Caldwell Packaging Co.

CALDWELL PACKAGING COMPANY 495 Caldwell Packaging Company and Local 315, Retail, Wholesale and Department Store Union, AFL-CIO. Case No. 10-CA- 3608. December 1, 1959 DECISION AND ORDER On April 16, 1959, Trial Examiner George A. Downing 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 Interme- diate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report, together with a supporting brief .l The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed 2 The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in this case, and finds merit in certain of the Respondent's exceptions. Accordingly, the Board adopts the findings, conclusions, and recom- mendations of the Trial Examiner, only to the extent consistent herewith. 1. We agree with the Trial Examiner that Caldwell's speech of September 8, 1958, in which he threatened to close his other plant rather than recognize the employees' representative there, predicted a similar result at the Atlanta plant, and interrogated employees, con- stituted a violation of Section 8 (a) (1) of the Act. We also agree with the Trial Examiner's finding that Jimmy Crawford was a supervisor when he made promises of benefit and threats of reprisal, which constituted violations of Section 8 (a) (1). 2. We do not agree with the Trial Examminer's finding that the Respondent violated Section 8 (a) (5) of the Act by refusing to recog- nize the Union. On September 4, 1958, Guy Dickinson, the Union's International representative, filed a representation petition with the Board, having 1 The Respondent has requested oral argument . This request is hereby denied because the record , the exceptions , and the brief adequately present the issues and the positions of the parties. 2 Prior to the hearing, the Respondent moved to obtain answers to certain interroga- tories relating to the complaint from the General Counsel ; it also moved for the produc- tion of any statements or reports of certain named employees . The motion was referred to Trial Examiner David London , who denied it. The Respondent now excepts to the Trial Examiner's denial, at the hearing, of its motion to reconsider this ruling. We find no merit in this exception , for the reasons stated in Del E. Webb Construction Company, 95 NLRB 377 , footnote 2. See also Section 102 .118 of the Board 's Rules and Regulations, Series 8 (formerly Section 102 . 95, Series 7, as amended). We note that at the hearing, the Respondent timely requested (see Ra-Rich Manufacturing Corporation, 121 NLRB 700) and properly received affidavits and statements of witnesses called by the General Counsel. 125 NLRB No. 59. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD signed up a majority of the Respondent's employees. On September 8, Dickinson called Caldwell, the Respondent's president, and re- quested a meeting to discuss recognition. On September 10, the meet- ing was held at the office of the Respondent's attorney, Allen, at which time Allen informed Dickinson that the Respondent declined to recog- nize the Union except pursuant to a Board-ordered election. After a brief discussion, Dickinson acquiesced. It is well settled that where an employer's refusal to recognize a union is due to a desire to gain time to dissipate the Union's majority, such refusal constitutes a violation of the duty to bargain in good faith.3 The Trial Examiner, in effect, found that Crawford's coercive conduct, noted above, constituted a campaign by which the Respond- ent sought to undermine the Union's majority. But the test of whether an employer, who commits violations of Section 8(a) (1), also intends to dissipate the Union's majority or otherwise to defeat the employees' unionization is not a mechanical one; all the circum- stances of the case must be considered. As noted above, although we agree that Crawford committed cer- tain serious violations of Section 8(a) (1), we find that he was but a minor supervisor, and that there is no evidence that he was acting at the instigation or with the authority of responsible officials of the Respondent. While under the doctrine of Repondent superior this cannot relieve the Respondent of responsibility for Crawford's con- duct, we find that it does not suffice to show a campaign by the Respondent designed to undermine the Union's majority status by unlawful means.5 Under all the circumstances of the case, we are not convinced that the Respondent, by refusing to recognize the Union and by instead insisting upon a Board-ordered election, was motivated by a desire to dissipate the Union's majority. Accordingly, we shall dismiss the part of the complaint which alleges that the Respondent violated Section 8 (a) (5) of the Act. 3. We do not agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (3) of the Act by failing to recall its laid-off employees. On September 16,1958, five employees were summoned to Caldwell's office and were told that they would be temporarily laid off, effective September 18. There is no execption to the Trial Examiner's finding that this layoff was not discriminatory but occurred because business 'Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732 (C.A., D.C.), enfg. 85 NLRB 1263, cert. denied 341 U.S. 914. 4 Emma Gilbert, at al . d/b/a A. L . Gilbert Company, 110 NLRB 2067 ; Traders Oil Company of Houston, 119 NLRB 746, 749. See also Howard W. Davis, d/b/a The T Valmac Company, 106 NLRB 1355, 1356, where the Board looked to the "obvious fact that the scheme of the Act never contemplated that a violation of Section 8(a) (1) should auto- matically constitute a violation of Section 8(a) (5)." 6 See KTRH Broadcasting Company, 113 NLRB 125. CALDWELL PACKAGING COMPANY 497 was slack and orders had run out. However, the layoff caused much resentment and, on the evening of September 16, the employees met and voted to strike on the day the layoff became effective. On Septem- ber 18, they struck, and the five laid-off employees joined the picket line. In October 1958, the Respondent's business picked up, due primarily to the closing of its other plant, and the Respondent began to hire new employees because of the increased workload. Two of the laid-off employees had abandoned the strike and were offered recall, but not the other three. The Trial Examiner's finding of a violation was based principally on the Respondent's reason for failing to recall the laid-off employees : their participation in the strike, a protected concerted activity. With this finding, we do not agree. It is true that generally, an employer violates Section 8(a) (3) by refusing to recall temporarily laid-off employees because of their intervening union activities.' However, an employer is under no obligation to recall strikers during the pendency of their strike.' A like result must obtain where employees are laid off and thereafter participate in a strike and make common cause with the strikers.' This is particularly so in this case, where the position of the laid-off employees who were not recalled was that they would accept recall only if all the replaced economic strikers were also reinstated." Under these circumstances, we believe that the usual rule pertaining to economic strikers must also apply to these laid-off employees: having joined the strike, they were not entitled to rein- statement or recall unless they notified the Respondent, before being replaced, that they had abandoned the strike.10 They did not do so here. It thus becomes unnecessary to consider the Trial Examiner's subsidiary finding as to the number of employees discriminated against or the date when they first became entitled to backpay. We find that the Respondent was under no obligation to recall any of the laid-off employees who were participating in the strike, and that it did not violate Section 8(a) (3) of the Act by not recalling them. Accordingly, we shall also dismiss this allegation of the complaint. 4. We do not agree with the Trial Examiner's finding that the strike was caused by the Respondent's refusal to bargain and was an unfair labor practice strike, and that the Respondent violated Section 8 (a) (3) by refusing the strikers' request for reinstatement. See, e.g., Bausch & Lomb Optical Co. v. N.L.R.B., 217 F. 2d 575, 578 (C.A. 2). 7 See, e.g., Morris Fishman & Sons, Inc., 122 NLRB 1436. 8 We find that the cases cited by the Trial Examiner for a contrary proposition are inapposite. 9 On October 27, Dickinson , in the company of seven strikers ( including some of the laid-off employees ), called on March , the Respondent's manager, to request reinstatement. March asked what the situation would be if he had only one job ; Dickinson answered that none would return unless all were reinstated. 'e See N.L .R.B. v. Mackay Radio & Telegraph Co., 304 U.S. 333 ( 1938). 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Trial Examiner found that one of the causes of the strike was the Respondent's allegedly unlawful refusal to recognize or bargain with the Union; the other factor was the layoff. We have reversed the Trial Examiner's finding that the refusal to recognize the Union was violative of the Act. It is thus apparent that, even if we were to accept the Trial Examiner's finding of dual motivation for the strike, the strike remains an economic one. Moreover, we are satisfied from the evidence that the employees struck only over the nondiscrim- inatory layoff. We find, therefore, that the strike was an economic strike from its inception. We also reverse the Trial Examiner's find- ing that the Respondent violated Section 8 (a) (3) by failing to rein- state the employees who struck in protest over the layoff, as the record shows that these employees had been replaced when they requested reinstatement. ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Caldwell Pack- aging Company, Atlanta, Georgia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Interrogating employees concerning their union membership, sentiments, and desires, in a manner constituting interference, restraint, or coercion in violation of Section 8(a) (1) ; threatening to close the plant if the Union comes in; threatening discharge and other reprisals unless employees abandon their adherence to the Union; and promising benefits to employees if they abandon their adherence to the Union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights might be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at its plant in Atlanta, Georgia, including all places where notices to employees are customarily posted, copies of the notice attached hereto marked "Appendix." 11 Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter. Reasonable n In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CALDWELL PACKAGING COMPANY 499 steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Tenth Region in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein, insofar as it al- leges that the Respondent has violated Sections 8(a) (5) and 8(a) (3) of the Act, be, and it hereby is, dismissed. MEMBER FANNING, dissenting, in part : I agree with my colleagues that Respondent restrained and coerced its employees with respect to their union activities in violation of Section 8(a) (1), by President Caldwell's speech and interrogations, and by Supervisor Crawford's threats and promises of benefit.12 However, I disagree with their reversal of the Trial Examiner's finding that Respondent unlawfully refused to bargain. The majority does not dispute the evidence which shows that all 14 employees in the appropriate unit signed up with the Union shortly before September 8; that on September 8 the Union communicated with Respondent, formally requesting recognition and a meeting, and also on this date Respondent received a copy of the Board election petition filed by the Union; that on September 10, at a meeting with the Union, Respondent questioned the Union's majority and insisted on a Board-ordered election.13 Following receipt of the Union's claim, on September 8, President Caldwell assembled the employees in the plant on working time and embarked upon his coercive speech and interrogations; and beginning September 8 until 14, Supervisor Craw- ford engaged in strong threats and promises of benefit, directly reach- ing 4 of the 14 employees. Thereafter, the Union withdrew its peti- tion for an election and filed the instant unfair labor practice charge. On these facts, and the detailed background and circumstances shown in the Intermediate Report, I find that a refusal-to-bargain violation is made out on the settled doctrine of the Joy Silk case.14 The character and extent of Respondent's unfair labor practices, the timing and sequence thereof, and the coercive impact on the employees, made the holding of a fair election an impossibility. In my opinion, all the circumstances demonstrate that Respondent's refusal to recog- nize the Union and its insistence on a Board-ordered election were not motivated in good faith but rather by a desire to gain time in which 19I also concur in the dismissal of the Section 8(a) (3) allegations. 13 There appears no support in the record for the majority statement that the Union at this meeting "acquiesced" In having a Board -ordered election ; the Trial Examiner found to the contrary . In any case, however, the refusal-to-bargain issue does not and would not turn on this point. 14 Joy Silk Mills v. N.L.R.B., 185 F. 2d 732 (C.A., D.C.) enfg. 85 NLRB 1263, cert. denied 341 U.S. 914. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to dissipate the Union's majority and in disregard of the collective- bargaining principle.15 Although my colleagues note recognition of the Joy Silk precedents, the grounds they employ for distinguishing the present case appear to me to provide a serious inroad into that important doctrine in the administration of the Act, and a basis for its circumvention. The majority agrees that Crawford, with power to hire and fire, is un- questionably a supervisor, and that Respondent must be answerable for the "serious violations of Section 8(a) (1)" committed by him. But, anomalously it seems, for purposes of the Section 8 (a) (5) issue, Crawford is characterized as a "minor supervisor," and his conduct is held not attributable to Respondent to arrive at a result that it desired and acted to undermine the Union's majority status. The KTRH case,16 relied on by the majority, is at best unique on its facts. There, a minor supervisor was held to have acted without authority and contrary to instructions repeatedly given by the company to all super- visors not to interfere with the employees' organizing activities. Here, there were no such instructions; indeed, President Caldwell's speech points to the contrary. Crawford, who held the post of production manager and was at times the sole management authority in a plant of 14 employees, must under the terms of the Act and innumerable deci- sions be regarded as having acted for Respondent. Moreover, the majority has completely ignored in connection with this issue the coercive conduct of President Caldwell as to whom it can scarcely be held that he was not a management agent. I would therefore affirm the Trial Examiner's finding of a Section 8(a) (5) violation. CHAIRMAN LEEDOM and MEMBER JENKINS took no part in the consid- eration of the above Decision and Order. 1s Joy Silk Mills v. N.L.R.B ., supra. See also, e.g., Poultry Enterprises , Inc., 102 NLRB 211 ; Dependable Machine Co ., Inc., 104 NLRB 21 ; Traders Oil Company of Houston, 119 NLRB 746; F. M. Reeves and Sons, Inc., 121 NLRB 1280. 'a KTRH Broadcasting Company, 113 NLRB 125. APPENDIX 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 NOT interrogate our employees concerning their membership in Local 315, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, in a manner constituting interference, restraint, or coercion in viola- CALDWELL PACKAGING COMPANY 501 tion of Section 8(a) (1) ; threaten to close the plant if the afore- mentioned Union comes in; threaten discharge or other reprisals unless our employees abandon their adherence to the Union; or promise benefits to our employees if they abandon their adherence to the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form any labor organization, to join or assist Local 315, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all 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 by the Act. All of our employees are free to become, to remain, or to refrain from becoming or remaining members of Local 315, Retail, Wholesale and Department Store Union, AFL-CIO, or any other labor organi- zation. CALDWELL PACKAGING COMPANY, 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. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), was heard in Atlanta, Georgia, on February 10-12, 1959, with all parties represented. The complaint, issued on December 18, 1958, by the General Counsel of the National Labor Relations Board and based on charges duly filed and served, alleged in substance (as amended at the hearing) that Re- spondent had engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act by: (1) Refusing to bargain with the Union since on or about September 10, 1958; (2) discriminatorily discharging four employees on September 17, 1958, and refusing to reinstate six employees on October 24, 1958, upon their unconditional application at the termination of an alleged unfair labor practice strike; and (3) engaging in various specified acts of interference, restraint, and co- ercion in September 1958. Respondent answered on December 23, denying the unfair labor practices as alleged. It also denied that the Union represented a majority of the employees in an appropriate unit and denied that the Union made a demand to bargain. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION I find on facts alleged in the complaint and admitted in the answer that Respond- ent is engaged in commerce within the meaning of the Act (i.e., extrastate sales 535828-60-vol. 125-33 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exceeding $50,000 annually) and that the Charging Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Main events and issues; the supervisors Respondent operated a small plant which was devoted to the cutting and manu- facturing of cellophane packaging products and which employed some 14 employees in September 1958 at the inception of the events which formed the basis of this proceeding. Respondent's management was headed by William R. Caldwell, presi- dent, and Fred March, who were the only officials with supervisory status with the exception of Jimmy Crawford, production manager, whose status is considered below. A brief organizational campaign led by B. T. Hawkins, a working foreman, began around September 1 and was concluded within a few days by all production and warehouse employees joining Local 315. After an unsuccessful attempt to contact Respondent's management, Guy Dickinson, an International representative, filed a representation petition on September 4, which recited that a request for recognition had been made and that no reply had been received. Thereafter, Dick- inson had two telephone conversations with Caldwell, and on September 10, he and W. R. Thrasher, a staff representative, met with Caldwell and March in the office of Respondent's attorneys. In the meantime on September 8, Caldwell called a meeting of the employees during which he is charged with making certain coercive statements. A few days later, March and Allen addressed a similar meeting of the employees. On September 16 Respondent laid off one of the production crews and the shipping clerk because of alleged loss of business. A strike began on the morning of September 18, with all but three of the production employees participating. On October 24 the Union's attorney wrote Respondent making an "unconditional offer" to return to work on behalf of all the striking employees, and on October 27 Dickinson and some seven of the strikers renewed the application in person to March. The main issues in the case are whether the Union made a request for recognition. and whether Respondent refused it, whether the layoff was discriminatorily made, and whether Respondent discriminatorily failed to recall the laid-off employees and refused reinstatement to certain of the strikers. Other issues concern the coercive character of Caldwell's speech to the employees and whether Respondent is charge- able with other coercive statements made by Crawford to certain employees. The latter question turns on Crawford's supervisory status, which will be resolved preliminarily. The evidence is undisputed that, aside from Crawford, Respondent's only super- visors. were Caldwell and March and that Caldwell left the actual direction of the working force to March. Both Caldwell and March were sometimes away from the plant at the same time and during those times Crawford was plainly next in line in the management hierarchy. Aside from that, when Crawford was promoted to production manager (a newly created post) some 11/2 years earlier, Caldwell called a meeting of the employees and told them of Crawford's new title, that he had the authority to hire or fire, to tell them what to do and what not to do, and to do anything he saw fit to get the orders out on time.' Furthermore, the, evidence established that Crawford had on a number of occasions interviewed and hired employees and had otherwise discussed with them their employment status with the Company. The foregoing evidence, coupled with the testimony of the employees themselves that Crawford was their supervisor and that he seldom participated in production work and then only casually and incidentally, established unquestionably that Crawford was a supervisor within the meaning of the Act. B. The evidence 1. Caldwell's speech; the telephone calls Though the Union's organizational drive was, practically completed at the time it filed its representation petition on September 4, Respondent had no knowledge of the activity until Caldwell returned to town on Monday morning (September 8) and found a copy of the petition in his mail. Caldwell's reaction was instantaneous. Though March testified that Caldwell was shocked, amazed, and too upset to talk about the matter, Caldwell nevertheless called the employees together and talked at 1 Caldwell did not deny the testimony of employee witnesses to the foregoing effect. Though March gave testimony in which he sought to minimize. the extent of Crawford's authority, he made no express denial of Caldwell's statements to the employees, and the testimony does not indicate that he was necessarily present on the occasion. CALDWELL PACKAGING COMPANY 503 some length concerning the Union and what he proposed to do about it. The following summary is a composite of the credited testimony: Caldwell commented favorably on the Union which the employees had chosen and stated that he would recognize it or bargain with it if that was what they wanted.2 He contrasted their Union with the one (Teamsters) which was trying to organize Respondent's branch plant at Fort Wayne, Indiana, and said that he would not recognize that.union but would close that plant down and bring the em- ployees to Atlanta. Caldwell then cited the Fort Wayne situation as an example of what could happen in Atlanta, and stated that if he could not work out something with the Union or meet its demands, he would close the Atlanta plant also and op- erate it only as a warehouse. Caldwell went on to say that orders were falling off, that the Union knew nothing about the working conditions in the plant, and sug- gested that the employees form a union of their own and that he would work out something with them. He also suggested that they get a group or a union together and take a look at his books. The meeting was adjourned with the understanding that the employees would consider his suggestion of an inside union. Testimony by Respondent's witnesses Caldwell, March, and Thompson conflicted with the foregoing mainly in their claim that Caldwell's statements about closing both the Fort Wayne and the Atlanta plants was related specifically to his inability to continue operations if the Union made excessive or unreasonable demands. Their version is rejected in view of the cumulative weight of the testimony of the several witnesses for the General Counsel, in view of Caldwell's "upset" condition and his admitted inexperience in labor relations, and in view of March's testimony (and counsel's apparent concession at the hearing) that there were no bargaining con- ferences with the Teamsters' Union at Fort Wayne. Furthermore, Caldwell ad- mitted that when he later retained labor counsel he learned that he had been wrong in dealing directly with his employees. Having learned of Caldwell's talk to the employees and of his attitude towards the Teamsters' Union, Dickinson called Caldwell on the telephone later that after- noon. Dickinson's testimony was as follows: Dickinson informed Caldwell that he represented the employees and was re- questing a meeting with him for the purpose of recognition. Then, explaining the purposes and advantages of recognition (and obviously capitalizing on Caldwell's feeling toward the Teamsters), he referred to a pending representation proceeding involving Capitol Fish Company (located a few doors from Respondent's plant) in which the Teamsters had intervened, and suggested that by recognizing Local 315, Respondent could avoid an intervention by the Teamsters and that it would not be on the ballot. He explained further that though he did not think that any of the employees had any idea of going to the Teamsters because he had 100 percent of them signed up, the Teamsters could intervene if it got a single card signed, and he pointed out that if immediate recognition were accorded, the Teamsters would not be involved. Caldwell agreed that he wanted no dealings with the Teamsters; he stated that he had checked on Dickinson's union and that he was glad his employees had selected it, and agreed to a meeting 2 days later in his office. The following day, having received a message concerning a change in the meeting place to Attorney Allen's office, Dickinson called Caldwell concerning the reason and Caldwell explained that because he 'did not know anything about labor rela- tions, he had retained an attorney. Dickinson then asked if two of the employees could be excused from work to attend the meeting 3 and after checking with March, Caldwell reported they were too busy to be relieved. Caldwell testified that in the first conversation Dickinson asked only for a meet- ing, without more, and that he did not know for what reason the meeting was to be held. There was no substantial conflict as to the second conversation the following day save on the point whether Dickinson specified by name the two employees he wished to attend the meeting. The only corroboration offered on either side was March's testimony that he was present when Caldwell received both calls. His 2 Testimony by several of the General Counsel's witnesses to that effect received con- firmation from Respondent's witness, Howard Thompson, who testified that Caldwell stated lie was glad the employees had chosen the Union which they had chosen to join because "they seem to be a fair bunch of people to deal with." Furthermore, Caldwell testified that he had assured his employees "through the years" that any time they wanted a. union he would not oppose it, and that he told them during the speech that any union "that would work with us was fine and dandy" and that the Union they had selected was a 'satisfactory union. 3 Though a conflict developed on the question whether Dickinson actually specified the two employees by name as he claimed (i.e., Hawkins and Thurman Nix), the point is immaterial to the issues. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD version of Caldwell's end of the conversation tended to corroborate Caldwell, though of course he did not hear Dickinson's end of the conversation. Resolution of this conflict, which is crucial on the question whether the Union made a request for recognition, requires reference to both preceding and subsequent events. Caldwell's September 8 speech showed that he agreed to recognize the Union if the employees wanted it, and it showed just as plainly that he had no intention of dealing with the Teamsters' Union concerning the Fort Wayne branch. Knowing those facts and having signed up all of Respondent's employees, Dickinson was understandably optimistic about obtaining immediate recognition. His version of the telephone conversation was thus wholly consistent with the factual situation, and his strategy of playing on Caldwell's dislike of the Teamsters was likewise logical. Dickinson's testimony was also consistent with his explanation on cross- examination that the reason he did not write his customary formal letter of recogni- tion was because Caldwell had already agreed to recognize the Union. Finally, his testimony that he requested recognition was consistent with his request, admittedly made, that two of the employees be permitted to attend the meeting at which he understood formal recognition was to be accorded and bargaining was to take place. Under Caldwell's version, there would have been no reason for Dickinson's latter request. On the other hand, Caldwell's claim that he was in fact unaware of the reason for the meeting was wholly unpersuasive in the light of the representation petition and his speech to the employees , particularly since he had been in touch with his attorney. Furthermore, Caldwell's other testimony showed that Dickinson's first call was not confined to requesting a meeting. Thus, in testifying in part concerning the subsequent meeting in Allen's office (see section 2, infra), Caldwell specifically referred to union claims that it had 100 percent of the employees signed up. That was, of course, the claim which Dickinson testified he made during the first tele- phone conversation ; there was no testimony that such a claim was made during the meeting. The foregoing circumstances in their entirety impel the crediting of Dickinson's testimony as to the telephone conversations. 2. The September 10 meeting Most of the conflict in the testimony concerning the meeting in Allen's office centered around the question whether Dickinson stated that he wanted an election and whether Respondent raised the unit issue (at Fort Wayne) in stating the reasons why it wanted a Board-ordered (rather than a consent) election. There was no conflict on the point that Allen raised the majority issue and none that Dickinson offered to remove the doubt by producing the cards 4 and that Allen stated he did not care to see them. Dickinson and Thrasher testified that Allen opened the meeting by referring to the representation petition and that he stated he noticed that it recited a demand for recognition and inquired whether the Union had actually gotten in touch with the Company. Dickinson explained that though he had missed Caldwell at.the plant prior to filing the petition, he had talked with Caldwell on the telephone. Allen continued that since the Union had petitioned for an election , the Company desired a Board-ordered election because there were a few issues to be decided. Though Allen specifically referred to the majority question as one of those, Thrasher testified he heard no reference to Fort Wayne , and his testimony contained no reference to the unit issue. Dickinson specifically denied that the unit question was mentioned and testified that the only reference to Fort Wayne was to the fact that a petition had been filed there. March and Caldwell testified that when Allen opened the meeting by referring to the petition as the reason for being there, Dickinson agreed and stated that the Union represented the "people" or a majority; that he had the cards there to prove it; and that he wanted an election. They also testified that Allen stated that the Company desired a Board-ordered election (rather than a consent election, as. Thrasher suggested ) because there were certain issues which it felt the Board should decide. March testified that Allen referred to the petition which had been filed at Fort Wayne by a different union, stated that the employees there had been sent up from Atlanta subject to being returned, that they possibly would be returned, that the Company preferred that they all be in the same union, and that it doubted that the Union had a majority. Caldwell testified similarly that Allen referred to *•Dickinson testified that though he actually had only five cards in his possession at the time, the other nine had been filed with the Board in support of the petition. CALDWELL PACKAGING COMPANY 505 the Fort Wayne employees as having come from Atlanta and stated that the Company hoped it "would not have two unions in the picture," and that "theoreti- cally" it hoped they would be considered part of the unit. Though Caldwell did not, as March, specifically connect those statements to the alleged doubt of majority, he testified that he referred to information which he had received that "some of this 100 percent cards had been gotten [under] duress," and that he wanted to check that out before going any further. Respondent also offered by stipulation, in lieu of Allen's testimony, an office or file memorandum in which Allen had summarized the happenings at the meeting. Though in the main it corroborated the Caldwell-March testimony, it corroborated Dickinson and Thrasher in one significant respect. Thus under the Caldwell-March versions after Allen opened the meeting by referring to the petition as the reason for being there, Dickinson's immediate response was to claim a majority and to request an election. Allen's memorandum showed that (as Dickinson and Thrasher testified) he referred to the fact that the petition recited that a request for recognition had been made but no reply had been received, and that Dickinson explained that though he had gone to the plant he had not talked to anyone because "the boss was not in." Allen's memorandum did, however, corroborate Caldwell and March that Dickinson later requested an election. There was general agreement that there was discussion of the relative advantages of consent and Board-ordered elections and that at one point Dickinson agreed that an election (or certification ) would give the Union certain advantages . There was also general agreement that Dickinson at one point accused the Company of stalling, and that at another point Allen stated that the Company had more employees than it needed and that he either stated or implied that a layoff might become necessary. Resolving the principal material conflicts in the foregoing testimony, I find on the entire evidence (including the events which preceded the meeting), that Dickinson did not state that the Union wanted an election, but that he answered Allen's inquiry concerning when the request for recognition was made by referring to his telephone conversation with Caldwell. I find further that Allen did raise the question of the Fort Wayne employees in connection with alleged doubts of the Union's majority and the unit. Finally, I find that testimony concerning the Union 's "wanting" an election related only to Thrasher's countersuggestion of a consent election instead of the Board-ordered election which Respondent was insisting upon, 3. Crawford's activities Four employee witnesses testified to a course of conduct by Crawford between September 8 and the layoff on September 16, during which Crawford sought to have them abandon the Union and go for the Company .5 Jimmy Nix testified that shortly after Caldwell's September 8 speech, Crawford laughed at him and said, "Do you think you are going to get a union?" Thurman Nix testified that shortly after the March-Allen meeting with the employees, he overheard Crawford tell Ray Freeman and Carroll Herron that if they went for the Company they would be given supervisors' jobs, with more money. Kenneth Haney testified that 2 or 3 days before the layoff, Crawford talked with him, Herron, and Freeman, trying to persuade them to go for the Company and against the Union, and that he stated that they might get better pay and easier jobs if they would go against the Union. Haney testified further that later on the same day, Crawford discussed with him the circumstances of his hiring (i.e., in his brother's place during the brother's sick leave) and directed him to talk with his brother and find out if he would go against the Union. Crawford stated that if the brother would go against the Union, he could have his job back; that if both of them would go against the Union, both would have jobs; and if both went for the Union, they would "wind up without jobs." The next morning both Kenneth and his brother, Herbert, met with Crawford, who asked whether they had decided to go for or against the Union. When they said they were for the Union, Crawford stated that be would let Kenneth go and hire Herbert back, but only for long 6 Though the General Counsel also offered testimony concerning a meeting with the employees shortly after the September 10 meeting at which 'larch and Allen spoke to the employees, the complaint did not charge any violation resulting from those talks. Though at the hearing the General Counsel disclaimed reliance on testimony by some of his witnesses that Allen (like Caldwell) suggested that the employees form their own union , his brief claims corroboration from March. The earlier disclaimer was based on the fact that pretrial affidavits of the witnesses contained no reference to Allen's alleged suggestion ; and Allen's office memorandum, received by stipulation in lieu of his testi- mony, contained none . The testimony in question is therefore not credited. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enough to find a reason to fire him. Crawford later informed Kenneth he had decided to let him work instead of Herbert. Herbert's testimony concerning Crawford's conversation with the two of them was corroborative of Kenneth's. He testified that ultimately he suggested to Crawford that to avoid confusion, he let Kenneth keep the job. Crawford, though called as Respondent's witness, did not testify in denial of the foregoing. 4. The layoff As of September 16, there were two different crews of four men each working on two machines ( or lines ), on one of which B. T. Hawkins was working foreman and on the other, Ray Freeman. Freeman's crew was producing for stock or inventory, and Hawkins' for an order. On the afternoon of the 16th, Hawkins' crew was summoned, along with Thurman Nix, shipping clerk, to Caldwell's office. The employees testified that March and/or Caldwell informed them that because work was slack and orders had run out, there would be a temporary layoff but that they could work through the next day if they wished. Nix was told that he was included, because with only one crew working there would not be enough work for a shipping clerk. March testified that he told the employees the Company would keep in touch with them, and Caldwell testified he told them he hoped that they would be back before too long. Crawford, who was also present, testified the employees were told that they would be recalled when business picked up. When Dickinson learned of the layoff from Hawkins, he called Caldwell and protested, though the chief burden of his protest was that Respondent had not followed seniority. Respondent offered the following evidence in justification of the layoffs and of the basis of its selection: Caldwell had informed the employees on September 8 that business was slack, and Allen, in the meeting of September 10, had informed Dickinson that Respondent had more employees than it needed and that a layoff might become necessary. In fact, the layoff was delayed on the attorney's advice until it actually became necessary. It was finally forced by the cancellation of a Winn-Dixie order on which Hawkins' crew was workings The latter fact, coupled with the fact that Respondent had no policy of following seniority in layoffs and the further fact that faulty work by Hawkins' crew had recently caused Respondent a substantial loss, were the main factors which led to the selection of the Hawkins' crew. Respondent had no knowledge of the comparative strength of the Union in the two crews. Indeed, since the evidence established that all the employees had joined the Union, it was plain that any layoff would have reached union members. No convincing refutation was offered of Respondent's evidence. Though some of the employees claimed that they had some 2 or 3 weeks' work ahead, some admitted that they had heard about the cancellation of orders or the loss of business. It was also plain that the Union's complaints went mainly to the failure to follow seniority, but this was not significant since Respondent had no policy of following seniority in the case of layoffs 7 and since its explanations for the selection of Hawkins' crew were logical and reasonable. 5. The strike; the application for reinstatement On the evening of September 16, the employees met and voted to strike. Accord- ing to the testimony of employee witnesses for the General Counsel they struck for two reasons, one to protest Respondent's failure to recognize the Union and the other to protest the layoff. On the morning of the 17th, Caldwell learned of the impending strike, and March called Hawkins in and asked what could be done to avert it. Hawkins informed him that so far as he knew the Company could put the men back to work and lay off according to seniority. March informed Hawkins during the afternoon that there was nothing he could do about it, and he posted a notice on the bulletin board which referred to the impending strike and which stated that the employees were free to participate or not to participate therein and that it would be assumed that those who did not report to work the next day would be participating in the strike unless they notified the Company to the contrary. ° Though Caldwell at one point apparently testified the order was canceled on Sep- tember 28, the date is an obvious error. Either Caldwell misspoke or the error is typographical. 7 Caldwell admitted on cross-examination, however, that seniority was a factor which he had considered at the time he made Crawford production manager. CALDWELL PACKAGING COMPANY 507 The strike began on the morning of the 18th with all except three of the employees participating. The picket line was maintained until October 27. Testimony by the General Counsel's witnesses showed that a number of new employees went to work during the strike, and Respondent's witnesses admitted that 20 or more em- ployees worked at times. That was due, it was explained, to the fact that the Fort Wayne business was transferred to Atlanta and to the fact that many of the new employees were green. Respondent did not, however, recall either the laid-off employees or any of the strikers. On October 24, the Union's attorney wrote Respondent a letter making an "unconditional" and "continuing offer to return to work" by "all your employees who are on strike at this time, including the employees who you discriminatorily discharged prior to the commencement of the strike." On October 27, seven of the strikers (Hawkins, Jimmy Nix, Frank Elmore, Charles Goodwin, Kenneth Haney, Herron, and Freeman) went to the plant in company with Dickinson and applied in person to March. March acknowledged receipt of the letter and inquired which employees desired jobs. Dickinson replied that they all did. March inquired what the situation was if he did not have jobs for all but needed only one of them. Dickinson answered that it was either all or none. March took down the names of all who were present; he testified that there were in fact no jobs open at the time. March also testified (without denial) that he reemployed Harold Thompson during the strike and reemployed John Forrester, Herron, and Freeman some time after Dickinson came in October 27. He also testified that McGregor rejected his offer of reinstatement and that he was unsuccessful in attempting to communicate an offer to Frank Elmore. McGregor affirmed his rejection of the offer of rein- statement, though the evidence does not establish with certainly the date the offer was made. C. Concluding findings 1. Interference, restraint, and coercion Caldwell's speech to the employees was the automatic reaction (to the representa- tion petition) of one who was without experience in labor relations and without the benefit of legal advice. It was, therefore, not surprising that he learned, after the fact, that he had done wrong. Though Caldwell had a right to talk with the employees and though much that he said was privileged under Section 8(c), his threat to close the Fort Wayne plant rather than recognize the Teamsters and his use of that example to predict a similar result at Atlanta were plainly coercive. Though the latter threat was thinly veiled by suggestions that the Union might make unreasonable demands, that refinement could not overcome the coercive thrust of the Fort Wayne example as to which the threat was baldly made (and later baldly executed). For threats are not less coercive because made in veiled or indirect terms. "When statements such as these are made by one who is a part of the company management, and who has the power to change prophecies into realities, such statements, whether couched in language of probability or certainty, tend to impede and coerce employees in their right of self-organization, and therefore constitute unfair labor practices." N.L.R.B. v. W. C. Nabors, d/b/a Nabors Co., 196 F. 2d 272, 276 (C.A. 5), and cases there cited. The point need not be belabored. It was treated at length in Sunnyland Packing Company, 106 NLRB 457, 461 (enfd. 211 F. 2d 923 (C.A. 5) ), to which reference is here made. Furthermore, Caldwell's linking of the plant closing with excessive demands by the Union was the springboard for his next gambit, that if the employees would form their own union he would work something out with them. Indeed, it is plain from the entire evidence, including Allen's later insistence on a Board-ordered election and Crawford's contemporaneous campaign among the employees to under- mine the Union's representative status, that Caldwell's intent from the beginning was to undercut and to bypass the Union completely. It is, therefore, concluded and found that by Caldwell's interrogation of the employees concerning their union sentiments and desires, his threat that the plants (Fort Wayne and Atlanta) would be closed if the unions came in, and his promise to work out something for the employees if they would form their own organization, Respondent engaged in interference, restraint, and coercion within the meaning of Section 8(a)(1). It is also concluded and found that by Crawford's promises of benefit to Free- man, Herron, and Kenneth Haney if they would go against the Union, and by his interrogation of the Haney brothers and his promises and threats to them concerning their abandoning or failing to abandon the Union, Respondent similarly engaged in interference, restraint, and coercion. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The refusal to bargain Findings made under section B, 1, supra, established that Dickinson had made a request for recognition in the telephone conversation of September 8. There remain for decision the unit and majority questions which Respondent raised in its answer, and the ultimate issue whether it refused to bargain. a. The appropriate unit Under all the evidence concerning Respondent 's business and its operations, I find that an appropriate unit for the purposes of collective bargaining would consist of all production and warehouse employees at the Atlanta plant, excluding office em- ployees, guards, watchmen, and supervisors as defined in the Act. There is no valid basis for Respondent's contention that said unit was not appropriate. The evidence concerning the Fort Wayne branch failed to establish either that it belonged in a single unit with Atlanta or that a unit confined to Atlanta was not an appropriate one.8 Indeed, Caldwell testified that the Fort Wayne branch was set up "on the spur of the moment ," that Respondent was dissatisfied with it from the beginning, and began at once to consider the possibility of closing it down. That the advent of the Teamsters precipitated its decision or caused final crystalliza- tion of its plan was made explicit in Caldwell's speech to the employees. Nor was any unit question raised by Caldwell at any time prior to September 10, and then it was the attorney who injected it into the discussions . In fact, March's testimony indicated that Allen 's raising of the Fort Wayne issue was related specifi- cally to the possible return of these employees to Atlanta and to Respondent 's alleged doubt in that connection that the Union represented a majority. We turn, then , to the question whether Respondent stands on any better ground on the majority issue. b. The majority; the alleged doubt There was no conflict in the evidence that all the production employees had signed cards for the Union prior to September 8. Witnesses for the General Counsel testified that that was so, and testimony by Howard Thompson , an employee witness for Respondent , corroborated it. Indeed , Caldwell's testimony concerning the Sep- tember 10 meeting in Allen's office showed that he referred to the Union 's claim that it had 100 percent representation. Nor was there substantial basis for Respondent's pleaded good-faith doubt of the Union's majority. The only thing of a concrete nature which Caldwell assigned in his testimony as casting doubt on the claim of 100 percent representation was a con- versation with Virginia Barron in which, according to Caldwell , Barron informed him that "we were threaten[ed] that if we did not sign up with the Union, that the Union . would testify that their work was not satisfactory and get us fired." Neither Barron nor any other employee was called to support a claim that threats were made by the Union to obtain signatures . Respondent's witness, Thompson, testified to none, and he corroborated the General Counsel 's evidence that all the employees signed up . Caldwell's testimony therefore plainly failed to support the alleged doubt of a majority. The evidence otherwise reflected no doubt on Respondent 's part of the Union's majority . In his September 8 talk to the employees , for example , Caldwell neither expressed nor implied doubt that his employees had designated the Union. To the contrary, he was explicit that they had chosen a union which he was willing to recognize. And though Caldwell testified that he polled the employees by name, it was not about their choice of the Union , but about what it was they were dissatis- fied with. Furthermore , as previously observed , Crawford's subsequent campaign among the employees showed that Respondent was committed to destroying the Union's representative status. Finally, of course , the strike and the participation therein by all except three employees was visible confirmation of the Union's majority. The possible return of some (or all) of the Fort Wayne employees was not a circumstance which affected either as a matter of law of or of fact the Union's majority representation . Though Respondent was committed to closing the branch plant, there was no certainty as to when the action would be taken, and the evidence showed that it finally occurred some time in October. Tn view of the Union's current representative status at Atlanta , Respondent could not legally postpone 8 There is nothing in the statute which requiros that the unit for bargaining be the only appropriate unit , or the most appropriate unit : the Act requires only that the unit be "appropriate ." Aforand Brothers Beverage Co., et at ., 91 NLRB 409, 418. CALDWELL PACKAGING COMPANY 509 recognition pending consummation of its plans to transfer employees. Indeed, that matter was plainly one concerning which the Union was lawfully entitled to bargain with Respondent. Finally, even were it to be assumed that all the Fort Wayne employees would eventually accept transfers to Atlanta and were to be included in the total comple- ment, no change in the Union's representative status would result. The evidence showed that there were only 4 production employees at Fort Wayne, and their in- clusion would still have left the Union with 14 members out of a total of 18 employ- ees. Actually, the evidence showed that only two of them returned to Atlanta. It is therefore concluded and found on the entire evidence that at all times on and after September 8, the Union represented a majority of Respondent's employees in the unit described above and that Respondent did not in good faith question that majority representation. C. The refusal to bargain There remains the ultimate issue whether Respondent refused to bargain. The evidence showed that Dickinson's understanding was that, since Caldwell had agreed to recognize the Union, the September 10 meeting would be devoted to negotia- tions. Instead, the Union was met by Allen's injection of specious issues and his insistence of a Board-ordered election. As it is plain that the Union ultimately consented, the question arises whether that constituted in effect a waiver of its request to bargain. Certainly, if Respondent had entertained good-faith doubts on the unit or majority questions, it would have been entitled to have them resolved by an election. And even absent such doubts, the Union may have been willing to take its chances on an election because (as Dickinson indicated) of the advantages to be derived from a Board certification. But having procured the Union's consent, Respondent was obligated, of course, to respect the election machinery, to permit a free election, and to refrain from unlawful acts which would undermine the Union's support. Craw- ford's coercive campaign among the employees was plainly violative of that obliga- tion. By that unlawful conduct Respondent sought to destroy the efficacy of the very method which it had insisted on for determining the Union's representative status. Hannaford Bros Co., 119 NLRB 1100, 1102, and cases cited at page 1117. It is therefore concluded and found that at all times on and after September 10, Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. 3. Discrimination The evidence plainly failed to establish that Respondent discharged Hawkins, Elmore, McGregor, and Thurman Nix as alleged in the complaint as amended. There was no termination of employment, and the employees were informed and understood that the layoffs were to be temporary. The evidence also failed to estab- lish that Respondent was discriminatorily motivated either in making the layoff or in the basis of its selection of the employees. Allen had alerted the Union on September 10 to the possibility of a layoff. The loss of the Winn-Lovett order brought the matter to a head and was the proximate cause of the layoff. Some of the employees, including Hawkins, had heard of the loss of the business, and neither they nor the Union seriously disputed the necessity for the layoff, but questioned only the basis of selection, claiming that seniority should have been followed. Respondent, however, followed no policy of seniority in making layoffs, and its evidence showed a logical and reasonable basis for the selection of Hawkins' crew: it was employed in production of the goods for the canceled order, and to break up two crews would not have been an efficient or feasible solution. It is, therefore, concluded and found that Respondent was not discriminatorily motivated in making the layoff. The complaint also charged, however, that Respondent discriminatorily refused to reinstate (recall) the laid-off employees. That allegation was plainly established by the evidence. Almost from the inception of the strike Respondent needed and hired new employees, but it did not recall any of the laid-off employees. Since they had joined the strike after the layoff, they were lawfully entitled to be offered rein- statement or recall without any prior necessity on their part for abandoning the strike and notifying Respondent they were available for work as is required in the case of strikers who are discharged or laid off at a time when they are actually engaged in a strike. Cf. Ford Radio & Mica Corp., 115 NLRB 1046, 1048-1049; Happ Brothers Company Inc., 90 NLRB 1513, 1518-1519. Questions concerning the character of the strike (economic or unfair labor practice) are immaterial as to them, as they were in a temporary layoff status and entitled to be recalled to work 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whenever jobs became available, as was obviously the case shortly after the strike began. Respondent's failure to recall them simply because they were participating in the strike (a protected concerted activity) was plainly discrimination within the meaning of the Act. It is therefore concluded and found that by failing to recall and reinstate B. T. Hawkins, Thurman Nix, Robert D. McGregor, Jr., and Frank Elmore on and after September 18, 1958, Respondent engaged in unfair labor practices proscribed by Section 8 (a) (3) and (1). The complaint also charged a discriminatory refusal to reinstate six of the strikers on October 27. Determination of that issue turns on whether the strike was an unfair labor practice strike or was economic in origin, since the evidence showed that at the time the employees in question applied, there were no jobs open. Evidence previously summarized established that the employees struck for two reasons: because of Respondent's failure to recognize the Union and to protest the layoff. Though no unfair labor practice has been found as regards the layoff, Re- spondent's refusal to recognize and bargain with the Union was an unfair labor practice as found under section 2, supra. It is therefore concluded and found that the strike was an unfair labor practice strike from its inception and that the strikers (other than those in the layoff status) were entitled to reinstatement upon application, irrespective of whether their posi- tions had been filled by Respondent. City Packing Company, et al., 98 NLRB 1261. As Respondent had hired numerous new employees during the strike, there were obviously jobs available on October 27 for all the strikers who applied on that date. It is therefore concluded and found that on October 27, 1958, Respondent dis- criminatorily refused to reinstate Kenneth Haney, Charles Goodwin, Ray Freeman, Carroll Herron, and Jimmy Nix, and thereby engaged in unfair labor practices within the meaning of Section 8 (a) (3) and (1).9 III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The aforesaid unfair labor practices set forth in section IT, above, occurring in connection with the operation of Respondent's business as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and substantially affect commerce within the meaning of Section 2(6) and (7) of the Act. IV. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type conventionally ordered in such cases which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act. As B. T. Hawkins, Thurman Nix, and Frank Elmore were laid off before they went on strike, they are entitled to immediate and full reinstatement and to backpay from September 18, 1958, until receipt by them of an unconditional offer of reinstatement. Merchandiser Press, Inc., 115 NLRB 1441, 1442; cf. The Rivoli Mills, Inc., 104 NLRB 169, 170. Robert D. McGregor, Jr., is entitled to backpay from September 18 to the date on which Respondent offered him reinstatement. Charles Goodwin, Kenneth Haney, and Jimmy Nix are similarly entitled to reinstatement and to backpay from October 27, 1958, until the receipt by them of an unconditional offer of reinstatement. Ray Freeman and Carroll Herron are entitled to backpay from October 27, 1958, to the date on which Respondent offered them reinstatement. See section C, 3, and footnote 9, supra. For reasons stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases, there cited, I shall recommend a broad cease and desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act. O No unfair labor practice was established as to Howard Thompson as alleged in the complaint since he was reinstated, on his application, prior to October 27. Freeman and Herron will be entitled to backpay only to the time of their respective reinstatements subsequent to October 27, and McGregor only from September 18 to the time he refused an offer of reinstatement. March's testimony did not establish that any proper offer of reinstatement was communicated to Frank Elmore. WESTERN BANK AND OFFICE SUPPLY COMPANY 511 2. By interrogating its employees concerning their union membership , sentiments, and desires; by threatening to close the plant if the Union came in; by promising benefits if the employees form their own organization and if they abandon their union membership, and threatening discharge and other reprisals if union member- ship were not abandoned , Respondent engaged in interference , restraint, and coercion of its employees in the exercise of rights guaranteed in Section 7 of the Act, and thereby engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 3. By failing to recall and reinstate B. T. Hawkins , Thurman Nix, Robert D. McGregor, Jr., and Frank Elmore on and after September 18, 1958, and by refusing to reinstate Kenneth Haney, Charles Goodwin , Ray Freeman, Carroll Herron, and Jimmy Nix on and after October 27 , 1958, Respondent engaged in discrimination to discourage membership in the Union and thereby engaged in unfair labor prac- tices proscribed by Section 8 (a) (3) and ( 1) of the Act. 4. All production and warehouse employees at Respondent 's Atlanta plant, ex- cluding office employees , guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. On September 8, 1958, and at all times thereafter the Union has been and now is the exclusive representative of all the employees in said unit within the meaning of Section 9(a) of the Act. 6. By failing and refusing to bargain with the Union on and after September 10, 1958, Respondent engaged in unfair labor practices proscribed by Section 8(a) (5) and (1 ) of the Act. [Recommendations omitted from publication.] Western Bank and Office Supply Company and Amalgamated Lithographers of America. Case No. 16-CA-1213. December 1, 1959 DECISION AND ORDER On July 16, 1959, Trial Examiner Lloyd Buchanan 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. Thereafter the Respondent filed exceptions to the Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following addition. We agree. with the Trial Examiner that the Respondent discharged employee Richard Cabrera in violation of Section 8 (a) (3) of the Act. Cabrera was hired on November 5, 1957, as a part-time apprentice. Soon after, he was given full status as an apprentice operator and assigned to run an offset press. Although only an apprentice, he was 125 NLRB No. 62.