S. S. Logan Packing Co.

S. S. LOGAN PACKING COMPANY 421 S. S. Logan Packing Company and Food Store Employees Union, Local No. 347, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. Case No. 9-CA-3140. May 5, 1965 DECISION AND ORDER On January 5, 1965, Trial Examiner Phil W. Saunders issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members 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 Examiner's Decision, the exceptions and the brief, and the entire rec- ord in this case, and hereby adopts the findings,' conclusions, and rec- ommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relation Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IIn the absence of exceptions , we adopt pro forma the Trial Examiner 's dismissal of that part of the amended complaint relating to the questioning of employees by Respond- ent's attorney during July 1964 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed on March 17 and 25, 1964 , by Food Store Employees Union, Local 347, affiliated with Amalagated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein called the Union , the General Counsel issued a com- plaint dated June 5, 1964, against S. S. Logan Packing Company, herein called the 152 NLRB No. 40. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent or the Company. The complaint alleges that the Respondent engaged in unfair labor practices within the meaning of of Section 8(a)(1) and 8(a)(5) of the National Labor Relations Act. In a duly filed answer the Company denied the unfair labor practice allegations. A hearing was held before Trial Examiner Phil W. Saunders and all parties were represented and were given full opportunity to examine and cross-examine witnesses, to introduce evidence, and to argue orally. The Respond- ent also filed a brief which has been duly considered. Upon the entire record, and from my observation and demeanor of the witnesses,' I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent is a West Virginia corporation, engaged in meat packing and wholesale distribution of meat and related products at its plant and office located in Huntington, West Virginia. During the past 12 months, which is a representative period, Respondent had a direct inflow of products, in interstate commerce, valued in excess of $50,000, which were shipped directly to its plant from points outside the State of West Virginia. During the same period, Respondent had a direct outflow of products, in interstate commerce, valued in excess of $50,000, which it shipped to, customers located outside the State of West Virginia. The complaint alleges, the answer admits, and I find that the Respondent is engaged in commerce, as defined in the Act. II. THE LABOR ORGANIZATION INVOLVED Food Store Employees Union , Local No. 347, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The Union started its current organizational efforts at the company plant about the end of January 1964.2 By a letter, dated February 24, the Union advised the Company that they represented a majority of employees and requested recognition. By letter, dated February 28, the Company informed the Union that its president, Nester Logan, was out of town but that the matter of union recognition would be brought to his attention upon his return. On March 4, Union Representative Jack Brooks, called the Respondent's president and informed him that the Union repre- sented a majority and requested a date to negotiate a contract. By letter, dated March 10, the Union once again contacted the Company requesting recognition, but received no reply.3 i The declaration of my findings, which are based on my observation of the witnesses, Is Intended to apply to the testimony of each and every witness , and my failure to coiri- ment on the demeanor of a particular witness is not to be taken to mean that in evaluat- ing his testimony I have not taken his demeanor into consideration Moreover, when given logical reasons for rejecting the testimony of a particular witness, either in its entirety or on a particular point , it should not be assumed that I rely exclusively on such reasons, and that the demeanor of the witness has not been considered in evaluating his testimony When I have indicated that I regard a particular witness as generally un- trustworthy , it is to be construed to mean that I reject his testimony as a whole , unless I explicitly indicate that I accept his testimony on a particular point a A11 dates are 1964 unless specifically stated otherwise In 1960 the union also at- tempted to organize the company plant , and material aspects of those proceedings will be set forth and discussed in subsequent sections herein 80n March 12, 1964 , a charge was filed by the Respondent against the Union-Case No. 9-CB-1173 . The basis of this charge being that agents of the Union made threats to employees for the purposes of inducing them to sign authorization cards ( Respond- ent's Exhibit No 3). The parties at the hearing before me stipulated as follows: On May 26, 1964 , a letter was sent by Irving H Herman, Director of Office of Appeals , to Mr. John E Jenkins, Jr, [Respondent's attorney ] in respect to Case No. 9-CB-1173 dismissing his appeal of the Regional Director 's refusal to issue a complaint. It further appears that the docketed charge filed on March 12, was preceded , and sub- stitutes for the original Respondent 's charge forwarded to the Board 's office on March 5. I will at this time reverse my ruling with respect to Respondent 's Exhibits Nos. 1, 2, and 4, and admit these exhibits in establishing the above exchange of communications as noted here. S. S. LOGAN PACKING COMPANY 423 The .complaint alleges that in early March the Respondent's president, Nester Logan, interrogated employees concerning their sympathies for the Union ; alleges that Logan indicated an employee would be discharged if they favored the Union; and that Nester Logan also in early March interrogated employees as to whether representatives of the Union had visited their homes thereby creating the impres- sion of having engaged in surveillance. Credited testimony of witnesses for the General Counsel shows the following: Wylie Hedge testified that during the first week in March, Nester Logan had asked him if Union Representative Spencer and Brooks had been over to his house, and had also inquired of him as to what Hedge's brother, also an employee of the Com- pany, thought of the Union. Maggie Adkins testified that during the first part of March, Nester Logan had asked her if the union men had been down to talk to her, and then stated that they would "ruin us" if they got in. Charles Willougby stated in his testimony that Nester Logan asked him in early March if there had been any- one out to his house to see him, and when Willougby replied that there had been one man-Logan then asked him what he looked like. After Willougby described this person, Logan then told him he knew the man. Willougby also testified that Logan also asked him how many union letters he had received. Edward Meehling testified that during the first part of March, Nester Logan told him that he had heard there was a union man up to his house to see Meehling. The complaint alleges that on or about March 17 and 25 the Respondent's presi- dent caused the surveillance of employees' union activities at a local restaurant known as Hamburger Inn, herein referred to as the Inn or restaurant. Union Rep- resentative Gunnoe testified that sometime during March he had observed employees Fred Huff and Frank lobe enter the Inn and that he and another representative for the Union followed them into the restaurant in an effort to make further contacts with Jobe. Gunnoe stated that shortly thereafter the Respondent's vice president, Nester S. Logan, and hereinafter referred to as Buddy Logan, entered the Inn, and when Jobe and Huff had finished eating Buddy Logan informed these two employees that he had his car outside and would take them back to the plant .4 Gunnoe testified that Logan had driven over to the Hamburger Inn from the plant. Fred Huff cor- roborated the testimony of Gunnoe relative to this incident at the Hamburger Inn. Huff further related that in their ride back to the plant Buddy Logan drove very close to Union Representative Gunnoe's car, still parked in the restaurant parking lot, and that Buddy Logan then made the following remark to his passengers Huff and Jobe, "We should do something to it like putting ink in the windshield washers or something." Buddy Logan first testified that on this occasion in question he stopped by the Inn to buy something to drink, stated that he did not know Huff and Jobe were in the restaurant at the time he entered, and that he did not offer them a ride back to the plant. Buddy Logan also flatly denied that he had gone to the restaurant because his father-the Respondent's President Nester Logan-had told him to do so, and further made an outright denial that management had received a telephone call reporting that union representatives were down at the Hamburger Inn However, immediately after Buddy Logan had reflected upon his signed state- ment relative to this incident, he then readily admitted in his testimony that he had gone to the Inn because his father had told him to do so, and after his father had received a telephone call notifying him that union representatives were at the res- taurant. Buddy Logan further admitted in his testimony that he had also been down to the Hamburger Inn under similar circumstances on a prior occasion, and purportedly to get Frank Jobe to pick up an order. Buddy Logan agreed that he had not intended to pick up any order with Jobe and that he actually went down to the restaurant to "protect" Jobe from the union men or "trouble makers." 5 The complaint, as amended, further alleges that on or about July 3, Nester Logan, individually and with his agent John Jenkins, Respondent's attorney, violated the Act by calling employees into a private office and there interrogating them as to their sympathy for, and activities on behalf of, the Union. This record shows, and it is admitted, that between July 3 and 6 the Respondent's attorney questioned about 60 4 The Hamburger Inn is approximately a block or two from the Respondent's plant. 5 Buddy Logan attempted to justify his "protection" of lobe on the basis that shortly beforehand the Company had an employee who was stealing and had involved Jobe, and that after this matter was straightened out Jobe told his father, nester Logan, that he had been visited by two union men and had signed an authorization card as he was afraid to go against the Union Buddy Logan ventured that he therefore went to the Ham- burger Inn on this first occasion because he knew that Jobe did not want to see the union representative, and that Jobe was "more of less" afraid of them especially after the stealing incident in which he had been blamed 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees.6 Employee Wylie Hedge testified that he was questioned by the Respond- ent's Attorney Jenkins on July 6 in the plant office. Hedge related that Jenkins asked him on this occasion if he had heard any man threatened to be discharged by Logan, and also inquired if Hedge had heard of a certain woman who was going to get fired, and further asked if Hedge had signed a union card. Hedge testified that Jenkins did not explain to him why he was there or why he was asking the questions.? Maggie Adkins testified that she was questioned by Jenkins in the plant office on July 3. Adkins stated that Jenkins asked her if she had signed a union card, and also inquired if Logan had asked her if anyone else had talked to her. Adkins fur- ther testified that Jenkins did not explain why she had been called or why he was asking the questions. Fred Huff testified that he was questioned by Jenkins in the plant office on July 28, and was asked if he had signed a union card, and whether Logan had questioned him about the Union. Huff further testified that a short while after his first questioning session with Jenkins he was called back to the office and was then asked whether he knew anything about the incident at the Hamburger Inn. Charles Willougby stated that he was also questioned by Jenkins at the plant on July 6, and was asked if he had signed a union card and if he knew anything about a man or woman being fired. Willougby further testified that Jenkins did not tell him why he was being asked such questions 8 The complaint, as amended, also alleges that Nester Logan violated the Act on or about July 25, by interrogating employee Maggie Adkins regarding her sympathy and activities on behalf of the Union, In this respect Adkins testified that Nester Logan had informed her the Labor Board had the Company charged with threaten- ing to fire someone, and then asked her if it was she who gave the Board such information. The Respondent's contention that Nester Logan's interrogation of the employees in March was protected free speech within the meaning of Section 8(c) of the Act, does not require extended discussion. Nester Logan's questioning in March of employees regarding the Union and their participation did not constitute the expres- sions of any views, but on the contrary, was an attempted extraction of the views of the employees and their fellow employees toward the Union. Section 8(c) of the Act does not apply to interrogations which are implicitly coercive. It is also well settled by the Board and courts that in determining whether an employer's conduct amounts to interference, restraint, or coercion within the meaning of Section 8 (a) (1), the test is not the employer's intent or motive, but whether the conduct is reasonably calculated, or tends to, interfere with the free exercise of the rights guaranteed by the Act. If the setting, the conditions, the methods, or other probative context can be appraised, in reasonable probability, as having the effect of restraining or coercing the employees in the exercise of such rights, then this activity on the part of the Employer is violative of this section of the Act. N.L.R.B. v. Protein Blenders, Inc., 215 F. 2d 749, 750 (C A. 8). This is especially true in the insecure organizational period, as here, where the employer can make some seemingly innocent question or remarks suggest his displeasure with employees who support the Union. The fore- going instances of unlawful interrogation by the Respondent's president, Nester Logan, are not instances of objective inquiry as to the propriety of recognizing a labor organization-rather, they include an attempt to ascertain and inquire into the loyalties, extent of participation, and sympathies of unionization with the impli- cation that the employees would be better without the Union. As an example- Logan's interrogation of Adkins coupled with the admonishment that the Union would "ruin us" if their organizational efforts succeeded. It further appears to me, and I so find, that such interrogations here under con- sideration also created the impression of surveillance As aforestated, Nester Logan repeatedly and systematically inquired of employees whether or not union repre- sentatives had called on them, and it is also readily apparent that Logan took the initiative in making such inquiries. The Board has held that whether or not the employer in fact spies upon the employees' activities, it necessarily brings an unlaw- ful restraint upon them by creating the impression in their minds that he is keeping their union activities under surveillance. R. L. Zeigler, Inc., 129 NLRB 1211. Such interrogation as here clearly conveyed the impression that the Company was keeping the employees' union activities under surveillance, and is therefore unlawful.9 9 These interviews were also recorded at the time given by a court reporter. See Respondent's Exhibit No. 8 s Also see Respondent's Exhibit No 9. e See, N.L.R B. v. United Wire Kt Supply Corp, 312 F. 2d 11, 12-13 (CA. 1) ; N L R B v. Merchants Police, Inc, 313 F 2d 310, 311-312 (C A 7) ; N L R.B. v. C. Malone Trucking, Inc., 278 F. 2d 92, 93, 95 (C A. 1) : N.L R B v Swan Fastener Corporation, 199 F 2d 935, 936-938 (C.A. 1) ; NL.R.B v. Davidson Rubber Co, 305 F. 2d 166, 169- 170 (C A. 1). S. S. LOGAN PACKING COMPANY 425 Regarding the allegation that the Company violated the Act in its surveillance of employees' union activities at the Hamburger Inn, as aforestated, the Respondent argues that there is no showing that such conduct interfered with, restrained, or or coerced Jobe or Huff and, therefore, is not violative; and that the Employer, if anything, was assisting the employee in the exercise of his rights guaranteed under Section 7 of the Act. I find otherwise. In N.L.R.B. v Collins & Aikman Corp, 146 F. 2d 454 (C.A. 4), the court held any real surveillance by the employer over union activities of employees, whether frankly open or carefully concealed, fails under the prohibitions of the Act. A contention similar to that made herein that there was no proof that any of the employees were intimidated or coerced was con- sidered by the Board in the Premier Worsted Mills, 85 NLRB 985, 986. Therein the Board said, "Although the Respondent admits most of the acts of surveillance as found by the Trial Examiner, it contends in its exceptions that there is no proof that any of its employees were intimidated or coerced thereby, and that in such circumstances this conduct cannot be found violative of Section 8(a)(1). There is no merit in this argument. The Board has held that secret surveillance interferes with, restrains, and coerces employees in the exercise of their rights under Section 7 of the Act (citing Matter of Virginia Electric and Power Company, 44 NLRB 404). A fortiori the type of surveillance presented here, the existence of which is known to the employees, exerts a coercive influence (citing Matter of Schramin and Schmieg Company, 67 NLRB 980; Matter of Ray bestos' Manhattan, Inc., The Raybestos' Divi- sion, 80 NLRB 1208). And as we have noted on many occasions, surveillance, like interrogation and similar conduct, is illegal without regard to whether it succeeds in its purpose." In the second incident in question here Buddy Logan went to the res- taurant on specific instructions from his father, Nester Logan, after receiving a telephone call that union men were at the Inn. Buddy Logan then took Huff and Jobe back to the plant in his car and while driving out of the parking lot told them as they passed by, that they should do something like "putting ink in the windshield washers" of the union representative's car. Under such circumstances there is not only a surveillance of union activities, but coupled with this a specific remark to the employees involved with definite and open implications as to the true motiva- tions of the Respondent's mission. Likewise, Buddy Logan's first trip to the res- taurant, as aforestated, is also surrounded with false and pretentious circumstances I also note here that Buddy Logan's initial testimony pertaining to the second inci- dent at the restaurant, compared with the complete and absolute reversal in testimony when confronted with his prior signed statement, as previously mentioned, leaves considerable doubt in my mind as to the entire specter of the Respondent's position. From my observations and evaluations it is difficult for me to believe that a witness would be so self-sssured and confident in his initial testimony and demeaner, and then, with the same automatic assurances and confidence completely and totally reverse his testimony on cross-examination without even any hesitations or other qualifications. Certainly, if the Respondent had any genuine intentions or motiva- tions they were not enhanced by such testimony.'° In reference to the questioning of employees by Respondent's attorney in July as alleged in the amended complaint, the Company contends that it only asked ques- tions on matters directly charged in the complaint and all calculated to give infor- mation to the Respondent in the preparation of its defense It appears that the questions asked of employees were quite similar in form, and in essence the employ- ees were asked whether or not they had been threatened, whether or not they had been coerced or restrained, whether or not they knew any employee who had been questioned by Nester Logan about the Union, whether or not they had ever desig- nated the Union as their agent to bargain with the Company, and whether they had been told by union organizers that it was necessary to sign a card in order to keep their job. It is well established by the Board law that an employer is privileged to interview employees for the purpose of discovering facts within the limits of the issues raised 10 There is also some testimony in this record relative to Gunnoe's parking his car on a street running alongside there Respondent ' s plant and then being told by Buddy Logan to leave Both parties attempted to establish the date of this incident, and whether or not it was a public or private street. What exact bearing this testimony has on the specific allegations in this case is difficult for me to determine . It might possibly have some bearing insofar as union knowledge is concerned in establishing this factor at the time of Buddy Logan's first trip to the Hamburger Inn In the final analysis , however, Buddy Logan admitted that he went to the Inn on this occasion to protect Jobe from the union representatives. 426 DECISION S OF NATIONAL LABOR RELATIONS EOARD by a complaint, where the employer, or its counsel does so for the purpose of pre- paring its case for trial and does not go beyond the necessities of such preparation to pry into matters of union membership, to discuss the nature or extent of union activity, to dissuade employees from joining or remaining members of a union, or otherwise to interfere with the statutory rights to self-organization. In other words an employer may qeustion his employees in preparation for a hearing, but is restricted to questions relevant to the charges of unfair labor practices, and of suffi- cient probative value to justify the risk of intimidation which interrogation as to union matters necessarily entails. Joy Silk Mills, Inc., 185 F. 2d 732, 742 (C.A.D.C.). It appears to me, and I so find, that there is insufficient evidence that either the purpose or the effect of Respondent counsel's conduct in interviewing employees, infringed upon their right to engage in concerted activities. Certainly, the evidence on this phase of the case properly before me, indicates that the great preponderance of Jenkin's questions related to issues material to this proceeding. Also indicative of Jenkin's intention to refrain from unduly intruding upon the privacy of the employees in their union affairs is the fact that he did not ask employees about their attitudes toward the Union or their reasons for engaging in union activities. And such being true makes distinguishable the interrogations found violative of 8(a)( I) in Joy Silk Mills, Inc., supra. In the instant case at hand, Jenkins made no inquiries dealing with the employees' objective state of mind. As previously pointed out there is considerable testimony by certain employees to the effect that they were not informed as to the purpose of their interrogation or why they were being questioned. In view of the fact, however, that Jenkins did make reference to a charge being filed, and in view of the nature of his questions and the close proximity in relationship to the interrogations and the date of the hearing before me-it appears that the employ- ees had adequate information and safeguards which protected their rights, and that under these particular circumstances the questioning did not carry an implied threat of reprisals or in any other way interfere with, restrain, or coerce the employees. I also find that the amendment to the complaint 'alleging that Logan unlawfully inter- rogated Maggie Adkins on July 25, is without adequate proof. From a close review of all the testimony relating to this incident it is apparent that the questions asked did not concern the sympathies or attitudes of Adkins towards the Union, but were directly related to the Respondent's defense of the unfair labor practice charges. In accordance with the above these two last allegations in the complaint, as amended at the hearing, are hereby dismissed.I1 Section 8(a)(5) This record shows that in 1960 the Union filed a petition for an election in which all production employees, including working foremen and truckdrivers, were included in the unit. (9-RC-3959.) On February 19, 1960, the Respondent and the Union entered into an agreement for a consent election, and on March 30, 1960, an election was held but the Union failed to win a majority of the votes.12 Subsequently, in 1964, the Union again sought to organize the Respondent as indicated earlier herein, and on February 24, notified the Company by letter that it represented a majority and requested recognition to cover the following: "All employees of the plant and shipping department except office clerical, truckdrivers, and supervisory employees." The Union's letter also asked the Company to note that they were excluding truck- drivers and driver-salesmen because these properly belonged in another union. The complaint, as amended, alleges that all employees of Respondent employed at its plant exclusive of truckdrivers, driver-salesmen, office clerical employees, all guards, and professional employees and supervisors, constitute a unit appropriate for the purposes of collective bargaining. The Respondent contends that the bargaining unit as designated by the Union did not constitute an appropriate bargaining unit. I reject this contention. It has been well established, and even recently emphasized, that driver-salesmen and truckdrivers Ii The General Counsel also attempted, through his witness Gunnoe. to establish some background evidence to the effect that during the organizational campaign by the Union- Gunnoe, a union organizer, had noticed Nester Logan eating at the Colonial Inn on nu- merous occasions during a period when the Union was bringing employee witnesses to the Colonial Inn for the purposes of their investigations. This testimony by Gunnoe stands without any corroboration while Nester Logan testified that he has never been in the Colonial Inn. In making my evaluations and findings herein I have completely dis- regarded this entire line of testimony. 12 1 will at this time reverse my ruling with respect to Respondent's Exhibits Nos 5, 6, and 7, and will accept such exhibits to further establish and clarify these proceedings between the parties in 1960. S. S. LOGAN PACKING COMPANY 427 ,can or should be excluded from a unit composed of production and maintenance workers. See Ballentine Packing Company, Inc., 132 NLRB 923.13 This record shows that the driver-salesmen employed by the Company are on a salary and receive commissions while production people are paid on an hourly basis . Driver-salesmen do not punch timecards as do other employees , they work outside of the plant selling merchandise to stores in the area, and even works independently of each other on separate routes. The regular over-the-road truckdrivers employed by the Company operate trucks on a full-time basis, and receive a straight salary, along with expenses. They generally haul cattle to the packing plant and they also haul meat in refriger- ated trucks.14 It appears to me that this evidence in the record clearly shows that the interest duties, and working conditions of driver -salesmen and truckdrivers are materially different from all other employees , and that they are actually engaged in selling and transportation rather than production . Furthermore, the General Coun- sel only has the burden of proving that the Union sought an appropriate unit, and not that the unit is the most appropriate one. Primrose Super Market of Salem, Inc., 148 NLRB 610 .15 The unit alleged in the complaint as appropriate which the Union sought when it first requested recognition by the letter dated February 24, and it is a conventional unit found many times by the Board to be appropriate in business and operations of this nature . Accordingly, it is found that the alleged unit is appropriate.16 In addition to the above the Respondent also contends that they were justified in their refusal to recognize the Union in this proceeding in that an appropriate unit had been determined in an election conducted by the Board during the representa- tion case between the parties in 1960, as aforestated . In this respect the Company further argues that the Union had failed in its efforts to organize the truckdrivers in the present 1964 campaign , and therefore , made an unlawful attempt to gerrymander out of the bargaining unit these employees who had been earlier included in the unit. In rejecting this contention , it is first noted that there is no testimony whatsoever by any of the witnesses supporting the Respondent 's argument relative to truckdrivers not supporting the 1964 organizational efforts. Next, it should be pointed out that the Board-directed election held in 1960 , did not result in the selection of a bar- gaining representative and no collective bargaining ensued. This prior proceeding, therefore, cannot qualify as bargaining history. Furthermore , the scope of the unit in Case No . 9-RC-3959 was pursuant to the agreement and consent election of the parties, and hence is not controlling . Likewise, under this situation there is no merit in the Respondent's contention that changed circumstances must be shown to have occurred since the earlier election to support the General Counsel 's present unit position.17 This record shows that with the exclusion of the driver -salesmen and truckdrivers there were 72 employees in.the unit based on the company roll as of February 28. The General Counsel established through union Organizer Gunnoe, that on or before February 24, 43 employees signed authorization cards for the Union . These cards were then received in evidence 18 The Company further maintains that the Union carried on a campaign of coercion in order to get the employees to sign their authori- zation cards . Nester Logan ventured in his testimony that after he returned from 13 Iii Ballentme, the Teamsters sought a unit limited to truckdrivers and their helpers ; meat cutters sought a production and maintenance unit , excluding truckdrivers and the employer sought a single plantwide unit The Board pointed out that it had traditionally established truckdrivers as a separate appropriate unit 14 The Company also includes in its category of truck drivers -.local truckdrlvers who do punch in and out, and all but two of them work full time as local truckdrlvers. The two drivers that do part-time driving , however, spend the large percentage of their time driving. 15I have not set forth the testimony bearing on all the various duties and functions of each separate employee classification What evidence is given above appears to be the only controlling testimony necessary for determination here. is There can be no contention that the unit involved in the Union 's request for bargain- ing 13 at variance with the unit as alleged in the amended complaint and found herein to be appropriate . The Union ' s request clearly communicated to the Respondent the extent of the unit of employees for which it wishes to bargain , and specifically informed the Company, and asked them to note , that the Union was excluding driver-salesmen and truckdrivers See Laabs, Inc., 128 NLRB 374. 17 Raleigh Coca-Cola Bottling Wor ks, SO NLRB 76S, 770 , Dixie Belle Mills, Inc, et al , 139 NLRB 629, 630 "At the time of this offer the Respondent objected to the introduction of these cards on the ground that no proper foundation had been laid The evidence shows the date on each, and also that each employee signed his card in the presence of Gunnoe. 428 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD his vacation the first part of March-some of the employees were constantly telling him about the "coercion" in the manner in which the union representatives had con- tacted them and their families because they unwillingly signed or refused to sign a card Logan further stated that employee Henry Cyrus called him and asked if Logan wanted to hear how the union organizers talked, and if so Logan could listen in a separate room when the organizer returned to his house.10 I find that on Feb- ruary 24, with 43 authorizations in a unit of 72 employees, the Union had a clear majority. The Respondent further maintains that if the Union had honestly thought it had a majority representation-it could have forthrightly petitioned for an election. Under the Act an employer is under a duty to bargain as soon as the Union presents convincing evidence of majority support, but it is well established that election and certification proceedings are not the only method of determining majority repre- sentation. The Board and courts have consistently held that there is no absolute right vested in an employer to demand an election. That if an employer in good faith doubts the Union's majority, he may, without violating the Act, refuse to rec- ognize the Union until its claim is established by a Board election. A doubt pro- fessed by an employer as to the Union's majority claim must be genuine. Other- wise the employer has a duty to bargain and may not insist upon an election. In short, the Act does not require an election before an employer may bargain with a union. Indeed, the obligation to bargain often arises without any preliminary Board action at all. Cf. United Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 67; Medo Photo Supply Corporation v. N L.R.B., 321 U.S. 678, 683-684; Joy Silk Mills, Inc v. N.L R.B., 185 F. 2d 732 (C.A.D.C.); N.L.R.B. v. Federbush Company, Inc., 121 F. 954, 956 (C.A. 2). In these situations, the parties themselves establish the bargaining unit and determine whether or not particular categories or particular employees are part of the unit. Even a dispute over the precise composition of a unit that is basically appropriate will not postpone an em- ployer's obligation to bargain where the categories in dispute would in no event affect the Union's majority status. See N.L.R.B. v. Federbush, supra, at 956, cf. Brelvely and Beverage Drivers and Workers, Local No. 67, International Brotherhood of Teamsters (Washington Coca-Cola Bottling Works) v. N.L.R B., 257 F. 2d 194, 196 (C.A.D.C.). In this case the Respondent places a great deal of emphasis and stress on the exclusion of the truckdrivers in the 1964 unit as compared to their in- clusion in 1960. As the question of their exclusion or inclusion could not affect the Union's majority status as the bargaining representatives, the Company's obligation certainly is not contingent on a decision of that question by the Board.20 In view of the Respondent's prior contention and argument the final and ultimate conclusions here must be based on the premise that the Company had a good-faith doubt, and therefore, postulated its conduct and efforts' on this basis. The alleged 8(a) (5) violation is predicated upon the well-known Joy Silk Mills doctrine. The General Counsel stated that this record shows antiunion animus on the part of the Company and that this conduct indicates that the refusal to recognize the Union was not based upon good faith, but rather upon purposes of undermining the Union of such majority status as was known to have existed In order to determine the validity of a claim of good faith, the Board looks to the Employer's entire course of conduct An employer who fails with good reason to to respond to bargaining requests of a union which represents a majority of its employees, and embarks, instead, on a course of improper conduct which is either calculated to or tends to destroy that majority, does not demonstrate the good faith required to justify its failure to bargain. It should also be noted here again that under Board decisions any doubts by the Employer, such as suspicion that his employees have been stampeded into joining the Union, would not justify the "The Respondent then attempted to introduce four employees' affidavits in corroborat- ing Nester Logan's testimony relative to the complaints he had received in the manner in which the Union had approached certain employees It is noted that none of the four employees here involved with affidavits signed authorization cards. Furthermore, the employees themselves, who supposedly made such complaints, were not called as witnesses It is further noted that in the CB case against the Union, filed on March 12, as aforestated, the determination made therein also shows that there were insufficient grounds for the Respondent's position that threats were made in inducing employees to sign authorization cards. 2OEven assuming , arguendo, the inclusion of the truckdrivers in the unit therein found to be appropriate-the number of employees would then be 80 and the Union had 43 authorizations-still a clear majority. S. S. LOGAN PACKING COMPANY 429 Employer in refusing to deal with the Union in the meantime.21 At the time the Union requested recognition the Company was also notified as follows: "Our Union is prepared to provide to a neutral party authorization of application cards for membership in our Union signed by employees of your company for the purpose of comparison of signature against your payroll, in the event you question our majority status " The Company did not avail itself of the opportunity to so check the cards. It appears abundantly clear that if these were any genuine doubts as to the major- ity status of the Union in this case it is not apparent from this record. Far from entertaining a good-faith doubt, the Company patently harbored nothing more sub- stantial than unsupported testimony and theory that certain employees were, or ought to be, for the Company. This record is also devoid of evidence that any improper influence was used by the Union to win the support of those employees who signed authorization cards, and the Company could not produce any employee wit- nesses to so testify. The Company's profession of a bona fide doubt is further refuted by its resorting to illegal conduct as a means of preventing unionization of its employees. Taken by surprise at the Union's organizational drive, the Company refused to bargain in an attempt to gain time to dispel the Union's majority. Thus, Nester Logan, in early March, questioned employees as to whether union representatives had been to see them. Logan also inquired of certain employees as to what their relatives, who were likewise employed by the Company, thought about the Union. Nestor Logan further instructed his son, Buddy Logan, to rescue employees from contacts with union representatives, as aforestated, and in so doing Buddy Logan made a direct reference of a possible course of retaliation against the Union. Such a course of conduct is wholly inconsistent with a claim of a good-faith refusal to bargain. Certainly, the independent 8(a) (1) violations, to the extent found, and the other factors involved herein, are in their nature and scope sufficient to bring this case within the Joy Silk Mills doctrine. The Union's February demand for recognition as bargaining representative for the purpose of negotiating a contract for employees in an appropriate unit, under the above circumstances, imposed upon the Respondent a duty to grant such recogni- tion, and the Company may not, as it did, evade by failing to make or delaying its response, committing unfair labor practices and then belatedly questioning the Union's majority status. In view of all the foregoing, I find that the Respondent's failure and refusal to recognize the Union after February 24, 1964, constituted a refusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, which have been found to constitute unfair labor practice, occurring in connection with the opera- tions of Respondent described in section 1, above, have a close, intimate, and sub- stantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent engaged in unfair labor practices , it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has unlawfully refused to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that Respondent, upon request, bargain with the Union, and in the event an under- standing is reached , embody such understanding in a signed agreement. Having found that the Respondent independently violated Section 8(a) (1) of the Act by interrogations of employees concerning their activities thereby also creat- ing the impression of surveillance , and engaging in other unlawful surveillance of employees' union activities as stated herein , it will be further recommended that the Respondent cease and desist from this and any other like or related conduct. CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of the Act. a+ "Expressions of doubt amount to nothing more than bare assertions to a belief, and in the absence of more cogent facts do not amount to a good-faith doubt of the Union's majority status." Carter Machine and Tool Co., 133 NLRB 247 ; and see N.L.R.B. v. John S. Swift Company, Inc., 302 F. 2d 342, 346 (C.A. 7). 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Since February 24, 1964, the Union has been the exclusive representative of all employees in the following appropriate unit for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of Respondent employed at its said plant exclusive of truck- drivers, drivers-salesmen, office clerical employees, and all guards, profes- sional employees, and supervisors as defined in the Act. 4. By refusing to bargain collectively with the aforesaid labor organization as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. By the commission of other independent acts of interference, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Rela- tions Act, as amended, it is recommended that S. S. Logan Packing Company, its officers, agents , successors , and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Food Store Employees Union, Local No. 347, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all Respondent's employees as set forth in the appropriate bargaining unit described above. (b) Interrogating its employees with respect to their union activities, and other such conduct creating the impression of surveillance. (c) Engaging in the surveillance of employees' union activities. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organiza- tions to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection; and to refrain from any or all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union named herein as the exclu- sive representative of all employees in the appropriate unit as so described. (b) Post at their plant or facility in Huntington, West Virginia, copies of the attached notice marked "Appendix." 22 Copies of said notice, to be furnished by the Regional Director for Region 9, shall, after being duly signed by an authorized repre- sentative of the Respondent, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of 60 days thereafter in conspicuous places, including all places where notice to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 9, in writing, within 20 days from the date of the receipt of this Decision, what steps they have taken to comply herewith 23 22 In the event that this Recommended Order 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." 23 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." AMERICAN COMPRESSED STEEL CORPORATION 431 I also recommend that, unless on or before 20 days from the date of receipt of this Decision and Recommended Order that Respondent notify the said Regional Direc- tor, in writing, that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order, requiring the Respondent to take the action aforesaid. 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 Rela- tions Act, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Food Store Employees Union, Local No. 347, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, as the exclusive representative of the employees comprising the appropriate unit described below. WE WILL NOT unlawfully interrogate employees with respect to their union activities. WE WILL NOT engage in the unlawful surveillance of employees' union activi- ties, nor by interrogations or otherwise create the impression of surveillance of union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act. WE WILL, upon request, bargain collectively with the above-named union as the exclusive bargaining representative of all employees in the following bar- gaining unit with respect to rates of pay, wages, hours of employment, and other conditions of employment. All employees of Respondent employed at its plant exclusive of truck- drivers, driver-salesmen, office clerical employees, and all guards, profes- sional employees, and supervisors as defined in the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. S. S. LOGAN PACKING 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, Room 2023 Federal Office Building, 550 Main Street, Cincinnati, Ohio, Telephone No. 381- 2200, if they have any question concerning this notice or if they have information that its provisions are being violated. American Compressed Steel Corporation and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Local 152, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Oases Not. 9-CA-2932 and 9-CA-2968. May 5, 1965 SUPPLEMENTAL DECISION AND ORDER On May 8, 1964, the National Labor Relations Board issued its Deci- sion and Order in these cases,' finding that the Respondent violated 1146 NLRB 1226. 152 NLRB No. 39.