Uniform Rental Service, Inc.

UNIFORM RENTAL SERVICE 187 WE WILL offer to Louis Prohaska , and upon application to those who went on strike October 13, 1965, immediate and full reinstatement to their former or substantially equivalent positions , without regard to their seniority and other rights and privileges previously enjoyed. WE WILL make whole Louis Prohaska and those who went on strike Octo- ber 13, 1965, for any loss of pay suffered by them by reason of the discrimina- tion practiced against them in accordance with the recommendations of the Trial Examiner's Decision. All our employees are free to become or refrain from becoming members of the above-named labor organization. WAHOO PACKING COMPANY, Dated------------------- By------------------------------------------- (Representative ) (Title) ANTHONY B. CUDAHY Dated------------------- By------------------------------------------- (Representative ) ( Title) JOHN Q. RUNYAN Dated------------------- By------------------------------------------- (Representative ) (Title) NOTE.-We will notify Louis Prohaska and all those employees who went on strike on October 13, 1965, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. 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. If employees have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri 64106 , Telephone 221-2732. Uniform Rental Service, Inc. and Local 215, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case ?5-CA-2289. October 20, 1966 DECISION AND ORDER On April 15, 1966, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. lie further found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended dismissal of the complaint with respect thereto. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision, a brief in support thereof, and a brief in sup- port of part of the Trial Examiner's Decision. The Respondent filed cross-exceptions and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has 161 NLRB No. 15. 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 herby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross-exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. 1. We agree with the Trial Examiner that Respondent's letter to the employees of about July 1, 1965, contained a threat to close the plant if the employees chose to be represented by the Union, and that the Respondent thereby violated Section 8 (a) (1) of the Act. How- ever, we do not agree with the Trial Examiner's finding that the same July 1 letter did not contain promises of benefit conditioned upon employee rejection of the Union. The alternatives placed before the employees by the letter which is set forth in the Trial Examiner's Decision, appear to us to be clear : Choosing the Union as a collective-bargaining representative would inevitably lead to the closing of the plant, the threat found by the Trial Examiner; conversely, a rejection of the Union would open the clbo'r, to a share of the profits that would only then accrue. We think that the promise conditioned upon rejection of the Union is as clearly held out to the employees as the threat of a plant closing if they vote for the Union. Such a promise is clearly a violation of Section 8(a) (1), and we so find it. 2. The Respondent contends, and the Trial Examiner found, that Joyce Bartlett was discharged on July 23, 1965, because she removed certain antiunion newspaper clippings from Respondent's bulletin board. The General Counsel maintains that the asserted reason for discharge is pretextual and was used by Respondent to rid itself of the Union's most active proponent. We agree with the General Counsel. Although Bartlett occupied a responsible position with Respondent and was an admittedly satisfactory employee prior to the removal of the clippings, she was purportedly discharged for removing the posted newspaper clippings and the decision to terminate her was made even before she was confronted with regard to that incident. Bartlett had been the prime motivating force behind the union organizational cam- paign. She was the first to contact union agents, had held organiza- tional meetings at her home which she advertised among the employ- ees, promptly signed an authorization card, and had solicited and witnessed the signing of authorization cards which she turned over to union agents. The Respondent was aware of the Union' s campaign UNIFORM RENTAL SERVICE 189 and of activity by Bartlett on the Union's behalf. It admitted hos- tility to the Union and an aversion to the Teamsters representing the Owensboro employees. In these circumstances, and upon the entire record, we are not per- suaded, as the Trial Examiner was, that Respondent discharged Bart- lett because her conduct in removing the posted material was an act of insubordination which called for a discharge lest the authority of the plant manager be jeopardized. Were the posters soliciting funds for the Red Cross, for example, we think it unlikely that the severe penalty of a discharge would have been imposed upon an experienced and satisfactory employee who removed them. But the posters were in opposition to the Union and Bartlett's removal of them was another manifestation of her prounion attitude. On this occasion, we find, the Respondent decided to rid itself of Bartlett because of her prounion attitude and aedvities, and it thereby violated Section 8(a) (3) of the Act. 3. Contrary to the Trial Examiner, we also find that the Respond- ent violated Section 8(a) (5) of the Act. As found by the Trial Exam- iner, the Union made a demand for recognition which was received by the Respondent on July 15, and the Union enjoyed majority status on that date as evidenced by valid authorization cards on its behalf, signed by at least 12 of the 23 employees in the appropriate unit.' However, the Trial Examiner, noting the absence of a finding of unfair labor practices after receipt of the Union's request for bargain- ing, concluded that the Respondent did not refuse to bargain with the Union in good faith. It is undisputed that on June 29 the Union sent both a letter to the Respondent demanding recognition and a petition to the Board seek- ing an election. The petition was received by the Board on June 30, but the letter demanding recognition was' inexplicably not received until July 15. That letter, bearing a June 29 date, claims majority status, spells out the unit, demands recognition, and requests a meet- ing to open negotiations. It then goes on as follows: At such meeting designated by you, if you have any doubts that we have not been designated by a majority of your employ- ees in the above-named unit, we shall be happy to prove our majority status by any means which may be mutually agreeable. We look forward to an early meeting with you. Very truly yours, This letter went unanswered. Hutcheson, Respondent's attorney, testified that the Respondent did not answer the letter because the ' We need not pass on the validity of certain additional cards which the General Counsel would count. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union had by that time selected the method it chose to establish its majority status.2 Unlike the Trial Examiner, we have found that the Respondent violated the Act, not only by threatening to close down the Owens- boro operation, but also by promising benefits to the employees condi- tioned upon their rejection of the Union. More pertinently, following receipt of the Union's demand, the Respondent violated the Act by discharging Joyce Bartlett. This termination of the prime mover of the union campaign was a violation of the type which best serves to undermine a union.3 In all the circumstances of this case, we find that Bartlett's discharge was an unfair labor practice inconsistent with a good-faith doubt of the Union's majority status and inconsistent with any professed desire by Respondent to rely upon a free election as the means for testing that majority status 4 We conclude that the Respondent, in bad faith, refused to bargain with the Union, on and after July 15, 1965, in vio- lation of Section 8(a) (5) of the Act. REMEDY Having found that the Respondent, Uniform Rental Service, Inc., has engaged in unfair labor practices, we shall order the Respondent to cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. However, we shall not order Bartlett's reinstatement with backpay. Shortly, before her discharge, but unknown to Respondent until after- ward, Bartlett, without authority, entered Plant Manager Potter's untended office and removed a letter from his desk. The letter was one to the employees concerning the Union, and Bartlett showed it to some of them before its release by Potter. It is unimportant, we think, that the letter was in fact later distributed to the employees. The question is simply whether or not an employee who improperly enters her employer's private office and pilfers a letter has forfeited her rights to backpay and reinstatement in the circumstances of this case. We think she has .5 CONCLUSIONS OF LAW We hereby adopt the Trial Examiner's Conclusions of Law, except for paragraph 6, and hereby make the following additional Conclu- sions of Law : 2 Based upon the Union 's petition, a consent election agreement was entered into by the Union on July 19 and by the Respondent on July 21. 9 N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). * Cf. Hammond & Irving, Incorporated, 154 NLRB 1071. 5 Offner Electronics, Inc., 134 NLRB 1064 , 1075-77. UNIFORM RENTAL SERVICE 191 "6 By discharging Joyce Bartlett on July 23, 1965, the Respond ent violated Section 8(a) (3) and (1) of the Act" "7 By refusing, since July 15, to bargain collectively in good faith with the Union as the exclusive representative of its employees in the 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" ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Uniform Rental Service, Inc, Owensboro, Kentucky, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Threatening its employees with closing the plant if they select the Union to represent them is their collective bargaining representative (b) Promising benefits to employees conditional upon their rejec tion of the Union as their collective bargaining representative (c) Discouraging membership in Local 215, International Brother- hood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, or in any other labor organization, by discriminating against employees in regard to their hire or tenure of employment (d) Refusing to bargain in good faith concerning rates of pay, wages, hours of employment, or other conditions of employment, with the above named Union as the exclusive representative of all employ ees in the approprite unit The appropriate unit is All production and maintenance employees including route drivers of Respondent employed at its Owensboro, Kentucky, establishment, excluding office clerical and professional employees, guards, and supervisors as defined in the Act (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action which the Board finds necessary to effectuate the purposes of the Act (a) Upon request, bargain collectively in good faith with the above named Union as the exclusive representative of the employees in the above described appropriate unit, with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement (b) Post at its plant in Owensboro, Kentucky, copies of the attached notice marked "Appendix " Copies of said notice, to be fur nished by the Regional Director for Region 25, after being duly signed 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Company's representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material (c) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps have been taken to comply here with APPENDIX NOTICE TO ALL EMPLOYEES Puisuant to a Decision and Order 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, upon request, bargain collectively and in good faith with Local 215, International Brotherhood of Teamsters, Chauf feurs, Warehousemen and Helpers of America , as the exclusive bargaining representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an un derstanding is reached, WE WILL embody such understanding in a signed agreement The bargaining unit is All production and maintenance employees of Respondent employed at its Owensboro, Kentucky, establishment, includ ing route drivers, but excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act WE WILL NOT threaten our employees with closing the plant if they select Local 215, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as their bar gaining representative WE WILL NOT promise our employees benefits if they reject Local 215, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, as their bargaining representative WE WILL NOT discourage membership in Local 215, Interna tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor organiz ttion, discriminating against employment or any term or condition of employment WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them by Section 7 of the National Labor Relations Act, as amended UNIFORM RENTAL SERVICE 193 All oui employees are free to become or iemaui members of the above named Union, or any other Union, and they are also free to refrain from jouung any union, except to the extent that such rights may be affected by the provisos in Section 8(a) (3) of the Act UNIFORM RENTAL SERVICE, 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 If employees have any question concerning this notice or compli ante with its provisions, they may communicate directly with the Board's Regional Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921 TRIAL EXAMINERS DECISION STATEMENT OF THE CASE This proceeding arises upon the complaint of the General Counsel Issued Sep 0 1965 i upon a charge filed July 29 by Local 215, International Brother tember 30' hood of Teamsters Chauffeurs Warehousemen and Helpers of America, herein called the Union The complaint alleges that Uniform Rental Service Inc herein called the Respondent or the Company violated Section 8(a) (1) of the Act in cer tam respects more specifically described herein violated Section 8(a)(3) of the Act by discharging Joyce Bartlett, and violated Section 8(a)(5) of the Act by refusing to bargain collectively with the Union Respondents answer to the complaint denies the commission of any unfair labor practices Disposition of Respondent's motion to dismiss the complaint is made in accordance with the findings herein. All parties were represented at the hearing which Trial Examiner W Edwin Youngblood conducted on January 4 5 and 6 1966 in Owensboro Kentucky Briefs have been received from the General Counsel and the Respondent. Upon the entire record including my evaluation of the witnesses based on the evidence and my observation of their demeanor I make the following PINpS ros or FACT L THE BUSINESS OF RESPONDENT Respondent, a Tennessee corporation with its principal office and place of buss ness in Chattanooga Tennessee is engaged in the rental and laundering of industrial uniforms at various location, including the facility involved herein at Owensboro Kentucky During the year ending September 30 Respondent purchased materials valued in excess of $50 000 directly from outside the State in which the facility was located During the same period Respondent performed services for indus trial consumers valued in excess of $50000 of which services valued in excess of $50 000 were performed In States other than the State of Tennessee Respondent admits and I find that it is engaged In commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act i Unless otherwise indicated all dates herein are in 1965 264-188--6T-vol 161-14 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Paragraph 5(a) of the complaint alleges: "On an unknown date in ' the early part of July 1965, the Employer, by its agent, W. H. Potter, Jr., threatened to discon- tinue its Owensboro operation and close the Owensboro establishment and impose other unspecified reprisals if its employees supported the Union and promised employees unspecified benefits if they rejected or repudiated the Union." This allegation is based on a letter which W. H. Potter, Jr ., Respondent's Owens- boro manager, distributed to Respondent's employees about July 12 The letter reads as follows: To all Uniform Rental Employees, I have just received word that the corrupt .Teamsters Union headed by con- victed criminal Jimmy Hoffa wants to represent our employees . I want every one to know that Hoffa and his crowd of goons will not be welcome here, and I shall do every thing I am legally entitled to do to keep them out. The only chance that we have to continue this Owensboro operation is to work together & pull it out of the hole. In my opinion, this cannot be done with the Team- sters Union. So far, this plant has lost money! Let's don't shake the boat. When we start making this plant pay its own way, you employees will get your share of the benefits. But No Union can ever make this Company do more than it can financially do, or more than it is willing'to do. I don't mind telling you all that I feel hurt because some of you seem to have more faith in the teamsters crowd than you do in me. I have done my very best to make this operation a success, and I have fought for all of you. But it can't be a success unless we all work together as a team. So remember, the future of this plant depends on you. I cannot believe more than two or three employees here really want the teamsters union . Uniform Rental Owensboro employees are better people than that! They will not want to associate with a union which has a criminal background! I know that some employees has signed union cards "just to get rid of the union organizer" or to "avoid an argument," but they really don't want the Teamsters. I ask you, for the benefit of all of us, to work against Hoffa, and keep him out of here . I can assure you that I will exercise every legal right that I have to fight this union, and those who-from this time on-continue to support it. Personal regards, W. H. Potter, Jr. In the third sentence of this letter, Potter refers to the "only chance that we have to continue the Owensboro operation is to work together " and pull the Com- pany out of the hole. It seems clear to me that Potter was here saying that if the employees and management did not work together the plant would close. Then Potter states in effect in the next sentence that they cannot work together if employees are represented by the Teamsters Union. Later in the letter Potter reiterates the necessity for employees and management to work together and states that the future of the plant depends on the employees . So reading the letter in context Potter was saying that the inevitable result if employees selected the Union to represent them would be the closing of the plant. The Board has held that when an employer engages in conduct for the purpose of implanting in employees a fear that loss of jobs would inevitably follow a union victory, such conduct is coercive and that employer has thereby violated Section 8(a)(1) of the Acts Or as the Trial Examiner put it in S.N.C. Manufacturing Co., Inc., 147 NLRB 809, 820, "the letters were no different in their effect than a threat to close the plant" which the ,Board has consistently held to be a violation of Section 8(a)(1) of the Act .4 Accordingly, I find Respondent violated ' Section 8 (a)(1) of the Act by the foregoing conduct. This date is based on the testimony 'ofArtie Roberts, infra. I note also that the com- plaint alleges this occurred in the early part of July. Moreover , from its context , the letter apparently was written about the time the Union's petition was filed which was June 30. ' Haynes Stellite Company, Division of Union Carbide Corporation , 136 NLRB 95,-97, enforcement denied 310 F.2d 844 ( C.A. 6). See' also Bernardin, Inc., 153 NLRB 939. 4 See also Cleveland Woolens, Division of Burlington Industries, Inc., 140 NLRB 87, 93. UNIFORM RENTAL SERVICE 195 This allegation also refers to Respondent promising employees unspecified bene- fits if they rejected the Union. The letter refers to employees getting their "share of the benefits" when the plant starts to pay its own way. I do not read this to con- stitute a promise of benefits conditioned on employees rejecting the Union. I shall recommend the dismissal of this part of paragraph,5(a) of the complaint. The complaint also alleges in paragraph 5(b) and (c) as follows: (b) On or about July 22, 1965, the Employer, by its agent, W. H. Potter, Jr., requested employees to publicly disclaim or disavow any interest in the Union and to support the Employer's opposition to the Union by refusing to attend Union meetings. (c) On or about July 22, 1965, and an unknown date in early July 1965, the Employer, by its agent, W. H. Potter, Jr., threatened to terminate amica- ble and friendly relations with supporters and adherents of the Union. The General Counsel stated at the hearing that these allegations rest on Potter's letter to employees dated July 22 (General Counsel's Exhibit 4-B) which reads as follows: To all Uniform Rental Employees, In order to give all of you an early opportunity to vote against the outlaw Teamsters Union, we have agreed with the National Labor Board to hold an election in the lunch area between 3 to 5 in the afternoon of Wednesday August 18th. I have Confidence that my friends (that includes a large majority of you) will work against this Union, and on election day will vote "No." While I recognize the protected legal right of anyone to go to union meet- ings, I would consider it a personal favor if our employees would not go. If the union organizers go to the meetings, and only 3 to 4 show up, they will get the message loud & clear! They will know that Uniform Rental Employ- ees want nothing to do with the Hoffa Union. I appreciate my friends W. H. Potter, Jr. True enough, the Respondent is here asking employees to vote against the Union and requesting employees not to support the Union by going to union meetings. But I do not construe the letter as requesting employees to "publicly" disclaim or disavow the Union, and I see nothing unlawful in asking them to vote against the Union or not to attend union meetings. Nor do I read the letter as threatening to terminate amicable or friendly relations with union adherents. This is not neces- sarily the converse of advising employees that Potter would consider it a personal favor if employees would not attend union meetings . I shall recommend the dis- missal of these allegations. The complaint alleges in paragraph 5(d) and (e) as follows: (d) On or about August 26, 1965, by its agent, Clifton Ward, the Employer promised to consider and grant reclassifications of jobs and raises to employ- ees if they rejected or repudiated the Union and in order to cause them to do so. (e) On or about August 26, 1965, by its agent, Clifton Ward, the Employer threatened to refuse to recognize or bargain with the Union if its employees designated it as their representative. We turn first to the testimony of witnesses for the General Counsel. Carol Keller testified that in August a group of employees went to see Clifton Ward in his office about a raise. Ward told the employees that he could not talk to them about a raise. Someone suggested' Ward come outside and talk to all the employees. Ward did so and told the employees (about 20) that "there was not going to be a union and we couldn't have one and he said he wasn't going to negotiate. They were trying to negotiate but he wasn't going to negotiate." When asked by the General Counsel if she recalled anything else being said by Ward, Keller replied: "He said he wasn't going to have no election because we didn't need one." Keller was vague about when the conversation occurred first placing the month as June then stating that she did not remember the exact date, and placing the date at some- time between June when her employment commenced and September 25, when she quit. On cross-examination, Keller recalled that the conversation occurred when Potter was on vacation and placed the date as around August 15. Keller added to her version on direct examination by agreeing that Ward told the employees that he could not give them a raise because of the situation with the Union which had 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to be settled first before be could consider giving any wage increases Keller retter ated that Ward said that he did not want a union and they were trying to nego tiate but they were not going to negotiate and that s it Carolyn Fay Hamilton testified that "We went to Mr Ward and asked for a raise and he told us he could not talk to us about a raise at this time that the Labor Board was after him and that he would be back in 2 weeks to talk to each of us individually concerning the raise and he said at the meeting at this time that this thing would be settled and he said there definitely would be no negotia Lions and there would be no union." Margaret Taylor testified that she heard Ward speak to the employees According to Taylor the employees went to Ward and asked if they could get a raise and he replied that he would not talk about a raise until the union matter was settled When asked by the General Counsel if she recalled whether Ward discussed negotiations Taylor replied I just think he said he wouldn t talk about it until the Union matter was settled On examination by the Union Taylor was asked if Ward said something about reclassifying the girls in 2 weeks and replied that she did not hear anything about that She reiterated that she did not think he said anything about not negotiating with the Union. She did recall that he said he did not want the Union and 'we would lust have to wait and see how things were going to work out Judy Williams, another witness called by the General Counsel testified about the Ward talk during her cross-examuiatwn Williams was asked what Ward said and replied Well we all went up and asked him for a raise Our supervisor went ahead of us and was talking to bun Mr Ward and he told her to wait just a minute that he would tell us all at the same time what he had to say and be said that if the situation was cleared up that be might see fit to give us a raise but at the time he couldo t possibly He said that he would return at a later date which he gave no specific time when he would be back to talk to each and every one of us as individuals to see as to what work we were doing and he was just saying that in general that he would be back to talk about it later but right now he couldn t because things were holding him back I suppose Williams stated that Ward did not use the word "negotiation " nor did she recall hearing Ward say whether or not he wanted or would have a union in the plant Jo Ann Hazelwood testified that she heard Ward talk to the employees Accord ing to Hazelwood Ward said that he could not talk to the employees about a raise "right then" because of the Union Further that he hoped to have it settled in about 2 weeks acid he would be back and talk to the employees then Also Ward said that the Union wanted to negotiate but 'we re not going to and then Haul wood went back to work When asked on direct examination if Ward said any thing about the women being reclassified Hazelwood replied that she really did not hear that After being shown her Board affidavit Hazelwood testified that Ward said that he was going to coma back in 2 weeks and talk to the employees as individuals and would classify them according to what they did. Turning now to the testimony of Respondents, witnessesm Angela Ball testified that she heard Ward talk to employees According to Ball, Ward said that he could not do anything about a raise right then the eduction had to be settled before he could do anything about a raise Further that Ward said that he would send a man around or he would come himself when the situation was over and he would talk to the employees about it Ball testified that Ward did not use the word "negotiate" or union " Ball did not recall Ward saying anything about classifying or reclassifying the girls at a later time. Fester Ward another witness called by Respondent testified that Ward said in his talk that lie could 8Wt give the employees a raise because of the situation that was going on and after the situation was over he would see what could be done Further that he would take each employee iitdttesdually or with two or three at a time but each employee would have his own say as to what raise he should get but he would we what he could do or he would send someone to talk to them if he did not come. Ester Ward, who incidentally is not related to- Clifton Ward further testified that Ward did not use the word negotiate " Clifton Ward Respondents president who ordinarily offices in Chattanooga Tennessee testified that has Company has been dealing with the Teamsters Union in Chattanooga for approximately 10 years Further that if there was corruption in the Teamsters Union at the time the Company first bargained with the Union he did not know it Ward frankly stated that he did not want the Teamsters Union in the Owensboro operation UNIFORM RENTAL SERVICE 197 When Potter the plant manager of the Owensboro operation went on vacation Ward filled in for him On Thursday August 26 Jo Ann Hazelwood and other employees came to the door of Potters office where Ward was Jo Ann acted as spokesman and wanted to know when the employees could get a raise When Ward started to answer someone said that they could not hear and suggested that he come out of the office Ward agreed to this and suggested getting all the girls together Ward told the employees that it was impossible at this time to give any raises because they were tied up with the National Labor Relations Board and they were not allowed to do or say anything He also advised the girls that the plant in Owensboro had been in operation for a year and a half and had not made any money An employee asked if there was anything the employees could do to clear up this situation Before Ward could answer that question another employee asked how the employees could get rid of the Union Ward replied that he did not know Ward further stated that after the situation was cleared up about what the Company could do about it either he or Jim Beam (in charge of several of Respondents operations including Chattanooga ) would come back and talk to the girls at that time At some point in the talk Ward told the employees that he did not want the Teamsters Union, and that they would do everything they legally could to keep them out of the Owensboro plant Ward specifically denied that the word negotiation was even mentioned Ward added that he told the girls that when they came back after the situation was cleared up they would talk to the girls individually The various versions of the Ward talk given by witnesses for the General Counsel as shown by the recital above were contradictory on major points and illogical in certain respects For example Carol Keller testified that Ward said the employees could not have a union and that he was not going to negotiate with the Union Also that he was not going to have an election because they did not need one As Respondent and Union had entered into a consent-election agreement prior to this time it seems unlikely that Ward would have told the employees that they could not have a union or that he was not going to have an election because they did not need one Carolyn Fay Hamilton s version does not refer to an elec- tion at all although she did testify that Ward said there would be no negotiations Margaret Taylor was asked if Ward discussed negotiations and replied that he just said that he would not talk about the raise until the union matter was settled Taylor did not mention any talk about an election Williams did not recall Ward rising the word 'negotiation Hazelwood stated that Ward said that they were not going to negotiate with the Union but her version mentioned nothing about an election. On the other hand Ward s version of the talk was persuasively given is sup ported by the testimony of some of the General Counsel's own witnesses and is a logical account of what happened I credit Ward s version and reject the contrary versions given by some of the General Counsels witnesses It is clear from the foregoing that the allegations in paragraph 5(d) of the complaint that Ward promised reclassifications and raises to employees if they rep ideated the Union and in paragraph 5(e) of the complaint that Ward threatened to refuse to bargain with the Union if the employees selected it as their bargaining representative have not been established I shall recommend the dismissal of these allegations Paragraph 5(f) of the complaint was stricken from the Complaint at the hear ing at the conclusion of the General Counsels case in chief B Bartleit's discharge The complaint alleges that Joyce Bartlett s discharge on July 23 was violative of Section 8(a)(3) of the Act William Potter, manager of Respondents Owensboro operation testified that he posted some antiunion newspaper clippings on Respondents bulletin board 5 On Thursday morning July 22 Potter noticed that these clippings were gone Potter inquired of the washboy Pat Durbin if he knew who had taken the clippings down and Durbin replied in the negative Potter than asked Artie Roberts who worked near the bulletin board if she knew who took the clippings down and Roberts replied that she did know and that others did too Potter repeated his question and Roberts replied that Joyce Bartlett had taken the clippings down Potter asked what Bartlett did with the clippings and Roberts replied that Bartlett took them back in the order department Roberts also said that Margaret Gilmore and Patsy McCarty had seen Bartlett take the clippings down Potter then talked 5 Three separate sheets were posted which were received in evidence as General Coun eels Exhibits 4(c) (d) and (e) 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Gilmore and Patsy McCarty who apparently verified Roberts' story. On Fri- day Potter took signed statements from Roberts, McCarty, and Gilmore relating to the incident. Potter testified that he had been advised by his attorney, William Hutcheson, to be extremely careful, and anytime he fired an employee if there was any question at all about it, Hutcheson had instructed Potter to call him and get his advice. Prior to discharging Bartlett, Potter called Attorney Hutcheson and, after talking with him, Potter asked employee Bobby Calhoun to witness the conversation with Bartlett. Potter testified that when the work stopped in the plant at 3:30 p.m. on Friday, he called Bartlett into his office, after having previously arranged to have Calhoun stand at the door and listen. Potter asked Bartlett if she was through with her work, and she said that she was. Potter asked Bartlett if she had taken "any posters off that I [he] had put on the bulletin board" and she said that she did not know what be was talking about Potter then told Bartlett that he had three signed statements swearing that she had been seen taking the posters down that he had put there. Bartlett denied knowing what he was talking about, and Potter then told her that he was sorry but he could not use her any more. Bartlett inquired what that meant and Potter told her that she was fired. Bartlett expressed the desire to see the signed statements, but Potter refused to show them to her. Bartlett then left the office, and Potter also left to go back in the plant. Bartlett apparently turned around and started back for Potter's office and.seemed upset and told Potter that she intended to see the statements. Potter refused saying that she was not going to see them unless there was some legal authority that forced him to show them to her. Potter added that they had nothing further to discuss and told Bartlett to leave. Calhoun's testimony supports Potter's version of the discharge conversation, and specifically supports Potter's testimony that he made inquiries of Bartlett regarding taking the posters down before he fired her. Bartlett's version is substantially the same as Potter's version except that she tes- tified that Potter fired her before inquiring if she had taken the posters down. Bart- lett testified that she had not told Potter the truth in the discharge conversation when she denied knowledge regarding who took the posters down, and admitted that she did in fact take the posters down, and that they were never returned to the bulletin board.6 Bartlett also admitted falsifying her age in order to obtain employ- ment with Respondent. In addition, Bartlett's testimony establishes that she first told the representative of the State Unemployment Security Division who investigated her claim for compensation that she had not taken the posters down, then admitted taking them down, but asserted that she returned them about 5 minutes later. Bart- lett also testified that she told the State representative that she took the posters down, and kept them down. The Notice of Adjusted Determination issued by the State dated September 2 (Respondent's Exhibit 2) reflects in part the following, "Claimant states that she took the -paper down, read it and put it back within 5 minutes times. (sic)" It is to be noted,that. thi& document reflects the decision by the State that Bartlett's discharge did not constitute misconduct because it was not "intentional or wilful disregard of the employer's interests. Claimant was discharged for reasons other than misconduct." Thomas O. Hampton, department interviewer for the Division of Economic Security, State of Kentucky, and the examiner who investigated the reason for Bart- lett's discharge, testified that Bartlett at first denied taking the posters down. After showing her the signed statements taken by Potter, Bartlett admitted that she had taken the posters down, but stated that she put the posters back about 5 minutes later. Hampton did not recall that Bartlett had ever thereafter told him anything different. It is clear, therefore, that Bartlett's testimony was incorrect on this point. An issue also arose at the hearing as to whether Bartlett had removed a letter to employees from Potter's desk. Bartlett denied specifically that she had removed any papers from Potter's desk. Rosetta Pearl Boulware, Janie Robertson, and Judy Wil- liams all testified that they saw a one-page letter to employees from Potter which Bartlett had in her possession, and Boulware and Williams testified that they saw Bartlett take the letter from Potter's desk. Boulware testified that Bartlett read the letter to some of the employees, and Robertson testified that she herself read the letter. The letter, these. employees identified was a copy of Potter's letter to employ- ees dated July 22, which was received in evidence as General Counsel's Exhibit 4(b). Late in the hearing Bartlett was recalled to the stand by the General Counsel ' 0 Bartlett testified she took the clippings down because Union Representative Foster had said he would like to have them. She stated, however, that he did not ask her to get them. UNIFORM RENTAL SERVICE 199 as a rebuttal witness, and admitted removing a copy of one of Potter's letters to employees from his office, and letting some of the women employees read it. It is clear from the foregoing' that Bartlett has admitted giving false testimony on the witness stand, and also that she made statements to both Potter and Hampton which did not reflect the truth. Potter's testimony is supported by that of Calhoun and Hampton, and was given in a most candid and persuasive manner. I credit Potter's testimony, and reject that of Bartlett insofar as it is at variance with Pot- ter's testimony. But this does not dispose of the issue as to whether Bartlett's dis- charge was violative of the, Act. Potter testified that he decided to discharge Bart- lett when he learned that she had taken the posters down. So the decision to fire her was made before Bartlett lied to Potter during the discharge conversation, and before Potter learned that she had taken a letter from his desk and shown it to other employees. The issue is, therefore, whether Potter's testimony that he decided to discharge Bartlett for taking the posters down was the reason for her discharge, or whether, as General Counsel contends, this was just a pretext and the real reason for her discharge was her leading part in the union activities among Respondent's employees. Approximately on July 1,7 as Potter was leaving his office, he met Artie Roberts who appeared to be upset, and Potter asked her what was wrong. Roberts stated that it was over this "union thing, they're mad at me because I am not for them." Roberts stated further that some • of the employees had been picking on her and threatening her, and that she "got mad and cussed them out." Roberts named Jo Ann' Hazelwood; Joyce' Bartlett, and Edith Moore, and said "practically all of them over in the Order Department" had threatened her. Roberts said that they were going to see that she voted the way they wanted her to, and Potter asked who spe- cifically made a threat to her, but Roberts refused to give him a specific name. Rob- erts said that she did not want to get anyone fired, she just wanted to be left alone. Potter told her that if anyone threatened her over any union to let him know and he would fire them. Potter also testified that Roberts told him that she had attended a union meeting at the home of Joyce Bartlett. It is clear from the foregoing testimony of Potter, that he believed, as indeed he candidly admitted, that ' Bartlett was involved' in the union activities. It is not clear that Potter knew that she was a ringleader' in the union activities, in fact, Potter denied even suspecting that she was. But assuming Potter did know of the full extent of Bartlett's union activities,' and the record certainly establishes that she was a leader in' the union activities , I cannot find on this record that she was dis- criminatorily discharged. Potter testified 'that he personally decided to fire Bartlett when he learned that she was the one who took the posters down. Potter testified that he discharged Bartlett for what he considered to' be an act against his authority as manager. Bartlett was at that time "more or less" in charge of the order depart- ment. Although she was not a supervisor, it was her job to make up orders and to mark them so they would be distributed properly on the routes. There were four other employees in this department and she was "more or less" in charge of them. Bartlett had had more experience than most employees. -Potter testified that he felt that it would'-jeojiardize his' authority with the other girls in the order department if Bartlett was permitted to "get away" with this conduct. In short, Potter fired her for what he considered to be insubordination. I am persuaded that Potter's dis- charge of this employee stemmed from her act in taking the posters down, and not from her union activities as such. I base this finding on the generally favorable impression I received-of Potter on the witness stand, the fact that his explanation of his reason for discharging Bartlett was a completely reasonable one, and the fact that he impressed me as being the kind Of man who would keenly resent any act that he believed was in derogation of his authority. I therefore cannot find that 7 Potter placed the time of this conversation as approximately the month of June, but did not recall the day of the month. The date July 1 is based on the testimony of Artie Roberts who testified the conversation occurred about a week or 10 days after the June 22 meeting at Bartlett's house. Roberts was a confusing and rambling witness, and made a very poor impression on me. I believe her testimony is accurate, however, as to the date the conversation occurred , and also I accept her testimony that Potter handed her a copy of his undated letter (General Counsel's Exhibit 4(a)) on this occasion Roberts testified that she was absent due to illness the day before when this letter was given out to the employees. I reject Roberts' testimony, which Potter's testimony does not support, that she told Potter on this occasion that she had seen Bartlett remove a copy of his letter to employees from his office. I believe if she had so informed Potter he would certainly have referred to this in his later discharge conversation with Bartlett. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bartlett s act of removing posters from the bulletin board was merely a pretext for her discharge For this reason I am unable to give the weight General Counsel -desires to (1) the fact that Respondent discharged Bartlett for this offense rather than imposing a less harsh penalty and (2 ) to the fact that Bartlett received no warning in advance of her discharge Nor can I attach the significance General Counsel desires to the fact that Potter took statements from witnesses which was apparently not done in earlier discharges This is understandable in the light of the instructions Potter had received from his attorney But this does not end the discus sion because it might be argued that the act of taking these posters down was in itself a form of union activity And in a sense it was these were antiunion clippings and removing them was a proumon act But I do not believe this action falls within the category of protected union activities I do not believe the Act grants employees the protected right to permanently remove literature which an employer posts on its bulletin board I believe that the right to regulate the posting of documents on the bulletin board is a management prerogative which should be interfered with -only where unlike here the evidence of discriminatory motivation is clear and compelling I therefore find that the General Counsel has failed to establish by a preponderance of evidence that Bartlett was discriminatorily discharged in violation of Section 8(a) (3) of the Act I shall recommend the dismissal of this allegation s C The alleged unlawful refusal to bargain There is no issue as to the appropriate unit, and I find that all production and maintenance employees including route drivers of Respondent employed at its ,Owensboro Kentucky establishment exclusive of office clerical and professional -employees guards and supervisors as defined in the Act constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. There is an issue however as to the Union s majority status We turn now to the evidence in this regard William Moseley financial secretary of Local 1341 of the Carpenters Union and business representative for Lower Ohio Valley Council of Carpenters testified that Joyce Bartlett approached him on June 22 According to Moseley, Bartlett asked him if there was some way the employees might be able to form a union Moseley told her that if a majority of her employees would sign cards that they would like to have an election of their own free will for a union , that it could pos- sibly set up that way Moseley checked with higher authority en his union, and was informed in effect that his union did not seek to represent employees in classifications such as these so Moseley contacted James Foster a Teamster repre- sentative and asked him if his union was interested in representing these employees Foster said that his union was interested Moseley then talked to Bartlett about hay mg a meeting and inviting employees to attend Moseley testified, go that s what the purpose of the meeting was to have the people come down and we how many were interested in signing cards to hold an election About 12 employees attended the meeting held on June 22 in Bartlett s home and Foster and Moseley were also present Foster informed the employees that he had the cards and the employees asked questions which Foster answered about how the Union would benefit them Foster told the employees "that he would have to have these cards filled out to get a majority rule for an election Foster explained that what he meant by majority was that two-thirds of the plant could sign cards a two thirds majority would rule the election and if two-thirds of the employees signed cards they would be in their legal rights to apply for an election Foster also said if they won the election they could set up a bargaining committee and neeotiate with the Company on benefits such as pay raises The card- were then passed out and the employees present signed cards and returned them to Foster Bartlett and some other girls took some cards to be passed out to other employees and then returned to Moselev who agreed to give them to Foster We turn now to Foster's version of the meeting of June 22 Foster testified that he explained who he was to the employees there and pointed out the benefits employees could gain by organizing Foster referred to the fact that his union had organized the Owensboro Linen Service and referred to various benefits derived from negotiations Foster stated that his union sought wage increases holidays and 8 In view of this finding I do not consider it necessary to reach Respondent s contention that in any event Bartlett s conduct in removing papers from Potter s desk would have caused her discharge or that such conduct renders her unfit for reinstatement UNIFORM RENTAL SERVICE 201 numerous fringe benefits during negotiations. Foster also stated that the cards were- for a two-fold purpose. They were applications for membership in the Teamsters' Union Local 215, and also the card was to be used to authorize the Union to, legally represent them. Further that he told the employees the Union had to have a good majority, "a great majority," and would not attempt it without such a major- ity because if you do not have the support of the people you are wasting their time- and your time. On cross-examination, Foster stated that it was his usual procedure to tell employees what he was going to do with the cards, and that he did so that night. Foster specifically denied, however, telling the employees that he was going to send the cards to the Labor Board and ask for an election. Foster explained that the reason he did not tell the employees the foregoing was because he had been cautioned not to tell employees whom they were trying to organize that the cards they were signing were "just for an election." It is apparent that Moseley and Foster differ in their versions of what employ- ees were told at the meeting regarding the purpose of having the cards signed. Moseley had no discernible interest in the outcome of this hearing, and impressed' me as a forthright witness with a good recollection of the events to which he testified. Foster on the other hand did have an interest in the litigation. Foster did, not impress me as being as reliable a witness as Moseley, and I note particularly his evasiveness on cross-examination when he was unsure of the direction the cross- examiner was taking. Under the circumstances, I accept the version of Union Representative Moseley, and reject the contrary version of the meeting of June 22 given by Foster and by some of the employees .9 It is clear from the record that enough cards were signed at the meeting of June 22 to vitiate the Union's majority if the cards are invalid by reason of what employees were told by Foster at the meeting. Respondent contends in its brief that the cards were invalid for this reason. Although I have found above, upon the basis of Moseley's credited testimony, that the employees were told that the purpose of signing the cards was to get an election, this is insufficient to invalidate the cards. As the Board said in Shelby Manufacturing Company, 155 NLRB 464, "The Board has held on a number of occasions that authorization cards are reli- able evidence of majority status where the solicitor of the cards did not represent- that they were to be used only to secure an election. Here, while several of the- employees may have been told that the cards were to be used to secure an election,- the Trial Examiner did not find any credible evidence to establish that any employee who signed the card had been told by the Union that the only purpose' of the cards was to obtain an election." Similarly, in the case at bar there is no, credible evidence establishing that employees were told that the only purpose was to obtain an election. In addition, and important in evaluating this question, the cards are clearly a designation of the Union to represent the employees. The card; reads as follows: ,e^ ^^^y No ^y^ 1l LICATI(N FOR MEMBERSHIP 6AUTHOR1,,Z'ATION FOR REPRESENTATION " I -11C NI E S U C i 1 kJN LO AL No 215 216 N Fulton Avenue - phone a25-5169 Evanw Ill, Ind-nn, 47710 l;/ my non tree I(', I h rehy requnf-1_0_ in h the ahnve nm•d -1- end " 1. au ' bnrl,. lo • Inlon, 11, uaer', V rep'e ref ullces t6\ to, es a toile L ive har9e n,np soon, ' .11 matte" pe" a n,np 'o ' ale, of pay "eyes ho,.rs n, ploy,, not, n the. c nd'I,ons and Iran , o rnp n• er n,t union 1 epano In be brood by end w ,II c o mply wnlh all 'hr. laws rule, , regal ,I cons end c act,'cf It be ^p undnr ,toM, Ihnl In the -11 M, appi'cnllon and nu II, -I.1 - ha , been siyiicd a on9 the -, ryy°llallnn of m 'viioro employee, by tho unity, then 1 ag,ea ,het ' ha,e n , 'ght to r vok, , cancel t w,1hdaaw a n dur'ng the wgan , aallon elicit, of the union, tuch porlod h-- net to aecoed one year from tha date he erf^c O0 LiGATtOH 1, of my own free 'a,lt end ac cord, in the pretence st the ,. w Ile, ,e,, and o acrad honor , I do now ewonsnt to keep the affeua of Chia Union stn, 'fly pnv e c aulhr,i ae, i to r veal t`,0µ m ..ill abide by It, icie r, both general and local, and -ill s_sa all honorable mean, to procure amploymant f;v brother •nembn,s I11 me ery po,,,ble effort to attend the meet ine , nil wdi pay at due , and a + rl, levied In accord rte „Itw,h the iternational Brotherhood of Taunter, Chaul-eu,,, Nvc^ousemen and renlpe •,rr laws I h,lher acre , that ahnllid ' t be ha r m,'., d„c co rred hit I have nude n a ml, twain-.-,r at tom ai111c01rsna, em m mbershlp that 1 be debarred fro m all te-•ahls o ordcd by eh„ L- Ir'li be Oh-eh' to aut ^rr,ty, o,d.,ty In ine actry, , .,Pad fu' In words a, d a che 'Itab•o I„ lu-i amass or I— brolner m . S and roll: nary, f. ntlf-,nol've, aroerg a b'ot her, or ine hum 11-91d I f I my p=ace to ptea" t It r foll ae'cg ' arxa to ' ^ It Vnlr and he-, c ant to subordinate it. tnt,ro,ta 10 tho.a of cr.,. other arganliaatlon •of which I am am, m nay hareaft .r bacon,, a mamba, To .11 shill 1 pledge my ,c•,d ward end hcnoe--to Cinema and keep the sa au long to I romsin- a mo,nbw 4 •h0 1hternatI-at Brothorheod of Teamster , Chauffcr ,J.vaniho,xaman and HClper, 0 For example Rosa Kathleen Estes Roberts and Edith Moore both testified in effect that- Foster said nothing about an election on this occasion. 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, I note that the question of how the Union would benefit employees was gone into at this meeting. I therefore reject Respondent's contention that these cards were invalid because of what the employees were told as to their purpose. In accordance with the stipulation of the parties, I find that there were 23 employ- ees in the appropriate unit on July 15, the date Respondent received the Union's letter demanding recognition. The evidence establishes the validity of the cards of the following persons who were employees of Respondent on July 15: Sherman Cook, Rhinerson, Earl Cook, Gilmore, Robertson, G. Keller, C. Keller, Paul Roberts, Williams. McCarty, Bartlett, and Hazelwood. The cards, as set forth above, reflect in large bold print at the top: "Application for Membership" and "Authori- zation for Representation," and just below that in slightly less bold print appears the Union's name "Teamsters Union Local No. 215." I find and conclude from the tes- timony of the foregoing named employees (except for Earl Cook) that they volun- tarily signed their cards, and either read them or at least read the bold print at the top. Although Earl Cook testified that he signed a card, he did not recall whether he read it or not. Cook did testify, however, that his normal practice is to read what he signs. I find and conclude therefore that the cards of the 12 employees named above validly designated the Union to represent these employees, and that the Union repre- sented a majority of the employees in the appropriate unit on July 15.10 We turn now to the question of whether Respondent's refusal to recognize the Union was in bad faith. Foster credibly testified that following the meeting of June 22, and as soon as sufficient additional cards were turned in, he went to his office on June 29 and issued instructions to send the "warning letter" and also the petition to the Labor Board. Both the letter and the petition were prepared that day and Foster's information was that they were both mailed that day. The petition bears the date of filing of June 30. The demand letter was not received by Respondent until July 15. The letter reads as follows: June 29, 1965 Mr. William H. Potter Uniform Rental Service, Inc. 1216 Wing Avenue Owensboro, Kentucky Dear Mr. Potter: This is to advise you that the Chauffeurs Teamsters, Local #215 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, has been duly designated as collective bargaining rep- resentatives by majority of your employees in a collective bargaining unit com- posed as follows: All production, maintenance and route drives at your Owensboro, Ken- tucky establishment, excluding all other employees, clerical, professional employees and all supervisors as defined in the Act. We hereby demand to be recognized as the collective bargaining agents for the employees in the above named unit and we request that you now desig- nate a time and place within the next few days when we can meet to open negotiations. At such meeting designated by you, if you have any doubts that we have not been designated by a majority of your employees in the above-named unit, we shall be happy to prove our majority status by any means which may be mutu- ally agreeable. We look forward to an early meeting with you. Very truly yours, C. K. ARDEN, President Attorney Hutcheson took the witness stand and testified that Respondent did not answer the Union's letter based on his decision not to do so. Hutcheson testified that the reason he made this decision was because the Union stated in its letter: If you have any doubts that we have not been designated by a majority of your employees in the above named unit, we shall be happy to prove our majority status by any means which may be mutually agreeable. Hutcheson testified that at the time the letter was received by Respondent, the Union had selected the course it chose to follow in establishing its majority by filing a petition. Respondent therefore did not answer the letter. io In view of this finding, I do not reach the question of the validity of the cards of Bishop, Small , Boulware, Taylor, and Artie Roberts. UNIFORM RENTAL SERVICE 203 The record reflects that Attorney Berns signed a consent-election agreement on behalf of the Union on July 19, and that Attorney Hutcheson signed a consent- election agreement on July 21 on behalf of the Respondent. (General Cousel's Exhibit 2(b).) As noted above, the charge was filed on July 29, the complaint issued on September 30, and on October 4 the Regional Director dismissed the Union's petition becasue of the issuance of the complaint. (General Counsel's Exhibit 2(c).) The issue is whether Respondent acted in bad faith in not recognizing and bargain- ing with the Union. In John P. Serpa, Inc., 155 NLRB 99, the Board reiterated the rule that the General Counsel has the burden of proving that the Employer has refused recognition in bad faith, and that "this is usually based on evidence indicat- ing that Respondent has completely rejected the collective-bargaining principle or seeks merely to gain time within which to undermine the Union and dissipate its majority." The evidence does not establish any unfair labor practices committed after the Union's letter was received by Respondent on July 15. Therefore I cannot find that Respondent refused recognition in order to gain time within which to under- mine the Union. Nor do I find that Respondent's conduct herein demonstrates a com- plete rejection of the collective-bargaining principle. The reason given by Hutcheson for Respondent's action in not recognizing the Union cannot be said to be unrea- sonable. In fact, it seems completely reasonable for Respondent to conclude in the circumstances in this case that the Union had chosen to prove its majority by the election route and therefore that no answer was necessary. And it is significant in evaluating Respondent's motives to note that Respondent did agree to a consent election. The only basis for concluding that Respondent acted in bad faith is Pot- ter's letter to employees which was distributed to employees on about July 1. (Gen- eral Counsel's Exhibit 4(a).) I have found above that Respondent violated Section 8 (a) (1) of the Act by this letter because it placed employees in fear of the loss of their jobs if the Union was selected as collective-bargaining representative. But I do not believe that this conduct demonstrates a complete rejection of the collective- bargaining process. Respondent did not state or even suggest in this letter that it would refuse to bargain with the Union. Nor do I believe this single instance of unlawful conduct warrants the inference that Respondent would do so. Accordingly, on the record as a whole, I find and conclude that the General Counsel has not sus- tained his burden of proving that Respondent's refusal to recognize and bargain with the Union was in bad faith, and I shall recommend the dismissal of this allegation.ii IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Respondent's activities found to be unfair labor practices in section III, above, occurring in connection with the operations of Respondent 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 obstruct- ing commerce and the free flow of commerce. V. THE REMEDY In view of my finding that the Respondent has interfered with, restrained, and coerced employees in the exercise of their rights under the Act, I shall recommend that it cease and desist therefrom and post an appropriate notice. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. All production and maintenance employees including route drivers employer at Respondent's Owensboro, Kentucky, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 4. The Union at all times material herein has been the exclusive representative of all employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. u Cf Ben Duthier, Inc., 157 NLRB 69; Strydel Incorporated, 156 NLRB 1185; Ham- mond & Irving, Incorporated, 154 NLRB 1071. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. By interfering with , restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is. engaging in unfair labor practices affecting commerce within the meaning of Sec- tions 8 (a)(1) and 2(6) and (7) of the Act. 6. Respondent has not violated Sections 8(a)(3) or 8 (a)(5) of the Act, nor has Respondent violated the Act in any way other than as found above. [Recommended Order omitted from publication.] Dee's of New Jersey, Inc. and Retail Clerks International Asso- ciation, Local 1360, AFL-CIO. Cases 4-CA-3790 and 4-RC- 6528. October 20, 1966 DECISION AND ORDER On June 7, 1966, Trial Examiner John F. Funke issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not, engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, the Gen- eral Counsel, Respondent, and the Charging Party filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Zagoria]. 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 briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and In adopting the Trial Examiner's findings herein , we are not to be considered. as. approving the Trial Examiner's extensive commentary on precedents he considered ap- plicable to the 8 (a) (5) aspects of the case . ( See the Trial Examiner 's Decision , infra.) We also correct certain statements in the Trial Examiner 's report which are not sup- ported by the record . However , these corections do not affect our agreement with his.: ultimate findings herein : ( a) The Trial Examiner stated that employee Ranagan at tempted to get employee Lind to sign a card on September 19, 1965, whereas the testimony revealed that such attempt took place on September 9, 1965; (b) the Trial Examiner stated that Ranagan's card was dated July 7, 1965 , but that Ranagan testified' that he signed his card the last week in August, whereas the record reveals that his card' Is dated 7/18/65 and lie testified that he signed his card on August 18 , 1965; (c) the further finding that Respondent 's secretary-treasurer , David Dion , admitted on cross- examination concerning the missing television set, that they had called in a part-time garden supply salesman , Leon Henderson , who admitted that he loaned the television set to the cook at the Varsity Drug Store to watch a ball game, whereas the record shows that- this was the testimony of employee Leon Brown who was informed of this incident by, President Lewis Dion and Leon Henderson. 161 NLRB No. 18.