Boot-Ster Manufacturing Co., Inc.

BOOT-STER MANUFACTURING COMPANY, INC. 933 union card is required to vote for the Union. We believe you have confidence in us when it really matters-down to the final windup . The question is whether you would rather have outsiders represent you or whether you would rather have us as your leaders. We feel that a vote for the Union is a vote against us. Now let's not gamble with your jobs and your security. A big vote against the Union will end all the trouble and unrest and after the election we can go on just like we have been . We have given you the facts. We know that you will show your confidence in us so that we can continue to work here for your interests and that of the Company. You have as good a deal now as you can get. Be right and vote right. Check NO on the right side of the ballot. Thank you. (S) Joseph Sidran, JOSEPH SIDRAN. Boot-Ster Manufacturing Company, Inc. and United Rubber, Cork, Linoleum and Plastic Workers Union , AFL-CIO, affili- ated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. Case No. 26-CA-1679. November 20, 1964 DECISION AND ORDER On July 15, 1964, Trial Examiner Morton D. Friedman issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices in violation of the Act and recommending that the Respondent cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and he recom- mended that the complaint be dismissed as to them. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification? 1 Member Leedom does not reach, and therefore does not pass on, the question as to whether the Respondent's speeches , and its remarks incident thereto, made during the period between October 7 and 17 , 19G3, standing alone, were violative of Section '8(a) (1) of the Act, as he believes that, in the light of the Respondent 's contemporaneous coercive statements to employees, involving similar remarks , which the Board is finding herein vio- lated Section 8(a) (1), the Respondent 's speeches take on a coercive connotation and hence are unlawful . See Member Leedom 's separate views as expressed in Brownwood Mann- factarsng Company, 149 NLRB 921. 149 NLRB No. 91. 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We agree with the Trial Examiner's finding that the Respondent refused to recognize and bargain with the Union in' violation of Sec- tion 8(a) (5) of the Act. However, in holding that the Respondent violated Section 8(a) (5) of the Act, we find, specifically, that the Respondent's refusal to bargain was motivated by a desire to gain time, within which to undermine the Union's majority status. As more fully set forth in the Trial Examiner's Decision, the Union began its organizational campaign in September 1963. During the period from early October 1963 to late November, the Respondent, through its supervisors and officers, engaged in a course of conduct which included numerous and varied violations of Section 8 (a) (1) of the Act. On October 10, 1963, the Union, which at that time rep- resented a majority of employees in the appropriate unit, wrote a letter to the Respondent and requested that the Respondent recognize it as bargaining representative of these employees. In this letter, the Union stated that it was willing to submit its authorization cards to an impartial third party in order to prove its majority status. On October 16, the Respondent rejected the Union's request for recog- nition, stating that it did not believe the claims set forth in the Union's letter. The Union thereupon filed a representation petition with the Board. On October 30, a stipulation for certification upon consent election was signed by the parties, setting the election for November 22. ' However, on November 8 the Union filed the instant unfair labor practice charges, and, thereafter, on December 13 the Union requested withdrawal of its petition, which was approved by the Regional Director on December 16. - It is well established that while an employer may in good faith insist upon a Board election as proof of a union's majority, it unlaw- fully refuses to bargain if its insistence on such an' election is moti- vated, not by any bona fide doubt as to the 'union's majority, but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the union.z ' In our view, it is clear from the Respondent's entire coercive course of con- duct herein, which occurred both before and after it refused to recognize the Union,3 that its refusal to bargain with the Union on October 10 was motivated, not by any good-faith doubt as to the Union's majority, but rather both by a desire to gain time to dissi- pate the Union's majority status and bargaining position and by a rejection of the collective-bargaining principle. 2 Joy Silk Mills, Inc., 85 NLRB 1263, enfd . 185 F. 2d 732 ( C.A. 1), cert. denied 341, U S. 914. - 8 As described more fully in the Trial Examiner 's Decision , the Respondent engaged in 19 Instances of conduct violative of Section 8(a) (1) of the Act, including threats of re- prisal for engaging in union activity , interrogations, promises of benefit for refraining from engaging in union activity, and the creation of the impression of surveillance, and at least 9 of these instances occurred after the Respondent 's refusal to bargain with the Union. BOOT-STER MANUFACTURING COMPANY, INC. 935 ORDER, Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the Board hereby adopts, as its Order, the Order recom- mended by the Trial Examiner and orders that the Respondent, Boot-Ster Manufacturing Company , Inc., its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Exam- iner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed November 8, 1963, by United Rubber , Cork, Linoleum and Plastic Workers Union , AFL-CIO, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO. herein referred to as the Union, the Regional Director for Region 26 of the National Labor Relations Board , herein called the Board, issued a complaint on December 20, 1963, on behalf of the General Counsel of the Board against Boot-Ster Manufacturing Company, Inc., hereinafter referred to as the Respondent or the Company ;,alleging -violationsof,Section 8(a),(1) and (5 ) of the National Labor Relations Act, as amended (29 U.S .C. Sec. 151, et seq. ), herein called the Act In its duly filed .answer to the aforesaid complaint, Respondent, while admitting certain of the allegations thereof, denied the commission of any unfair labor practices. Pursuant to notice , a hearing was held before Trial Examiner Morton D . Friedman in Clarksville, Tennessee , on January 21 and 22, 1964. All parties were represented and afforded full opportunity to be heard , to introduce relevant evidence, to present oral argument , and to file briefs. Oral argument was waived . Briefs were filed by the Respondent and counsel for the General Counsel. Upon consideration of the entire record in this case , including the briefs of the parties, and upon my observation of the demeanor of each of the witnesses testifying before me, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF, THE,RESPONDENT At all times material herein the Respondent has been and is a Tennessee corporation having,its principal office and place of business located at Clarksville ,-Tennessee, where it is engaged in the manufacture of footwear . During the 12 months imme- diately preceding the issuance of the complaint herein, a representative period, in the course and conduct of its business operations the Respondent purchased and received at its Clarksville, Tennessee , location materials and supplies of a value in excess of $50,000 directly from points outside the State of Tennessee . During the same period of time, Respondent sold and shipped finished products of a value in excess of $50,000 directly to points outside the State of Tennessee. It is admitted, and I find and conclude , that the Respondent is engaged in com- merce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. H. THE LABOR ORGANIZATION INVOLVED It is admitted , and I find, that the Union is a labor organization within the meaning of -Section 2(5) of the,Act. III. THE ISSUES A. Whether the Respondent through its officers and supervisors threatened and interrogated its employees , made promises of benefits, and created the impression of surveillance , constituting interference , coercion, and restraint within the meaning of Section 8 (a) (1) of the Act. B. Whether the Union's apparent majority, at the time it made its demand for recognition and request for bargaining , was, in fact, uncoerced or whether the majority was obtained through misrepresentation. . C. Whether the Respondent's refusal to recognize and bargain with the Union was based upon a good-faith doubt as to the Union 's majority status or whether the doubt, 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was asserted for the purpose of gaining time in which to destroy the Union's majority or rejecting collective -bargaining principles by engaging in the conduct with which issue (A) above, is concerned. IV. THE UNFAIR LABOR PRACTICES A. Background The Union began its organizational campaign sometime in September 1963. The campaign was directed by James Temple, a field director for the Union. Temple held meetings with the employees and had them sign authorization cards. The employees who attended the meeting were, in turn, given authorization cards to distribute among the employees in the plant. These cards were thereafter signed and returned to Temple at subsequent meetings. This activity resulted in the obtain- ing of approximately 130 signed authorization cards from employees in the Respond- ent's employ. By letter dated October 10, 1963, the Union requested that the Respondent recog- nize it as the exclusive representative of the Respondent's employees in a production and maintenance unit and requested that the Respondent bargain with it In this letter the Union stated that it was willing to submit the authorization cards to an impartial third party in order to prove the Union's majority status. By letter dated October 16, 1963, the Respondent's counsel informed the Union that the Respondent did not believe that the claims set forth in the Union's letter of October 10 were accurate and therefore the Respondent denied the Union's request for recognition. Thereafter, on October 16, 1963, the Union filed a petition with the Board which resulted in the scheduling of a hearing on October 30, 1963. However, instead of a hearing, a stipulation for certification upon consent election was signed by the parties on October 30 and an election in a production and maintenance unit was scheduled for November 27, 1963. However, the proposed election never was held because on November 8, 1963, the Union filed the charges herein. Thereafter, on December 13, 1963, the Union requested withdrawal of its petition which request was approved on December 16, 1963. During the period from about the first part of October until sometime late in November 1963, the Respondent, through its supervisors and officers, talked to the employees individually in order to attempt to persuade the employees to vote against union representation. Also, in the first part of October 1963 speeches were made to groups of approximately 25 to 30 employees by the Respondent's president, J. Z. Miller. These speeches and conversations are the subject of the charges and the complaint which allege that the Respondent engaged in acts of interference, coercion, and restraint. B. Interference, coercion, and restraint 1. Threats a. Events (1) J. Z. Miller As noted above, President J. Z. Miller made a number of speeches to the Respond- ent's employees during the month of October, beginning about October 7 and ending the series on or about October 16 or 17. He spoke to the employees in groups of 20 to 25. The basic speech was written in advance by Miller and counsel for the Respondent. However, Miller testified that he made some variations from the speech at various times during the meetings at which the speeches were given. Th main theme of the written speech 1 was that the Union could at best make demands for money which the Respondent might or might not be able to meet; that if the Respondent could not meet these demands, the Union could demand that the employees go out on strike; that if the employees went out on strike the Respondent would have the right to replace them. Then the speech went on to remind the employees that if they were out for 2 or 3 months or longer there would be no one to pay for their living expenses and it further stated that the Union certainly would not. It also stated that the promises that the Union made to the employees could not be fulfilled inasmuch as if they were fulfilled the Respondent could not operate in Clarksville. Then the speech further pointed out that no one had to join the Union under any circumstances 1 This speech was quite lengthy and its reproduction here would unduly lengthen this Decision. BOOT-STER MANUFACTURING COMPANY, INC. 937 because Tennessee has a right-to-work law. Nowhere in the speech did the Respond- ent in any way allude to any possible benefits that the employees might be able to obtain from selecting the Union as their bargaining representative. According to J. Z. Miller, whom I credit, he tailored his speeches to the groups to whom he spoke but in each case he adhered generally to the content of this prepared speech. He admitted, however, that he did tell some of the groups that he would not sign an agreement with the Union that would be detrimental either to the Respondent or the employees. He also told at least one of these groups, in response to questioning, that if there was a strike he might have to discontinue the manufacture of makeup work 2 and that such a situation could result in cutting production in half, which, in turn would mean that approximately half of the employees would be out of work. He emphasized to the employees that this did not mean that the Respondent would volun- tarily shut down any portion of its operations but that a shutdown could occur only in the event of a strike called by the Union because the Respondent could not meet demands made by the Union. He also stated that the Respondent would keep going as long as it possibly could. He emphasized that the only contract he would not sign would be one with which the Respondent could not live. Miller admitted that he did not tell the employees the difference between economic and unfair labor practice strikes but he further testified that he did not know the difference between the two types of strikes himself.3 Employees Bertha Wyatt and Levada Milliken also testified that during the speeches, J. Z. Miller told them that no union was going to come in and tell him how much profit he was going to make and that Morris Dowdy, the Respondent's vice president, had toured the country and had seen some of the buildings in areas where the Union had come in. In those buildings the windows were broken out, the doors were broken down and were swinging, and the places looked like ghost towns. This foregoing testimony Miller did not directly contravene. I credit it and find that Miller made these statements. (2) Morris Dowdy In the first part of October, Morris Dowdy called Buena Jinett to the basement and asked her what her complaint was. Jinett told Dowdy that the piece prices and wages were not right and Dowdy told Jinett that the Union would not solve all of the prob- lems. Then he said to her, "Buena, you realize that I could fire you, don't you?" He explained that he could go down the line and find some of her bad work and that would be enough to sustain a discharge. Then he asked her whether she had been to the union meeting the night before.4 (3) James Bowles Around the middle of October 1963, James Bowles, a foreman and an admitted supervisor, had a conversation with employee Marion Darnell. Bowles asked Darnell why the latter wanted a union and when Darnell told Bowles that it was for better job 2 Makeup work is work which the Respondent took on in shoe manufacturing which is virtually profitless but which' Miller accepts in order to keep the factory'running full time. This is to the benefit of both the Company and the employees. 'This work was originally taken on several years before the events herein for the purpose of relieving a situation which had existed for a number of years whereby many of the employees were getting only 3 days' work a' week 3 Employees Bertha Wyatt, Margaret Phillips, Buena' Jinett, Levada Milliken, and Sammie Wortham testified that Miller, in his speeches, stated that if the Union came in and the employees went out on strike he would replace them and they would get' only 3 days' work a week. Phillips went so far as'to testify that Miller said that the mere selec- tion of the Union by the employees would bring about such a closedown From my observa- tion of the witnesses and because the employees' version was not completely inconsistent 'with Miller's, I conclude and find that Miller's version is the more accurate and-that the employees' version was the result of not understanding the portent of Miller's speech. Furthermore, Alfred Mullins, Lloyd Webb, Buelah Jones, Judith Chestdr, Betty Raines, rank-and-file employees, corroborated Miller's version of his speeches. 'I find that this strengthens the version and makes Miller's version more acceptable. This'is especially so because the corroboration by these latter employees of each others' testimony contains enough variation to lend an'air of true reliability rather than of rehearsed fabrication 4 From the credited testimony of Buena Jinett. I do not credit Dowdy's' version of this conversation and his denial that he told Jinett that h'' could discharge her. 'I found Dowdy to be a rather evasive witness whereas Jinett, even on' cross-examination, was very firm in her assertion as to what Dowdy told her. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD security and working conditions and other benefits, Bowles told Darnell that the Respondent could not afford a union, that it did not have the money for the benefits she expected, and told her that they could not "get blood out of a turnip." Bowles then told Darnell that if the Union came in and the union members went on strike there would be no more makeup orders, production would be cut in half, and half of the employees would be out of work 5 (4) James Miller James Miller is a supervisor with the title of foreman and, so far as the record shows, is not related to J. Z. Miller, the Respondent's president. During October 1963, James Miller had a conversation with employee Alberta Shelby in which Miller stated that he knew that Shelby had been going to union meetings and that she had therefore heard the union side of the question. Miller stated that he thought now it would be time for Shelby to hear the Company's side. Miller told Shelby that a number of employees had already taken off their union buttons and thrown them away. He then asked Shelby what they were going to do when they were laid off; who was going to pay the bills? He then asked Shelby whether the latter thought she or her husband would let anybody come in and tell them how to run their farm. Miller further asked Shelby whether she had been treated unfairly.6 (5) Charles Gafford On or about October 4, 1963, Charles Gafford spoke to Bertha Wyatt, an employee in the department of which Gafford is the supervising foreman. Gafford asked Wyatt what was wrong; what the employees were trying to do. He then asked Wyatt if she was not afraid of losing her job and Wyatt told Gafford that she was not afraid but that she did not know what he meant. Gafford went on to say that if -he was doing the things that Wyatt was doing he would be afraid that he would lose his job and he said, "I owe for a big home, and I haven't got out and looked for a job, but I most certainly would be afraid that I would lose my job if I was going to do what you are trying to do." Then Gafford asked Wyatt what was her idea anyway and Wyatt told him that she had not been treated fairly in regard to her work. Gafford then asked Wyatt whether the latter thought the Union could give her better work. He further asked Wyatt if the Union should come in would she be assured that she.would get all good leather to work on and would she get all the good jobs. Gafford then told Wyatt that if she thought this was so she would be badly fooled.? (6) Douglas Milliken On or about October 11, 1963, Douglas Milliken, who was related to both Bertha Wyatt and Levada Milliken, had a conversation with both of these employees. 5 From the credited testimony of Marion Darnell. I find that Darnell was a more credible witness than James Bowles who merely denied that he had a conversation with Darnell in which he told her that the Respondent would cut production in half. Bowles' attitude toward the Union was exemplified in his conversations with employees Josephine Parker and Ocie Bishop, both of whom testified without being controverted that in separate con- versations with Bowles, Bowles told them that if the Union came in one door he would go out the other. Bowles also, according to Parker whom I credit, stated that J Z. Miller would never sign a contract with the Union. I find that the testimony of Darnell as to what Bowles told her is made more credible by the remarks that Bowles made to other em- ployees. Accordingly, as noted above, I credit Darnell over Bowles. 6 From the credited testimony of Alberta Shelby. Shelby testified in a straightforward and positive manner. On cross-examination, James Miller, however, admitted that he .talked individually to most of the employees working under him in the pattern office, the same place in which the conversation with Shelby occurred He admitted that he told the employees about the standpoint of the Company and about the profits of the Company but he denied that he threatened any one of them or promised any one of them anything of value. Upon my observation of both of these witnesses and from the manner in which they testified I credit Shelby and do not credit James Miller. 7 From the credited testimony of Bertha Wyatt. I have heretofore credited Wyatt and I credit her in this respect also. It should be noted in connection herewith that Gafford admitted speaking to Wyatt about the Union and that he asked her how she felt about the Union and why she wanted a union. Accordingly, he corroborated to some extent what Wyatt had testified to. Accordingly, I do not credit his denial that he asked her whether she was not afraid she would lose her job if she joined the Union. BOOT-STER MANUFACTURING COMPANY, INC. 939 Douglas Milliken is a foreman and an admitted supervisor. Milliken stated that he wanted to talk to both of them saying that he could not sleep the night before. When Bertha Wyatt asked him what the trouble was Milliken said that he could not sleep because he knew she had a union button on. Wyatt reminded Milliken that she had told him never to say anything to her about the union button because she was going to keep it on. Then Milliken told the women the reason he was unable to sleep any was because J. Z. Miller was not intending to permit the Union to come into the factory and that they would lose their jobs if the Union came in. Milliken wanted to know what his two relatives were going to do. He further stated that they were mak- ing a big mistake being for the Union and that they should pull off their buttons 8 b. Conclusions as to threats The speeches of J. Z. Miller contain much that can readily be regarded as protected free speech. The issue with regard to those speeches and the discussions that occurred between Miller and the employees during the speech meetings is whether when all the remarks are consideied together, rather than portion by portion in isolation, the speeches go beyond the permissible boundaries of free speech into the area of coercion and restraint. The Respondent contends that, in essence, what J. Z. Miller related to the employees was simply that the Respondent did not want the Union, that it could work better with the employees alone, and that the latter would benefit by such an arrangement as they had in the past; that there was a possibility that if the Union was selected by the employees it could make demands which would be beyond the Respondent's ability to meet; that if, therefore, the Respondent refused the demands the Union could call a strike; that if the workers went out on strike the Respondent would keep operating the plant as best it could and, if necessary, would replace the strikers, which it had a right to do; and that the plant might well have to shut down completely or partially but that this would only be as a result of union action and not by Respondent's choice. In support of its contention that what J. Z. Miller told the employees 'constituted free speech the Respondent cites the case of Texas Boot Manufacturing Company, Inc.,9 in which the Board held as protected an employer's telling his employees that he did not want to do business with the Union that was attempting to organize his plant because it would be too costly and that if the said union sought to enforce its demands by a strike, the plant would not close down but would be run by replacements who would permanently replace the strikers, and that replacements were available from the large number of unemployed in the immediate area. There is no doubt that in many respects J. Z. Miller's remarks were similar to the remarks in the cited case which the Board held to be protected speech. The General Counsel, on the other hand, contends, that the speeches and remarks of J. Z. Miller made constant reference to strikes, but no reference to the possibility of peaceful collective bargaining; made references to detriments to result from unioni- zation but no reference to possible benefits; and, at the same time, offered to provide as much in benefits without a union as with one, thus showing the futility of choosing a union. This, the General Counsel argues, is conduct which the Board and courts have held to be violative.'0 In all of the cases cited by the General Counsel the Board found either that the main theme of the Company's antiunion campaigns were that strikes were inevitable and that as a result the employees who supported the strikes would be permanently replaced and would lose their jobs," or that the employer's statement inevitably created the impression that the unionization of the plant could result only in harm to the employees.12 If J. Z. Miller's prepared speech were to be considered alone in appraising the -effect thereof, I would conclude that it was no more than an expression of free speech because, among other things, the possibility of a strike and the ability of the Respond- ent to replace the strikers was only a small part of that speech. However, the import of the speech is somewhat changed by other remarks that were made and other matters 8 From the mutually corroborative testimony of Levada Milliken and Bertha Wyatt I credit this testimony and do not credit Douglas Milliken's denial. Although I note that both of the women were enthusiastic union adherents, their attitudes and their testimony struck use as the products of strong but honest defiance. 9 143 NLRB 264 io Citing Ideal Baking Company of Tennessee, Inc, 143 NLRB 546; The Little Rock Downtowner, Inc, 143 NLRB 887; Surprenant Mfg. Co., 144 NLRB 507. "Ideal Baking Company of Tennessee, Inc, supra, and The Little Rock Downtowner, Inc, supra 12 Surprenant Mfg. Co., supra. 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that were discussed. In making the assessment, I cannot overlook the summary by Miller of Dowdy's travels about the country and the ghost towns that Dowdy saw which resulted from unionization. This, together with the discussion of the possible strikes and the possible resulting loss of employment to the employees, together with the complete failure in either the speech or the remarks to assure the employees that there would be no reprisals because of the unionization, tended to coalesce in the minds of the employees a picture of inevitable grief and hardship should they select the Union as their bargaining representative. Otherwise put, the inevitable effect of the whole of Miller's efforts was that the employees were threatened with a loss of liveli- hood. Such threats have consistently been considered interference, coercion, and restraint by the Board. In thus finding, I do not overlook Miller's assurance that if the plant closed down it would not be because of the Company's desires. Nevertheless, the picture which he painted was one in which the closing down of the plant and the resultant loss of employment would inevitably ensue from unionization This, under all the Board precedent as cited by the General Counsel, constitutes a violation of Section 8 (a) (1) of the Act. The other alleged threats by the Respondent's supervisors do not present so difficult a problem as do the remarks and speeches of J. Z. Miller. Thus, Morris Dowdy's statement to Buena Jinett to the effect that he could fire her if he wanted to by find ing a pretext to do so was clearly a threat that Jinett would be discharged if she continued her union activities. It requires no citation of cases to support this finding Accordingly, I conclude that Dowdy's remark constitutes a threat within the mean ing of Section 8 (a) (1) of the Act. Equally violative was the remark of Supervisor James Bowles to the effect that if the Union came in and there was a strike there would be no more makeup orders, production would be cut in half, and half of the employees would be out of work. This is clearly a threat that the employees would suffer economic harm if the Union came in. As such, it is clearly interference, restraint, and coercion within the mean- ing of Section 8 (a)( I) of the Act. A somewhat similar situation is the one in which Supervisor-Foreman James Miller, in interrogating Alberta Shelby, asked her, after he told her that she was going to hear the employer's side of the union question, what they were going to do when they were laid off and who was going to pay the bills. Since this question followed questioning about Shelby's union activities, it undoubtedly related to them. Accord- ingly, I find that the interrogation was, in effect, a threat to Shelby that if the Union came in they were going to be laid off and would suffer dire economic consequences therefrom. Of course, such a threat is violative within the meaning of Section 8 (a) (1) of the Act, and I so find. I have heretofore related the conversation between Charles Gafford, a foreman and supervisor, and Bertha Wyatt, an employee. During this conversation Gafford, in discussing the Union and Wyatt's activities in behalf thereof, asked Wyatt if she was not afraid of losing her job. Then Gafford told Wyatt that he owed for a home and had not been really looking for a job but he most certainly would be afraid that he would lose his job if he was going to engage in union activity the way Wyatt was engaging in such activity. Since this conversation indicated to Wyatt that her activity could lead to discharge by the Respondent, I find that it was in effect a threat to Wyatt that she would be discharged should she continue her union activity. Under the circumstances herein I find this to be interference, restraint, and coercion and violative of Section 8(a) (1) of the Act. In still another instance as related above, Douglas Milliken spoke to his relatives, Bertha Wyatt and Levada Milliken, and told them that he could not sleep because he was troubled by what would happen. He explained this by saying that this was because J. Z. Miller was not going to permit the Union to come into the factory and that they would all lose their jobs if the Union came in . This is clearly a threat constituting coercion and restraint and is therefore violative of Section 8(a) (1) of the Act, and I so find. 2. Interrogation a. The events (1) J. Z. Miller About the middle of November 1963, Sammie Wortham asked J. Z. Miller if Wortham could come to the office to speak to Miller and to look at the books. BOOT-STER MANUFACTURING COMPANY, INC. 941 After inspecting the books of the Company, Wortham assured Miller that he was going to side with the Company . During that conversation or at a later time, Miller told Wortham that he had been told that Wortham was going to prefer charges against Miller to which Wortham stated that he would never do any such thing.13 (2) Morris Dowdy Wortham testified that during the latter part of November Morris Dowdy spoke to him in the pattern office. Only the two of them were present during that conver- sation. Wortham stated that Dowdy asked him if he, Wortham , had changed his mind and Wortham told Dowdy that he had been thinking about it but that he had not changed his mind , to which Dowdy answered, "Well, I figured that." As here- tofore stated , I do not consider Wortham a reliable witness . Heretofore I have also discredited Dowdy. In balance, however, because of other considerations set forth later in this Decision , I credit Dowdy's denial of this incident over Wortham 's state- ment and find that this incident did not occur. Buena Jinett was engaged in conversation by Dowdy during the first part of Octo- ber 1963 on the lower floor of the plant. Dowdy asked Jinett whether she had gone to the union meeting the night before and Jinett testified that she had . Dowdy then questioned Jinett about what occurred at the meeting and asked her if a large amount of money which the Company was alleged to have was mentioned and Jinett told Dowdy that she did not remember anyone even speaking about that. Dowdy then ended the conversation by asking her to think about it that he did not want anybody to tell him how to run his business.14 Again in the middle of October 1963, Dowdy spoke to Josephine Parker concern- ing the latter's union activities . He stated that he had heard some pretty wild things about what had been said at the union meeting the night before and then he went on to ask Parker if she would tell him what was said . Parker told Dowdy that she had been unable to go because she could not obtain a babysitter.15 (3) James A. Bowles Around the middle of October 1963, James Bowles, a foreman and supervisor, spoke to Marion Darnell and asked the latter why she wanted the Union . Darnell answered that she wanted it for better job security , better working conditions, and other benefits. Around the first part of October , Bowles had a conversation with Margaret Phillips in which he asked Phillips if she thought the Union was coming in and when she told him that she thought it would, Bowles stated that if it did come in Miller would not sign a contract. Bowles also had a conversation with Almeda Harp, also in the latter part of October. Bowles asked Harp what she had against him and when Harp told him that she did not have anything against him Bowles asked her why Harp wanted the Union . Harp answered that she just thought she needed one . Bowles also had a conversation with Ocie Bishop around 33 According to Wortham there were two meetings . Miller described these meetings as having taken place within a couple of days of each other because of the fact that Wortham came back a second time and told Miller that even though he felt that the books showed that the Company had been very generous to the employees in proportion to the amount of money the Respondent had been making , nevertheless, Wortham's wife had insisted that Wortham remain loyal to and support the Union. Although I did not find Wortham to be a very reliable witness inasmuch as he equivocated on cross -examination to a great extent, nevertheless , inasmuch as Miller admitted in his own testimony that he did speak to Wortham and asked him about possible charges that Wortham might have filed against him, I find that this incident occurred as stated above The Respondent argues that the incident could not have happened because Wortham stated that the conversation took place on November 1 but that no charges had been filed until November 8 and therefore the conversation could not have taken place at all . However, Miller's admission that he did ask Wortham about charges would indicate that there was truth to the Wortham testi- mony that Miller asked him about the charges before they were filed 11 From the credited testimony of Buena Jinett. I credit Jlnett over Dowdy whom I have heretofore discredited in other matters. 15 From the credited testimony of Josephine Parker. Again I have credited Parker over Dowdy whose testimony I have heretofore discredited. 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the end of October or the beginning of November. Bishop was wearing a union button and Bowles asked Bishop if anybody could make her pull her pin off, to which Bishop answered in the negative.is (4) Charles Gafford Gafford was the foreman and supervisor of, among other employees, Bertha Wyatt and Levada Milliken. He spoke to each of them individually on the same day, October 4, in the basement of the plant. Gafford asked Wyatt what was wrong and what the employees were trying to do. He also asked Wyatt whether she was not afraid she would lose her job. She told Gafford that she was not afraid and that she did not know what he meant. With regard to Levada Milliken, Gafford wanted to know what this thing was that was going around. Milliken asked him what thing he was referring to. Gaf- ford then mentioned that it was the Union. He then asked Milliken why she signed a union card. Milliken answered that it was because she felt that the employees needed the Union to insure seniority and better working conditions. Gafford told her that he felt that the employees were making a big mistake.17 3. Conclusions as to the interrogation J. Z. Miller's questions to Wortham concerning possible charges that Wortham had made against the Respondent although, on the surface, merely inquiries as to matters which the Respondent would be entitled to know and which would later become matter of public record anyway, constituted more than mere lawful inquiry. It was the Union which filed the charges and the questioning of Wortham as to the nature of the charges could be regarded as indicating that Miller was trying to find out whether it was Wortham who was the employee who brought about the filing of charges. Since such questioning could imply that perhaps Miller would there- after seek reprisal against the employee for such activity, I find that the interroga- tion was coercive in nature and therefore that it was violative of Section 8(a)(1) of the Act. There is little room for doubt that Dowdy's questioning of Buena Jinett with regard to what occurred at the meeting the night before was violative of the Act since it sought information concerning protected activity. The same may be said of Dowdy's interrogation of Josephine Parker. For a like reason I find this inter- rogation to be violative of the Act. With regard to the incidents involving James Bowles, I find that his questioning of Marion Darnell as to why she wanted the Union, his questioning of Margaret Phillips as to whether she thought the Union was coming in with the incidental statement that Miller would not sign a contract, his questioning of Almeda Harp as to why she wanted a union and as to what she had against him, all had a coercive effect so as to render the interrogation unlawful and violative of Section 8(a)(1). And I so find. However, Bowles' questioning of Ocie Bishop with regard to whether anyone could make her pull her pin off, I do not find to be anything more than mere comment. I conclude that this is not interrogation of the type which inquires into an employee's union activity to the point where such inquiry is actual interference with such activity. I therefore do not find this to'be violative. -° I credit the testimony of Darnell, Phillips, Harp, and Bishop over the denials of Bowles that he asked these questions In each instance 'I carefully observed each of the witnesses and'from their attitude upon the witness stand I was convinced that they were sincere and forthright in their delivery of the facts to which they testified. Although Bowles' deportment on the stand was not particularly that of an evasive witness, I par- ticularly note the testimony of the supervisors in which they admitted that they had taken the employees working under their supervision to some sheltered part of the plant and talked to them there alone, away from their fellow employees; concerning the union campaign and how the supervisors felt about the Union and their beliefs as-to-whether good or evil could ' come' from the unionization of Respondent's plant The virtual admis- sion of the supervisors , including Bowles, to the effect-that they'liad spoken to thee 'em- ployees with regard to the Union convinces me that the likelihood that Bowles asked these questions as testified above is great. Accordingly, I am' convinced that these' employees testified truthfully and that the incidents occurred as related above 17 From the credited testimony of Bertha Wyatt and Levada Milliken. In addition to my observation of these witnesses I credit Wyatt and Milliken not only because I have heretofore credited them but because, as in the case of Bowles, Gafford admitted that conversations occurred in which he spoke to employees about the Union. BOOT-STER MANUFACTURING COMPANY, INC. 943 The interrogation of Bertha Wyatt and Levada Milliken by Charles Gafford I find to be in the same classification as Dowdy's interrogation of Josephine Parker and Buena Jinett. Gafford's inquiry of Wyatt if she was not afraid of what she was trying to do and was not afraid of losing her job implying that she .would lose her job because of her union activity is grossly violative of Section 8(a)(1) of the Act. I further find that Gafford's inquiry of Milliken as to what was going on around there about the Union and his inquiry as to why she signed a union card are of the same type of coercive interrogation and as such I find that it interfered with the employees' rights to engage in protected activity. Accordingly, I find all of the foregoing conduct violative of Section 8 (a) (1) of the Act. 4. Promises of benefit a. The events (1) J. Z. Miller During one of the conversations between J. Z. Miller and Sammie Wortham as heretofore set forth, a discussion ensued with regard to a possible foreman's job for Wortham which had previously been mentioned to Wortham by, Morris Dowdy. Wortham testified that at the first meeting in which he was present in Miller's office, Miller told him that he, Miller, was looking over Wortham and two other young men in the factory in the event that the Respondent ever needed another foreman. He further stated, according to Wortham, that, of the three, the other two were on his side and that he would like to have Wortham on his side also. On the other hand, Miller testified with regard to this conversation that it was Wortham who reminded Miller of the fact that Dowdy had spoken to Wortham on several occasions about a possible foreman's job for Wortham According to Miller, he asked Wortham when Dowdy had told Wortham this and Wortham answered that it had happened several times long before the advent of the Union. Miller answered that he agreed with Dowdy and that he felt the same way that Dowdy did about Wortham and had so felt for a long time. Miller further mentioned that Dowdy had spoken to Miller about a possible foremanship for Wortham. Miller further told Wortham that the latter was not the top man and that there were three people that they were consider- ing. On cross-examination Miller admitted that it was possible that he told Sammie Wortham somewhere in the same conversation that he would like to have Wortham on his side. Because Miller's version of this conversation is more complete and because I have heretofore stated that I was very impressed with Miller's forthrightness and was unimpressed with Wortham as a witness, I find that Miller's version was more accu- rate and I credit it. (2) Morris Dowdy Wortham testified that around the middle of October, Dowdy spoke to him in Dowdy's office in the plant and after calling Wortham in asked Wortham how he would like to have a better job and when Wortham said that he would like it Dowdy stated that Wortham would not want to stand behind a machine the rest of his life. Later on, however, at one of the meetings at which J. Z. Miller gave one of his speeches, Wortham arose and stated that he wanted to say something to the audience. He was granted permission and he stated that he had never received from Dowdy an offer of a better job. Dowdy testified that he recalled the time when he called Sammie Wortham into his office around October but denied that anything was said with regard to a better job for Wortham at that time. As noted above, J. Z. Miller testified credibly that the mention of a foreman's job for Wortham by Dowdy occurred long before the union- ization took place. Because of Wortham's verbal denial at the speech meeting that Dowdy had not made him a promise of a job, I find that Dowdy's promise to Wortham of a better job occurred at a time prior to the organizational campaign by the Union. Accordingly, I shall dismiss this allegation of the complaint so far as it applies to Dowdy in regard to Sammie Wortham. Alberta Shelby had•a conversation with Dowdy sometime in the middle of Octo- ber. Dowdy talked to Shelby about getting the latter's seniority back. Evidently, although the record does not explain this, Shelby had lost her seniority rights at a time when she had to be absent from the plant. Shelby asked Dowdy if she could get her seniority back and Dowdy stated that he would check the records and see what could be done about it. He said that it would take a while, probably 2 or 3 weeks. There is no mention in this discussion about the Union. 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ocie Bishop testified that Dowdy talked to her during October 1963. Dowdy asked Bishop if she knew who would be hurt if the Union came in. When Bishop answered "No," Dowdy said he was the one who would be hurt because he had a new home and two cars to pay for. Then Dowdy asked Bishop if Bishop would be satisfied if Dowdy could give her her seniority back. Bishop answered to the effect that she did not know as she had never given it much thought. Dowdy admitted that he had had a talk with Bishop but denied that he made any such statement about promising Bishop her seniority back. He further testified that it was Bishop who brought up the matter of seniority and asked Dowdy if he would give it back to her if Bishop changed her mind about the Union. I have heretofore credited Bishop and discredited parts of Dowdy's testimony. Accordingly, I credit Bishop's version and find that Dowdy did ask her if giving her her seniority back would satisfy Bishop. b. Conclusions as to the promises of benefit Inasmuch as the conversation between Miller and Wortham took place in the con- text of discussion about the Union, I am constrained to conclude that what Miller did was promise Wortham a benefit, namely, a possible position as a supervisor. This conclusion is strengthened by J. Z. Miller's admission that he might have told Wortham, in connection with the mention of the possible foreman's job, that he would like to see Wortham on his side. Although this was not an exclusive prom- ise, and Miller did state that there were others to whom such a position might go if it opened up in the future, nevertheless, it was obviously made for the purpose of fostering Wortham's possible inclination in the direction of the Respondent in the campaign to persuade the union adherents to change their minds and support the Respondent against the Union. I find that such a promise constitutes interference with the employees' Section 7 rights and thereby conclude that this was a violation of Section 8 (a) (1) of the Act. As noted above, I have already found that if Dowdy did indeed make a promise to Wortham of a better job it was made before the beginning of a union campaign and therefore cannot be violative of Section 8(a) (1). As regards Dowdy's conver- sation with Albert Shelby, I find that it was Shelby who brought up the conversa- tion about the seniority, that the seniority promise was not made in the context of discussion about the Union, and, therefore, I find that all that Dowdy did was prom- ise to look into the matter for Shelby and there was no definite promise made of any return of Shelby's seniority. Accordingly, I find that this conversation was not inter- ference, coercion, and restraint and did not therefore violate Section 8(a)(1) of the Act. I shall recommend dismissal thereof. However, I cannot find the same with regard to Dowdy's discussion about senior- ity with Ocie Bishop. Here the discussion of seniority occurred immediately after the discussion with Bishop to the effect that Dowdy would be the one who would be hurt in the event the Union came in. It was then that Dowdy asked Bishop whether she would be satisfied if he returned her seniority to her. I conclude that the offer to Bishop was made for a quid pro quo, namely, that if Bishop would stop her union activity she would be given her seniority back. This is a promise of benefit which definitely interfered with the employees' Section 7 rights and, therefore, is a viola- tion of Section 8(a)(1) of the Act. I so find. 5. Other acts of interference, coercion, and restraint a. Creation of impression of surveillance On or about the first part of November at the time that Sammie Wortham was in conversation with J. Z. Miller in the latter's office, mention was made by Miller of the fact that he had been told by several people who were at a union meeting that Wortham had been conversing at the meeting with "Red" Temple, the union organ- izer, and others, and that Wortham had discussed preferring charges against Miller.18 Around the first part of October while Wortham was working at his machine, Douglas Milliken, a supervisor, talked to him and asked him why he was for the >e From the credited testimony of J. Z. Miller. Wortham testified that Miller stated that he had heard that Wortham sat up front with the union men and that he was very good friends with Red Temple, the union organizer As heretofore set forth, I have credited Miller's testimony over that of Wortham as the more reliable. For the same reason, I credit Miller's version of the conversation lieie over Wortham's version of the conversation. BOOT-STER MANUFACTURING COMPANY, INC. 945 Union. Then Milliken stated to Wortham that he knew that Wortham was for the Union.19 In the latter part of October 1963, James Miller had a conversation , as heretofore related, with Alberta Shelby . Miller, who was a supervisor and foreman, told Shelby that he knew that Shelby had been going to union meetings ; that Shelby had heard the Union's side and now he thought that she should hear the Company 's side.20 It is clear that in each of the three foregoing incidents, a representative of the Respondent acknowledged that he had heard of the union activities of the employees involved. The inference is clear that such knowledge must have come from someone who had attended the union meetings. Accordingly, I find that these incidents cre- ated the impression that the Respondent was in some manner observing the union activities of the employees . I find that the creation of such an impression of sur- veillance constitutes interference, coercion, and restraint within the meaning of Sec- tion 8 (a) (1) of the Act. b. Other statements During the middle of October 1963, James Bowles, a foreman and supervisor, engaged Josephine Parker in a conversation , parts of which have heretofore been related. Bowles told Parker that he would not work under a union and that if a union came in one door he would go out the other. Bowles added that Mr. Miller, undoubtedly referring to J. Z . Miller, would never sign a contract with the Union.21 The flat statement that Miller, the president of the Respondent , would never sign a contract with the Union, coming from a foreman with some status in the hierarchy within the Respondent's plant, created a definite impression that the organization by the Union of the Respondent's employees would be a futile act. Accordingly, I find that such statement constitutes interference , coercion, and restraint in violation of Section 8 (a) (1) of the Act. C. The refusal to bargain 1. The appropriate unit It is alleged in the complaint and the Respondent admits that all production and maintenance employees employed at the Respondent 's Clarksville, Tennessee , plant, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I so conclude and find. 2. The Union's majority status As set forth in detail earlier in this Decision, the Union began its organizational campaign among the Respondent's employees in September 1963. By October 10, 1963, the Union had obtained sufficient cards to make a demand for recognition and bargaining upon the Respondent . On that date, therefore, the Union addressed a letter to the Respondent in which it requested recognition and bargaining and offered to prove its majority status through an impartial third party who would count the cards. This the Respondent refused to do on October 16, and in its letter of refusal apprised the Union that it did not believe that the Union had a majority of the employees. At the hearing, the General Counsel introduced into evidence 130 designation cards, each of which was identified by its signer , who also testified that he or she read the card, knew the contents thereof, filled in the blank spaces, and signed it on the date appearing on the face of the card . All of the cards were dated within several weeks before October 10, 1963 . Inasmuch as on the crucial date , October 10, 1963, there were 184 employees in the unit hereinabove found to be appropriate, the 130 cards which the Union had in its possession would , under ordinary circum- stances, be sufficient to establish majority status. 10 Although I have in other parts of this Decision discredited the testimony of Wortham, I have also discredited the testimony of Milliken . From my observation of both of them I find that in this particular instance Wortham was the more reliable of the two I there- fore do not credit Milliken 's denial of this statement 20For the reasons heretofore assigned, I credit the testimony of Alberta Shelby over the testimony of James Miller and therefore do not credit Miller's denial of this incident. 21 For the reasons heretofore assigned , I credit Parker's testimony with regard to this incident over the denial of James Miller. 770-076-65-vol. 149-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, the Respondent contends that the cards cannot be relied upon to prove majority status because, according to the Respondent, a majority of the employees never intended to designate the Union as their collective-bargaining representative. In support of this contention, the Respondent offers the fact that 62 of the General Counsel's 130 witnesses who testified as to their cards, testified , on cross-examination, that they did not understand that the effect of the card was a designation of a collective-bargaining representative . These witnesses testified that they intended by signing the card to establish a sufficient showing of interest to have a Board-conducted election. They each stated affirmatively that having an election was the only purpose for which they signed the card. This, according to the Respondent, would leave a total of not more than 58 out of 184 of the Respondent 's employees who intended to designate the Union as collective -bargaining representative and, therefore , there was a failure on the part of the General Counsel to prove majority status of the Union. Analysis of the testimony of the 62 employees who testified that they did not intend to designate the Union as their bargaining representative shows that none of these employees communicated to the Union that this was their purpose . Further analysis shows that a number of these employees actually signed cards for the pur- pose of designating the Union but changed their minds after the signing. None of these employees testified that they had communicated their change of mind to the Union. Additional analysis shows that of those employees who testified that they signed the cards only for the purpose of obtaining an election , only two tesitfied that a named individual misrepresented to them that the cards were only for the purpose of obtaining an election and not for the purpose of designating the Union as their bargaining representative . The others who testified that they were told, or understood, or that it was common knowledge that the purpose of the cards was only to obtain an election, failed to state or designate any individual who told them that the cards were for this limited purpose. With regard to the cards themselves, they were ordinary union designation and authorization cards, the language of which read as follows: Authorization I hereby designate and authorize the United Rubber , Cork, Linoleum and Plas- tic Workers of America, AFL-CIO, to act as my collective bargaining repre- sentative with my employer. After this is a space for the signature , date, street address, telephone number, depart- ment, and the name of the employing company. Thus, it would seem that the union authorization card signed by the 130 employees was not unusual and did not in any way limit the purpose of the cards to having an election. Moreover, it should be noted that the same cards were used and approved by the Board in the case of Acme Boot Company, Inc.22 The Board has held that an uncommunicated change of mind by a signer of a union authorization card does not affect the validity of such authorization card.23 Moreover, the Board has held, with court approval , that later changes of mind by employees could not invalidate cards which the employees had earlier signed. They have held that the designation on an authorization card is an overt action of an employee which cannot be affected by his thoughts or afterthoughts as to why he signed a union card.24 On the basis of the foregoing, I therefore find that the testimony of many of the employees that they changed their minds after designating the Union as their bar- gaining representative is without weight as to the validity of the authorization cards submitted by the General Counsel and identified at the hearing herein 25 22143 NLRB 628. 23 Idaho Egg Producers, 111 NLRB 93, 106-107; Tinley Park Dairy Co., d/b/a Country Lane Food Store, 142 NLRB 683, 686. u See, for example , Rohtstein & Co., Inc., 120 NLRB 1556; Gene Hyde d/b/a Hyde's Super Market, 145 NLRB 1252. For court approval , see Joy Silk Mills, Inc v. N.L.R B., 185 F 2d 732 (C.A.D.C.), cert. denied 341 U.S. 914; N.L.R.B. v. Gorbea Perez d Morell, S. en C, 300 F. 2d 886 ( C.A. 1) ; N.L.R.B. v. Geigy Company, Inc., 211 F. 2d 553 ( C.A. 9). 25 The Respondent , at the hearing, made an offer of proof that if allowed to testify, the employees would testify to the effect that they changed their minds through no restraint or threats on the part of the Employer , that such change of mind was freely exercised, and that the change of mind was made before the crucial date of October 10, 1963 . I rejected that offer of proof on the basis that the uncommunicated change of mind could have no effect upon the validity of the cards . I reaffirm that rejection at this time. BOOT-STER MANUFACTURING COMPANY, INC. 947 With regard to the defense that there was a misunderstanding or a misrepresenta- tion with regard to the purpose for which the cards were signed, the Board has also long held that such misrepresentation must be direct. Moreover, in the recent case of Winn-Dixie Stores, Inc., et al.,26 the Board held that where there was no evidence to negate the overt action of the employees of having signed cards designating the Union as the bargaining agent, the cards are acceptable for the purpose of determin- ing majority status and what the signers thereof may have understood to be the purpose of the cards was immaterial. In the instant case there is no direct evidence of misrepresentation in the securing of the cards except in the case of two cards where the employees were told, according to the employees' testimony on cross- examination, that the cards were for the purpose of obtaining an election.27 Thus, I find that in the case-at-bar the cards, on their face, explicitly authorized the Union to act as the bargaining agent of the employees. There is nothing on the cards to indicate that the cards were for the purpose either solely, or dually with the other purpose, of securing an election. Moreover, there were only two employees, as stated above, who testified that misrepresentations were made to them. Thus, even if the cards of these two are rejected as not proper to support the Union's majority claim, I find that there are still ample cards to more than esatblish that the Union enjoyed majority status on October 10, 1963. I find that there is an absence of evidence here to negate the overt action of the employees in signing cards desig- nating the Union as their bargaining agent.28 Accordingly, and on the basis of the entire record, I find that on October 10, 1963, the crucial date herein, the Union was designated by a majority of the Respondent's employees to represent them as their collective-bargaining agent, and was, therefore, the majority representative on that date. 3. Conclusions as to the refusal to bargain It is basic, and the Board has held,29 that an employer may in good faith insist upon a Board election as proof of a union's majority, but that it unlawfully refuses to bargain if its insistence on such election is motivated not by any bona fide doubt as to a union's majority but rather by a rejection of the collective-bargaining principle or by a desire to gain time within which to undermine the union. The Respondent's initial refusal to recognize and bargain with the Union must be examined in the light of all other relevant facts of the case including the conduct of the Respondent, the sequenhe of the events, and the time lapse between the refusal and the unlawful conduct. In the instant case, the demand was made on October 10, 1963, and the Respond- ent refused to bargain on October 16, 1963, in its letter to the Union stating that it doubted the Union's majority. Thereafter, a consent-election agreement was entered into and the Respondent seemed most anxious to go to an election. However, between the time that the Union began organizing in the plant and the time in which J. Z. Miller admittedly learned of the fact that his employees were organizing, as evi- denced by the fact that he started to make speeches to the employees before the Union made its request for recognition, the series of threats, interrogations, promises of benefit, and other acts heretofore found to be unfair labor practices began to occur. These unfair labor practices continued to take place until after the consent- election agreement was signed . J. Z. Miller, the Respondent's president, strongly opposing the Union, immediately embarked upon an antiunion campaign and in doing so overstepped the boundaries of permissible conduct. While I conclude and believe that much of what Miller did was done in good faith, nevertheless, as hereto found, Miller and the supervisors who were responsible to him did nevertheless engage in the unlawful activity heretofore found. While I do not find that the Respondent's conduct was designed to gain time in which to destroy the majority which the Union enjoyed on October 10, 1963, I nevertheless find that by engaging in this unlawful activity and at the same time refusing to participate in a third-party count and refusing to bargain, the Respondent rejected the collective-bargaining principle. 28 143 NLRB 848. 17 See also in connection herewith , Cumberland Shoe Corporation, 144 NLRB 1268. 28 This case is clearly distinguishable from Englewood Lumber Company, 130 NLRB 394, where the misrepresentation was on a large scale and deeply affected all of the cards. Moreover, a leader in the soliciting testified that he told practically everyone he talked to that the cards would be sent to the Board so that a secret election could be held. There is no such direct evidence in the instant case. Joy Silk Mills, Inc., 85 NLRB 1263. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that by refusing to bargain with the Union and insisting upon an election, the Respondent did not act in good faith and that its refusal to bargain with the Union constituted a violation of Section 8 (a) (5) of the Act. V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The conduct of the Respondent set forth in section IV, above, occurring in con- nection with the operations described 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 obstructing commerce and the free flow of commerce. VI. THE REMEDY It having been found that Respondent has engaged in and continues to engage in certain unfair labor practices, it will be recommended that the Board issue an order requiring that it cease and desist therefrom and take certain affirmative action, including the posting of appropriate notices designed to effectuate the policies of the Act, as amended. It having been found that the Respondent by threats, interrogation, promises of benefit, and creation of the impression of surveillance, interfered with, restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act, I shall recom- mend that the Respondent cease and desist therefrom. It having been further found that the Respondent refused to and continues to refuse to bargain collectively with the Union, thereby interfering with, restraining, and coercing its employees, I shall recommend that the Respondent cease and desist therefrom and also, upon request, bargain collectively with the Union with respect to wages, hours, and other terms and conditions of employment and embody in a signed agreement any understanding reached. 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. Boot-Ster Manufacturing Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Rubber, Cork, Linoleum and Plastic Workers Union, AFL-CIO, affili- ated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization as defined in Section 2 (5) of the Act. 3. By threatening its employees with economic reprisals because of their union activity, making promises of benefit to them if they would cease their union activities, interrogating them concerning union affiliations and activities, creating the impres- sion of surveillance of union activities, thereby interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8 (a) (1) of the Act. 4. All production and maintenance employees employed at Respondent's Clarks- ville, Tennessee, plant, excluding office clerical employees, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein the Union above named has been and now is the exclusive representative of all of the employees in the appropriate unit for the pur- pose of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing to bargain collectively with the Union above named as exclusive bargaining representative of its employees in the appropriate unit named above, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a) (5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I recommend that the Respondent, Boot-Ster Manufac- turing Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening its employees with economic reprisals should the Union be cho- sen by the employees as their bargaining representative, interrogating its employees with regard to their union activities and affiliations, making promises of benefit for BOOT-STER MANUFACTURING COMPANY, INC. 949 the purpose of discouraging membership in the Union or support thereof, and creat- ing the impression of surveillance of the employees' union activities , in a manner constituting violations of Section 8(a) (1) of the Act. (b) Refusing to bargain collectively with United Rubber , Cork, Linoleum and Plastic Workers Union, AFL-CIO, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive representative of all its employees in the following appropriate unit: All production and maintenance employees employed at Respondent 's Clarks- ville, Tennessee, plant, excluding official clerical employees , guards, and super- visors as defined in the Act. (c) In any like or similar manner interfering with, restraining , or coercing employ- ees in the exercise of the right to self-organization , to form labor organizations, to join or assist the above-named Union, or any other labor organization, to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or 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 the aforesaid Union as the exclusive representative of all its employees in the aforesaid unit, and , if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Clarksville , Tennessee, copies of the attached_ notice marked "Appendix ." 30 Copies of the notice, to be furnished by the Regional Direc- tor for Region 26, shall, after being duly signed by a representative of the Respond- ent, be posted immediately upon their receipt, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent to insure that these notices are not altered, defaced, or covered by any other material. (c) File with the Regional Director for Region 26, within 20 days of the date of the service of this Trial Examiner's Decision and Recommended Order, a written statement setting forth the manner and form in which it has complied with this Rec- ommended Order.31 It is further recommended that the complaint be dismissed in all other respects. 30If this Recommended Order is 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 If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order " 31 If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 26, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT threaten our employees with economic reprisals in the event the Union is selected as the bargaining representative of our employees. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference, coercion, and restraint in violation of Section 8 (a) (1) of the Act. WE WILL NOT make any promises of benefit to any of our employees in a manner constituting interference, coercion, and restraint in violation of Section 8(a)(1) of the Act. WE WILL NOT in any manner create the impression of surveillance of our employees' union activities in a. manner constituting interference, coercion, and restraint in violation of Section 8 (a) (1) of the Act. WE WILL, upon request, bargain collectively with United Rubber, Cork, Lino- leum and Plastic Workers Union, AFL-CIO, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, as the exclusive bargaining 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agent of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. The appro- priate unit is: All production and maintenance employees employed at our Clarksville, Tennessee, plant, excluding office clerical employees, guards, and supervisors as defined in the Act. WE WILL NOT in any like or similar manner interfere with, restrain, or coerce our employees in the exercise of their right to self organization, to form, join, or assist United Rubber, Cork, Linoleum and Plastic Workers Union, AFL-CIO, affiliated with United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. All our employees are free to become, remain, or refrain from becoming or remaining, members of any labor organization. BOOT-STER MANUFACTURING COMPANY, 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, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question concerning this notice or compliance with its provisions. Puerto Rico Telephone Company and Sindicato de Trabajadores Packinghouse, United Packinghouse Food & Allied Workers, District 9 of Puerto Rico, AFL-CIO, and its affiliate Union de Empleados de la Industria del Telefono de Puerto Rico. Local 963. Case No. 24-CA-1739. November 20, 1964 DECISION AND ORDER On February 3, 1964, Trial Examiner Samuel M. Singer issued his Decision in the above-entitled case 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 attached Trial Examiner's Deci- sion. Thereafter, the Respondent filed exceptions to the Trial Exam- iner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Brown]. 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 Trial 149 NLRB No. 84.