated several of its employees, and thereafter refused to reinstate them because it believed they had assisted the Union and/or engaged in protected concerted activities, in viola- tion of Section 8(a)(3) of the Act; and that the Respondent unilaterally changed the prior wage policy of its employees and unilaterally offered its truck operators a bonus if they would voluntarily perform their duties without assistance, in violation of Section 8(a)(5) of the Act. In its answer, the Respondent not only denied the allegations set forth above, but also denied the Board's jurisdiction to litigate the allegations. This case was held before me in Toledo, Ohio, on July 29 and 30, 1976. Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully considered. Upon the entire record in this case and from my observation of the witnesses, I hereby make the following:

FINDINGS OF FACT

1. JURISDICTION The Respondent is now, and has been at all times material herein, an Ohio corporation, with its office and only place of business located in Genoa, Ohio, where it is engaged in the collection and disposal of solid refuse. 1100

EAST SIDE SANITATION SERVICE, INC. In its original Decision herein (230 NLRB 632) of June 30, 1977, the Board held that since the Respondent's total direct and indirect inflow of goods and materials exceeded $50,000 for a nonretail enterprise, the Board's discretionary jurisdictional standard had been satisfied and that it therefore asserts jurisdiction in the instant proceeding. Accordingly, I find herein that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 20, herein called the Union. is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Facts At its Genoa, Ohio, location, the Respondent is engaged in the business of collecting and disposing of solid refuse. Its business operation consists of dispatching trucks with one or two men who empty containers of trash into the trucks where it is compacted and thereafter transported to the sanitary landfill and dumped. The Respondent serves residential and commercial customers for several counties of Toledo, namely, Lucas, Wood, Ottawa, and Sandusky, which involves an average of 50 miles. The Respondent has been in business since 1946 and now has 10,000 customers, 250 of whom are commercial. It operates six packer trucks, a rolloff, and a pickup truck. The entire operation is conducted with approximately 15 employees. During the month of September 1975,' the Respondent's employees proceeded to organize a union. Shortly thereaf- ter, the Respondent laid off five of its employees. The Union contends the employees were laid off because they engaged in union activity and the Respondent contends the employees were laid off for economic reasons. The Union also contends that the Respondent engaged in other interfering, restraining, and coercive conduct in violation of the Act. The Respondent denies that it engaged in any conduct violative of the Act. B. The Union Activities of the Respondent's Employees and the Respondent's Actions Thereafter

A composite of the essentially undisputed and credited evidence of record established that the Respondent had a total of about 15 employees (essentially truckdrivers and helpers); that employee Russell Browning, accompanied by fellow employee George Miller, was the principal distribu- tor of union authorization cards and the principal solicitor for union support. Browning was also the principal collec- tor of cards signed by the following employees on the following dates: Hereinafter, all dates refer to the year 1975 unless specifically indicated otherwise.

2 I do not credit President Asman's explanation as to why he asked the employees, so emphatically, if they had anything to say, not only because I Russell Browning - 9-19-75; Melvin Cogan - 9-19- 75; Russell Shiffler - 9-20-75; Terry Edwards - 9-22- 75; William Snyder - 9-21-75; Charles Snyder - 9-20- 75; Daniel Root - 9-21-75; Gary Baker - 9-22-75; George Miller - 9-20-75; John Dutcher - 9-19-75; Raymond Larcom - 9-20-75; Robert Pease - 9-25-75; and Paul Stevens - 10-11-75. Russell Browning also submitted most, if not all, of the 13 above-identified signed union cards to the Union. Richard Eddington, director of organizing for the Union, credibly testified that he received the signed cards on September 26. It was further established by essentially undisputed and corroborated testimony of witnesses for the Union and the Respondent alike that the Respondent (Elmer F. Asman) called a meeting of employees on Friday, September 26. During this meeting, President Asman told the employees that the Company was receiving a lot of costly breakdowns on its trucks and he would not be able to afford employee raises until such costly breakdowns subsided; and that there was a hacksaw and a set of easy-outs wrenches missing, and whoever had them could return them. He said starting Monday, September 29, he would assign a driver to each truck and that if a breakdown of a truck was occasioned by the driver, he (the driver) would be out of a job. President Asman then asked the employees, collective- ly and individually, if they had anything to say-get off their chest-and there was no response. The Respondent's president, Elmer F. Asman, testified that, when he asked the employees if they had anything to say at the end of the September 26 meeting, he was simply trying to ascertain what the problem was, because he knew there was something going on, he was upset about missing tools, and he sensed tension among the employees for which he wanted an explanation. He denied he knew that the employees were engaged in union activity. 2 Russell Browning testified that, after the employees' meeting on September 26, the Respondent's bookkeeper, Mary Barton, in the presence of a fellow employee, John Dutcher, said, "what we are doing to Elmer wasn't very nice, or wasn't right," and she said she worked in a place that had "that and it wasn't a very nice place to work." Browning said they then asked Mary Barton if Elmer Asman knew about "it," and she said, "Yes." They asked her when did he find out and she said that morning (September 26). John Dutcher testified that immediately after the em- ployees' meeting on Friday, September 26, Mary Barton said to himself and Russell Browning that Asman was sitting in there waiting for them to tell about what was going on and no one said anything, but he already knew about "it," he just wanted to hear it from them. She then said that they tried to get a union where she used to work, and that it did not help, it just made it worse. Mary Barton acknowledged that she was part of a September 26 conversation with Browning and Dutcher, but she testified that the conversation was as follows: was not persuaded by his demeanor that he was testifying truthfully, but also because more than a preponderance of the other credited evidence discussed, infra, clearly indicates otherwise. 1101

DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, the only thing, that was a long time ago. I'm thinking I remember it was that Russell wanted to know why we had the meeting and I told him it was for the same reasons we always had them and if he had a problem, he was to tell Elmer what it was. Q. Was there anything else discussed on that occasion with them? A. He made the remark, well, it's too late now, you're gonna get a letter. He didn't say what was in the letter or who it was from. Mary Barton denied she used the word "union" or such references as "it and "that," but, instead, referred to a "problem" because she was referring to the problem of tension, that is, the drivers not carrying out orders, etc.3

A composite of the essentially undisputed and corrobo- rated testimony of record established that at 7:30 a.m. on the following Monday morning, September 29, President Asman called all employees into his office. After sending most of the employees on their respective routes of collection, he then called Terry Edwards, Melvin Cogan, Paul Stevens, Russell Browning, and George Miller, and without any prior warning, suddenly laid them off without any estimated date of recall. When they were laid off, Melvin Cogan said Asman gave him his layoff slip and said this was the hardest part of being an employer, but that there was also a lack of work and he would be recalled if business picked up. Browning said he recalled Asman saying he was broke, and he, in response thereto, said, "All we want is a few pennies out his pocket, not the whole Company." President Asman testified that the ;ayoffs were as follows: A. The first three, I called into my office at the same time. Q. All right. A. Edwards, Cogan, and Stevens, and then I called George Miller in and Russell Browning. Q. All right. Well, we have then three different times that you laid people off, in terms of groups, so for the first group with Edwards, Cogan and Stevens, what did you tell them the reason for the layoff as being? A. I told 'em I was sorry but it had come to the point where I must, financially or otherwise, lay them off and- Q. What do you mean "otherwise"? A. No need for their labor if I can't pay 'em. If I can't pay 'em, I can't keep 'em. Q. And as to this first group, what was their reaction to this statement?

3 While the testimonial versions of Browning and Dutcher are by no means identical. I nevertheless do not find that they are significantly inconsistent. More importantly, they are mutually corroborative on the statement about the employees not being very helpful or kind to Asman, and on the statement that Asman knew about "it" or the "union." In other respects, I attribute the differences in their respective versions to one witness (Browning) remembering aspects of the conversation which the other witness (Dutcher) did not remember and vice versa. I find such differences in testimonial versions quite normal and by no means necessarily untruthful.

I do not credit Mary Barton's version of the conversation because she admitted a part of Browning and Dutcher's version, in that she expressed her dissatisfaction about how the employees were not cooperating or A. They took their slips and went out the door. Q. Then, who did you talk to next? A. George Miller. Q. What did you tell Miller? A. I told George I didn't like to do it, I was sorry, but I had to lay him off; here's your slip, you can draw unemployment, I'm sorry. Q. Did you give him any reason for the layoff? A. I said I couldn't afford to pay his wages any more. Q. Just to bounce back for a second, did you, in talking to Edwards, Cogan and Stevens; did you tell them how long the layoff might be? A. No, sir. Q. What did you tell them? A. Indefinitely. Q. How about Miller? What did you tell him? A. I didn't give him any set call back time. Q. What was Miller's reaction, or what did he say? A. At the time, he said nothing to me. He went out the door. Q. Did you hear from him, though, shortly after? A. I came back in the door. I believe George had tears in his eyes. I hate to relate this, and he just walked over to my desk and says, why, and I did not give him any answer. Q. What did you say? A. I said, I'm sorry and he went back out the door. Q. That was all of that conversation? A. That's right. Q. Okay. And then, you spoke with someone else, individually? A. Russell Browning was the last man. Q. What did you tell him? A. That I had to lay him off, I couldn't afford all these men any longer, I was just about broke. Q. Did you tell him how long he might be laid off? A. No, sir.4 The testimony of Richard Eddington, director of orga- nizing for the Union, and that of President Elmer Asman established that Eddington, accompanied by Tank, read the Union's request for recognition letter (G.C. Exh. I I) to Asman around 4 o'clock on the afternoon of September 29. Eddington said Asman elected to see his lawyer. In this proceeding, Asman testified that this was the first time he learned that his employees were engaged in union activity. Based on the foregoing credited evidence under section B, supra, I conclude and find that on September 21, a majority of the Respondent's employees, including, Russell Browning, Melvin Cogan, and George Miller, had selected assisting Elmer Asman. In denying the other aspects of their testimonial versions, she tried to attribute meaning to her concern about the "problem," and denied that she used the words "union" or "it." in reference thereto. I was not persuaded by her demeanor that her explanation was truthful since her close work relationship with Asman made Browning and Dutcher's versions logical. Mary Barton's version of this conversation is further discredited when it is considered in conjunction with all of the evidence of record discussed, infra.

4 I credit the testimonial version of Melvin Cogan, as well as that of Asman about the layoff, because they are not inconsistent or disputed, and I was persuaded that the witnesses were testifying truthfully in this regard. 1102

EAST SIDE SANITATION SERVICE, INC. the Union as their representative for the purpose of collective bargaining; that by September 25, three other employees had joined the Union, including Terry Ed- wards; that employee Russell Browning, accompanied by George Miller, spearheaded the solicitation for union membership; that on Friday, September 26. the Respon- dent (Asman) held a meeting with its employees during which he interrogated employees about their union activi- ties, and that said interrogation by such a high-ranking company official (president of the Respondent) was coer- cive and unlawful; that on September 26, Office Manager Mary Barton (herein found, infra, to be a supervisor) did create the impression of surveillance of the employees' activities by informing them that the Respondent (Asman) was aware of their union activities; and that on September 29, the Respondent (Asman), without any warning, did layoff Russell Browning, George Miller, Terry Edwards, Melvin Cogan, and Paul Stevens. C. Was the Respondent Aware of the Union Activities of Its Laid-Off Employees? Employee John Dutcher further testified that on the Monday following the layoff, September 29, Mary Barton told him she knew about the Union because she learned about it on Friday morning (September 26) from Bill (Blankenship) at the Hi-Fly Gas Station, where the truck- drivers purchased their gasoline, and that Asman knew about it too, because she told him that morning (Friday, September 26). Mary Barton denied having a conversation with Dutcher in which she told him Asman knew about the Union on Friday, September 26. Dutcher also testified that about 3 weeks after the layoff on September 29, he had a conversation with Asman which he described was as follows: A. Well, he asked us, he told me that he wanted us to get rid of the copper and brass out of that area and I asked him if Browning could come over and help, and he said, well, he didn't want none of the guys that were laid off to be on his property because of the trouble they caused.5 Raymond Larcom testified that during the first or second week in October, while he was in the Respondent's office, Mary Barton told him, "We better stop the Union or we wouldn't have a job." He said he told her they were not going to stop. Mary Barton denied having this conversa- tion with Larcom, however.6 Based on the foregoing credited evidence, I conclude and find that on September 26, the Respondent, through Mary Barton (herein found to be a supervisor, infra), did know that the employees were engaged in union activity and that she so informed the Respondent (Asman) of such fact before the meeting on September 26; that in October the Respondent (Asman) told employee John Dutcher he did not want any of the laid-off employees (Browning, Miller,

I Although President Asman probably denied making this statement, I nevertheless credit Dutcher's testimony in this regard because I was persuaded by the straightforward. readily responsive, and relaxed manner in which he testified that he was testifying truthfully Moreover, I believe his version because the statement attributed to Asman is consistent with other circumstantial evidence in the record of the Respondent's antiunion conduct. Edwards, Cogan, and Stevens) on his property because of the trouble they had caused; that in October Supervisor Mary Barton told employee Raymond Larcom the employ- ees had better stop the Union or they would not have a job; and that the latter statement by Barton and the former statement by Asman constituted interference, restraint, and coercion by the Respondent (through its president and office manager) in violation of Section 8(a)(1) of the Act. D. The Supervisory Status of Mary Barton Mary Barton testified that her title is office manager for the Respondent, and, in that capacity, she answers the telephone, takes care of billing, insurance, and unemploy- ment, uses the two-way radio (office to trucks) to dispatch and instruct drivers on the trucks on working routes, and, if Asman is not there, she assigns routes to employees. She said she is paid a salary (while other employees are paid by the hour) and she shares the same office with the Respon- dent's president, Elmer Asman. Mary Barton further testified that she does not hire, fire, promote, transfer, settle grievances, suspend, lay off, recall, or discipline employees. Her testimony in this regard is essentially corroborated by President Asman. However, President Asman admitted that Mary Barton knew every aspect of the business operation and that she is a person in whom he confided. With respect to assigning work and giving directions to employees, Barton said she always had orders or approval from Asman in doing so. However, when Asman was asked how Barton knew what to do in a given situation, he said, "by experience," and he admitted on cross-examination that Barton gave instructions without consulting him. Mary Barton admitted she had loaned company money against payroll to employees, granted them permission to leave work early, gave them work assignments, and instructed them on the two-way radio. Nevertheless, she said her actions were always pursuant to orders or approval of Asman, even though employee John Dutcher said Asman was not there when she gave him permission to leave early; and Russell Browning said she wrote out the loan check and gave it to him without him seeing her consult with Asman. Both Mary Barton and President Asman contend that Barton is not a supervisor and does not exercise supervisory authority, even though several employees testified that they consider her a supervisor. In response to prior testimony by Raymond Larcom and John Dutcher, Mary Barton denied she ever told anyone Asman would shut down his business, and she admitted that she had loaned money to Russell Browning and other employees against their payroll, with prior permission obtained from Asman to do so. She also denied she ever told Larcom in October that they had better stop the Union or the)j would not have a job. She further testified that on the day the union representative came to the office, Russell Browning told her he had signed a union card when he had been drinking (four or five drinks) and that he went home

6 I credit Raymond Larcom's version of the October conversation held with Mary Barton because I was persuaded by their demeanor that Larcom was telling the truth and Barton was not; and because Larcom's version is consistent with the tenor of all of the credited evidence of record. 1103

DECISIONS OF NATIONAL LABOR RELATIONS BOARD and went to bed. On the next day he said he sent a letter to the Union requesting removal of his name. 7 Based on the foregoing credited evidence, I conclude and find that on and before September 26, and subsequent thereto, Mary Barton exercised supervisory authority and that she was, and is now, in fact, a supervisor within the meaning of the Act; that in September Supervisor Barton told employees Dutcher and Larcom that Asman would shut down his business if the employees unionized; that, in October, Supervisor Barton told employee Larcom they (the employees) had better stop the Union or they (the employees) would not have a job; and that both of Barton's statements would, and did, have a restraining effect on the exercise of employees' protected rights, in violation of Section 8(a)(1) of the Act. E. The Respondent Attributes the September 29 Layoff of Its Employees to Economic Consideration Although the Union contends that the Respondent's layoffs of Russell Browning, Terry Edwards, Melvin Cogan, Paul Stevens, and George Miller were based on their union activity, the Respondent contends that such layoffs were based solely on economic considerations. In support of its position the Respondent produced a volumi- nous amount of testimonial and record evidence to show that its business had been experiencing financial difficulty for years. In this regard, the Respondent's certified public accountant, Tom Beutler, credibly testified that owning to large expenses and inadequate income, he had advised the Respondent (Asman) a year before September to reduce his expenses, more specifically, by reducing or laying off personnel. Mr. Beutler further testified that he had dis- cussed the business situation with President Asman on several occasions during the past year, and particularly in March, had suggested the Respondent cut expenses by reducing the work force. However, on nearly each occa- sion, Beutler said, President Asman was reluctant to reduce his work force but instead, continued to plan expansion of the business with the hope that such expansion would extricate the business from its difficulty; that against his (Beutler's) better advice, President Asman purchased two new trucks in May 1975, at a cost of $74,000, with finance charges included, $92,000. Although President Asman momentarily conceded the necessity to layoff personnel, Beutler said he never said, unequivocally, he would lay off. Testimony by President Asman established that since about 1972 the Respondent has been operating at a deficit of $16,000, which deficit had continuously declined to about $8,000 at the end of 1974, thus, cutting in half the original deficit within a period of 4 years. In my judgment, such reduction in the deficit represented business growth, and it probably encouraged President Asman to refrain from laying off any personnel. I note that the evidence

7 While I credit the testimony of Mary Barton and Asman with respect to the specific duties of Barton, I nevertheless do not credit their denial of Barton's supervisory authority. Not only was I persuaded by their demeanor and their self-serving declarations that Barton was a supervisor, but their version is contrary to credited testimony of the employees, and the logical consistency of the circumstantial record evidence. I find it inconceivable that Barton obtained prior approval from Asman on every occasion before shows President Asman repeatedly said he did not want to lay off personnel. The Respondent also contends that it was encountering difficulty as a result of being delinquent in Federal taxes for the year 1974, but it did not know and did not establish the extent of its tax liability; that business was declining as a result of the loss of a few of its contractual accounts; and that during the past year it encountered unusual expenses for the repair of its trucks. Since the Respondent did not know the amount of its tax liability, it would appear that it did not necessarily consider or rely on any difficulty arising from the tax delinquency in considering the September 29 layoff. The Respondent's contention that business was declining as a result of the loss of contracts is substantiated largely by the loss of the Village of Republic contract. Although there may be some question about the reason for the Respondent withdrawing its bid for the Republic contract, the evidence indicates the Respondent's with- drawal was a valid and prudent economic measure, and I did not find any evidence indicating that it withdrew its bid to intentionally create the impression that it was losing business. However, it is noted that President Asman did not withdraw its bid for the Republic contract until September 30, 1975, 1 day after it laid off the five alleged discriminatees herein. The Respondent also contends that it experienced financial difficulty as a result of unusual expenses for the repair of its trucks during the past year. Although the Respondent's records indicate considerable expenses for the repair of its trucks during the current year, its records essentially indicate that expenses for the current year were not significantly different from such expenses during the prior year. While the Respondent contends it was experi- encing financial difficulty and declining business, it is further noted that it hired one new employee at the end of July and another at the end of August. The record does not show that either employee was not permanently employed or advised otherwise. Finally, the record shows that as late as August 12, 1975, an advertisement for year-round work at the Respondent's enterprise appeared in a local newspaper. Although Asman denied being responsible for this late publication, I do not credit his testimony in this regard, because it is logical to assume that a newspaper would not publish advertisements without a request and compensation therefor. Neither the testimonial nor the record evidence establishes any new, specific, and significant financial information which the Respondent (Asman) relied on in September, which led it to decide at that time, in preference to all other times prior thereto, to lay off the five employees. The Respondent also claimed a shortage of work for its employees as a reason for the layoffs. The record shows that prior to the September layoff, the Respondent as- signed two men to a truck and three men to the larger trucks. After the layoff, the record shows that the Respon- she exercised the discretionary authority which she admitted she exercised (granting permission to leave early, etc.). Common experience discredits her denial. Likewise, I do not credit Barton's denial that she told employees Asman would shut down his business if employees unionized, and that she told employees in October they had better stop the Union or they would not have a job. Both statements are consistent with the Respondent's antiunion conduct herein. 1104

EAST SIDE SANITATION SERVICE, INC. dent assigned one man to a truck. According to the undisputed testimony of Browning, this practice prevailed until January 1976, when Asman said, after an OSHA meeting, that he wanted two men at the rear of each truck at all times when packing, as a safety measure. Browning said before the layoff, Asman's son would drive a truck I or 2 days a week, and at the time of his layoff, he did not notice any decline in the Respondent's business, on his route or otherwise. John Dutcher testified that, after the layoff, Asman's son drove a truck just about every day, and Dutcher's testimony was corroborated in this regard by Raymond Larcom. All witnesses agreed that, whenever they worked on the truck alone, that is, one man on a truck, they received $10 extra. The record shows that this practice was followed prior and subsequent to the layoff. Raymond Larcom said before the layoffs he worked 40 to 48 hours a week, and after the layoffs, his work increased to about 50 to 57 hours a week. He also stated that before the layoff, around May 1975, Root drove only occasionally (emergencies, such as sickness). Asman de- nied that his son, Dennis Asman, drove trucks more frequently after the layoff, but he acknowledged that his son drives 4 or 5 days a week as he did before the layoff." In explaining why he laid off the five employees on September 29, Asman continued to testify as follows: Q. Okay. Would you explain for me now, in your own words, Mr. Asman, why these five employees were laid off? A. We had had much repair damage or repairs that needed to be, our expenses were very great on that end. We had much absenteeism, which is some of the reason for having so many men, and I felt that the men, themselves, had proven to me that they didn't want to work five days a week by taking a day off. I decided I wanted men to work steady. I needed the extra income.

I figured a five man layoff would give me between $2,000 and $2,500 a month that I could use to offset back bills. I had to lay 'em off. In further describing the layoffs of the five employees, Asman continued to testify as follows: A. The first three, I called into my office at the same time. Q. All right. A. Edwards, Cogan and Stevens, and then I called George Miller in and Russell Browning. Q. All right. Well, we have then three different times that you laid people off, in terms of groups, so for the first group with Edwards Cogan and Stevens, what did you tell them the reason for the layoff as being? A. I told 'em I was sorry but it had come to the point where I must, financially or otherwise, lay them off and Q. What do you mean "otherwise"? A. No need for their labor if I can't pay 'em. If I can't pay 'em, I can't keep 'em. s I credit the testimonial version oIf Dutcher and L.arcom over that ol Asman not only because I was persuaded Dutcher and tLarcom were telling the truth. but their versiln is consistent with logical results of a layoff Q. And as to this first group, what was their reaction to this statement? A. They took their slips and went out the door. Q. Then, who did you talk to next? A. George Miller. Q. What did you tell Miller? A. I told George I didn't like to do it, I was sorry, but I had to lay him off; here's your slip, you can draw unemployment, I'm sorry. Q. Did you give him any reason for the layoff? A. I said I couldn't afford to pay his wages any more. Q. Just to bounce back for a second, did you, in talking to Edwards, Cogan and Stevens; did you tell them how long the layoff might be? A. No, sir. Q. What did you tell them? A. Indefinitely. Q. How about Miller? What did you tell him? A. I didn't give him any set call back time. Q. What was Miller's reaction, or what did he say? A. At the time, he said nothing to me. He went out the door. Q. Did you hear from him, though, shortly after? A. I came back in the door. I believe George had tears in his eyes. I hate to relate this, and he just walked over to my desk and says, why, and I did not give him any answer. Q. What did you say? A. I said, I'm sorry and he went back out the door. Q. That was all of that conversation? A. That's right. Q. Okay. And then, you spoke with someone else. individually? A. Russell Browning was the last man. Q. What did you tell him? A. That I had to lay him off, I couldn't afford all these men any longer, I was just about broke. Q. Did you tell him how long he might be laid off? A. No, sir. Russell Browning further testified that the Respondent had a layoff in March 1975, and that, about I week before the layoff, Asman held a meeting during which Asman told them he was going to lay some of them off; that it would not necessarily be according to seniority, and, in fact, it was not according to seniority. Bill Snyder and Barry Baughman were laid off. About 2 months later, Browning said Asman told him he would not take Baughman back. However, Baughman was called back while he (Browning) was laid off. He said the day before he was recalled to work in 1976 Asman told him he did not want him (Browning) talking about the Union, the Labor Relations Board, or anything of that nature on the job, presumably to anybody. Asman did not deny the latter statement and a similar statement is alleged to have been made by him to other employees. I therefore credit Browning's testimony in this regard. Asman did not deny the latter testimony by (employees retained often absorb some of the work previously performed by the employee laid off), and their version is consistent with the total evidence of record. 1105 I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD Browning and I assume and accept Browning's testimony as true. With respect to his past policy of layoff and recall, Asman testified that he laid off Bill Snyder in March 1975 because he was only able to work 6 hours due to personal transportation problem. He said he laid off Barry Baugh- man in March 1975 because he was called "sticky fingers" (reputed to steal), but that he recalled both Snyder and Baughman before the September 29 layoff. He said since the September 29 layoff he employed the first employee on June 29, 1976, because so many of his employees had been subpenaed. He said the new employees were temporary. He said the Respondent had been using one man on a truck since July 1975; however, the credited evidence does not support his testimony in this respect. Asman denied that he ever told anyone "He would sell out if the Union came in," "that the employees did not need a union at East Side Sanitation," or that in early June 1976, "he did not want any talk about the NLRB or a union out there." However, he said he did recall stating to two employees in early June 1976, "that they would be driving the truck that George would be assigned to on Monday, and I think it would be better for everyone concerned right at the present time if any of these proceedings of the past 9 months, or up until this hearing would not be brought up and hashed over with anyone knowing exactly what's going on." Asman identified the Respondent's Exhibit No. 3 as the notice he gave to John Dutcher, after he refused to work on either one of two trucks and decided to go home. This occurred after John Dutcher returned to the Respondent's employ on or about April 20. Other than this particular reprimand and the one he issued to Russell Browning (G.C. Exh. 8) warning Browning about having put diesel fuel in the hydraulic tank of one of the trucks (according to Browning, mistakenly), he had not issued a written warning to any other employee and could not recall issuing a verbal reprimand to any other employee. Asman admitted that another employee did not receive such a warning for tearing up a truck. Employee Gary Baker supported Asman in this regard, in that he said, although he is an employee of over 7 years with the Respondent, he had never seen such a written warning. On cross-examination Asman admitted he rehired George Miller, who had quit, before he recalled Barry Baughman; and that he hired Melvin Cogan on 7-28-75 for the first time, before recalling Barry Baughman, that he hired Terry Edwards on 8-14-75 before recalling Barry Baughman, and that he hired Paul Stevens on 8-25-75 instead of recalling Baughman. However, he recalled Baughman in July, and Baughman refused to return because he was working at the time. Asman said although he had determined before the layoff that Root was too hard on the equipment and made him a helper, after the layoff, he promoted Root to a driver. He admitted that he submitted a bid for the Village Republic contract before September 22, and that Republic accepted his bid on September 22; and that on September 30, he withdrew his bid. He also admitted that he obtained a new contract for Clay City on August 1, and that he did advertise for employees in August 1975, and thereafter did hire two employees in August 1975. Asman further testified that as of the end of the day September 29 (the day of the layoffs), the employees on that day were: Lawrence Snyder, Russell Shiffler, Ellen Snyder, Gary Baker, Charles Snyder, John Dutcher (Ellen Snyder does not work on Mondays, but she was going to work on Tuesday), Norman Morris, William Snyder was due back from sick leave, Barry Baughman was not in, Danny Root was there, Raymond Larcom and the five employees who were laid off. Those names represent all the drivers, helpers, and mechanics as of September 29, 1975. Except for Office Manager Mary Banton, the record shows that the Respondent's 15 or so employees were either truckdrivers or helpers (trash collectors) on the trucks. Hence, as alleged in the complaint and undisputed at this proceeding, I find, that "All drivers, helpers and mechanics, excluding office clerical employees, and profes- sional employees, guards and supervisors as defined in the Act," constitute a unit appropriate for collective bargain- ing. Analysis and Conclusions It is well established by the evidence of record that, from September 19 through October 11, 1975, the Respondent's employees were engaged in union activity and that on September 21 a majority (9) of the Respondent's 15 employees, had designated the Union as their collective- bargaining representative. By September 23, 13 of the Respondent's 15 employees had joined the Union, and the organizing leadership of Russell Browning and George Miller, as well as the organizing involvement of Melvin Cogan and Terry Edwards, were established as a matter of fact. On September 26, the Respondent called a meeting of its employees and, in a subtle manner, proceeded to inquire of its employees about what was going on (their union activity). The evidence of record further established that Mary Barton is employed in the position of "office manager," that in that capacity she shares an office with the Respondent's president, Elmer Asman, who said she is a person in whom he confided, and that she knows every aspect of the Respondent's business operation; that Barton is paid a salary while other employees are paid by the hour; and that in addition to her many clerical duties, she has granted employees permission to leave work early and loaned employees company money against their respective payrolls; that, based on her experience, she gives directions without consulting with Asman and gives the truckdrivers work assignments and instructs them on the two-way radio about business relating to their respective truck routes; and that she substitutes for Supervisor Asman whenever he is not in the office. There is no dispute that the employees followed Barton's orders and directions. The exercise of such authority by Mary Barton clearly makes her a supervisor within the meaning of the Act. Wolverine Worldwide, Inc., 196 NLRB 410 (1972); Westinghouse Broadcasting Company, Inc., 195 NLRB 339 (1972) and Birmingham Fabricating Company, 140 NLRB 640 (1963), cited by counsel for General Counsel. 1106

EAST SIDE SANITATION SERVICE, INC. Since Mary Barton exercises the above-enumerated attributes of supervisory authority, she need not exercise any and all of the other indicia of supervisory authority described under Section 2(11) of the Act, in order to be found a supervisor within the meaning of the Act. Elliott- Williams Co., Inc., 143 NLRB 811 (1963). It is clear from the evidence of record that the employees considered and accordingly responded to the instructions of Mary Barton as though she were a supervisor. See The Bama Company,

145 NLRB 1141 (1964). Accordingly, I find that Mary Barton was and is now a supervisor within the meaning of the Act. As a supervisor, the evidence of record further shows that in September Mary Barton told fellow employee John Dutcher that President Asman would shut down his business if the employees unionized the business; and that in October, Supervisor Barton told employee Raymond Larcom that they (employees) had better stop organizing a union or they (employees) would not have a job. Since Barton is a high-level supervisor, I find both of these statements threatening in character, and having a restrain- ing and coercive effect on the exercise of employees' protected rights, in violation of Section 8(a)(1) of the Act. Although the Respondent denies having had knowledge of its employees' union activities prior to September 29, the evidence of record abundantly shows that the Respondent did have such knowledge. Firstly, the circumstantial evidence shows that after 9 of the Respondent's employees had joined the Union on September 21, and that this number had risen to 12 employees by September 25, that on Friday, September 26, just 6 days after the organizing efforts of its employees commenced, the Respondent called a meeting of its employees during which it interrogated (made subtle inquiries to) its employees about their union activities which had been in progress only 6 days prior thereto; that when the Respondent received no response from the employees, it called all of the employees into its office on the following Monday, September 29, and without any warning, laid off 5 employees, including the chief organizers, Russell Browning and George Miller, as well as Terry Edwards and Melvin Cogan, who also had joined the Union, and Paul Stevens who subsequently joined the Union. Other direct evidence of the Respondent's knowledge of its employees' union activity prior to September 29, shows that immediately subsequent to the September 26 meeting with the employees, Supervisor Barton told employees John Dutcher and Russell Browning that she knew about the Union, that she had learned about it on that morning (September 26), and that she had also informed the Respondent's president, Elmer Asman, about it on that same morning (September 26). Also, in early October, President Asman told employee John Dutcher that he did not want any of the laid-off employees (all union members) on his property because of the trouble they caused. The nearest thing to "trouble" described in this record that the laid-off employees might have caused was their unioniza- tion of the Respondent's business. Hence, it is reasonably inferred from Asman's statement that he was referring to the organizational activity of the laid-off employees, and certainly that reference is indicative of President Asman having had knowledge of such activities. It is therefore clear from the circumstantial and the direct evidence of record that the Respondent had actual knowledge of the union activities of its employees, particularly the activities of Russell Browning, George Miller, Melvin Cogan, and Terry Edwards. The Respondent's layoff action also infers that the Respondent suspected union activity on the part of Paul Stevens. Such knowledge on the part of the Respon- dent is evident since its layoff included the chief organizers of the Union, Russell Browning, George Miller, Terry Edwards, and Melvin Cogan who were also members of the Union on September 29. Since Mary Barton was a supervisor within the meaning of the Act, her knowledge of the union activity of the said employees is imputed to the Respondent. Did the Respondent Layoff Its Employees for Economic Reasons, or for the Union Activity of the Employees? The Respondent contends that its September 29 layoff of Russell Browning, George Miller, Melvin Cogan, Terry Edwards, and Paul Stevens was based solely on economic considerations. In this regard, the evidence of record does show that the Respondent was experiencing considerable economic difficulty in the operation of its business. However, the record also shows that while the Respon- dent's economic difficulties were increasing, they were increasing at a decreasing rate; that the Respondent's current expenses for truck repairs were not significantly higher than such expenses in the prior years; that although the Respondent had been advised by its accountant a year earlier to take steps to reduce its expenses (including laying off some of the work force), the Respondent was not disposed to do so, but rather, proceeded to expand the business with the hopes that such expansion would signifi- cantly improve business returns. While there is no question that an employer may layoff or discharge employees when economic reasons justify such action, the primary question often raised after such business considerations have been justified is whether the employer's layoff or discharge of the employees was in any way motivated by the union activity of the employees. In the instant case the evidence clearly establishes that the Respondent deviated from a prior practice of giving employees at least I week's notice of a layoff(March 1975), when it called the five laid-off employees into his office on September 29, and precipitously laid them off. When the precipitous nature of the layoff of these employees without any prior notice of such layoff is considered along with the fact that such layoff occurred only 3 days subsequent to an employees' meeting, during which the Respondent interro- gated the employees about their union activity, and only 10 days subsequent to the commencement of union activity of the employees, the half moon of the Respondent's motive for laying off the employees becomes obvious. Additionally, when the Respondent's herein found un- lawful interrogation and threatening conduct is considered along with the fact that Asman (Respondent) used his son (Dennis Asman) and employee Root to absorb the truck- driving jobs of two of the laid-off employees, and thereafter hired two new truckdrivers in 1976, the Respondent's 1107

DECISIONS OF NATIONAL LABOR RELATIONS BOARD antiunion motive is sufficiently amplified to conclude that the Respondent's September 29 layoff of Browning, Miller, Cogan, Edwards, and Stevens was substantially motivated by their union activity, and not by the economic consider- ations of the Respondent's business. To the extent that I find the Respondent's evidence of its economic difficulties exaggerated, I also find such evidence was raised as a pretext to conceal its real and discriminatory motive in laying off said employees for their union activities. The credited evidence of record established that during the second week of October, the Respondent (Office Manager Mary Barton) told employee Raymond Larcom that the employees had better "stop the Union or they would not have a job." I find the latter statement uttered by the second highest ranking managerial official of the Respondent business concern constituted a coercive and threatening invasion of employees' protected rights, in violation of Section 8(a)(l) of the Act. The evidence further established that, during approxi- mately the second week in November, employees John Dutcher and Raymond Larcom asked the Respondent (President Asman) could laid-off employee Browning and the other four laid-off employees help them carry out a work order. The Respondent (President Asman) said he did not want the laid-off employees on his property because of the trouble (union activity) they caused. President Asman did not deny making the latter statement and I find such statement by the highest-ranking manageri- al official of the Respondent a threat to Dutcher, Larcom, and Respondent's other employees and that the Respon- dent took measures of reprisal against employees who engaged in union activity, in violation of Section 8(a)(1) of the Act. In 1976, President Asman told Russell Browning he could return to work but cautioned him not to "talk about the Union, the National Labor Relations Board, or anything of that nature during working hours." President Asman did not deny he made the latter statement and I credit Browning's testimony in this regard. Moreover, I find that such statement by President Asman had a coercive and restraining effect on the employees' exercise of their protected Section 7 rights, in violation of Section 8(a)(l) of the Act. The evidence also established that during approximately the same week in 1976, President Asman told other employees that he was recalling laid-off union activist, George Miller, to work, but that "he didn't want, under no circumstances, 'em [sic] talking about union, labor rela- tions, or anything that's happened in the past 9 months" (the period of the employees' organizing activity). In response to this alleged statement President Asman tried to explain his statement made during the conversation he held with employees. However, I was not persuaded by Presi- dent Asman's version, which is inconsistent with all of the evidence of record. Consequently, I find such admonition to the employees by President Asman, the highest-manage- rial official of the Respondent, a coercive and restraining threat to the exercise of employees' Section 7 protected rights, in violation of Section 8(a)(1) of the Act. Bargaining Order Finally, the question is presented as to whether the established unfair labor practices committed by the Re- spondent during the organizing campaign of its employees were of such consequential magnitude as to constitute an interference with the election process, with the likelihood of dissipating the Union's majority status and precluding the holding of a fair election. In addressing this question, it is first observed that the evidence of record clearly shows that on September 21, 1975, a majority (9) of the Respon- dent's 15 employees in the unit herein found appropriate, had signed authorization cards designating the Union as their collective-bargaining representative. The credited evidence of record further shows that on September 26, 1975, the Respondent, with knowledge of its employees' organizing activities, engaged in unfair labor practices (coercively interrogated its employees and gave its employ- ees the impression of surveillance of their organizing activities); and that in addition to other threatening, coercive, and unlawful conduct (including the layoff of the two leading union activists, Browning and Miller, and three other employees, two of whom were union members) on September 29, followed this with other threatening, coer- cive, and unlawful conduct by the Respondent in October 1976. In view of the foregoing credited evidence, I conclude and find that the Respondent's aforedescribed unlawful conduct, commencing on September 26, 1975 (interroga- tion and impression of surveillance), constituted the com- mission of independent, substantial, and pervasive unfair labor practices disruptive of election conditions or pro- cesses, which prevented the holding of a free election and caused the likelihood of the dissipation of the Union's majority status, warranting the issuance of a collective- bargaining order, effective as of September 26, 1975. N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), Steel- Fab, Inc., 212 NLRB 363 (1974), and Beasley Energy, Inc.,

228 NLRB 93 (1977). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES

UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. They are unfair labor practices within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices warranting a remedial order, I shall recom- mend that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. It having been found that on September 26, 1975, the Respondent interfered with, restrained, and coerced its 1108

EAST SIDE SANITATION SERVICE, INC. employees in the exercise of their Section 7 protected rights, in violation of Section 8(a)(1) of the Act, by coercively interrogating them, giving them the impression of surveillance of their organizing activities, threatening them with the shutdown of its business operation, advising them to stop organizing a union or they would not have a job, discriminatorily laying off five of its employees, including the two union activists, and other participants in the Union, for engaging in union activity, advising other employees that the laid-off employees were not wanted on its property because of the trouble they caused in orga- nizing the Union, advising employees on recall not to discuss the Union, labor relations, or any of the past union- related activities, telling other employees not to discuss the Union or union-related activities of the past 9 months, and by failing and refusing to recognize and bargain with the Union subsequent to its receipt of the Union's demand letter on September 29; and that such unlawful conduct by the Respondent prevents the carrying out of a free election and causes the likelihood of dissipating the Union's majority status. The recommended Order will provide that the Respondent cease and desist from engaging in such unlawful conduct and to bargain with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 20, as of September 26, 1975. Because of the character of the unfair labor practices herein found, the recommended Order will provide that the Respondent cease and desist from or in any other manner interfering with, restraining, and coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4 1941).

CONCLUSIONS OF LAW I. East Side Sanitation Service Inc., the Respondent, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 20, is and has been at all times material herein, a labor organization within the meaning of the Act.

3. By coercively interrogating its employees about their union interests or activities, the Respondent violated Section 8(a)( I) of the Act.

4. By giving the employees the impression that the Respondent had their organizing activities under surveil- lance, the Respondent violated Section 8(a)(1) of the Act.

5. By threatening employees with loss of their jobs if they did not stop organizing a union, the Respondent violated Section 8(a)(1) of the Act.

6. By threatening to shut down its business operation if the employees organized the Union, the Respondent violated Section 8(a)( I) of the Act.

7. By discriminatorily laying off employees Russell Browning, George Miller, Marvin Cogan, Terry Edwards, and Paul Stevens, the Respondent violated Section 8(aX3) of the Act.

9 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall. as provided in Sec.

8. By recalling employee George Miller to work and advising him not to discuss the Union, labor relations, or anything that happened during the past several months (union activity), the Respondent violated Section 8(a)(1) of the Act.

9. By advising its other employees that it did not want them to discuss the Union, labor relations, the National Labor Relations Board, or any union-related subject of the past, the Respondent violated Section 8(aX)) of the Act. 10. These unfair labor practices were so independent, substantial, and pervasive that they are disruptive of the election process, precluding a fair election and warranting an order to bargain. 11. The aforesaid unfair labor practices affect com- merce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:

ORDER 9 The Respondent, East Side Sanitation Service, Inc., Genoa, Ohio, its officers, agents, successors, and assigns, shall: I. Cease and desist from:

(a) Interrogating its employees about their past and current union interest or affiliation.

(b) Giving its employees the impression their union activities are under surveillance by the Respondent.

(c) Threatening its employees with the loss of their jobs if they do not stop organizing a union.

(d) Threatening its employees with the shutdown of its business operation if the employees organized a union.

(e) Laying off the employees for engaging in union activity.

(f) Advising its recalled employees not to engage in any talk about the Union or union activities which occurred over the past 9 months.

(g) Advising other employees not to discuss the Union, the National Labor Relations Board, labor problems or any of the union related activities which occurred in the past 9 months.

(h) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights guaran- teed in Section 7 of the Act.

2. Take the following affirmative action necessary to effectuate the policies of the Act:

(a) Offer Melvin Cogan and Paul Stevens reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions without preju- dice to their seniority or other rights previously enjoyed, and make them whole for any loss of pay suffered by reason of the discrimination against them with interest at the rate of 7 percent in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).

(b) Make Russell Browning, George Miller, Paul Stevens, and Melvin Cogan whole for any loss of earnings suffered 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes. 1109

DECISIONS OF NATIONAL LABOR RELATIONS BOARD by reason of the discrimination against them with interest at the rate of 7 percent, in the manner described herein.

(c) Recognize and, upon request, bargain collectively from September 26, 1975, with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Local 20 as the exclusive representative of the employees herein found to constitute an appropriate unit for collective bargaining, and, if an understanding is reached, embody such agreement in a written and signed contract.

(d) Post at the Respondent's plant at Genoa, Ohio, copies of the attached notice marked "Appendix." o Copies of said notice, on forms provided by the Regional 'o In the event this 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 Director for Region 8, after being duly signed by the Respondent's representatives, shall be posted by it immedi- ately upon receipt thereof, and be maintained by the Respondent for 60 consecutive days thereafter, in conspic- uous places, including all places where notices to employ- ees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material.

(e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of receipt of this Order, what steps the Respondent has taken to comply herewith.

IT Is FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not found herein. Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 1110