P.A. Inc.

P. A. INCORPORATED 491 P. A. Incorporated and Oil, Chemical and Atomic Workers Union, Local 4-586, International Union, AFL-CIO. Case 16-CA-8203 March 14, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On September 14, 1979, Administrative Law Judge Marion C. Ladwig issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record 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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, P. A. Incorpo- rated, Odessa, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I 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 credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry 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. Additionaly, we are satisfied that Respondent's contention that the Ad- ministrative Law Judge was biased is without merit. In our opinion there is nothing in the record to suggest that his conduct at the hearing, his resolutions of credibility, or the inferences he drew were based on either bias or prejudice. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge: This case was heard before me in Odessa, Texas, on April 26- 27 and June 21, 1979. The charge was filed on Novem- ber 27, 19781 (amended December 8), and the complaint was issued on January 12, 1979. This proceeding primar- ily involves a question of whether the Company, through a new plant manager transferred from a nonunion plant, engaged in an unlawful campaign to eliminate the Union at the Odessa plant and promised higher wages if the I All dates are in 1978, unless otherwise indicated 248 NLRB No. 77 plant became nonunion, before the Company broke off negotiations with the Union and granted the employees an average of 37 percent higher wage increases than the Union had agreed to accept. The specific issues are whether the Company, the Respondent, (a) unlawfully coerced employees through promises, threats, interroga- tion, and an overly broad no-solicitation rule, and (b) un- lawfully refused to recognize and bargain with the Union and unilaterally granted wage increases, in violation of Section 8(a)(1) and (5) of the National Labor Relations Act, as amended. Upon the entire record, including my observation of the demeanor of the witnesses, and after due consider- ation of the briefs filed by the General Counsel and the Respondent Company, I make the following: FINDINGS OF FACT I. JURISDICTION The Company, a Delaware corporation, is engaged in providing pipe coating and inspection services for the drilling industry at its plant in Odessa, Texas, where it directly supplies services valued in excess of $50,000 an- nually to customers located outside the State. The Com- pany admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that the International (OCAW) and its Local 4-586, herein called the Union, are labor organiza- tions within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Background The Company and the Union were parties to a collec- tive-bargaining agreement, effective from November 15, 1975, through November 15, 1978, covering a stipulated appropriate bargaining unit of "All production and main- tenance employees employed in the maintenance, yard, custom and tube departments by the Company at its plant located at 300 W. 61st Street in Odessa, Texas, ex- cluding all other employees including administrative, es- timating, sales, engineering, purchasing, office, technical, payroll, quality control, inspection and reclamation em- ployees and all foremen, guards, watchmen and supervi- sors as defined in the Act." (The bargaining unit did not include the inspection department, which was added since the International's certification in 1966.) The agree- ment provided for a wage reopener in 1977, without the right to strike, and on November 15, 1977, the Company and the Union agreed to a new wage scale, adopting the wage increase formula to which the Company and an- other OCAW local had agreed at Company's Katy Road plant in Houston (where the union wages-and living costs-were higher). In addition to the two organized plants in Odessa and Houston, the Company had nonunion plants in Oklaho- ma City, Oklahoma; Houston, Texas; and Morgan City, Louisiana. There admittedly had been "very good" relations be- tween the Company and the Union at the Odessa plant since 1976, when John Lubke returned to the corporate offices there as vice president of the Company's Western P. A. INOPORATED 491 492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Zone. International Representative James Childs (who serviced the Odessa agreement for the Union) and Lubke had worked together in attempting to solve such trouble- some problems as high employee turnover and a large number of contract employees. They had settled three or four grievances'-one settlement involving the reinstate- ment of a union committeeman, forklift operator L. B. Whiteside, who had been discharged at the plant. A majority of the regular employees were union mem- bers, who were having their dues checked off. The Com- pany, however, refused to check off the dues of proba- tionary employees, who had "no course" under the agreement until they were employed 60 working days (usually about 90 calendar days). There is no evidence of any dissension in the Union at the time, or of any expression of dissatisfaction by any of the regular or probationary employees with their union representation until the talk began in the plant about bo- nuses and higher wages being paid if the plant were non- union. B. Promised Higher Wages 1. Plant manager's antiunion conduct In June, the Company transferred Plant Manager Gary Richardson from the nonunion Oklahoma plant to the Odessa plant. By the third or fourth week of August, there was talk in the plant about an "under the table raise or promises or bonuses," and a rumor that some employees had already been given "a 25 cent per hour pay increase," although negotiations for new contract and a new wage scale were not to begin for several weeks. Plant Manager Richardson had been talking about his former practice in the Oklahoma City plant of paying a $250 bonus to some of the employees. In an apparent effort to turn one of the union committeemen against the Union, Richardson told Committeeman Keith Eddings about this. As Eddings credibly testified: Richardson had just got down here from Oklahoma City and he was telling me about the operations up there, that it was nonunion and they were allowed to give on-the-spot bonuses to employees. He told me that if it was nonunion down here that they could also do the same, give on-the-spot bonuses to the em- ployees. [Emphasis supplied.] Eddings recalled that this was "a month or two" after Richardson arrived in Odessa. At the time of the conver- sation, Richardson was riding on the ladder of Eddings' forklift. Richardson said that such a bonus was given to the "good worker." (From his demeanor on the stand, Eddings impressed me as being an honest witness, at- tempting to give an accurate account of what happened. I credit his testimony, and discredit Richardson's den- ials.) I find that Richardson's statement to Eddings was at least an implied promise of employee bonuses if the Odessa plant were nonunion. I therefore find that it was coercive and violated Section 8(a)(1) of the Act. Although Plant Manager Richardson denied this con- versation with Eddings, he admitted having a conversa- tion with employee Larry Flax, "in front of a group of employees," about spot bonuses at Oklahoma City, and admitted telling Flax that the Oklahoma plant was not a union shop (before Flax tranferred to that plant). Rich- ardson admitted that in the conversation in front of other employees, "we went into detail on how they pay spot bonus and what a spot bonus was." It was "probably the mid part or the late part of August" when plant Manager Richardson admittedly heard talk in the plant about a pay raise. A foreman re- ported to Richardson that employee Lee Shearman "was very upset, that he had found out that the Company had given a 25 cent an hour pay increase" to shop employees but not to yard employees. Richardson and Area Man- ager Bill Anderson checked out the rumor and found that Shearman and another employee, Lucius, were "very upset." Richardson testified that Lucius, doing most of the talking, "said he damn sure didn't want to see any of this under the table raise or promise or bonuses [emphasis supplied], or whatever. That if anybody should get a raise or a bonus or whatever that he . . . should be involved, that he was a very hard worker." (Employer John Washington, who later signed an antiun- ion petition, denied telling them that tube shop employ- ees had been given the wage increases.) When asked at the hearing "Did you ever say any- thing to any employee at the plant to indicate whether you were for or against the Union," Plant Manager Richardson denied saying so, "yea or nea," but admitted, "I probably made a statement that we was going to run it right by the book, you know, by the union book, and we did have some grievances filed on me when I was there." It was in this context-of Plant Manager Richardson attempting to turn a union committeeman against the Union, stating to the committeeman that the Company could give employee bonuses if the plant were nonunion, publicizing among the employees the fact that such bo- nuses were given at the nonunion Oklahoma City plant, and stating that he was going to run the (organized) Odessa plant "by the book"-that Bill Park, a former union committeeman occupying a special status at the plant, "headed up" the signing of an antiunion petition and promised employees that the Company would give them higher wages if te Union were out. 2. Petition to oust the Union a. Bill Park's status General operator Bill Parks was in a special status which tended to give weight to his promises that the Company would give the employees higher wages if the Union were out. Although a member of the bargaining unit, he was working at the time as a "walking general," or walking leadman, who no longer ran finish and power guns but "walked around and made sure everything was running right" and the employees were working. He and other "walking generals" substituted for absent shift fore- men or supervisors and signed the personnel action P-86 form as the "Immediate Supervisor" when "stepped-up" temporarily replacing them. The agreement provided (art. XIV. sec. 2), "The terms 'supervisory employees' P. A INCORPORATED 493 does not include 'leadmen,' who are classified as oper- ation or maintenance employees despite the fact that they may be vested with a limited amount of authority for a specific job or in an emergency." (Emphasis supplied.) When substituting for a supervisor (as Park did on a reg- ular basis beginning October 1, shortly after he turned in the antiunion petition the second time), the leadman is paid an additional 20 cents an hour as a "special rate." b. Plant manager's participation Leadman Bill Park denied that "anybody with influ- ence" said "that Oklahoma did not have a union and it was a better place," and denied being in any discussion or meeting where somebody brought up the fact that the Company might pay more if they were nonunion. Ac- cording to him, there were about four or five of the em- ployees who "started talking about the Union" and "de- cided to get out." So I went to Gary [Richardson] and asked him how could we vote the Union out. And he said he's find out.... And he got back with me a day or so later and told me how." (Emphasis supplied.) Thus, Park was indicating that Plant Manager Richardson did not influence the employees in their decision to leave the Union, and indicated that he had a private meeting with Richardson to ask for information, and another private meeting to receive the information on how to vote out the Union. Richardson also denied that he made the employees any promises, but testified that he met with two employ- ees (Bill Park and Joe Wheeler) around September 19, when they asked how they could get up a petition to vote out the Union, and later met with a group of people when he gave them the information. He testified that around September 26 or 27, he took a piece of paper which Area Manager Anderson had given him on "the legal way they could do it," that he "just random picked whoever was standing around" to come in, and that he read off the instructions to them. He admitted that he in- vited into the meeting, with Bill and David Park, em- ployees Charles Murray and Carl Carter (both of whom later signed the petition but had nothing to do with the solicitation), as well as Shift Foreman Joe Slovack. Thus, instead of giving the information privately to Bill Park and Joe Wheeler, and leaving it to them to prepare and circulate the petition without giving other employees the impression that the Company was encouraging and spon- soring the petition, Richardson publicized the matter to other employees. (Cf. Poly Ultra Plastics, Inc., 231 NLRB 787, 790 (1977), where the company official's assistance to the employees in phrasing the petition "was not wit- nessed by other employees, nor does it appear that this fact was communicated to any other employees.") Rich- ardson claimed that after repeatedly reading off the instructions for wording the petition, and reading how the employees could circulate it, he discarded the instructions. (Vice President Patrick Donnelly testified that he had instructed Anderson that the Company could not provide the employees even paper or pencil for the petition, and that the petition signing would have to take place without company assistance "during breaks" or after work, and not on company time.) One copy of the petition read, "We the undersigned employees of P.A. no longer wish for OCAW local 4- 586 to represent us for purposes of collective bargain- ing." The other copy (which continued on a second page) read, "We the undersigned employees of P.A. do not wish to be represented by OCAW 4-598 for wages and other bargaining matter." Only three employees testified how the petition was circulated. Forklift operator Harrison Stewart (who im- pressed me by his demeanor on the stand as being an honest, forthright witness) credibly testified that Bill Park explained to him that the petition "was to get the Union out." When he answered that he was prounion, Park said "did I know that if the Union was out that we would get a bigger raise than the Union was prepared to give us." (Emphasis supplied.) Stewart also credibly tes- tified that he overheard Park speaking to employees about the petition "a number of times," something like "six, seven, eight" times, and that the only thing said "was that Park, wanted them to sign that Petition to do away with the Union and if the Union was away . . . the Company was prepared to give them larger wages than the Union." (Emphasis supplied.) Stewart also observed Park talking to still other employees about the petition, but he could not overhear what was said. After a 2-month delay in the hearing, Stewart again credibly testified that he overheard Park tell employees that "if the union was out, that the company would give us a bigger raise than the union was prepared to give us." (Emphasis supplied.) He also recalled hearing Park say, "Let's try to get the union out; if it doesn't work out, we can always vote it back in." Union Committeeman Eddings credibly testified that one morning, during working time, employee Billy Dirden asked him if he would sign a petition to disband the Union, that he asked Dirden why, and that Dirden "told me that he thought we would get a bigger raise out of it if we was nonunion." (Emphasis supplied.) Bill Park, the third person who testified about the so- licitation, denied promising anybody anything. (At one point, he testified that "Nothing" was said about wages if they did not have the Union, but then added that the ar- gument was made that "the Company is going to give us just as good of rates as the Union probably anyway.") Although admitting being in the plant both before and after his regular shift, Park endeavored to belittle his participation in the solicitation. He claimed that he per- sonally solicited signatures on only the first copy of the petition and that other employees, not he, passed around the second copy (which contained most of the signa- tures). However, I note that in the September 29 letter transmitting the petition to counsel, Area Manager An- derson acknowledged his "understanding that Mr. Bill Park was the employee who headed up this petition," and Park himself testified that he personally solicited the signature of nonunit employee Q. B. Agnew, whose sig- nature is No. 12 on the second copy. (Park did not im- press me as being a candid witness.) During the circulation of the petition, Plant Manager Richardson indicated his interest by speaking to Commit- teeman Eddings about it. As Eddings credibly testified, Richardson asked him at the pipe straightening rack "if I P. A INCORPORATED 493 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had heard of a petition being circulated to disband the union." Eddings answered no, he had not. (It was the next morning when employee Dirden asked him to sign it.) Richardson admitted talking to Eddings about a peti- tion, but claimed that it was several days later that he had overheard a rumor that another union committee- man was circulating a petition, that Eddings said "there was some type of unofficial looking piece of paper going around, a petition, and . . . I couldn't imagine what kind of a petition or . . . what even it was." (I find that Ri- chardson's testimony is pure fabrication. From his de- meanor while testifying, Richardson appeared willing to give whatever testimony might help the Company's cause.) On September 28, leadman Park dated the two copies of the petition, and turned them in to Plant Manager Richardson. On the 3 pages there were 31 signatures, I of which was that of employee Agnew who was not then in the bargaining unit-leaving 30 valid signatures. At the time, there were 58 employees in the bargaining unit (57 persons on the current seniority list, Resp. Exh. 7, plus petition-signer Ramon Hernandez, a new employ- ee who began working the day before, G.C. Exh. 15.) Including the probationary employees, this was a bare majority of 51.7 percent. (Five of the petition-signers, employees Cruz, Duncan, Hernandez, Miranda, and Yborra, had been hired that same week. Among the 58 unit employees, 19 had been hired that same month, and another 5 between August 9 and 30. Of these 24 new probationary employees, 12 had signed the petition. Among the 33 regular employees who had been there over 60 working days, 20-a 60.6-percent majority- were then on checkoff. Of these 20 union members, 7 signed the petition.) In an apparent hope of getting a larger majority of pe- tition-signers, Plant Manager Richardson suggested or di- rected Bill Park to continue the solicitation. (Park first testified that Richardson asked if they had asked every- body and when he answered no, Richardson said, "Well, take it back, why don't you, and ask everybody." Later Park testified that Richardson said, "Well, take it back and ask everybody." On redirect examination, Park testi- fied that it took 2 or 3 days to circulate the petition, "and then we turned it in. And then he told us to go ask the other people.") Thus, the Company was not leaving the solicitation to the discretion of the employees them- selves, but was suggesting or directing that they continue the solicitation-further encouraging the effort to elimi- nate the Union. The renewed solicitation failed, and no other employee would sign the petition. Thus, Bill Park and his fellow solicitors had failed to persuade more than 51.7 percent of the employees to sign the petition, even though Park was telling employees that the Company would give higher wages if the Union were out, and Dirden told at least one employee that he thought the employees would get a bigger raise if they were nonunion. On September 29, general operator Park turned in the petition a second time to Plant Manager Richardson. This time, according to Park, Richardson asked "did we ask everybody," Park answered, "Yes, we did," and Richardson said, "Well, okay." Under all the circumstances, I find it most unlikely that leadman Bill Park would be telling employees that the Company would pay higher wages without the Union (and that solicitor Dirden would be expressing this "thought" that the Company would) if the Company had not given such a promise. I discredit the denials by Plant Manager Richardson and Bill Park (the only solici- tor who testified), and infer that Richardson-as part of a campaign to eliminate the Union at the Odessa plant- encouraged the circulation of the antiunion petition by making a promise at least to Bill Park that the Company was prepared to pay higher wages if the plant were non- union. (The Company's honoring of this promise is dis- cussed later.) Accordingly, I reject the Company's con- tentions that Richardson made no promises and that the petitions were "drafted and circulated wholly spontane- ously and voluntarily, without any improper participa- tion or encouragement from management." Before proceeding to discuss the negotiations, I note that Plant Manager Richardson continued with the an- iunion campaign. As credibly testified by quality control employee Lee Shearman, another former union commit- teeman at the plant, Richardson sometime between Octo- ber 5 and 10 offered him the position of quality control over the whole plant. When he learned that he would be on call 24 hours a day, he told Richardson that he would have to have at least the pay of a general operator. Rich- ardson responded that those positions were filled. Later in the day, though, Richardson told him, "I've reconsid- ered that offer. Now, I can give you general operator's pay if you will get out of the union." (Emphasis supplied.) Shearman refused, stating that he had been a union member ever since he had been old enough to work, and the subject was dropped. I discredit Richardson's denials and find that his offer, contingent on Shearman defecting from the Union, was coercive and violated Section 8(a)(1) of the Act. C. Withdrawal of Recognition 1. The negotiations In the first negotiating session on October 5, following the Union's August 29 contract termination notice, the Union indicated its willingenss to accept the new Hous- ton wage formula by informing the Company that the Union "would basically settle along the lines of the set- tlement in Houston with some changes that we wanted to propose to you there that day." The Company then advised the Union "that it had received a petition from a substantial majority of the employees indicating that they no longer wished to be represented by your Union," and stated that the Company "was in a quandry about what to do about this petition." International Representative Childs stated that he did not give any credence to that petition because I knew it had been circulated by super- visors and that Mr. Richardson had made a lot of state- ments to employees that-kind of made a fool out of himself-prejudiced the Company's position. (Later, in a telephone conversation with the Company's counsel on October 8, Childs asserted that "the petition had been circulated by people who wasn't supposed to be circulat- P. A. INCORPORATED 495 ing it, stepped-up supervisors and others and that prom- ises had been made.") On October 28, the Company wrote the Union a letter, proposing that another meeting be held to "pro- vide us with the opportunity to explore mutually satisfac- tory ways that you might demonstrate that your Union does still enjoy majority status." The letter stated that the Company's investigation had disclosed no substance to the allegations of "any improper supervisory involve- ment." In the November 9 negotiating session, the Company showed the Union the checkoff revocations from five of its union members. The Union stated that it still repre- sented a majority and discussed the status of the proba- tionary employees. The Company expressed a good-faith doubt of the Union's majority status and broke off nego- tiations. 2. The larger wage increases Immediately after breaking off the negotiations, the Company began determining the exact amount of the larger increases which it would grant unilaterally in the different classifications following the November 15 expi- ration of the union agreement. (Meanwhile, the Union was soliciting authorization cards to support an election petition. The Union filed the petition with the Board on November 14, in a proposed expanded unit which would include the inspection division, but withdrew the petition on November 22.) On November 14 and 15, the Company held employee meetings, reading to the employees on the different shifts a speech in which the Company made it clear to the em- ployees the size of the wage increases under the Houston formula which "on October 5, 1978 the Union told us that they would accept." This information, given before the Company announced its large wage increases, en- abled the employees to compare the union rates with what the Company was giving without a union. The justification given in the speech for furnishing the employees with this information was an unsupported claim that "we have some reports that some employees were soliciting union cards . . . with the promise that if the union stayed in, the employees would be guaranteed a 45¢ an hour wage increase." Refuting this purported union promise, the speech stated that the Houston formu- la "was a 5% wage increase for everybody and an addi- tional 20¢ an hour for all job classifications above helper." The speech then described the computation and pointed out that, under the Houston formula, the helper would receive an increase of only 19 cents, and the gen- eral operator, operator A, and operator B would receive (5 percent plus 20 cent) 44, 43, and 42 cents, respective- ly. Then on November 20, the Company announced its new rates, to be effective November 16. Instead of the increases ranging from 19 to 48 cents an hour as the Union had agreed to accept under the new Houston for- mula (19 cents in the classification of helper for the first 60 working days, 19 cents for helper after 60 working days, 42 cents for operator B, 43 cents for operator, 44 cents for general operator, 46 cents for mechanic, and 48 cents for mechanic A), which would have been an aver- age increase of 8.125 percent over the wages in effect since November 16, 1977 ($3.75, $3.85, $4.33, $4.58, $4.87, $5.13, and $5.51, respectively, in the seven classifi- cations), the Company announced wage increases rang- ing from 25 to 73 cents and hour (25, 35, 52, 57, 73, 47, and 69 cents, respectively), an average increase of 11.145 percent, which was 37.169 percent more than the 8.125 average increase under the Houston formula. (The new rates were $4, $4.20, $4.85, $5.15, $5.60, $5.60, and $6.30, respectively.) I note that in its brief, the Company com- pletely ignores the fact that the wage increases it an- nounced were higher than those which the Union had agreed to accept. Instead of admitting that its newly an- nounced increases were 37 percent higher-a fact which would tend to support employee Shearman's credited tes- timony that leadman Park had told employees when cir- culating the union-ousting petition that "the Company was prepared to give them larger wages than the Union"-the Company contends that Shearman's testi- mony "was proven untrue by PA's wage rate increase [em- phasis supplied) of November, which was undisputedly less than the Houston contract provided." To the con- trary, the Company's new "wage rate increase" was 37 percent higher than the wage rate increase provided in the Houston contract. (If the Company is arguing that the new Odessa rates were still lower than the Houston rates, that fact is irrelevant because Park did not tell em- ployees that if the Odessa plant were nonunion, the Company was prepared to pay wages equal or higher than the Houston rates-which had always been higher than the Odessa rates.) Thus, after a 51.7-percent majority of the probationary and regular employees signed the union-ousting petitions, these bargaining unit employees were rewarded by an average of 37 percent higher wage increases-the higher wages which the Company and Park promised if the plant were nonunion. 3. Alleged contemporaneous conduct Following the Company's November 9 withdrawal of recognition from the Union, other unlawful conduct is alleged to have occurred. Overly Broad No-Solicitation Rule. On or about No- vember 11, Union Committeeman Eddings was soliciting signatures on union authorization cards to support an election petition (later filed on November 14). As Ed- dings credibly testified, Plant Manager Richardson asked him during working time if he had any cards signed and jokingly said, "Well, give me one and I'll sign it for you." Eddings responded that he could not right then because it was during working hours, and that he "would have to wait until the afternoon break." Richard- son stated, "Well, you can't do it then either," pointing out that Eddings could solicit employees before and after work and during lunch, "but during break you are still on the payroll and you're not allowed to solicit during break." The complaint alleges that this was an overly broad no-solicitation rule. Richardson admitted telling Eddings, in front of another employee, "You cannot sign them on breaks, but you can on lunchtime and before and after work." (Richardson claimed that he placed the same restriction on the circulation of the antiunion peti- P. A. INCORPORATED 495 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion in September, pursuant to Area Manager Anderson's written instructions-which as noted above, Richardson claimed he later discarded. To the contrary, Company Vice President Patrick Donnelly credibly testified that Anderson had been told that the petition signing "had to occur during breaks" and not on company time; and Vice President Lubke credibly testified that Bill Park- who "headed up" the petition-had thereafter reported that the petition signing "was done during breaks and after hours." I find Richardson's claim of the earlier re- striction to be another fabriacation.) Eddings had been soliciting cards during break time, but thereafter stopped doing so. Later, on November 14 and 15, Lubke read to the different shifts a speech which included a statement that "Solicitation, if any, must be conducted on nonwork time such as breaks or lunch periods." However this was after elapse of several crucial days, when the Union was seeking enough authorization cards to support an elec- tion petition. I therefore find that the undisputedly broad no-solicitation rule, prohibiting the solicitation of union cards during break time, was unlawfully announced by the plant manager on November 11, in violation of Sec- tion 8(a)(l) of the Act. Interrogation and Threat. The General Counsel con- tends that on or about November 14, Plant Manager Richardson called Union Committeeman L. B. Whiteside into the office, asked him how he was going to vote, and threatened him with the loss of benefits if the Union was retained. However, Whiteside gave such conflicting testi- mony on direct and cross-examination that I cannot rely on his testimony as being trustworthy. I therefore find that these allegations in the complaint must be dismissed. Threats of Loss of Pay Raise. On November 20, the Company sent the Union a letter, announcing the larger wage increases (discussed above), plus other benefits under the Houston agreement. The letter stated that the Company "intends to implement" the changes on No- vember 28 (effective November 16) "unless we receive notice of an objection from your union by the close of business on November 27," and added that "all terms and conditions of employment . . . will be subject to ne- gotiation if and when your union's majority status should be established." On November 21, shortly after this letter was posted on the bulletin board, Plant Manager Richardson ap- proached Committeeman Eddings who was talking to his relief forklift driver, Harrison Stewart. After Richardson told Stewart to go to work, as Eddings credibly testified, Richardson stated he had overheard Eddings and Stew- art talking and then asked, in effect, if "we really planned to fight for the Union," and if International Rep- resentative Childs was "going to get a petition signed" (supporting the Union). Eddings said he did not know. Then, referring to the posted announcement, Richardson told Eddings, "Well, if you all go ahead and fight for the Union . . . these benefits on this paper here would not take effect." (Richardson admitted having a conversation with Eddings, but denied asking Eddings the questions, and denied threatening the loss of the pay raises. I dis- credit the denials. I also find that Eddings erroneously recalled that such posted notices had also been read to the employees.) I find that the Company orally threat- ened employee Eddings with the loss of the pay raises if the employees continued to fight for the Union, thereby engaging in coercive conduct in violation of Section 8(a)(l) of the Act. Finally, on November 30 and December 1, the Com- pany met with the different shifts and announced that the Union's election petition had been withdrawn and that the new wage rates were in effect, retroactive to No- vember 16. 4. The Company's defenses In its brief, the Company denies committing any unfair labor practices and contends that its withdrawal of rec- ognition was predicated on a good-faith and reasonably grounded doubt of the Union's continued majority status. The Company contends that the "employees' decertifi- cation petition alone is sufficient justification" for its rea- sonable doubt of the Union's majority status. Concerning the direct (and credited) testimony by employee Stewart that he overheard petition-solicitor Bill Park telling em- ployees that "if the Union was away . . . the Company was prepared to give them larger wages than the Union," the Company contends that this "runs against the weight of the evidence"-even though the only other employee, besides Park, who testified about how employees were induced to sign the antiunion petitions was employee Eddings who similarly testified that peti- tion-solicitor Dirden "told me that he thought we would get a bigger raise out of it if we are nonunion." In con- tending that the decertification petition was a "spontane- ous and ceorcion-free renunciation" of the Union, and that there "is simply no credible or competent evidence of PA having planted the seed in the minds of the em- ployees," the Company disputes or ignores the evidence of Plant Manager Richardson's antiunion conduct. The Company purports to take at face value the separate den- ials, of any company influence or any promises, made by Richardson and leadman Park in the Company's October 5 "investigation" of the Union's complaint of company involvement in the antiunion petitions, and it completely ignores the fact that it subsequently granted the employ- ees the larger wage increase-averaging 37 percent more than the increases which the Union had agreed to accept. The Company also contends that it offered no more "than the barest 'ministerial aid' allowed by law" when furnishing requested information about the petition, de- spite Richardson's publicizing of his participation to non- soliciting employees and despite his suggestion or direc- tion that the solicitation be continued when the petition was turned in with signatures of only 51.7 percent of the current employees. Contrary to the foregoing findings that the Company violated Section 8(a)(l) in August when Plant Manager Richardson made an implied promise of employee bo- nuses if the Odessa plant were nonunion, and in October when Richardson offered an employee a promotion and a pay raise contingent on his defecting from the Union, the Company argues in its brief that its good-faith doubt of the Union's majority status was "raised in a context free of unfair labor practices aimed at destroying the Union's majority status," and that there is "no evidence of any union animus." P. A. INCORPORATED 497 The Company also contends that its reasonable, good- faith doubt was based not only on the antiunion petition but "on a network of objective factors which cumula- tively complemented and gave meaning to one another." I find that all of these so-called "objective factors" (dis- cussed in the following two paragraphs) either have no merit or occurred after the promises were made of higher wages if the plant were nonunion. Ignoring the fact that a majority of the regular em- ployees were union members on checkoff, and the fact that none of the new probationary employees had ex- pressed any dissatisfaction with the Union before the promises of higher wages, the Company contends that it believed reports of the "Union's neglectful inactivity" and "lack of grievances" (despite the Union's active coo- peration with the Company in attempting to solve the difficult turnover and contract-employee problems, and the handling of grievances which did arise). It cites the failure of the Union to hold a membership meeting before and the "Union's capitulation" at the 1977 wage strike clause-and following a committeemen meeting at- tended by other members-accepted the wage formula negotiated at the Houston plant). It contends that the Union, not holding a membership meeting before, and failing to present any formal proposal at the October 5 negotiating session, "did not know what the unit employ- ees might have desired to include in a proposal" (ignor- ing the testimony that a meeting had been held earlier and that before the Company challenged the Union's ma- jority at that session, the Union informed the Company that there were changes in the Houston settlement which the Union wanted to propose verbally that day). It cites "a credible statement from an employee that there was long-time dissent within the Union, including evidence of prior inquiries as to decertification procedures" (referring to a luncheon conversation about September 27 or 28 with a new supervisor who had been away from the plant since Feburary when he had quit as an employee and who, before becoming the Union's committee chair- man in 1977, had asked a prior plant manager about get- ting out of the Union but had recieved no response). It cites "the employees' statements regarding the credit union" (referring to its receipt in November-following the promises of higher wages for going nonunion-of re- ports, not introduced for their truth, that employees had signed union cards or joined the Union in order to par- ticipate in the credit union), "and the checkoff revoca- tions" (referring to five of the seven union members who signed the antiunion petition, wanting in early November to revoke their checkoff authorization). The Company also cites International Representative Childs' "repeated refusal to offer any evidence of the Union's majority status other than its stale certification and his concomitant admission that the Union could show majority support only if PA waived the contrac- tual probationary period." (The Company was already checking off the dues of a majority of the regular em- ployees. The Union of course did not have checkoff au- thorizations from the 24 new, probationary employees who had been hired since August 9; the Company had refused to check off dues of probationary employees. Moreover none of these new employees had expressed any dissatisfaction with the union representation before the antiunion petition was circulated. It is true that after the Company broke off negotiations on November 9, the Union apparently failed to get many of the nonmembers to sign union authorization cards, but this union solicita- tion occurred in the context of the earlier promises of higher wages without a union and it was impeded for several days by the unlawfully broad no-solicitation rule, prohibiting the solicitation of union cards during breaks.) Finally, the Company contends that it did not violate Section 8(a)(5) by posting on November 21 its letter an- nouncing the new wage increases. The Company asserts, "it is well-settled that a unilateral wage increase imple- mented subsequent to a good faith withdrawal of recog- nition is not a violation of Section 8(a)(5)." 5. Concluding findings The evidence shows that the Company decided to, and did, grant the Odessa employees higher wages without a union. Plant Manager Richardson, shortly after the Company transferred him to the Odessa plant from its nonunion Oklahoma City plant, began engaging in a campaign clearly designed to eliminate the Union. As found, he at- tempted to turn one of the union committeemen against the Union by coercively telling him that if the plant were nonunion, the Company could give the same ($250) on-the-spot bonuses which it gave good employees in the nonunion Oklahoma City plant. He admitted "probably" making the statement that "we was going to run" the plant "right by the [union] book," and admitted that "we did have some grievances filed on me when I was there." Yet, despite the admitted talk in the plant about company "promise or bonuses," there was still no ex- pression of dissatisfaction with the Union either by the regular employees (most of whom were union members on dues checkoff) or by the new, probationary employ- ees (for whom the Company refused to check off dues until they were employed 60 working days-about 90 calendar days). Finally, as found, Richardson made a promise at least to leadman Bill Park that the Company was prepared to pay higher wages if the plant were non- union. (Park was in a special status of a "walking general [operator]," who "walked around and made sure every- thing was running right" and the employees were work- ing, and who had on occasion temporarily replaced an absent foreman or supervisor. Although a member of the bargaining unit, he was in a good position to convey company policy to the employees.) After talking with several other employees, Park and another employee for- mally asked Richardson how to vote out the Union, and a few days later, Richardson publicized the instructions for preparing and circulating an antiunion petition by calling still other bargaining unit employees into the office to hear the instructions. Park prepared two copies of the antiunion petition, and he and several employees solicited signatures during the latter part of September. While doing so, Park appeared at the plant before his regular shift and remained after his shift, and was over- heard telling a number of employees that "if the Union was away . . . the Company was prepared to give them larger wages than the Union." When he turned in the an- P. A. INCORPORATED 497 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tiunion petition, with only 51.7 percent of the current employees' signatures (including signatures of 12 of the 24 new probationary employees hired since August 9), Richardson suggested or directed that the solicitation continue. However, none of the other employees would sign the petition. Shortly after Park turned in the petition a second time, he began substituting for a supervisor on a regular basis. About 5 or 10 days later, the Company continued the antiunion campaign when Richardson of- fered an employee (another former union committeeman) a promotion and a pay raise on the unlawful condition that he "get out of the union." Then, after questioning the Union's majority status at the October 5 negotiating session, and breaking off negotiations and withdrawing recognition from the Union on November 9, the Compa- ny proceeded on November 21 to post a notice of unilat- erally determined wage increases, averaging 37 percent higher than the increases which the Union had agreed on October 5 to accept. The higher wages were made retro- active to November 16, the day following the expiration of the union agreement. In its brief the Company admits, under the basisc prin- ciple set forth in Celanese Corporation of America, 95 NLRB 664, 671-673 (1951), that "the General Counsel met his burden of establishing a prima facie case," based on the rebuttable presumption after the first year of the decertification that the Union continues to have a major- ity status. I find, after considering the totality of all the circumstances involved in this case, that the Company had not rebutted the prima facie case that the Company was obligated to bargain and that its refusal on and after November 9 was unlawful. The credited evidence shows that until leadman Park relayed to employees the Company's promise of higher wages if the Odessa plant were nonunion, 60.6 of the 33 regular employees were union members on checkoff. (Of course, as held in N.L.R.B. v.Gulfmont Hotel Company, 362 F.2d 588, 591-592 (5th Cir. 1966), "there is no neces- sary connection between the checkoff list and the number of union supporters," because "No one knows how many employees who favored the unions had decid- ed not to authorize the company to deduct union dues or how may who favored union bargaining were not even members of the unions.") Despite the Company's antiun- ion campaign carried on by Plant Manager Richardson since his transfer in June from the nonunion Oklahoma City plant, there is no evidence of any antiunion expres- sions being made by either the regular or the new proba- tionary employees until Park met with several employees and began planning the ousting of the Union with a peti- tion. (Cf. N.L.R.B. v. Nu-Southern Dyeing & Finishing, Inc., 444 F.2d 11, 16 (4th Cir. 1971), where "numerous employees expressed to company supervisors a desire to disassociate themselves from the union.") Thus at the time the Company, through Park, "planted the seed in the minds of the employees" that signing of the antiunion petition would mean higher wages, the Company had no objective basis for doubting that a majority of all of the bargaining unit employees wished to have the Union as their representative for collective-bargaining purposes. Moreover, even when the antiunion petition was being circulated in the context of promises of higher wages, a bare majority of only 51.7 percent of the regular and probationary employees would sign it. The others re- fused, although the Company caused the petition to be circulated again. Finding that the Company encouraged the circulation of the antiunion petition by promising to pay higher wages if the plant were nonunion, I reject the Compa- ny's contention that it was "confronted with the employ- ees' spontaneous and coercion-free renunciation of the Union through the petition," and find that its own an- tiunion campaign induced the bare majority of 51.7 per- cent of the bargaining unit employees to sign the peti- tion. Also, finding that the Company continued its an- tiunion campaign when Plant Manager Richardson (who had in August unlawfully promised bonuses if the plant were nonunion) thereafter in October unlawfully prom- ised an employee a promotion and a pay raise if he would "get out of the union," I find that the Company's conduct refutes its professed "reasonable, good faith doubt of the Union's continued majority status," and its contention that its doubt was "raised in a context free of unfair labor practices aimed at destroying the Union's majority status." Having also rejected the Company's other so-called "objective factors" asserted in its defense as supporting its "good faith doubt," I find that the Company unlaw- fully refused on and since November 9 to recognize and bargain with the Union, and on November 21 unlawfully posted a notice announcing the granting of unilaterally determined wage increases, in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW 1. By refusing on and since November 9 to recognize and bargain with the Union in a stipulated appropriate production and maintenance unit, and by announcing unilaterally determined wage increases to bargaining unit employees on November 21, the Company engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By promising to give employee bonuses if the Odessa plant were nonunion, and by promising to give an employee a promotion and a pay raise if he would get out of the Union, the Company violated Section 8(a)(1) of the Act. 3. By orally promulgating an overly broad no-solicita- tion rule, and by threatening to withdraw announced wage increases if the employees continued to fight for the Union, the Company further violated Section 8(a)(l) of the Act. 4. The General Counsel has failed to prove that the Company engaged in unlawful interrogation or threat- ened an employee with loss of benefits if the employees retained the Union. THE REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order the Respondent to cease and desist therefrom and to take P. A. INCORPORATED 499 certain affirmative action designed to effectuate the poli- cies of the Act as set forth in the Order below. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 2 1. Cease and desist from: (a) Unlawfully withdrawing recognition of, or refusing to bargain with Oil, Chemical and Atomic Workers In- ternational Union, AFL-CIO, and its Local 4-586, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees em- ployed in the maintenance, yard, custom and tube departments by the Company at its plant located at 300 W. 61st Street in Odessa, Texas, excluding all other employees including administrative, estimat- ing, sales, engineering, purchasing, office, technical, payroll, quality control, inspection and reclamation employees and all foremen, guards, watchmen and supervisors as defined in the Act. (b) Unlawfully granting any future wage increases without notifying and bargaining with the Union. (c) Promising to give bonuses if the Odessa plant is nonunion. (d) Promising to give any employee a promotion or a pay raise if he leaves the Union. (e) Threatening to withdraw announced wage in- creases if the employees continue to fight for the Union. (f) Promulgating an overly broad no-solicitation rule, prohibiting solicitation during nonworking time. (g) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain in good faith with the Union as the exclusive representative of the employees in the above-described appropriate unit and embody in a signed agreement any understanding reached. (b) Post at its plant in Odessa, Texas, copies of the at- tached notice marked "Appendix." 3 Copies of said notice, on forms provided by the Regional Director for Region 1, after being duly signed by the Respondent's 2 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 find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections there shall be deemed waived for all purposes. 3 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 1, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act not spe- cifically found. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT unlawfully withdraw recognition of and refuse to bargain with the Union. WE WILL NOT unlawfully grant any future wage increases without notifying and bargaining with the Union. WE WIt.. NOT promise to give bonuses if the plant is nonunion. WE WILL NOT promise to give any employee a promotion or a pay raise if he leaves the Union. WE WILL NOT threaten to withdraw announced wage increases if the employees continue to fight for the Union. WE WILL NOT prohibit solicitation during breaks or other nonworking time. WE WILL NOT in any like or related manner in- terfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Sec- tion 7 of the Act. WE WILL bargain with Oil, Chemical and Atomic Workers International Union, AFL-CIO, and its Lo- cal 4-586, and put in writing and sign any bargaining agreement we reach covering these employees: All production and maintenance employees em- ployed in the maintenance, yard, custom and tube departments by the Company at its plant located at 300 W. 61st Street in Odessa, Texas, excluding all other employees including administrative, esti- mating, sales, engineering, purchasing, office, technical, payroll, quality control, inspection and reclamation employees and all foremen, guards, watchmen and supervisors as defined in the Act. P. A. INCORPORATED P. A. INCORPORATED 499