John Deere Plow Co. of St. Louis

In the Matter Of JOHN DEERE PLOW COMPANY OF ST. Louis, and INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) Case No. 10-C-1963.-Decided March 15, 1949 DECISION AND ORDER On May 9, 1947, Trial Examiner James R. Hemingway issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto.' The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended dismissal of those allegations. Thereafter, the Respondent filed exceptions to the In- termediate Report and a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the Respondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner except as they are incon- sistent herewith. 1. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (1) of the Act, particularly during the period immediately preceding the Board-conducted consent election of May 24, 1946, by promising the employees benefits if they rejected the Union, threatening them with reprisals if they selected the Union, and questioning them about the Union. Unlike the Trial Examiner, however, we do not rely on Foreman Landrum's "making the Respond- "Those provisions of Section 8 (1) and (5) of the Act, which the Trial Examiner found were violated, are continued in Section 8 (a) (1) and (5) of the Act, as amended by the Labor Management Relations Act, 1947. 82 N. L. R. B., No. 4. 838914-50-vol 82-6 69 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's disapproval of the Union known," the May 23 notice which the Trial Examiner found coercive only when "interpreted in the light of all else that had occurred," Vice-President Mastin's non-coercive speech to the white employees, and the Respondent's "urging" em- ployees not to join the Union, "telling" employees that the Union was just for taking their money, and its general "course of conduct designed to influence the employees to vote against the Union." More- over, we hereby reverse the Trial Examiner's apparent finding that the Respondent's refusal to bargain interfered with the election, because the election preceded the refusal to bargain. 2. We agree with the Trial Examiner's further finding that the Respondent unlawfully refused to bargain collectively with the Union on and after July 19, 1946. We rely on the fact that, because of its questioning of employees, the Respondent, as the Trial Examiner found, "had reason to believe that the original claim of the Union was true" ; that the question concerning representation presented to the Board by the Union's subsequent petition and consent-election agreement, and the invalid election held pursuant thereto, are there- fore unavailable to the Respondent as a justification for its refusal to bargain thereafter; 2 that after the election, the Union obtained new authorization cards signed by a clear majority of the employees in the unit; that the Union so advised the Respondent, and requested a conference for the purpose of submitting proof of the claimed majority and for collective bargaining; that the Respondent, by letter dated July 19, 1946, unequivocally refused this request, solely on the ground of the results of the election held some 2 months earlier; and that the Board, in an unreported Decision issued in the representation case on January 17, 1947, set the election aside, on the ground that the Re- spondent had improperly interfered therewith. Under these circum- stances, we agree with the Trial Examiner's conclusion that, while there "would be some cause to question the [majority] claim of the Union on July 16" if the election had been valid, the Respondent, by its "affirmative efforts to change the Union's majority prior to the elec- tion," did not have a "bona fide doubt of the Union's claim," but on the contrary "unjustifiably" refused the Union's request. Our dissenting colleagues disagree with this finding on several grounds. They argue that the doubt which the Respondent advanced on July 19, 1946, as the reason for refusing to bargain collectively with the Union,-a doubt based exclusively on a past election which the Respondent had itself invalidated by the unlawful conduct of its officials and high ranking supervisors,-nevertheless was not feigned or 2 See N. L. R B. v. National Seal Corporation, 127 F (2d) 776, 778 (C. A. 2), enfg. 30NLRB.188. JOHN DEERE PLOW COMPANY OF ST. LOUIS 71 advanced in bad faith. But, as has already been found, it was the Respondent itself that less than 2 months earlier had been unwilling to test the Union's majority claim in a fair and free election. We are not ready to permit an employer to rely on his own unremedied inter- ference with a prior Board election to justify a refusal to bargain with the statutory representative of his employees thereafter, particularly where, as the Trial Examiner here found with ample record support, the employer had original reason to believe the majority claim of that representative. It is true that, in other situations, we have found an employer's doubt to be genuine in fact where he had not already created an atmosphere of unfair labor practice at the time of his declination to bargain, and where he refrained from doing so for a period of time thereafter sufficient to rebut any inference that he had intended to engage in unfair labor practices when he first declined to bargain 4 For this reason, it is unnecessary to recite the detailed facts in the cases cited in the dissent. We observe, however, that in those cases we found as a fact that the employer's purpose in refusing to recognize the union without an election was to test the union's majority claim, and not "to accomplish any . . . unlawful purpose" (the Chamberlain case) or to "frustrate collective bargaining by his employees" (the Roanoke case). Here, the Respondent did not seek to test the Union's majority claim, but could only have intended to frustrate collective bargaining. As the Court of Appeals for the Second Circuit held in the governing National Seal case : .. . It is scarcely necessary to say that he [the employer] could not insist that that was a "question" which he knew was not one, and thus suspend the duty which Section 8 (5) . . . imposed upon him . . . It made no difference that his spurious doubt had provoked Carey [the union's representative] to file a complaint [clearly an inadvertent slip of the pen, the reference being to the union's 9 (c) petition] .,5 The dissent argues that in any event the Union should not be per- mitted to claim a majority on July 19 because it was also objecting at that time to the Respondent's unlawful interference with the May 24 election. Regardless of whether the prosecution of a representation a In our January 17, 1947, decision in the representation case, referred to above. 4 For example, Matter of Artcraft Hosiery Company, 78 N. L R. B. 333 See, also, Matter of Gibson County Electric Membership Corporation, 74 N. L. R B. 1414 ; Matter of The Hartford Courant Company, 64 N. L. R. B. 213. ° N. L. R. B. v. National Seal Corporation, supra, at p 778. See also Matter of Con- solidated Machine Tool Corporation, 67 N. L R B . 737, 740, where the Board said : We have frequently held that an employer cannot be heard to say that he entertains an honest doubt as to a union's majority status where he conducts a campaign to destroy that majority [ citing cases]. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case by the Union would have been inconsistent with its demand for recognition under other circumstances, we see no inconsistency here. For the Union, while steadfastly asserting that the Respondent should grant it recognition, was properly seeking at the same time to remove, the obstacle of an election defeat seemingly brought about by the Respondent's unlawful conduct less than 2 months earlier. Nor do we perceive how such conduct by the Union, even if inconsistent, throws any significant light on the only issue now before us: namely, whether or not the Respondent's asserted doubt was real or sham. The "vice" the dissent finds in our position consists only of (1) deciding the case on the basis of hindsight, as all judicial and quasi-judicial tribunals must; and (2) declining to assume the good faith of an employer who refuses to bargain with his employees' duly designated representative because of an asserted doubt as to its representative status when that doubt existed, if at all, only because of the employer's own unfair labor practices. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, John Deere Plow Company of St. Louis, Atlanta, Georgia, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), as the exclusive representative of all its warehouse and machine shop employees in its warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, excluding persons employed in the office, salesmen, collectors, traveling servicemen, and supervisors as defined in the Act; 6 (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of Amer- ica (UAW-CIO), or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi-- 6 This unit is substantially the same as the one stipulated by the parties to be appropriate,. and so found by the Trial Examiner. JOHN DEERE PLOW COMPANY OF ST. LOUIS 73 Lion of employment as authorized in Section 8 (a) (3) of the Act, .as guaranteed by Section 7 thereof. 2. Take the following affirmative action, which the Board finds will :effectuate the policies of the Act : (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers ,of America (UAW-CIO), as the exclusive representative of the em- ployees in the unit described above, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other con- ditions of employment, and if an understanding is reached, embody such understanding in a signed contract; (b) Post at its warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, copies of the notice attached hereto, marked "Appendix A." 7 Copies of said notice, to be furnished by the Regional Direc- tor for the Tenth Region, shall, after being duly signed by the Re- spondent, be posted by it immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respon- dent to insure that such notices are not altered, defaced, or covered by any other material; (c) Notify the Regional Director for the Tenth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the Respondent granted wage increases and paid vacations to discourage union activity. MEMBERS MURDOCK and REYNOLDS dissenting in part : We disagree with the conclusion of the majority that the Respond- ent was under an obligation to bargain with the Union as the ex- clusive representative of its employees on and after July 19, 1946, and that by refusing to do so it violated Section 8 (5) of the Act. We have been under the impression that if any legal proposition could be said to represent well established Board doctrine, it is the propo- sition that so long as there exists an unresolved question concerning representation there can be no exclusive bargaining representative, and hence no legal obligation to bargain. Yet on July 19, 1946 (the date on which the majority finds that the Respondent came under a legal obligation to bargain with the Union), and continuing at least until January 28, 1947, there existed a question concerning represen- 7In the event that this Order is enforced by a United States Court of Appeals, there shall be inserted, before the words, "A Decision and Order," the words : "A Decree of the United States Court of Appeals Enforcing." 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tation in connection with a representation proceeding which was being actively prosecuted before the Board by this same union.' On May 8, 1946, the Union filed a petition for certification in Case 10-R-1892, and the Union and the Employer thereafter on May 21, 1946 entered into a Stipulation for Certification upon Consent Elec- tion, as part of which it was stipulated that a question concerning the representation of the Respondent's employees had arisen. Pur- suant thereto, a consent election was held on May 24, 1946, which the Union lost. On May 27, 1946 the Union filed both objections to the election and an 8 (5) charge alleging a refusal to bargain on May 24. On November 25, 1946, the Regional Director issued his report on objections in which he recommended that the Union's objections to the election be sustained, that the election of May 24 be set aside, and that the Board "direct that a new election be conducted." No exceptions to any part of this recommendation were filed, either by the Employer or the Union. The Union as of this time plainly gave no indication either to the Board or the Employer that its position was anything other than that the question concerning representation should be re- solved by a new election in place of the May 24 election, as recom- mended by the Regional Director. On January 17, 1947, the Board adopted the Regional Director's recommendations, "inasmuch as no exceptions have been filed with respect thereto," and directed the new election. Thereafter, on January 21, 1947, the Union for the first time took a different position in the representation proceeding and requested permission to withdraw its petition for the stated reason that the Union "has filed a charge under Section 8 (5) of the National Labor Relations Act.'"' Permission to withdraw was granted by the Board on January 28, 1947. Clearly, a question concerning representation was pending before the Board during the period from May 8, 1946, when Case 10-R-1892 was filed, to January 28, 1947, when the Board permitted withdrawal of the Union's petition. How can the Union now be permitted suc- cessfully to assert that on and after July 19, 1946, the Employer was under a legal obligation to bargain with it as an exclusive bargaining representative, when on that very date and for 6 months thereafter, the Union was seeking to have the Board order a new election to resolve the question concerning representation which had been pend- ing since May 1946? 8 We doubt, however, that the mere withdrawal of the Union's petition on January 28, 1947, extinguished the question concerning representation 9 Just prior thereto, on January 10, 1947, the Union had filed an amended charge on which the complaint herein was predicated, alleging a refusal to bargain on July 16, 1946, in place of the original charge which had alleged a refusal to bargain on May 24, 1946 I JOHN DEERE PLOW COMPANY OF ST. LOUIS 75 We find the result reached by the majority not only legally unsound because it negates the established doctrine that there can be no obli- gation to bargain while a question concerning representation exists, but also unwarranted when viewed from still another standpoint. In reaching the conclusion that there was a violation of Section 8 (5), the majority adopt and of necessity must rely on the Trial Examiner's finding that the Respondent did not have a "bona fide doubt of the Union's claim" when it refused to bargain on July 19, 1946. We do not believe that such a finding can be said to have substantial support on this record. Consider the Employer's position on July 19, 1946. Less than 2 months previous, at the May 24 election, a substantial ma- jority of its employees had voted against the Union by secret ballot. The Union again requests recognition, claiming to represent a new majority. Certainly the results of the recent secret ballot election must inevitably have given rise to doubts as to whether the Union was the free choice of a majority of the employees on July 19, 1946, even if cards signed by a post-election majority had been available and were presented. Nor does it seem to us that the mere fact that state- ments of supervisory employees prior to the May 24 election are found to constitute 8 (1) and to justify setting the election aside because doubt exists as to whether the result of the election reflected the free choice of the employees, necessarily precludes the existence of a good faith doubt on the Employer's part 10 Moreover, we cannot overlook the fact that the Union had filed objections to the May 24 election which were still pending unresolved on July 19, 1946. If it were a valid election, then Respondent's reply to the Union's July 16 request, that it was "inappropriate" in view of the election of May 24, could not be deemed unwarranted. The Board would not, under its own admin- istrative practice then in effect, have entertained a new petition based upon a post-election claim of majority within only 2 months after the May 24 election. But the Union on July 16, 1946 was contending (and, as subsequent events proved, successfully) that the May 24 election was not valid because of interference and was seeking a new election to resolve the question concerning representation which arose 10 In two recent cases where the Board dismissed 8 (5) charges the Board has held that 8 (1) statements of supervisory employees do not preclude the existence of good faith doubt of a union's majority and the employer's insistence on an election to establish a majority. See Roanoke Public Warehouse, 72 N. L R. B 1281, 1282, and Chamberlain Corporation, 75 N L. R. B. 1188. In both of those cases the 8 ( 1) conduct was far more serious and coercive than that involved in the instant case, since there were threats to discharge employees who joined the union in both those cases and a threat to close the business in one of them In dismissing the 8 (5) charge in the Roanoke case, the Board commented on the employer 's willingness to agree to a consent election as evidence of his good faith, a factor also present in the instant case Moreover, in the Chamberlain case, the Board found the employer's insistence on an election instead of accepting proof by cards was not in bad faith despite both the 8 ( 1) conduct and the employer's refusal to agree to a consent election. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in May. We are certain that our colleagues would not deny that had the instant case reached them at any time during the pendency of the representation proceedings prior to the withdrawal of the Union's petition on January 28, 1947, they would not have found the Respondent guilty of a refusal to bargain, even though the Union actually had a post-election majority which Respondent refused to recognize. Then clearly the Employer could not be deemed to be acting in bad faith in failing to recognize a claim of representative status based upon a new post-election majority, while the Union was actively litigating in the representation proceeding the question con- cerning representation arising from its old claim for recognition based on cards antedating its petition filed May 8, 1946. The vice of the majority's position lies in this fact : after the Union had led the Em- ployer and the Board to believe for a period of 8 months (from the May 24, 1946 election to the Union's withdrawal of the petition for certification on January 28, 1947) that it seeks certification in a new election, the majority gives retroactive effect to the withdrawal of the Union's petition and considers the obligations of the Employer on July 19, 1946 to be what they might have been had the Union with- drawn its petition prior to that date. In other words, the rights and good faith of the Employer on July 19, 1946, are made to turn on the fortuitous circumstances that the Union 6 months later decided to abandon its successful efforts to get a new election on its petition for certification and instead to seek an 8 (5) order based upon a post- election card majority. This strikes us as neither good law nor good sense.- It would seem that where the Union had been "riding off in different directions," the very least that fairness requires when it finally makes up its mind what route it will follow, withdraws its petition and prosecutes a charge based upon a post-election majority, is that the Union then makes a new request of the Employer for recog- nition after withdrawal of its petition, and that the Employer's good faith be tested by his actions in that context. For the foregoing reasons we would dismiss the 8 (5) allegation of the complaint. u The National Seal Corporation case, 127 F. (2d) 776, cited by the majority, is dis- tinguishable on several scores and is not controlling here. There the union withdrew its petition 6 days after filing it instead of continuing to prosecute it for 6 months as the union did here after its July 16, 1946 claim for recognition. There, unlike here, it was found that the employer's representative admitted at the time of the request that he had no doubt of the union's majority . There the 8 (5) was found on the basis of the original claim of representation and not on a new post-election majority immediately following an election the validity of which was in dispute. JOHN DEERE PLOW COMPANY OF ST. LOUIS 77 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with INTERNA- TIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) as the exclusive representative of all our employees in the bargaining unit des- cribed below and if an understanding is reached, embody such understanding in a signed contract. The bargaining unit is : All our warehouse and machine shop employees in the ware- house at 326 Nelson Street, S. W., Atlanta Georgia, excluding persons employed in the office, salesmen, collectors, traveling servicemen, and supervisors as defined in the Act. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organization, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO), or any other labor organiza- tion, to bargain collectively through representatives of their own choosing to engage in concerted activities for the purpoe of col- lective bargaining or other mutual aid or protection , or to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the National Labor telations Act. All our employees are free to become and remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization except to the extent that the right to refrain may be affected by a lawful agreement requiring mem- bership in a labor organization as a condition of employment. JOHN DEERE PLOW COMPANY OF ST. Louis, Employer. Dated--------------------- By-------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT Mr. M. A. Prowell, for the Board. Mr. Ralph, Williams, of Atlanta, Ga., for the Respondent. Mr. George D. Guest, of Atlanta, Ga., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by International Union, United Automobile, Aircraft and Agricultural Implement Workers of America (UAW-CIO), herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Tenth Region (Atlanta, Georgia), issued its complaint dated January 10, 1947, against John Deere Plow Company of St. Louis, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served on the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that from about April 5, 1946, to the date of the complaint the Respondent : vilified, disparaged, and expressed disapproval of the Union ; granted wage in- creases and promised paid vacations to discourage Union activities ; interrogated employees concerning their union affiliation; threatened to withhold wage in- creases from its employees because of their union affiliation ; advised employees to vote against the Union as their bargaining agent; urged, persuaded, threatened, and warned its employees to refrain from assisting, becoming members of, or remaining members of, the Union, from April 5, 1946, to May 24, 1946, interfered with the conduct of an election conducted on the latter date by the Board by the foregoing acts and by soliciting employees to vote against the Union; on and after July 16, 1946, refused to bargain with the Union although it had been requested to do so by the Union, which on and after said date had been designated as collective bargaining representative by a majority of the employees in an appropriate unit. The Respondent's answer in substance alleged that the Union's claims made in April 1946 that it had been designated by a majority of the employees was proved to be false by the results of the election conducted on May 24, 1946, and that the claim of the Union on July 16, 1946, to representation of a majority, coming so soon after the election, was, in effect, premature, and that the Respond- ent still believes that if the employees were given opportunity to express their choice by secret ballot, a majority would again refuse to designate the Union as their collective bargaining representative. The answer further denied the com- mission of all the alleged unfair labor practices. Pursuant to notice, a hearing was held in Atlanta, Georgia, on February 3 and 4, 1946, before the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and Respondent were represented by counsel and the Union by its assistant director. All participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing upon the issues was afforded all parties. At the com- mencement of the hearing Board's counsel moved to amend the allegation of the complaint with respect to the appropriate unit to conform to the description of the unit agreed upon in a Stipulation for Certification upon Consent Election entered into by the Respondent and the Union prior to the May 24, 1946, elec- JOHN DEERE PLOW COMPANY OF ST. LOUIS 79 tion.' The motion was granted! At the conclusion of the evidence, Board's and Respondent's counsel argued orally before the undersigned. Thereafter Board's counsel moved to amend the pleadings to conform to the proof as to non-substantive matters?a Although opportunity was afforded the parties to do so, none filed briefs or proposed findings and conclusions with the Trial Examiner. From his observation of the witnesses and upon the entire record in the case, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a corporation authorized to do business in the State of Georgia, maintains a warehouse and office in Atlanta, Georgia, where it is en- gaged in the business of buying, selling and distributing farm implements. In the course and conduct of its business, the Respondent causes and has con- tinuously caused in excess of 90 percent of the implements sold by its Atlanta -warehouse annually, valued in excess of $100,000, to be purchased, delivered, and -transported from and through States other than Georgia to its Atlanta warehouse ; and it causes and has continuously caused in excess of 50 percent of the farm implements sold and distributed by it, valued in excess of $100,000 annually, to be delivered and transported in interstate commerce to, through and into States other than Georgia from its Atlanta warehouse. The Respondent is engaged in -commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America, affiliated with the Congress of Industrial Organiza- tions, is a labor organization admitting to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; interference 'with conduct of election 1. The conduct of supervisors The Union began organizing early in April 1946. On April 16 the Respondent posted a notice to employees that the home office had authorized the announcement that, when the "necessary clearance" could be obtained, all the Atlanta office and warehouse employees would receive an increase. C. S. Mastin, vice president and general manager of the Atlanta branch, testified that the last increase had been given in November 1945, that usually announcement of increase in wage and salary rates was made at the time the increase became effective, that he had permission in April to announce the raise in advance but not to pay it until he had procured WLB [Wage Stabilization Board] approval. Mastin testified that this was a company-wide increase, that an office employee had received a 'There was little difference in the unit described by the complaint before and after amendment; there was merely a difference in words and order of exclusions 'In its answer the Respondent had denied that the alleged unit was appropriate. At the close of the Board's case the parties stipulated that the unit in the complaint as amended was appropriate. sa This motion was likewise granted. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD newspaper clipping from relatives in St. Louis announcing a general increase and had showed it to other office employees, who began to discuss among them- selves whether the Atlanta branch would give the increase, and that the an- nouncement was posted for all the employees to let them know they would receive the same treatment as all other employees of the Respondent. Although the announcement of the wage increase was conveniently timed with reference to Union organization and there is cause to suspect the Respondent's motives in announcing the prospective increase, the evidence does not clearly disclose that by the date of the announcement the Respondent was aware of the organizational activities of the employees. On all the evidence the undersigned finds that the Respondent did not announce the increase in order to discourage the employees organizational activities. On April 22, the Union wrote to the Atlanta office of the Respondent stating that it represented a substantial majority of the employees in the warehouse and re- questing a bargaining conference. Following an interchange of letters, the Respondent wrote to the Union on May 6 stating that it did not believe that a majority of its employees in any appropriate unit desired to be represented by the Union and suggesting a Board conducted election. The Union then petitioned the Board for certification pursuant to Section 9 (c) of the Act. On May 21 the Respondent and the Union entered into a stipulation for certi- fication upon consent election to be held on May 24, 1946, at 4: 30 p. m. Commencing about a month before the election and continuing to the day of the election, Foreman Frank Landrum' talked to most of the employees about the Union. He told them that the Respondent had been in business for a long time without a union, that he saw no reason for it, and that he thought the employees would be better off if they did not join the Union. He questioned em- ployees to learn who were and who were not members and how the employees felt about joining the Union' Landrum asked employee Simpson Hixson if he knew anything about the Union. Hixson said he did not. Landrum asked him if employee James Hogan knew anything about it.' Hixson replied in the nega- tive, and Landrum told Hixson that if he found anything out to come back and tell him. About a week later Landrum called Hixson into his office and told Hixson he knew something about the Union and not to lie about it. When Hixson said he knew nothing, Landrum said Hixson would not tell if he did know anything. In the middle of May, Landrum saw Hixson paying Hogan his union dues, sent for him, and asked why he paid Hogan $3. Hixson said he was repaying a loan. Landrum asked what he had used the money for. Hixson refused to tell, and Landrum said he would find out yet. 3 Landrum supervised all the warehouse employees and had authority to hire and dis- charge colored employees and to make recommendations concerning hiring or discharging white employees. ' When asked on cross-examination why he interested himself in the fact that the employees were in the Union, Landrum testified that it was because he was opposed to the Union and that he expressed his opposition s Hogan was one of the organizers. In the latter part of April, F. E Henderson, head bookkeeper, asked Hogan how the Union meeting of the night before came out and asked if Mastin had caused him any harm Hogan replied that Mastin was a nice fellow and he had no kick against the company. Henderson said, according to Hogan, that he did not think the Union would be any good in a small group of employees. The extent of Henderson 's supervisory authority was not shown . The undersigned does not find that Henderson was speaking as a spokesman for the Respondent , but his statement indicates that Hogan's union activity was a known fact in the office. JOHN DEERE PLOW COMPANY OF ST. LOUIS 81 About May 18, Saturday, General Manager Mastin stopped Hixson outside the warehouse and told him to tell the boys to "leave the union off." ° He also told him that if they got the Union in and then got in trouble, he would not help them and neither would the Union,' and that if they needed any money they would have to go to the Union to get it a Mastin said that he was going to give them a raise and would give it immediately if they "would leave the union off." At Mastin's request, Hixson promised he would "tell the boys to leave the union off." Thereafter he told the colored employees what Mastin had said. Mastin asked Hixson if he were in the Union and Hixson said that he was not. On the morning of May 24, election day, Landrum had all the colored employees in his office and told them that some of them had signed up for the Union and that Hixson's name headed the list. Hixson again denied that he was in the Union. Landrum then told them that they did not need a union and that the Union was just for taking money from them. He also told them in substance that as soon as they saw how the election came out, they would receive the wage increase if they voted against the Unions Later the same morning Landrum called Hixson to his office and asked him if he knew how to mark the ballot if he wanted to vote against the Union. When Hixson said he did not, Landrum showed him and then told him to show the other colored employees how to mark it.10 Hixson went and told those employees that Landrum said to show them how ° The findings on this conversation are based on Hixson 's testimony. Mastin testified that he had talked to . Hixson one Saturday on the parking lot and had talked to him on other Saturdays but that he remembered no union discussion . He testified that Hixson had had several drinks the night before or that morning and that he told him to keep out of trouble. T Apparently this referred to the fact that the colored employees , of which Hixson was one, had been aided by Mastin when they got in trouble and were put in jail. 8 It was the Respondent 's practice to advance money to the employees on their pay. ° This finding is based on Hixson's testimony which was corroborated in part by the testimony of other witnesses . Landrum denied in general terms that he had promised the employees a wage increase to refrain from joining or voting for the Union, and he denied having told Hixson that the wage increase would be affected by the way the employees voted. To other employees , John Sparks and Jim Brown , each testified that prior to the election Landrum told him, in effect , that, if the Union came in, it might be 6 months or a year before they would get their wage increase . Landrum specifically denied having made such statement to these two employees , although he admitted that on the day before the election he had questioned Sparks about his sentiments on the Union and told him that the Respondent would rather not have it. He testified that Respondent's counsel had advised him that he had a right to discourage the employees joining or voting for the Union so long as he did not promise any wage increase or make any threats and that he had not done so. The undersigned believes that Landrum regarded his statements in the nature of argument rather than promise. But whatever the form of the language , the undersigned finds that he gave the employees to understand that immediate benefits would follow the election if the employees voted against the Union and that there would be a delay if the Union won the election. 30 The foregoing is based on testimony of Hixson and Landrum. Hixson testified that Landrum told him if he voted against the Union he could get as much money as he wanted , that Landrum asked him how much he wanted and that he replied that he wanted $10. But he also testified that this was an advance such as frequently was made on pay days. And later he denied that Landrum had given him money to vote against the Union. An affidavit which Hixson made for the Board's Field Examiner was received in evi- dence as past recorded recollection of matters on which Hixson testified that his memory was not refreshed . This affidavit relates the foregoing incident in this fashion: About 11 a. in. Landrum came to me and told me to come with him to the 5th floor. He took up to [ sic] the Notice of Election that the company had posted there and read it to me and told me to mark in the "no" box. He told me to vote against the 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to mark the ballot to vote against the Union. He then showed them how to mark the ballot as Landrum had shown him. Employee Jim Brown testified that Hixson told them that Landrum told him to show them where to mark the ballot, that Hixson did so, and that "we done what he [Hixson] told us to do." Hogan testified that at about 11 a. in. on election day he overheard Mastin say to the colored elevator operator, Robert Peterson, that lie (or they) had better do the right thing about the election. Although Peterson was called as a witness for the Board he was not asked about this conversation Mastin testi- fied that he had no recollection of making such a remark, but that he regarded Peterson as a comic and that he had never said anything to Peterson in a serious vein. The undersigned received the impression that Hogan had caught a snatch of conversation and inferred the rest ; therefore no finding is made that Mastrll warned or threatened Peterson. On the afternoon of May 24, about an hour or two before the election, Landrum assembled the white warehouse employees and told them that General Manager Mastin wanted to talk with them before the election. They gathered around the wrapping counters on the third floor, and Mastin told them that, as they knew, there was to be an election that afternoon, that they could vote as they pleased, but that the Respondent wanted them to vote, that, if they were not in favor of the Union, their failure to vote would in effect be a vote for the Union, that, whatever the outcome of the election was, the Respondent wanted them to continue to work without hard feelings or friction, that he had heard it represented to some of the employees that if the Union won the election they would have to join and that this was not true." When he had finished talking to the white employees, Mastin went to the- basement, had the colored employees assembled, and made substantially the same speech to them. One or two of the colored employees then asked Mastin how soon they would get the wage increase that had been announced and how- much it would be. Mastin said lie did not know how much the raise would be ,but that it would be as much as the boys in the neighborhood were getting, that he did not know how soon it would be given because they had to wait for War Labor Board approval. The evidence is conflicting on whether Mastin made any estimate of the time they would receive the increase if the Union did not come in. The employees were under the impression that it would be Union and I could get whatever I wanted I told him I wanted ten dollars There was no one else present when he was talking to me . . . Landrum told me to go and' tell the other employees how to mark the ballot which I did Hixson testified that he understood the $10 referred to in the affidavit was to be a loan to be repaid out of the retroactive portion of his increase The evidence indicates that each week on pay day (and election day came on pay day) the Respondent would ask the employees how much advance they wanted and how much they wanted to repay on prior advances. A later portion of Hixson's affidavit indicates that on about June 7 Landrum asked him how much he wanted to repay on the advances he had received, that he told Landrum he thought the money he had received was for back pay on the raise that had been announced, and that Landrum had said that the raise had not been straightened out yet and lie did not know when it would go through. Landrum denied that the Union was mentioned in connection with advances on wages The under- signed finds that Hixson drew a false conclusion with respect to the advance on the retro- active portion of the pay increase and that Landrum did not offer Hixson the advance to induce him to vote against the Union. 11 Two employees testified that Mastin said there would he no closed shop Mastin did not remember whether or not he had used the words "closed shop ." On cross- examination , one of the two aforesaid employees confirmed Mastin's language as set forth, in the finding in the body. The undersigned believes and finds that the employees inter- preted the above statement to mean that there would be no closed shop. JOHN DEERE PLOW COMPANY OF ST. LOUIS 83 soon but the undersigned is not convinced that this was put in so many words by Mastin . However, Mastin did say that if the Union won the election the Respondent would endeavor to reach a contract , that the matter of wages was one of the topics that would be covered, and that it might take as long as 6 months or a year to reach agreement . Two employees testified that Mastin told the employees that if the Union came in they might not get their increase for two weeks, six months, or a year. Mastro denied saying that the increase would be postponed if the Union came in . The undersigned deems it immaterial whether he said that expressly . By the context of his statements he gave the employees to understand , as had Landrum previously , that the raise in wages would come quicker without the Union than with it. 2 The posted notices In addition to the notice of wage increase which was posted on April 16, the Respondent posted on its bulletin board two other notices dealing with the coming election . On May 16, 1946, the following notice was posted : To the Atlanta Warehouse Employees: I have heard that some of you have joined, and are trying to persuade others to join, a union . I see no reason at all for the secrecy , and want you to know how I feel about it. Each employee has the right to decide for himself whether he does or does not want to join a union , and to decide for himself which union he wants to join if he does want to join a union ; and no one should try to interfere with the right of any employee ( colored or white) to make up his own mind. This Company full recognizes your right to join a union if you want to, and I will not interfere with your exercise of that right. While you have a right to join a union if you want to , you should also know that you do not have to join a union now , and will not ever have to join a union, if you do not want to. The fact that you do not join a union will not have any effect upon your job, or upon your right to hold your job, or upon your chances of getting a better job. If anyone has told you otherwise , they were trying to mislead you. The laws of this Country provide procedures whereby the right of a union to represent any group of employees can be determined by a properly conducted election ; and the issue should be determined in that way. If a majority of you select a union to be your representative , we will bargain with that union in a sincere effort to agree upon a contract. If a contract is agreed upon, it will include some provisions to the advantage of the employees and some provisions to the advantage of the Company, and we will operate in strict accordance with it. Nine employees in the warehouse are to be discharged tonight. This action is dictated by the work requirements of the department and has no relationship to the attempted organization of the department by a union. The employees to be discharged are being selected in the reverse order of their ability and service . The Company has no knowledge of whether or not they belong to a union. None of these people have been in our employ as long as two months. Very truly yours, C. S. MASTIN 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On May 23, the day before the election, the following notice was posted on the bulletin board : To the Atlanta Warehouse Employees: The Company has stipulated for an election to determine whether you desire to have a CIO union be your sole and exclusive spokesman and rep- resentative in all of your dealings with the Company. The election, as stated in the notices which are being posted along with this notice, will be conducted by a representative of the National Labor Relations Board as the agent of the Government of the United States. The Government gives you a right to vote in this election because the Government knows that'a great many people sign union membership applica- tion cards who do not actually want to be members of the union or to be represented by the union. The fact that you have joined, or have applied for membership in the union does not require you to vote for the union in this election. The Government gives you a right to vote in this election so that you can express your real convictions, in private, and in secret, without any- one ever knowing how you voted. Everyone should vote. If you do not vote, you will, in effect, be voting for the union. Whether the union wins or loses the election, you will not have to join the union if you do not want to. No employee will have to join the union in order to hold his job or get a better job or better wages. If you do not want to surrender your rights and liberties to the union, you should make an "X" mark in the square in the lower right hand corner of the ballot, under the word "No." We appreciate your good work and we believe that it will be to your best interest, as well as ours, for you to vote "No" in this election. C. S. MASTIN. The Union lost the election which was held on May 24. On June 20, 1946, the Respondent 's application forms for approval of wage increases by the Wage Stabilization Board were returned for insufficient Information . The Respondent's home office then authorized Mastin to grant the increase without Wage Stabilization Board approval , and on June 28 the Respondent issued a letter to the employees with their pay checks , announcing an increase effective from April 1 , 1946. A notice of vacation privileges was posted on May 27. This notice differed in no material respects from vacation notices posted in prior years other than being dated later in the spring than in prior years. The allegation in the complaint that wage increases and paid vacations were granted to discourage union activities is not established by the evidence. 3. Conclusions respecting interference, restraint, and coercion The Respondent denied in its answer the acts alleged in the complaint to con- stitute a violation of Section 8 (1) of the Act, but its witnesses admitted ex- pressing disapproval of the Union, of interrogating employees concerning their affiliation with the Union, advising employees to vote against the Union, and urging and persuading employees to refrain from becoming members or from selecting it as their bargaining agent. Although the Respondent in its answer and final argument did not say so, it is obvious that the Respondent was relying JOHN DEERE PLOW COMPANY OF ST. LOUIS 85 upon its concept of the privilege of free speech, as appears from the fact that its attorney advised Landrum that he could discourage organization as long as he did not threaten employees or promise any wage increase. Since the decision of the Supreme Court in the Virginia Electric case, 12 it has been accepted as the law that only when the words of the employer are coercive is there a violation of Section 8 (1) of the Act. It is impossible to draw a line between permissible and prohibited expressions by application of a dictionary definition of "coercion" as applied to statements made by an employer to his employees.'a The word "coercion" has acquired a refinement of meaning which it would be difficult to convey in a definition which did not embrace the setting and background of the statements, the extent of economic dependence of the listener on the speaker, the sensitivity of the listener to subtle suggestions of displeasure and of possible detriment, and other surrounding circumstances." In the instant case hte undersigned finds that the Respondent has transgressed the bounds of permissible free speech. The statements of Landrum and Mastin amounted to more than casual expressions of opinion. Suggestions of possible economic detriment if the Union was chosen and benefit if it were not, which appear in both Mastin's and Landrum's statements are per se coercive in char- acter." Such expressions have their effect on other expressions which, by them- selves, might not be coercive. As expressed by Judge Learned Hand, "Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used, of which the relation between speaker and the hearer is perhaps the most important part." 16 For a period of about a month before the election the Respondent worked on the employees, and especially on the colored employees, to influence them against the Union. Landrum's persistence in questioning employees individually regard- ing their Union membership and sentiments (per se violative of the Act)," of accusing Hixson of lying about his membership and admonishing him not to, 12 N. L. R B. v. Virginia Electric & Power Company, 314 U. S. 469 (1941). 13 See N. L. R. B. v. Falk Corp, 102 F (2d) 383, where the court at p 389 said, ". . the voice of authority may, by tone inflection, as well as by the substance of the words uttered, provoke fear and awe quite as readily as it may bespeak fatherly advice. The position of the employer, where, as here, there is present, genuine and sincere respect and regard, carries such weight and influence that his words may be coercive when they would not be so if the relations of master and servant did not exist " 14 "The privilege of 'free speech,' like other privileges, is not absolute ; it has its reasons ; a democratic society has an accute interest in its protection and cannot indeed live without it; but it is an interest measured by its purpose. That purpose is to enable others to make an informed judgment as to what concerns them, and ends so far as the utterances do not contribute to the result. Language may serve to enlighten a hearer, though it also betrays the speaker's feelings and desires ; but the light it shed will be in some degree clouded, if the hearer is in his power. Arguments by an employer directed to his employees have such an ambivalent character ; they are legitimate enough as such, and pro tanto the privilege of 'free speech' protects them ; but, so far as they also disclose his wishes, as they generally do, they have a force independent of persuasion . . . What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart." N. L R B. v. Federbush Co., Inc., 121 F. (2d) 954 at 957 (C. C. A 2). Is See N. L. R. B. v. Fairmont Creamery Company, 143 F. (2d) 668; N. L R. B. v. Aluminum Goods Mfg Co., 125 F. (2d) 353; Gamble-Robinson Co. v. N. L. R. B., 129 F. (2d) 588, Matter of the B. F. Goodrich Co., 65 N. L. R. B. 1229 'I N. L. R. B. v. The Federbush Co., Inc., 121 F. 2d 954 at 957. 17 See Matter of Wadesboro Full-Fashioned Hosiery Mills, Inc., 72 N. L. R. B 1064; Matter of Libby-Owens-Ford Glass Co , 63 N. L. R. B. 1 ; Matter of Haffner-Thrall Car Co., 65 N. L. R B. 63, where such conduct has been held to be coercive. 838914-50-vol 82-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his making the Respondent's disapproval of the Union known, his talk to the collective colored employees (more susceptible to intimidation than the white employees) on the morning of the election day to influence them to vote against the Union, his following this up by showing Hixson how to mark the ballot to vote against the Union and sending Hixson to show the other colored employees how to mark it that way, constituted steady and persistent pressure on the employees to observe the Respondent's wishes. "And in determining whether a course of conduct amounts to restraint or coercion, pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways." 1$ Employees accustomed in their employment to obey instructions of their supervisors are not likely to ignore the wishes of such supervisors if such wishes are expressed in a way which intimates that the employees would be wise to heed them. "Intimidations of an employer's preference, though subtle, may be as potent as outright threats of discharge." 19 Landrum justified his instructions to Hixson as to how to mark the ballot on the ground that a posted ballot had been marked "Yes." The measures used by Landrum to counteract an improperly marked sample ballot were unwarranted. The undersigned is convinced from the eN idence that, when Landrum told Hixson to show the other colored employees how to mark the ballot "No," those employees, who had already been informed of the Respondent's opposition to the Union, regarded this as an instruction which it would be advisable for them to follow. In this setting must be taken the posted notice of May 23 and Mastin's talk to the employees on May 24 just prior to the election2° When these obviously slanted utterances are interpreted in the light of all else that had occurred, the employees, now sensitized to their employer's strong feelings of opposition to the Union, could well have understood that the Respondent, as it already had suggested, would reward a compliance with its desires and that opposition to those desires would invite some form of reprisal. Having observed the witnesses, the undersigned is convinced that the colored employees were anxious to avoid such displeasure. The undersigned finds, therefore, that by all the foregoing conduct the Respond- ent interfered with the election of May 24, 1946, and by the totality of such con- duct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The refusal to bargain collectively 1. The appropriate unit The parties agreed that the appropriate unit was composed of all warehouse and machine shop employees in the Respondent's warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, except persons employed to work in the office, salesmen, collectors, traveling servicemen and supervisory employees who have authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action 21 Such unit is 18 N L. R. B. v. Virginia Electric & Power Co , 314 U. S. 469 at 477. 19 N. L. R. B. v. Link-Belt Co., 311 U. S 584 at 600. 20 The undersigned finds that the notice of May 15 is balanced and impartial and there- fore unobjectionable. 21 Specifically the parties agreed that the appropriate unit was that stated in the consent election agreement. The description here given is taken from the consent election agree- ment, but the order of stating the exclusions is changed to conform to the customary order, and surplus words have been dropped. JOHN DEERE PLOW COMPANY OF ST. LOUIS 87 consistent with Board policies in such cases, and the undersigned finds that such unit insures to employees of the Respondent at its Atlanta warehouse the full benefit of their right to self-organization and to collective bargaining and other- wise effectuates the policies of the Act. 2. The representation by the Union of a majority in the appropriate unit In April and May 1946 the Union had signed up a majority of the employees in the appropriate unit. On May 24 a consent election was conducted under the auspices of the Board. Of 28 eligible voters, 5 voted for the Union and 16 voted against it 22 On or about May 27, 1946, the Union filed objections to the election. Some- time in November 1946 the Regional Director for the Tenth Region issued his Report on Objections recommending that the Board sustain the objections and direct that a new election be conducted. On January 17, 1947, the Board issued an order setting aside the result of the election of May 24, 1946, and ordering a new election. On January 28, 1947, the Board granted the Union's request for withdrawal of its petition for certification.24 About a week after the election of May 24, 1946, 12 to 15 employees met with a view to getting the Union reorganized. Authorization cards were distributed, and by July 16, the date of the Union's request to bargain, the Union had secured 18 cards, all signed by employees of the Respondent after the election and all but one bearing a date between July 5 and 10. On July 16 there were 27 employees in the appropriate unit on the Respondent's pay roll. Prior to the filing of its answer, the Respondent had not denied that the Union had received authoriza- tions from a majority of the employees 25 Its only objection appears to have been that the Union's claim to recognition followed too closely upon the election of May 24. Since 18 of 27 employees in the appropriate unit had designated the Union as their representative for the purpose of collective bargaining, the under- signed finds that on July 16, 1946, and at all times thereafter, the Union was, and now is, the duly designated representative of a majority of the employees in the appropriate unit, and that by virtue of Section 9 (a) of the Act, the Union on and at all times after July 16, 1946, has been exclusive bargaining represen- tative of all employees in such unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain On July 16, 1946, the Union wrote to the Respondent informing it that the Union represented a majority of the employees at the Respondent's warehouse with exception of executives, sales employees, office clerical employees and supervisory employees and requesting a conference for the purpose of sub- 22 Twenty-four voted ; 3 ballots were challenged . The parties and the Board signed the customary certification that the balloting was fairly conducted. 25 The Respondent received an unsigned copy of this, with the day of the date omitted, on December 9, 1946. No exceptions were filed to the Report on Objections. 24 The petition had been filed on May 8, 1946, prior to the consent election agreement. 25 Evidence of the genuineness of the signatures was adduced by the Board and the Respondent made no issue thereon . The undersigned finds that all the cards introduced in evidence are authentic. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mitting proof of majority and for negotiating a contract. The Respondent, under date of July 19, 1946, replied as follows : July 19, 1946. Mr. GEORGE D. GUEST, Assistant Director Region #8, UAW-CIO 75 Ivey Street, N. E. Atlanta, Georgia DEAR SIR: We acknowledge receipt of your letter dated July 16th, 1946. Pursuant to the "Stipulation for Certification Upon Consent Election" which was made and entered into in NLRB Case 1O-R-1892, a secret election was properly conducted by the National Labor Relations Board on May 24th, 1946 . When afforded this opportunity to express their desires in secret, and without any opportunity for coercion or intimidation , a majority of the employees voted that they do not desire to be represented by our union. The conference which you have requested therefore seems to us to be entirely unnecessary and inappropriate. Very truly yours, THE JOHN DEERE PLOW COMPAINY OF ST. Louis, ATLANTA, GEORGIA, S/S C. S. MASTIN Vice President. The Union, by its assistant regional director, wrote again on July 23, telling the Respondent that its claim was based on the signing of authorization cards by a majority of the employees in the unit, previously agreed to be appropriate, since May 24, reiterating its offer to prove this in person, and again requesting a conference. The Respondent did not reply to this letter. 4. Conclusions Had the election of May 24 been the result of the free and uncoerced vote of the employees, there would be some cause to question the claim of the Union on July 16 to representation of a majority of the employees on the ground that the Union's prior claim had not been substantiated by the results of the election. In the case at band, however, the undersigned believes that the Re- spondent, through its questioning of employees, had reason to believe that the original claim of the Union was true The Respondent made affirmative efforts to change the Union's majority prior to the election and unquestionably realized that it had accomplished its purpose when it learned the result of the election. The Respondent did not, on July 19, 1946, even suggest a new election, either then or thereafter. Under all the circumstances, the undersigned finds that the Respondent's refusal to give the Union an opportunity to prove its claim by exhibiting its authorization cards was not based upon any bona fide doubt of the Union's claim, and the Respondent on July 19, 1946, unjustifiably refused to recognize and bargain with the Union, thereby interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Such of the activities of the Respondent set forth in Section III, above, as are found to constitute unfair labor practices, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, JOHN DEERE PLOW COMPANY OF ST. LOUIS 89 and substantial relation 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. V THE REMEDY Since it has been found that the Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policies of the Act. It has been found that by questioning its employees concerning their union sentiments and memberships, by urging employees not to join the Union, by telling employees that they would be worse off with the Union than without it, by intimating that a promised raise would be paid at once if the Union were not elected but that any increase would be delayed if the Union were elected, by telling employees that the Union was just for taking money from them, by instructing them on how to mark the ballot to vote against the Union, and in general by engaging in a course of conduct designed to influence the employees to vote against the Union, as well as by refusing to bargain with the Union, the Respondent has interfered with the conduct of an election and has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Upon the entire record, the undersigned infers and finds that the Respondent by the aforesaid conduct has displayed an attitude of opposition generally to the purposes of the Act. The unfair labor practices heretofore found are persuasively related to the other unfair labor practices proscribed by the Act. The dangers of their commission in the future is to be anticipated from the Respondent's conduct in the past 2a Unless the order is coextensive with the threat, the preventive purpose of the Act will be thwarted. In order, therefore, to make more effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, and thus to effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Since it has been found that on and after July 19, 1946, the respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the undersigned will recommend that the Respondent on request, bargain collectively with the Union as the exclusive representative of its employees in such unit. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO) is a labor organization within the mean- ing of Section 2 (5) of the Act. 2. All warehouse and machine shop employees in the Respondent 's warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, except persons employed to work in the office, salesmen, collectors , traveling servicemen and supervisory employees who have authority to hire, promote, discharge, discipline, or otherwise effect 26 N. L. R. B. V. Express Publishing Co., 312 U. S. 426. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes in the status of employees or effectively recommend such action, at all times material herein have constituted, and now constitute, a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 3. International Union, United Automobile, Aircraft and Agricultural Imple- ment Workers of America (UAW-CIO) was on July 16, 1946, and at all times material thereafter has been the exclusive representative of all the employees in the above described appropriate unit for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on and after July 19, 1946, to bargain collectively with the Union, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in, and is engaging in, unfair labor practices affecting commerce within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. By granting wage increases and paid vacations to its employees, the Re- spondent has not engaged in unfair labor practices within the meaning of the Act. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, the undersigned recommends that John Deere Plow Company of St. Louis, at Atlanta, Georgia, its agents, successors and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Union, United Auto- mobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of its employees in the unit herein found to be appropriate; (b) In any other manner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all warehouse and machine-shop employees in the Respondent's warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, except persons employed to work in the office, salesmen, collectors, traveling servicemen, and supervisory employees who have authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action, in respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; JOHN DEERE PLOW COMPANY OF ST. LOUIS 91 (b) Post immediately at its warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, copies of the notice attached hereto and marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Tenth Region (Atlanta, Georgia), shall, after having been duly signed for the Respondent by its authorized representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are custom- arily 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 of the Tenth Region (Atlanta, Georgia) 1n writing within ten (10) days from the date of the receipt of this Intermediate Report of what steps the Respondent has taken to comply herewith. It is further recommended that, unless on or before ten (10) days from the date of the receipt of this Intermediate Report the Respondent notifies the said Regional Director in writing that it will comply with said recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. It is further recommended that the complaint be dismissed insofar as it alleges that wage increases and paid vacations were granted to discourage union activity. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.38 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65. As further provided in said Sec- tion 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. JAMES R. HEMINGWAY, Trial Examiner. Dated May 9, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL NOT in any manner interfere with, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations , to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCEAIT AND AORicuLTIIRAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO) or any other labor organization , to bargain collectivley through representa- 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All warehouse and machine shop employees in the warehouse at 326 Nelson Street, S. W., Atlanta, Georgia, except persons employed to work in the office, salesmen, collectors, traveling servicemen and supervisory employees who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. JOHN DEERE PLOW COMPANY OF ST. Louis, Employer. Dated ------------------ By ------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.