Texas Coca-Cola Bottling Co.

420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain collectively with International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, as the exclusive repre- sentative of the employees in the bargaining unit described below. WE WILL NOT in any manner interfere with the efforts of International Brotherhood of Pulp, Sulphite, and Paper Mill Workers, AFL-CIO, to bargain collectively as the exclusive representative of the employees in the bargaining unit described below. WE WILL upon request, bargain with International Brotherhood of Pulp, Sulphite, and Paper Mill Workers , AFL-CIO, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, and, if an understanding is reached , embody such an understanding in a signed agreement. The bargaining unit is: All production and maintenance employees employed by us at our Williamsport, Pennsylvania, plant, including truckdrivers and leadmen, but excluding all office clerical employees, executive employees, and all super- visors as defined in the Act. PENN CENTRAL CONTAINERS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced , or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1700 Bankers Securities Building, Walnut and Juniper Streets, Philadelphia , Pennsylvania, Telephone No. 735-2612, if they have any question concerning this notice or com- pliance with its provisions. Texas Coca-Cola Bottling Company and Local 826, International Union of Operating Engineers, AFL-CIO. Cases Nos. 16-CA- 1762 and 16-CA-185,1,. March 20, 1964 DECISION AND ORDER On December 5, 1963, Trial Examiner Abraham H. Mailer issued his Decision in the above-entitled proceeding, finding that the Re- spondent 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 attached Trial Ex- aminer's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision. 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 [Chairman McCulloch and Members Leedom and Brown]. 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 Trial Ex- aminer's Decision, the exceptions, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. 1 The Trial Examiner inadvertently failed to make a finding as to the appropriate unit which, as certified, consists of all employees employed at the Respondent 's Big Spring, Texas, plant, excluding office clerical employees, professional employees, guards, and' supervisors as defined in the Act. 146 NLRB No. 58. TEXAS COCA-COLA BOTTLING COMPANY ORDER 421 The Board adopts as its Order the Recommended Order of the Trial Examiner with the modifications noted below : 1. Substitute for the first paragraph therein the following : Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board hereby orders that the Respondent, Texas Coca-Cola Bottling Company, its officers, agents, successors, and assigns, shall : 2. Insert the following immediately before paragraph 1(a) and re- number the remaining paragraphs accordingly : (a) Refusing, upon request, to bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the exclusive representative of all employees in the following ap- propriate unit : All employees at Respondent's Big Spring, Texas, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed in Case No. 16-CA-1762 and upon an original and first amended charge filed in Case No. 16-CA-1854 by Local 826, International Union of Operating Engineers, AFL-CIO, herein referred to as the Union, the Acting Regional Director of the Sixteenth Region of the National Labor Relations Board, herein called the Board , issued a complaint on behalf of-the General Counsel of the Board on July 5, 1963, against Texas Coca-Cola Bottling Company, herein variously referred to as the Respondent or the Company. The complaint alleged , inter alia, that on or about June 29, 1962, a majority of the employees of the Respondent in the unit described in the complaint , by a secret ballot election conducted under the supervision of the Regional Director , had designated the Union as their representa- tive for the purposes of collective bargaining with the Respondent and that on or about July 10, 1962, the Regional Director had certified the Union as the exclusive collective-bargaining representative of the employees in said unit ; that on or about February 20, 1963, the Respondent executed and entered into a settlement agreement in Case No. 16-CA-1762, approved by said Regional Director on or about Febru- ary 26, 1963 , providing inter alia that Respondent would refrain from refusing to bargain collectively with the Union as the exclusive bargaining representative for the appropriate unit; that thereafter the Respondent refused, and continues to refuse, to bargain collectively with the Union in that the Respondent negotiated with the Union in bad faith and with no intention of entering into any final or binding collective-bargaining agreement and thereby violated the terms of the settlement agreement; that on or about June 24, 1963 , and thereafter, the Respondent refused to meet with the Union upon request for the purpose of collective bargaining; that on or about July 1, 1963 , the Regional Director vacated and set aside the settlement agreement ; that before and after the signing of the settlement agreement the Re- spondent had refused to bargain collectively with the Union in violation of Section 8(a)(5) of the Act, and prior to the signing of said settlement agreement the Respondent had restrained , coerced, and interfered with its employees in the exer- cise of rights guaranteed in Section 7 of the Act , in violation of Section 8(a) (1) of the Act. In its duly filed answer, the Respondent denied the commission of any unfair labor practices. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pursuant to notice a hearing was held before Trial Examiner Abraham H. Mailer at Big Spring, Texas, on August 6 and 7, 1963. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence,' to pre- sent oral argument, and to file briefs with me. A brief was filed only by counsel for the General Counsel. Upon consideration of the entire record, I make the following: FINDING OF FACTS AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT The Respondent is engaged in the manufacture and sale of carbonated beverages and related products at both wholesale and retail. At all times material herein, the Respondent has maintained its principal office and place of business in the city of Abilene, Texas, and a place of business at West Highway 80 in the city of Big Spring, Texas, and various other places of business, warehouses, and other facilities, all in the State of Texas. The Respondent's plant located at Big Spring is the only plant involved in this proceeding. During the 12-month period ended June 30, 1963, which period is representative of all times material herein, the Respondent' s gross revenue was in excess of $500,000, and during the same period Respondent pur- chased and received vending machines valued at $130,000 directly from suppliers located outside of the State of Texas. In view of the foregoing, I find and conclude that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act for the Board to assert jurisdiction here. H. THE LABOR ORGANIZATION INVOLVED Local 826, International Union of Operating Engineers, AFL-CIO, is and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ISSUES 1. Whether after the signing of the settlement agreement, the Respondent nego- tiated with the Union in bad faith and with no intention of entering into any final or binding collective-bargaining agreement and on and after June 24, 1963, refused to meet with the Union on request for. the purpose of collective bargaining and by such conduct abrogated the settlement agreement and violated Section 8(a) (5) and (1) of the Act. 2. If the foregoing issue is decided in the affirmative, whether the Respondent interfered with, restrained, or coerced its employees, prior to the signing of the settle- ment agreement, in violation of Section 8 (a) (1) of the Act .2 IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The postsettlement collective-bargaining negotiations The record does not reveal any substantial dispute as to the conduct of the negotia- tions. Sometime after February 15, 1963, David L. Hooper, attorney for the Re- spondent in the instant proceeding, was approached by Raymond McDaniel, Jr., vice president of the Company, to see if he would be willing to represent the Com- pany in the bargaining negotiations. Prior to accepting employment as the Com- pany's negotiator, Hooper met with various officials of the Company, with John Scott, attorney for the Company, and with Roger Brown, an attorney and the former negotiator for the Company, and familiarized himself of the prior negotiating history. Hooper testified further: 1 After the close of the hearing, the parties stipulated that a copy of the settlement agreement and notice to all employees be received into evidence as General Counsel's Exhibits. Nos . 44 and 44 (a) as if said exhibits were offered and received during the formal hearing Pursuant to said stipulation , said documents are received in evidence and made a part of the record of the Instant proceeding. " ' 2 At the hearing, it was stipulated by the parties that In the event it is found that the Respondent failed to bargain In good faith, It shall be. deemed by the Trial Examiner and/or the Board that those , allegations in the complaint, alleging that the Respondent failed and refused to bargain collectively prior to the settlement-agreement, are admitted by the Respondent , and the Trial Examiner and/or the Board may find that such ' action on the part of the Respondent constitutes a failure to bargain in good ' faith prior to the settlement agreement. TEXAS COCA-COLA BOTTLING COMPANY 423 It was my understanding after conferring with both Company representatives, Roger Brown and with John Scott, that my bargaining negotiations with the Union would begin on a new footing and regardless of what agreements had been made in the past between the Company and the Union, or regardless of what had been tentatively proposed in the past to the Union or by the Union, I would not be bound by any of such. I would be authorized to go into the bar- gaining sessions and negotiate with the Union for a contract and make recom- mendations to the Company as I saw fit. As part of my agreement with Texas Coca-Cola Bottling Company for my representing them at all bargaining ses- sions, it was understood between myself and the Company that I had complete authority on behalf of the Company to go into bargaining and negotiations ses- sions and reach an agreement with the Union if such be possible. On February 28, 1963, Frank Parker, business representative of the Union, wrote Scott suggesting the scheduling of a bargaining session. On March 14, 1963, Parker submitted to Scott a contract proposal. 1. The meeting of March 26, 1963 Pursuant to prior arrangement, the parties met at Big Spring, Texas, on March 26, 1963. Present on behalf of the Company were Hooper and several of the Company's officials. The negotiations dealt primarily with the proposed agreement submitted by Parker to Scott on March 14, 1963.3 The proposed agreement incorporated by reference an earlier proposal by the Union which had been submitted on August 14, 1962? The parties discussed the Union's proposal article by article and clause by clause as follows: The "Witnesseth" clause was agreed upon. Article l-management rights: Although Hooper admitted that this article was substantially the same as a counterproposal submitted by the Company to the Union in the fall of 1962, he stated that: My understanding was that I was not to be bound in my negotiations by any proposals submitted to the Union or accepted by the Company prior to the Union's filing of a complaint with the National Labor Relations Board. There- fore, I did want to take a look at this Article 1 in the light of my own thinking and re-submit my management rights clause to the Union in the proposed agree- ment which I would prepare and send to the Union prior to our next meeting on April 9. Parker argued that the clause should be agreed to at that time as it was substantially that which the Company had previously submitted to the Union for consideraion. Hooper stated that he did not see anything objectionable in the article, but insisted on taking another look at it. Article 2-hours of work and work schedules: This article gave both parties con- siderable trouble at this meeting. Parker stated that he was not averse to making changes in it and wanted a counteroffer from the Company. Hooper agreed to submit counterpropsals on April 9. The Union agreed to change section 2 of this article to conform to the Company's current practices. Article 3-holidays: The Union proposed seven named holidays and a floating holiday to be chosen by the individual employee. During the discussion, Parker stated that the Union would give up the idea of a floating holiday. Hooper ob- jected to the Union's proposal on holidays and stated that he would submit a counter- proposal at the next meeting. The Company pointed out that its past practice had been to give the employees a holiday on July 4, Thanksgiving Day, and Christmas Day, and if most of its customers were closed on January 1 and on Labor Day, the Company also gave the employees a holiday on those days. -Article 4-vacations: Section 1 provided for a 2-week vacation. with pay for em- ployees who had completed 1 year of service. This was the same as the Company's counterproposal submitted earlier, and Hooper stated that it was acceptable. Sec- tion 2 provided for 3 weeks' vacation with pay to employees who had completed 10 years' service. This was not acceptable to the Company. Hooper stated that it was not customary in the industry, nor was it the Company's policy, to give any employee a 3-week vacation. Hooper promised to submit a counterproposal. Article 5-seniority: Sections 4 and 5 providing for-retention of seniority by em- ployees absent because of illness or industrial accident were tentatively agreed upon. Hooper agreed to present a counterproposal as to the rest,of the article. - e General Counsel's Exhibit No 7, et seq. C'General Counsel's Exhibit No. 32, et seq. , 424 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD Article 6 provided that foremen shall not be allowed to do work normally per- formed by members of the bargaining unit, excepting cases of emergency, etc. The Company gave its reasons why it could not agree to this provision and the Union dropped this proposal. Article 7-strikes and lockouts: Parker pointed out that this article which pro- vided for no-strikes and no-lockouts, had been agreed upon by Roger Brown, the Company's former negotiator, on November 15, 1962, and that this proposal had come from the Company. Hooper reminded Parker that it was his understanding that he would not be bound by anything previously agreed upon between Brown and the Union, but stated that if a minor change was made in the provision, he would agree to it. The suggested change was made, and Parker said that he would tenta- tively agree to it, but wanted to review it in the light of the entire contract which would be agreed upon by the parties. Article 8-wage rates: Hooper stated that the Company would not agree to the proposal and that it would not at this time consider any wage increases. He promised to present a counterproposal at the next meeting. Parker requested the Company to give earnest consideration to a general wage increase. Article 9-leaves of absence: Parker pointed out that this proposal was taken from a prior counterproposal submitted by the Company. The article was tentatively agreed upon. Article 10-health and welfare: Parker stated that the Union had no complaint with the Company's present procedure in this area, but wanted the contract to guarantee that the Company would retain the protective devices now utilized by it. Hooper said that he would present a counterproposal on this matter. Parker stated that, if the current procedure were incorporated therein, he would accept such a counterproposal. Article 11-security (checkoff`): Parker stated that the checkoff would require very little bookkeeping on the part of the Company and that the Company would have to write only one check per month to the Union, and that the Company's doing this would be an act of good faith on its part. Hooper stated that the Company would make only those deductions required by law. The Company maintained this position throughout the bargaining negotiations. Article 12-severance:• The Union's proposal for severance pay was discussed, and the Company agreed to submit a counterproposal. Article 13-visits to plant by Union's business representative: After discussion, the Company indicated it would submit a counterproposal. Article 14-grievance procedure: The Union's proposal provided for a three-step grievance procedure, the third step requiring submission of the grievance to arbitra- tion. Hooper then read the Company's counterproposal which provided , inter alia, for arbitration only if the parties mutually agree upon it. Parker stated that the Company's counterprosopal was a violation of the Labor Act; that although it was based upon a court decision, it was not applicable because in the court decision the contract did not have a no-strike clause; and that the Company had insisted on a no-strike clause but would not agree to a grievance being reviewed by arbitration or give the Union a right to strike. Mr. Hooper stated he would submit a counter- proposal, and Parker replied that he wanted any change in the grievance procedure to make arbitration mandatory for both parties and make the results of any arbitra- tion binding upon both parties. According to Hooper: At no time did I agree with Mr. Parker that compulsory arbitration would be contained in the new proposal. I knew in my own mind at the time I made the statements to Mr. Parker at the March 26 meeting that I would slightly revise the counterproposal given to the Union and add a step enabling the Union to strike in the event the Company failed to be bound by a decision of an arbitrator, once the Company agreed to an arbitration. Article 15-civic duties: Parker stated that, if the Company would embody its present policy into its new ,proposal, the Union would accept it. Article 16-retention of benefits: Hooper stated he was not satisfied with the language in the Union's proposal as submitted; that the Company was willing to write into the contract certain present practices; that it had no intention of dis- continuing any of the present benefits given to the employees and would be willing to take up the matter with the Union in the event the Company wanted to discontinue them. Hooper promised to submit a counterproposal. Article 17-advertisement and promotion: This article aelated , inter alia, to the placing of the union label on the product. The Company objected to this proposal, and Parker agreed to drop the clause from the contract. Article 18-miscellaneous: This article related to bulletin boards -and meals. The Company agreed to submit a counterproposal: TEXAS COCA-COLA BOTTLING COMPANY 425 2. The meetings of April 9 and 16, 1963 The meetings of April 9 and 16 were devoted to ia discussion of the Company's counterproposal.5 Articles 1 (recognition), 7 (strikes and lockouts), 9 (leaves of absence), and 12 (civic duties) of the counterproposal were readily agreed to by the Union; however, Parker reserved the right to change his thinking after he had an opportunity to examine the final contract in its entirety. This reservation was agreeable,to Hooper. Article 2-management rights and policy: This article as set forth in the Com- pany's counterproposal consisted of three clauses. By the first clause, which had been submitted by the Company in the presettlement negotiations and which had been agreed to by the Union, the Union recognized that the supervision, manage- ment, and control of the Company's business operations are exclusively the func- tion of the Company. The second and third clauses spelled out in detail certain rights retained by the Company. The Union objected to the second and third clauses. The matter was discussed at length at both the April 9 and 16 meetings. During the latter meeting, Parker stated that the Union would accept the Company's pro- posal if the Company would agree to add a fourth section: Nothing in this article shall be construed to, or shall restrict the rights of the Union to represent the employees in the bargaining unit with respect to wages, hours or other conditions of employment as defined in the National Labor Relations Act. Hooper did not agree to this addition, and the article remained a matter of con- troversy between the parties. Article 3-hours of work and work schedules: Section 1 of this article proposed a 40-hour workweek, although the Company was then operating on the basis of a 45-hour workweek, paying time and a half for the 5 hours over the 40 hours. At the April 9 meeting, Parker stated that if the Company would change section 1 to provide for a workweek of 42.5 hours and make certain other minor changes, he would accept section 1. He also stated that he had hopes of obtaining a wage rate which would give the employees 45 hours' pay for 42.5 hours worked. Hooper stated that the Company would not give any increase in wages under any circum- stances. At the April 16 meeting, Hooper presented a revised draft of section 1 which provided for a 42.5 hour workweek; however, he indicated that he would have to study the matter further in relation to the wage and hour laws. Section 1 of article 3 as counterproposed by the Company also provided that the provision was not applicable to route salesmen. At both the April 9 and 16 meet- ings, Parker objected to this exclusion. It was his position that the Union had a right to review the scheduling of the routes for the route salesmen, and, prior to any contract being signed, the Union would want to review inequities which might exist in its scheduling of routes; also, in the event routes were changed in the future, the Union would want the right to determine that no inequities existed in such rescheduling. During the discussion it iappeared that there was no real problem currently existing or which had existed in the past concerning this matter. The Company refused to agree to the Union's having the right to negotiate the establishment of new routes or inequities arising-out of the then current route conditions. Parker finally indicated that he would accept the Company's counter- proposal in this matter if the Union would have a right to process a grievance in the event the Company were unfair in the adding of stops to a route or in the establishment of a new route. Article 4-holidays: In its counterproposal, the Company recognized the follow- ing holidays: Fourth of July, Thanksgiving Day, and Christmas Day, but provided that the employees would not be paid for such holidays. When it was pointed out to Hooper that the Company's practice was to pay employees for holidays, he agreed to change the provision accordingly and to maintain the current practice. Parker stated that he would not agree to a holiday proposal with only three guaranteed holidays. He wanted guaranteed holidays for Labor Day, Memorial Day, and January 1. Hooper restated the Company's position, viz, that the Company would recognize such days as holidays when they were observed as holidays in the Big Spring area by the Company's customers and when such customers were "for the most part" closed and not open for business. The revised proposal was presented by Hooper at the April 16 meeting, but no agreement resulted. Article 5-vacations: As drafted, this proposal provided that employees would receive vacation pay on the basis of a 40-hour workweek. As the parties had, tentatively agreed upon a 42.5-hour scheduled workweek under article 3, Hooper 5 General Counsel's Exhibit No. 11 , et 8eq.' 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changed the proposal accordingly, although the current practice of the Company was to pay vacation pay on the basis of a 45-hour workweek. According to Hooper, the matter of vacations was fairly well settled' after the meeting of April 16. Article 6-seniority: After discussion at both meetings, sections 1 and 4 through 8 were agreed upon. Article 8-wage rates: As proposed, this article contained a recognition by the parties that the Company's current wage rates were adequate, and the Company agreed to maintain such wage rates during the time of the agreement. At the April 9 meeting, Parker stated that the Union would not accept any contract unless it provided for an increase in present wage rates. After some discussion, Parker stated that he would make an investigation to see whether the Company's wage rates were in line with the industry in and about the Big Spring area. At the April 16 meeting, Parker stated that he did not know what the Union's position in relation to wages would be; however, he definitely felt the Union should have some increase in wages for the employees, but did not know just what the Union would settle for. It was agreed to defer the matter of wages until the next meeting. Article 11-grievance procedure: Parker objected to section 1, taking the position that it was not a proper subject matter for a grievance clause; that the rest of the article should be rewritten; and that the Union would not under any circumstances accept a contract which did not provide for compulsory arbitration. Hooper replied that the Company had fulfilled its obligations under the law in the proposed griev- ance procedure. At the April 16 meeting, Parker inquired whether the Company would consider rewriting article 11 to require compulsory arbitration, but that the parties could agree prior to arbitration whether or not the results of such arbitration would be final or merely advisory. Hooper stated that the Company would con- sider the proposal and would discuss it further at the next meeting. At both the April 9 and 16 meetings, the rest of the Company's proposals were considered, and there did not appear to be any real differences between the parties. 3. The meeting of May 7, 1963 At the outset, each party presented the other with its revised proposals in the form of an agreement.6 The meeting was then recessed for 30 minutes to enable the negotiators to discuss the new proposals with their principals. The ensuing dis- cussion centered primarily around the Company's proposal to the Union, and very little consideration was given to the Union's proposal. The following provisions in the Company's proposal were discussed: Article 2-management rights and policy: Parker requested a minor change in section 3, to which Hooper agreed. Article 3-hours of work and work schedules: Parker requested, and Hooper agreed to make, a minor change in section 1. Parker then pointed out that the Company had changed the number of hours to 40 hours per scheduled workweek from 42.5 hours as previously submitted to the Union. He asked, "How do you expect us to ever get a working agreement together here when you come back at each meeting and change the proposals?" Hooper reminded Parker of his previous fears of a possible conflict with wage and hour laws and stated his belief that the Company could incur potential wage and hour problems if it contracted to work its people 42.5 hours per workweek. Parker stated that he did not see anything in the wage and hour law that would conflict with a 42.5 hour workweek and stated that he knew of numerous union contracts that contained such a work schedule. Hooper stated that the Company intended to work 45 hours per week, but he felt that it was a violation of the Fair Labor Standards Act to have this in the contract. Parker then suggested that the Company give the Union a letter stating the regular schedule would be 42.5 hours per week and pointed out that in the case of the Cosden Refinery and Fina, the contract with the Union specifies a 40-hour work- week, but there is a letter agreement which amends the regular work schedule to 42 hours per week. Hooper replied that this would be the same as putting it in the contract and refused to give such a letter. Parker then asked the Company to consider section 6, article 3, of the Union's proposed contract, which provided that no employee should be denied work on his regular work schedule because of previously worked overtime in any given week. Hooper saw no real problem with this request and agreed to it? - 9 General Counsel's Exhibits Nos: 16, et seq., and 17, et seq. 7 The Company's proposal provided that the scheduled workweek was inapplicable to route "salesmen who do not work on an hourly schedule . The union proposal contained a similar provision , but specified that if there occurred any appreciable change in the work- load of any route salesman, such change or changes would be subject to negotiation. The parties did not agree on this matter at this meeting or in the ensuing negotiations. TEXAS COCA-COLA BOTTLING COMPANY 427 Article 4-holidays: Parker stated that a yardstick was needed to determine when the Company would observe Labor Day and January 1 as a holiday. Parker also objected to section 2 of this article because it did not set forth the hours an employee would be paid for on holidays. Hooper stated that he was willing to embody the present procedure, and if Parker would submit a proposal he would look at it. Parker then asked that the Company give consideration to section 5 of article 4 in the Union's proposal. This provided that time not worked on a holiday be computed as time worked for the purpose of computing overtime. Since this ap- peared to embody current procedure, Hooper stated that he would give it serious consideration. Article 5-vacations: Hooper stated that the Company would not agree to a 3- week vacation for certain employees, and Parker did not press the matter. Parker requested that the Company's proposal for computing vacation pay on the basis of a 45-hour workweek be changed to effect payment of 40 hours straight time and 5 hours of overtime pay for employees on vacation. Hooper agreed to this change. Article 6-seniority: Packer stated that section 2 of this article would be more palatable to the Union if there was a provision for temporary promotion out of a job classification without losing seniority in a lower job classification. He suggested that the Company consider a 1-year temporary promotion period before a change of job classification became permanent. Hooper stated that the Company would consider it and discuss the matter at the next meeting. Article 8-wage rates: This article provided that the present wage rates were ade- quate and that such rates would be maintained. Hooper opened the discussion on wage rates by stating that the Company would not grant a wage increase at this time. He pointed out that the Company had granted a 10-percent wage increase in 1958, after an increase in the price of its products; that the Company had granted a 10- percent wage increase in 1960, after an increase in the price of its products; and that the Company had granted a 71h- to 11-percent wage increase in the summer of 1962, after an increase in the price of its products. He explained that the Com- pany's position was that in the past it had granted wage increases only after an in- crease in the price of its products and at the present time it would not grant a wage increase. At no time during the course of the negotiations did the Company take the position that it could not economically afford to grant a raise. Parker stated that there could be no contract without a minimum of 5-percent wage increase- that this was a base minimum. Parker stated that all through the negotiations the Union had given in on the contract and that the Company had given in on no point during all the negotiations; and that without a pay raise there could not possibly be an agreement. After further discussion Parker stated that if the Company, would grant a wage increase, the Union would accept the Company's proposed contract in all other respects. Hooper requested a 5-minute recess during which he discussed the matter with the company officials present. After the recess, Mr. Hooper stated that the Company would not grant a wage increase at that time. During this meeting, Parker requested that the Company consider using the serv- ices of Federal Mediation and Conciliation. The Company asked for a 5-minute recess to consider the matter. After the recess, Hooper stated that the Company did not desire to use such a service. It was Hooper's position that there was a psychological problem attached to it, since the Company was not in a position to give an increase. Therefore, it could not gain from such a meeting. Before the meeting ended, Hooper stated that it would be beneficial if the Com- pany could have 7 days during which it would consider whether it would grant a 5-percent wage increase. Parker agreed to this, and Hooper stated that he would send a letter on May 14 setting forth the Company's proposal. On May 14, Hooper wrote a letter to Parker stating that the Company would not grant a wage increase and withdrawing the proposal given to the Union on May 7, 1963. Article 11-grievance procedure: The Company persisted in its rejection of com- pulsory arbitration. In the article as proposed by the Company, the Company re- served the right to agree whether a grievance should be submitted to arbitration. The provision was unacceptable to the Union which had previously suggested com- pulsory arbitration with the proviso that, prior to going to arbitration, the parties could agree as to whether the arbitration decision would be binding or merely advisory. Checkoff: Parker stated that the Union had not abandoned its-position on the matter of union checkoff; that although such a provision had been omitted from his proposal submitted on May 7, the Union had not given up its position on this matter but would press for a union checkoff clause to be in the contract. Hooper stated that the Company would not agree to make any deductions from the employees' paychecks that it was not required to make by law. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Subsequent correspondence between the parties As previously indicated, on the date of May 14, 1963, Hooper wrote the Union stating that the Company would not grant a wage increase. The letter concluded: As the Company proposal made to the Union on May 7th was not acceptable to the Union as presented, we, therefore, in order that there may be no misunder- standing concerning such, now withdraw such a proposal from consideration. Parker replied by letter dated May 16, 1963, in which, inter alia, he pointed out that the May 7 proposal by the Company was not what had been previously agreed upon; that the Company had changed some of its own proposals which had been accepted by the Union. The letter concluded: We, as you well know, have reached no impasse in negotiations and we are still willing to give more ground if it is necessary to reach an agreement. We would like to continue negotiations. We request a meeting on Monday or Fri- day of next week. Please inform me it either of these dates are agreeable to you. After further correspondence the parties agreed to meet again on May 30, 1963. 5. The meeting of May 30, 1963 This meeting lasted about 30 minutes. At the outset, Parker asked if the Com- pany's position in relation to the following items had changed in any way since the last meeting: (1) wage increase, (2) union checkoff, (3) compulsory arbitration, (4) daily overtime, (5) hours of work for route salesmen, and (6) the 45-hour work- week. Hooper replied that the Company's position had not changed and "we would not be able to give in on any of these matters." Parker stated that he could give in on some of these items, if the Company would give in on some of them, but he could not give in on all of them. The Company's position remained adamant. The Company indicated it was willing to negotiate further concerning the matter of route salesmen in relation to the grievance procedure, etc. Before the meeting closed, Hooper stated that if the Union would submit the Company's proposals of May 7 as its own offer, the Company would accept it. The Union declined to do so. 6. Subsequent union attempts to negotiate On June 24, Parker and Dassell Gaskins, a member of the Union's negotiating committee, met with Hooper in his office in Abilene. They told Hooper that the Union would like to meet the Company again to see if they could reach an agree- ment in any of the matters in dispute. Hooper did not respond to this request until July 12, when re rejected it by letter described, infra. Under date of July 8, 1963, Parker wrote Hooper a letter referring to the con- versation of June 24 and reiterating the Union's desire to meet with the Company to see if agreement could be reached. Hooper replied under date of July 12, in which he said in part: Since, however, the charge you have filed against us is to be tried on August 6, a meeting before that date would serve no useful purpose and would interfere with our work in preparing for the hearing. He indicated further that when the trial was completed, the Company would be glad to work something out with the Union if possible. On July 16, Parker telephoned Hooper and told him that the Union would like to meet with the company representatives in an attempt to reach a hearing and "if we could, that this hearing and all of these things would be unnecessary, and that we should be able to work out our differences." Hooper indicated that there was almost certain to be a price increase in the Company's product. However, the Company did not rescind its refusal to hold another bargaining meeting before the hearing. 7. Findings and conclusions as to collective bargaining The obligation to bargain embodied in Section 8(d) of the Act requires the parties, inter alia, "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement ...." Although this obligation "does not compel either party to agree to a proposal or require the making of a concession," 8 it does contemplate, as the 8 Id. TEXAS COCA-COLA BOTTLING COMPANY- 429 Board and the courts have uniformly held, a willingness to enter the discussions "with an open mind and purpose to reach an agreement consistent with the respec- tive rights of the parties" (L. L. Mature Transport Company v. N.L.R.B., 198 F. 2d 735, 739 (C.A. 5)). See also N.L.R.B. v. Herman Sausage Company, Inc., 275 F. 2d 229, 231-232 (C.A. 5). And as the Supreme Court has observed, "per- formance of the duty to bargain requires more than a willingness to enter upon a sterile discussion of union-management differences" (N.L.R.B. V. American Na- tional Insurance Co., 343 U.S. 395, 402). In essence, then, the "ultimate issue whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence" (N.L.R.B. v. Reed & Prince Manufactu,ing Company, 205 F. 2d 131, 139-140 (C.A. 1), cert. denied 346 U.S. 887). The resolution of this issue "is to be inferred from the totality of the employer's conduct" (id., at p. 134). On the basis of all the facts and circumstances and the entire record in this case, I find and conclude that the Company did not bargain in good faith with the Union, as the Act requires. From the totality of its conduct, I am convinced that the Company went through the motions of negotiation with no sincere desire to reach an agreement . After entering into a settlement agreement in which it agreed to bargain with the Union, the Company selected a new negotiator whom it au- thorized to begin negotiations on a new footing and who would not be bound by any prior agreement resulting from the earlier negotiations "regardless of what agreements had been made in the past between the Company and the Union or regardless of what had been tentatively proposed in the past to the Union or by the Union." Thus, the Company refused to agree to the management rights clause in the Union's proposal, although the Company, itself, had submitted this very clause to the Union in the earlier negotiations , and the Union had accepted it. Instead, the Company came back with a counterproposal which added two sections to this article. After objecting to these revisions, the Union agreed to accept the Company's counterproposal, if the Company would add the following: Nothing in this article shall be construed to, or shall restrict the rights of the Union to represent the employees in the bargaining unit with respect to wages, hours or other conditions of employment as defined in the National Labor Relations Act. The foregoing addition suggested by the Union is nothing more than a recognition by the Company of the Union's representation of the employees in the bargaining unit. Yet the Company refused to accept it and persisted in its refusal throughout the negotiations. During the negotiations, the Company agreed to minor items and provisions favorable to it, such as, leave of absence, and the no-strike clause, both of which had been originally proposed by the Company and agreed to by the Union, and an article relating to civic duties, which embodied the Company's current policy. Although the Company had demanded and had secured the Union' s agreement to a no-strike clause, it adamantly rejected the Union's request for an arbitration provision. As the Supreme Court has pointed out, "the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike" (Textile Workers Union of America, AFL-CIO v. Lincoln Mills of Alabama, 353 U.S. 448, 455).9 Indeed, the Company rejected even a watered-down arbitration provision which the Union finally proposed. Thus, the Union suggested that the agreement provide that arbitration be compulsory, but that the parties could agree prior to arbitration whether or not the results of such arbitration would be final or merely advisory. Even this proposal which gave the Company the power to veto binding arbitration in any instance was not acceptable to the Company. In sum, the Company was insisting that the Union surrender its most potent economic weapon in the redressing of grievances and that the Union give it unilateral control in the disposition of grievances . This is hardly the attitude of a party who has a sincere desire to enter into an agreement with a Union. Radiator Speciality Company, 143 NLRB 350. As to wages, the Company announced at the outset that it would not consider granting any wage increase at that time . It pointed out that its policy was to grant a wage increase only when it increased the price of its products . The Company remained adamant in this position . Finally, at the May 7 ' meeting, the Union stated that if the Company would grant a wage increase , the Union would accept the Company's proposed contract in all other respects . At this point, Hooper, the Company's negotiator, requested and obtained a 5-minute recess during which, 9 See also United Steel Workers v. American Mfg. Co., 363 U.S. 564, 567. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he discussed the matter with the company officials. After the recess, the Company stated that it would adhere to its position . However, before the meeting ended, the Company suggested that it would be beneficial if the Company would have 7 days during which it would consider whether it would grant the requested 5-percent wage increase. Not only did the Company reject the requested wage increase on May 14, but it also withdrew the proposed contract which it had tendered to the Union on May 7. It is apparent, and I find, that the Company's purported con- sideration of the 5-percent wage increase for 7 days was merely window dressing. For, at the same meeting in which it requested 7 days to consider the Union's request, the Company rejected a union request that the Company consider using the services of a Federal mediator. The reason advanced by the Company for rejecting this suggestion is significant . The Company stated that there was a psychological problem attached to it, since the Company was not in a position to give an increase , and, therefore, could not gain from such a meeting. Thus, in one breath the Company requested time to consider a wage increase, and in another breath, it rejected the use of mediation services because , it stated, it was not in a position to give an increase.io On the matter of the Union's request fof a dues checkoff, the Company took the position that it would deduct only those moneys which it was required by law to deduct. Although the Company promised to consider this matter and to submit a counterproposal, it never did so. Another matter on which the parties could not agree, was the number of hours to constitute the workweek. In its counterproposal of April 9, the Company speci- fied a 40-hour workweek, although for sometime past the Company had been operating on the basis of a 45-hour workweek, paying time and a half for time worked in excess of 40 hours. After some discussion, the parties agreed on a 42.5-hour workweek. However, when the Company presented a new draft of its proposals on May 7, the workweek was changed back to 40 hours. The stated reason for the change was Hooper's fear that the Company would incur potential wage and hour problems if it contracted to work its people 42.5 hours per work- week. The sincerity of the reasons advanced must be assayed in the light of the Company's statement that, regardless of the contract, it intended to retain its 45- hour workweek. The parties were also unable to agree on the matter of holidays. The Union had requested five holidays: July 4, Thanksgiving Day, Christmas, Labor Day, and January 1. The Company insisted on observing its past practice of giving the employees a holiday on July 4, Thanksgiving Day, and Christmas, and would ob- serve Labor Day and January 1 as holidays if its customers "for the most part" were closed. The Union indicated that it would accept the Company's proposal, if the Company would present some standards by which the parties would be governed as to the observance of Labor Day and January I. The Company never presented any standards. The foregoing discussion demonstrates that the Company "though agreeing with the Union on some matters, showed no disposition to consider the seriously dis- puted items from any other point of view than requiring a complete surrender on the part of the Union to the proposals of the respondent " (N.L.R.B. v. Reed & Prince Manufacturing Company, 118 F. 2d 874, 882 (C.A. 1), cert. denied 313 U.S. 595). The negotiations broke down on May 14, when the Company, in rejecting the Union's request for a wage increase , withdrew its counterproposal from considera- tion. Standing alone, the Company's action in this regard is not considered to be a refusal to bargain, since at the May 7 meeting, the Union had stated unequivo- cally that without a pay raise there could not possibly be an agreement. The Union, however, quickly receded from this position. By letter dated May 16, the Union pointed out that the May 7 proposal by the Company was not what had been previously agreed upon and that the Company had changed some of its own proposals which had been accepted by the Union. The letter concluded with a request for further negotiations pointing out that "we are still willing to give more ground if it is necessary to reach an agreement ." Although the parties met again on May 30, no progress toward an agreement was made . The Company stated that it had not changed its position with regard to a wage increase, union checkoff, compulsory arbitration, daily overtime, hours of work for route salesmen, and the "It is not intended to suggest by the foregoing discussion that the Company was obli- gated to grant the Union 's request for a wage increase. The purpose of the foregoing dis- cussion is merely to demonstrate that the Company went through the form of negotiating without any intention of agreeing to the Union's proposal. TEXAS COCA-COLA BOTTLING COMPANY 431 length of the workweek. The Union stated that it would give in on some of these items, if the Company would give in on some of them. The Company, however, refused to budge. Instead, Hooper stated that if the Union would submit the Company's proposals on May 7 as its own offer, the Company would accept it. Quite naturally, the Union refused, for the Company was, in effect, demanding "a complete surrender on the part of the Union to the proposals of the respondent" (N.L.R.B. V. Reed & Prince Manufacturing Company, sup)a). The Company must have known, and therefore inferentially have intended, that its proposal was such as would not have the slightest chance of acceptance by any self-respecting union. This is added support for an inference that the Company was not negotiating with the genuine purpose to find common ground for an agreement. "M" System, Inc., et al., 129 NLRB 527, 551. Despite the Company's intransigence, the Union did not cease its attempts to obtain another bargaining session. These attempts were rebuffed by the Company. The Union's oral request of June 24 was ignored by the Company. The Union's written request of July 8 was rejected on July 12 on the ground that the Union had filed charge against it and a hearing was set for August 6, hence, "a meeting before that date would serve no useful purpose and would interfere with our work in preparing for the hearing." The Company persisted in this refusal even though the Union again communicated its desire for a further meeting and discussion in an attempt to reach an agreement and "if we could, that this hearing and all of these things would be unnecessary, and that we should be able to work out our differences." The Company's position was clearly unreasonable and indicates that the Company did not sincerely desire to arrive at an agreement with the Union. The stated reason that a meeting before the hearing would serve-no useful purpose is so lacking in merit as to be spurious on its face. For it is obvious that if the parties could iron out their differences before the date of the hearing, a hearing would be entirely un- necessary. Moreover, it is common knowledge that parties who s-ncerely desire to settle their differences will negotiate to the last minute. Indeed, many litigated cases are settled on the morning that a trial is due to commence. The stated excuse that a meeting before the hearing would interfere with the Company's work in preparing for the hearing is likewise lacking in merit. The Union's request for further negotiations was made on June 24, and was rejected some 3 weeks later. Even then, the Company had more than 3 weeks to prepare for the hearing, and it is difficult to see how a meeting with the Union at that time would prevent the Com- pany from completing its preparation for the hearing. Finally, it is well settled that the filing of an unfair labor practice charge or the pendency of a Board pro- ceeding does not relieve an employer of his obligation to bargain with the Union, and his refusal to do so on that ground or until the proceedings have been disposed of is indicative of bad faith on his part. Kit Manufacturing Company, Inc., 142 NLRB 957; Skyline Homes, Inc., 134 NLRB 155; Ainsworth Manufacturing Com- pany, etc., 131 NLRB 273. I therefore find and conclude on the basis of the Company's entire course of con- duct that the Company engaged in surface bargaining and did not bargain with a good-faith desire to reach agreement with the duly certified representative of its employees, and on and after June 24, 1963, the Company refused to meet with the Union upon request for the purpose of collective bargaining in violation of Section 8(a)(5) and (1) of the Act. Since the foregoing conduct of the Company occurred after the settlement agreement was entered into and was violative of that agreement in which the Company had agreed to bargain collectively with the Union, the Regional Director was wholly justified in vacating the agreement and in proceeding with a complaint which covers both presettlement and postsettlement conduct. Lincoln Bearing Company, 133 NLRB 1069, reversed on other grounds 311 F. 2d 48 (C.A. 6); Barker's East Main Corporation & Barker's Supermarket, 136 NLRB 494. I therefore turn now to a consideration of the presettlement violations alleged in the complaint. B. The presettlement failure to bargain collectively As previously indicated, it was stipulated at the hearing that in the event it is found that the Company failed to bargain in good faith, it shall be deemed by the Trial Examiner and/or the Board that those allegations in the complaint alleging that the Company failed and refused to bargain collectively prior to the settlement agreement, are admitted by the Company, and the Trial Examiner and/or the Board may find that such action on the part of the Company constitutes a failure to bargain in good faith prior to the settlement agreement. Having found that the Company 744-670-65-vol 146 --29 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD failed to bargain in good faith after the settlement agreement was entered into, I find on the basis of the foregoing stipulation that the Company failed to bargain in good faith prior to the settlement agreement , in violation of Section 8(a)(5) and ,(1) of the Act. C. Presettlement interference, restraint, and coercion The following findings are based on the uncontradicted testimony of four witnesses produced by the counsel for the General Counsel . The Company offered no testi- mony on these issues. 1. Interrogation and threats About 3 weeks before the election which occurred in June 1962, Plant Manager Roden called employee Royce Coyle into his office and asked him whether he had attended any union meetings and whether he had signed a union card. Coyle re- plied in the negative. About a week before the election, while Coyle was riding with Roden to Forsan, Texas, Roden asked Coyle if he knew anything about the Union, and Coyle replied that he knew only what he had heard." - About 2 weeks before the election , Plant Manager Roden called employee Gerald Bennett into his office and asked him if he knew anything about the Union. Bennett replied that he had heard something about it. Roden continued: Well, I don't know whether you are for it or against it That's your business, but what I called you in here for is I wanted to tell you , you have been working for the Company a longtime and the Company has been pretty good to you. If it does go Union, a lot of those benefits that the Company gives you can be taken away . Such as your pension plan, hospitalization, Christmas bonuses. The Company doesn't have to give you these things . . . you know this Union can cost a man's job. In November 1962, before Thanksgiving, employee V. T. Gonzalez went into the office of Assistant Manager Melvin King to get some rags.12 King engaged him in conversation , during which he said that the "unions are no good because the Company did not want to sign the contract ." Gonzalez made no reply. About 2 weeks before Christmas 1962, Plant Manager Roden asked Gonzalez whether he had attended the union meeting the night before . When Gonzalez denied that he had attended , Roden said that somebody told him that Gonzalez had been there. Gonzalez then admitted that he had attended , whereupon Roden asked him who had been there. Gonzalez mentioned a few names , and Roden walked off shaking his head. 2. Surveillance A brief description of the location of the union hall is helpful to an understanding of the testimony regarding the alleged surveillance . The union hall, where the union meetings are held, is located on U.S . 80 east of the city of Big Spring. The Company's plant is located on the west side of Big Spring also on U.S. 80. At the point where it passes the union hall, U.S. 80 is a four-lane highway and is depressed, as it passes under an underpass about a mile away. On each side of highway 80 is "On cross-examination , Coyle testified that on the very morning in which he was to testify in the instant proceeding, Roden told him that he had "better wake up and know who was boss up there or something might happen ." Roden 's statement was made in re- lation to Coyle's being absent from work in order to testify. Coyle explained that the preceding evening he had eaten dinner at a restaurant , that Roden was sitting with Weldon Wood, Coyle' s route supervisor , and another person ; that Wood had turned around and asked Coyle if lie was going to be able to run the route the next day and he replied that he was supposed to come down to the hearing to testify . The following morning, Roden asked Coyle why he had not told him that he would not be at work, and Coyle replied , "Well, you were sitting by Woody, you kne w It" Thereupon Roden replied, "Woody is not the boss, lie is not running things , I'm boss, I'm running things, you'd better find that out " As the foregoing incident occurred during the course of the hear- ing, it was not alleged in the complaint . Counsel for the General Counsel did not move to amend the complaint to encompass the incident , nor did he rely on it in his brief Had the complaint been amended accordingly , it is conceivable that Respondent might have offered testimony in opposition . Consequently, it cannot be said that the issue was fully, litigated. Cf. Valley Transit Company, Inc, 142 NLRB 658 Accordingly , I make no finding as to this incident. 12 King keeps supplies in his office. TEXAS COCA-COLA BOTTLING COMPANY 433 a service road which provides access to the highway. This service road is not de- pressed. The union hall is set back about 40 yards from the service road. In front of the hall is a parking lot. The, union hall is visible from the service road which runs south of the highway, but is not visible from the highway itself, since the highway is depressed. On August 17, 1962, about 7:30 p.m., Bennett was driving on the service road on his way to the union hall to attend a union meeting. He saw Assistant Manager. King's car parked at Merchants Warehouse about a quarter of a mile west of the union hall. In the car were King and his wife. Bennett honked his horn and proceeded to the union hall. There, he told the men assembled that he had seen King's car. The men pulled down the shades at the meeting room which faced the service road. King drove by the union headquarters two or three times very slowly. Business Representative Parker also saw King driving by the union hall very slowly. On November 19, 1963, about 8:30 p. m., King accompanied by Manager Roden drove by the union hall on the service road while a meeting was in progress.13 Parker, Bennett, and Gaskins then got into Bennett's car, followed King and Roden to the stop sign, and noted the license number for verification that it was King's car. Conclusions as to Restraint, Coercion, and Interference I find and conclude that Respondent's interrogation of employees Bennett, Coyle, and Gonzalez constituted restraint, coercion, and interference with the employees' rights, in violation of Section 8(a)(1) of the Act. The interrogation was not for any legitimate purpose, nor was it accompanied by any of the safeguards prescribed in Blue Flash Express, Inc., 109 NLRB 591. To the contrary, in the case of Bennett, the interrogation was accompanied by a threat of loss of benefits and even discharge, if the Union succeeded in organizing the plant. The fact that the interrogation of Gonzalez occurred after the Union had been certified does not make the Respondent's conduct less violative of the Act. Lock Joint Pipe Com- pany, 141 NLRB 943; Langlade Veneer Products Corporation, 118 NLRB 985, 987. At the time, the Union had been seeking a contract with the Respondent, and such interrogation, particularly when accompanied by the statement that "unions are no good because the Company didn't want to sign the contract," had a reasonable tendency to make the employees less secure in their bargaining position and more apt to accede to the Company's proposals. In addition, Manager Roden's threat to Bennett that the Union's winning the election could mean the loss of current benefits and could cost a man his job consti- tuted restraint, coercion, and interference with the rights of the employees and was an independent violation of Section 8(a) (1) of the Act. As to the surveillance, the evidence is undisputed that on one occasion when a union meeting was being held, Assistant Manager King drove by the union hall very slowly two or three times and that on another occasion when a meeting was in progress, King and Manager Roden drove by the union hall. On both of these occasions, they were driving on the service road from which the union hall was visible, and they were seen by employees then meeting in the union hall. It is possible, of course, that their presence on the service road could have been for a purpose other than surveillance, but these are facts peculiarly in their possession, and the Respondent did not produce them to explain . Their failure to testify must be considered in determining the purpose of their presence . Also unexplained, is King's conduct in driving by the union hall very slowly two or three times on the same evening. This conduct, too, supports the conclusion that the purpose of his presence was surveillance.14 As the union hall was some 40 yards from the service road , it may well be that such surveillance could not have been effective from the viewpoint of Respondent's learning who was present at the union meetings , although it would enable Respond- ent's supervisors to see persons who happened to enter the union hall as they drove' 13 Although this occurred after nightfall, the area in front of the union hall and the service road at that point were illuminated by floodlights. 14 As the Supreme Court has observed: The conduct of the party in omitting to produce that evidence in elucidation of the subject-matter in dispute , which is within his power , and which rests peculiarly within his own knowledge, frequently affords occasion for presumptions against him; since it raises strong suspicion that such evidence , if adduced, would operate to his prejudice [Kirby v. Tallmadge, 160 U.S. 379, 383]. See also Interstate Circuit v. United States, 306 U S. 208 , 225-226; Local 16,7 v. United States, 291 U.S 293, 298. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by. But the effectiveness of the surveillance is not determinative of the issue. It is equally violative of the Act if the Respondent fostered the impression that it was engaging in surveillance. See, e.g., R. & J. Underwear Co., Inc., 101 NLRB 299, 302; Beiser Aviation Corporation, 135 NLRB 399, 423-424 ; National Shirt Shops of Delaware, Inc., et al., 123 NLRB 1213, 1218 . In view of all the foregoing, I find and conclude that the Respondent engaged in surveillance of the union meetings and fostered the impression that it was engaging in surveillance, and that its conduct constituted restraint, coercion, and interference with the rights of its employees in violation of Section 8 (a)( I) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section IV, above, occurring in connection with the business operations of the Respondent set forth in section I, above, have a close , intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act, I shall recommend that it cease and desist therefrom and that it be ordered to bargain collectively with the Union, upon request. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case , and pursuant to Section 10(c) of the Nat oval Labor Relations Act, as amended , I recommend that the Respondent, its officers, agents, successors , and assigns, shall: 1. Cease and desist from: (a) Questioning employees concerning their or other employees' membership in or activities on behalf of Local 826, Internat_onal Union of Operating Engineers, AFL-CIO, or any other labor organization of its employees , in a manner constitut- ing interference, restraint, or coercion within the meaning of Section 8 (a)(1) of the Act. (b) Threatening its employees with loss of benefits or discharge by reason of their selecting Local 826, International Union of Operating Engineers , AFL-CIO, or any other labor organization of its employees, as their bargaining representative. (c) Engaging , or attempting to engage , in surveillance of the union activities of its employees. (d) In any like or related manner interfering with , restraining, or coercing its employees in the exercise of their right to self-organization , to form labor organiza- tions, to join or assist labor organizations , to bargain collectively through repre- sentatives of their own choosing , and to engage in any other concerted activities for the purpose of collective bargaining or for other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Upon request, bargain collectively with Local 826, International Union of Operating Engineers , AFL-CIO, as the exclusive representative of the employees in the appropriate unit with 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. (b) Post at its Big Spring, Texas, plant, copies of the attached notice marked "Appendix A." 15 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region , shall, after being duly signed by Respondent 's authorized representative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter , in conspicuous places including all places where notices to employees are customarily , posted . Reasonable steps shall be taken to insure that said notices are not altered , defaced, or covered by any other material. 16 In the event that this Decision be adopted by the Board , the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order'be enforced by a decree of a United States Court of Appeals , the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order " NEW YORK PAPER CUTTERS', ETC., LOCAL UNION 119 435 (c) Notify the Regional Director for the Sixteenth Region, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply therewith.16 36 in the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act , we hereby notify our employees that: WE WILL NOT question employees concerning their or other employees' mem- bership in or activities on behalf of Local 826, International Union of Operating Engineers , AFL-CIO, or any other labor organization of our employees, in a manner constituting interference , restraint, or coercion within the meaning of Section 8 (a)( I) of the Act. WE WILL NOT threaten employees with loss of benefits or discharge by reason of their selecting Local 826, International Union of Operating Engineers, AFL- CIO, or any other labor organization of the employees, as their bargaining representative. WE WILL NOT engage, or attempt to engage, in surveillance of the union activities of our employees. WE WILL NOT in any like or related manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form labor organizations , to join or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities. WE WILL, upon request, bargain collectively with Local 826, International Union of Operating Engineers, AFL-CIO, as the representative of the em- ployees in the appropriate unit with respect to rates of pay, wages , hours of work, and other conditions of employment , and, if an understanding is reached, em- body such understanding in a signed agreement. TEXAS COCA-COLA BOTTLING COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Employees may communicate directly with the Board 's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131 , if they have any question concerning this notice or compliance with its provisions. New York Paper Cutters' & Bookbinders' Local Union No. 119, International Brotherhood of Bookbinders, AFL-CIO [Print- ers League Section, Printing Industries of Metropolitan New York, Inc., and its Employer-Members] and Automatic Seal- ing Service, Inc. Case No. 2-CD-265. March 20,196-1p DECISION AND DETERMINATION OF DISPUTE This is 'a proceeding under Section 10(k) of the Act following a charge filed on April 1, 1963, by Automatic Sealing Service, Inc., herein called Automatic, alleging a violation of Section 8 (b) (4) (D) 146 NLRB No. 49.