American Cable Systems, Inc.

332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Cable Systems, Inc. and Communications Workers of America, AFL-CIO. Cases 26-CA-2229 and 26-RC-2x/.7. Octo- ber 24,1966 DECISION AND ORDER On May 18, 1966, Trial Examiner John G. Gregg 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 other unfair labor practices alleged in the complaint, and recommended that such allegations be dismissed. He found further that the Respondent had interfered with an election held on Octo- ber 15, 1965, and recommended that it be set aside and that a new election be held. Thereafter, the Respondent, the Charging Party, and the General Counsel filed exceptions to the Trial Examiner's 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 this proceeding to a three- member panel [Chairman McCulloch and Members Brown and Zagori a] . The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and finds merit in the exceptions of the Charging Party. Accordingly, the Board adopts the Trial Examiner's findings,l conclusions, and recommendations only to the extent they are con- sistent herewith. We find, in agreement with the Trial Examiner, that the Respond- ent, immediately after receiving the Union's letter demanding recog- nition, interrogated employees about their union activities and discharged two employees, Aclin and Goldbar, because they had signed union authorization cards, in violation of Section 8(a) (1) and (3) of the Act. We also find, in agreement with the Trial Exam- iner, that the Respondent, subsequent to the Ljnioin's tiling cf a representation petition in Case 26-RC-2447, by its interrogations, 'The Respondent operates a community antenna television system and during 1905 pur- chased and received from out of State goods, materials , and services valued in excess of $100,000 The parties stipulated, and we find, that foi the pun Poses of these pioceedrng,, the Respondent s operations satisfy the B'oard's coin munications system staudai ds for a-ert,on of jurisdiction General Telephone and Electronics Goinninnrcutions Inc, 100 NLRB 1192. 161 NLRB No. 28. AMERICAN CABLE SYSTEMS, INC. 333 threats, and promises of benefit, interfered with, restrained, and coerced its employees in violation of Section 8(a) (1) of the Act. We also agree with the Trial Examiner that this post-petition con- duct interfered with the election and that the election should be set aside. However, in disagreement with the Trial Examiner, we find that the Respondent's refusal to bargain with the Union was in bad faith and therefore in violation of Section 8(a) (5) of the Act. We initially find, in agreement with the Trial Examiner, that on July 13, the date that the Respondent received the Union's demand for recognition, the Union had in its possession signed cards from three of the four employees in an appropriate bargaining unit,2 and it therefore was majority representative of these employees. The Respondent excepted to this finding of the Trial Examiner and contends that the union authorization cards signed by two of these employees, Aclin and Dodson, were tainted because both of these cards were solicited by Cook, the signer of the third card, whom the employees considered to be a supervisor.3 We agree with the Trial Examiner that the cards of Aclin and Dodson were not tainted for this reason, since an examination of the circumstances surrounding the solicitation of cards by Cook shows that neither Aclin nor Dodson was coerced in signing an authorization card because he felt Cook was a supervisor. We also agree with the Trial Examiner that Aclin and Dodson's cards were not tainted because Cook misinformed them as to the purpose of the cards. The Board has held on a number of occasions that authorization cards designating the union as bargaining agent do not lose their force as valid designations because the signers are told that the cards will be used to obtain an election absent a repre- sentation that the cards are to be used only to secure an election.' The cards which were used by the Union in this case clearly state on their face that the signer designates the Union as his "collective bargaining representative." In bold letters at the bottom of the face of the card are the words "REPRESENTATION AUTHORIZA- TION." No other purpose for the cards is shown on either the face or the back of the cards. Cook testified that he told both Aclin and Dodson that the cards were to be used both for having the Union 2 In Case 26-RC-2447 , the Acting Regional Director found that the appropriate unit is : All production and maintenance employees of American Cable Systems , Inc., at its opera- tions at West Point , Okolona , and Tupelo , Mississippi ; excluding office clerical employees, professional employees , guards, and supervisors as defined in the Act. On October 6, 1965, the Board denied the Respondent's request for review of this decision and at the hearing in this proceeding the parties agreed that they were bound by the Acting Regional Direc- tor's unit findings. 3 In the representation case , the Acting Regional Director found that Cook was not a supervisor and that he should be included in the unit 4 The Shelby Manufacturing Company, 155 NLRB 464. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represent them and for having an election, and that he gave both of them union literature which ;he, told them to read prior to .their signing of the cards. The Trial Examiner neither credited nor dis- credited this testimony by Cook. Dodson did not testify that.he was told that the "only" purpose of the card was to have an election. On direct examination, Aclin also did not testify that he was told that. the "only" purpose was for an election. He testified only that Cook did not mention to him, that the purpose of the card was to have the Union represent him and that Cook "gave me the card and some more information-about the Union, an& told me to take it home and read it over. If I wanted to sign it I could sign it, but I didn't have to if I didn't want to. He said the card was for the purpose of getting a Union election, and told me what the election would be for, for the Union . . . ." The Trial Examiner's statement that Aclin testified that "lie was told the only purpose of signing the card was to get an election," was apparently based solely on Aclin's testimony on cross-examination. This consisted of affirmative responses by Aclin to several questions propounded by the Respondent's counsel as to whether he<was "told that.at.the time [he] signed the card that it was to be used for the purpose of getting an election" and whether he was "told that was the only purpose for which the card was to be used." Also, in a sworn prehearing statement, Aclin stated that : "When I signed the union card on July 1, 1965, I understood it was for the purpose of having Communication Workers of America Union to represent me in collective bargaining." In view of these circumstances, we do not,deem that portion of Aclin's testimony, consisting of "yes" answers to leading questions, as sufficient by itself to nullify the clear statement of the purpose and effect of the card as shown on its face.5 We therefore agree with the Trial Examiner that the record does not establish that either Dodson or Aclin at the time they signed the cards had been,•infgrmed thatthe only purpose for which these cards would be used would be to obtain an election or that they acted in reliance upon any misrepresentation to that effect. We accordingly find that the Union was representative of a majority of employees in the appropriate unit on July 13, 1965, the date the Respondent received its initial demand for recognition s c See N.L.R.B. v. Cumberland Shoe Corporation, 351 F.2d 917, 919 (C.A. 6), enfg. 144 NLRB 1268, as amended by an unreported Order ; Bryant Chucking Grinder Company, 160 NLRB 1526. e See The Shelby Manufacturing Company, supra, and the cases cited therein at footnote 4 of the Board's Decision and Order. In view of our findings herein, we deem it unnecessary to determine whether, as found by the Trial -Examiner, Taylor's card, which was signed-on July 20, was valid. For the reasons stated in Dan Howard Mfg. Co. and Dan Howard Sportswear, Inc., 158 NLRB 805, footnote 5, Member Brown would rely upon the employees ' signatures to cards designating the Union as their bargaining agent , to establish the majority status of the Union at the time it requested recognition , as the best evidence of employees' intent. AMERICAN CABLE SYSTEMS, INC. 335 The Trial Examiner found that the Respondent's refusal to bar- gain • was- -,not- in i -badl' faith,- and therefore-, did ,not violate; Section 8 (a) (5). We disagree. We have already found that the Respondent engaged in unfair labor practices, violative of Section 8(a) (1) and ,(3) of the Act. These unfair labor practices began immediately upon the Respondent's receipt of the Union's demand for recognition on July 13, 1965, when Haley, the Respondent's manager, asked three employees if they "were a part of it" and discharged the two employees who admitted that they' had signed union cards. Haley was absent--frommthe.area for a period'of about,2•weeks, starting July 14, during which period the Union filed a petition for an election. Between the time of Haley's return and the October 15, 1965, election, Haley, in conversations with at least five employees, including all four of the employees who were in the unit found appropriate as of the date of the Union's demand, among other things, questioned some as to who started the union activity and what employees thought of the Union; suggested to some that the employees should form a "company.union'.:;-promised future benefits to another and suggested to some that, if the Union were selected, the' Respondent would with= hold benefits they would have otherwise received. Thus, the record show that, beginning immediately with the receipt of the Union's demand for recognition, the Respondent, through its manager, Haley, committed flagrant and serious unfair labor practices affecting its employees.' The foregoing conduct convinces us that the Respondent's conduct evidenced its rejection of the collective-bargaining principle and its desire to destroy the Union's majority status. We, accordingly, find that the Respondent's refusal to bargain with the Union was not in good faith and therefore violated Section 8(a) (5).8 Accordingly, and as we have already found that the Union repre- sented a majority of the Respondent's employees in an appropriate unit,.we.fi'iid;that,the,Responde}it-violated Section 8(a),(5) and (1) of the Act by refusing to bargain with the Union. Although we agree with the Trial Examiner's finding that during the critical preelection period the Respondent engaged in a course of conduct which interfered with the employees' freedom of choice in the selection of a bargaining representative, and his recommenda- tion based thereon that the election of October 15, 1965, be set aside, in view of our holding that the Respondent violated Section 8(a) (5) and our order requiring the Respondent to bargain with the Union,9 7 Cf. Hammond A Irving , Incorporated, 154 NLRB 1071. 8 The Shelby Manufacturing Company, supra, and the cases cited therein in footnote 6 of the Board's Decision and Order ;- Borden Cabinet Corporation , 159 NLRB 1373. Cf. Ben Duthier, Inc., 157 NLRB 69 ; John P. Serpa, Inc , 155 NLRB 99. 0 Bernet Foam Products Co., Inc., 146 NLRB 1277 ; Irving Aar Chute Co., 149 NLRB 627, enfd. 850 F.2d 176 (C.A. 2). 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD we do not adopt the Trial Examiner's further recommendation that a new election be directed. Instead, as no current question concerning representation exists, we shall dismiss the petition in Case 26-RC- 2447 and vacate all proceedings held in connection therewith io [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 1(c) : 111(c) Refusing to bargain collectively with Communications Workers of America, AFL-CIO, as the exclusive representative of its employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is : ["All production and maintenance employees at American Cable Systems, Inc., operations at West Point, Okolona, and Tupelo, Mis- sissippi; excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act." [2. Add the following as paragraph 2(a) and reletter the present paragraph 2(a) and all subsequent paragraphs: ["(a) Upon request, bargain collectively with Communications Workers of America, AFL-CIO, as the exclusive representative of employees at the Respondent's operations in West Point, Okolona, and Tupelo, Mississippi, in the above-described appropriate unit, and embody any understanding reached in a signed contract." [3. Delete the third paragraph of the notice and add the following : [WE WILL bargain collectively, upon request, with Communi- cations Workers of America, AFL-CIO, as the exclusive bar- gaining representative of all our employees in the appropriate unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody such understanding in a signed contract. The appropriate unit is: [All production and maintenance employees at American Cable Systems, Inc., operations at West Point, Okolona, and Tupelo, Mississippi; excluding office clerical employees, pro- fessional employees, guards, 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.] [The Board dismissed the petition in Case 26-RC-2447 and vacated all proceedings held in connection therewith.] IU S.N.C. Manufactur ing Company, hte, 147 NLRB 809, enfd. 352 F.2d 361 (C.A.D.C.), cert. denied 382 U.S. 902. AMERICAN CABLE SYSTEMS, INC. 337 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed October 21, 1965, by the Communications Workers of America, AFL-CIO, amended December 3, 1965; and a Supplemental Decision on Challenged Ballots and Objections dated November 19, 1965, issued by the Regional Director for Region 26 directing a hearing to resolve issues raised by the Union's objections 1, 2, and 3; the General Counsel, through the Regional Director for the Region 26 issued an order consolidating cases, complaint and notice of hear- ing on December 6, 1965, consolidating Cases 26-PC-2447 and 26-CA-2229 for hearing; alleging that the Respondent , American Cable Systems has engaged in conduct which violated Section 8(a)(1), (3), and (5) of the Act. Thereafter a hearing was held before Trial Examiner John G. Gregg at Tupelo, Mississippi, on February 8, 1966. All parties were represented by counsel. The Respondent filed a brief. Based upon the entire record in this case , my observation of the witnesses and their demeanor, and careful consideration of the Respondent's brief, I make the following: FINDINGS AND CONCLUSIONS 1. THE PERTINENT COMMERCE FACTS During the year 1964 the Respondent, in the course and conduct of its business operations derived gross revenue in excess of $ 100,000 ; purchased and received at its Mississippi locations television signals originating outside the State of Mississippi in the amount of approximately $ 19,800 ; purchased and received at its Mississippi locations goods and materials in an amount valued between $35,000 and $40,000 directly from points outside the State of Mississippi. During the year 1965 the Respondent, in the course and conduct of its business operations, purchased and received at its Mississippi location goods, materials, and services valued in excess of $50,000 directly from points located outside the State of Mississippi ; purchased and received at its Mississippi location goods, materials, and services valued in excess of $50,000 from other enterprises or persons located in the State of Missis- sippi. The Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein , a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The background The Respondent is engaged in the erection of master antennas which pick up television signals, amplify them, and conduct them through overhead coaxial cables. The service is sold to subscribers in the Okolona, West Point, and Tupelo areas. Okolona is 17 miles south of Tupelo, West Point is 50 miles south of Tupelo on the same route . At the times material herein the Respondent employed approxi- mately eight employees of whom five were service personnel. These service per- sonnel frequently go from one location to another as requited by maintenance and operations. They were based at Tupelo with the exception of Taylor who was based at West Point. On July 12, 1965, the Union wrote to the Respondent requesting recognition as the exclusive bargaining agent for the Respondent's pioduction and maintenance employees in the Tupelo, Mississippi, area stating that it was prepared to prove that a majority of these employees had designated the Union as their representa- tive for collective bargaining, requesting further that the Respondent meet and bargain with the Union and requesting a reply by July 16, 1965. At that time Respondent's employees' Kenneth Aclin, Fred Cook, Rubin Goldbar, and Jimmy Dodson had signed union cards, and later on July 20, 1965, Donnie Taylor signed a card. On receipt of the letter on July 13 the Respondent's man- ager, Frank G. Haley, summoned Goldbar and Aclin, asked whether they "were a part of it" and when told they were, gave them 2 weeks' notice. He later queried 264-188-67-vol. 161-23 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee Dodson who stated that he had not signed a card. Haley then sought legal counsel, following which he promptly advised Aclin and Goldbar that he rescinded the 2 weeks' notice, that he had made a mistake, that everything "was as it was and that he would continue to work them." Haley then wrote and advised the Union that he had received their letter but that he would be out of town until the end of the month at which time he would contact them. Haley left the follow- ing day for a convention in Denver which he had planned for in March. He returned on July 27. In the meantime, the Union on July 16 filed a petition to be certified as repre- sentative of all the maintenance and production employees at Tupelo and West Point for the purposes of collective bargaining. A hearing was held on August 2, 1965, soon after Haley's return, and on September 15 the Regional Director issued a decision and direction of election. In this Decision the unit found appropriate was one including the production and maintenance employees at three of the Respondent's locations: Tupelo, West Point, and Okolona. The election was held on October 15, and resulted in a 2-1 vote against the Union. Three of the six ballots cast were challenged. The Union filed objections to the election, then on October 21 the Union filed unfair labor charges. On November 19 the Regional Director issued a Decision on the challenged ballots and objections in which he sustained the challenges, dismissed objection 4 because it related to incidents occurring prior to the filing of the petition and found that the three remaining objections raised the same issues contained in the unfair labor charges. On Decem- ber 6, 1965, by order consolidating cases, complaint and notice of hearing the unfair labor practice case was consolidated with the objections to the election for hearing before a trial examiner. B. The discriminatory discharges The General Counsel alleges that on or about July 13 the Respondent terminated its employees Aclin, Dodson, and Goldbar because they joined or assisted the Union or engaged in other union or concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection. Haley, the Respondent's manager, testified that after receiving the demand letter from the Union on July 13 he was in a state of shock. He could not conceive that two of his men whom he regarded as supervisors, on the management side of the team, had signed cards. He was not sure what production and maintenance employees meant. He asked Aclin and Goldbar if they were a part of it, and both of them said they were, that they had signed cards. He gave them both 2 weeks' notice. The Respondent concedes the improper notice to Aclin, but alleges that Goldbar is a supervisor and that Dodson was not terminated. I find no evidence of record on which to base a finding that Dodson was terminated hence recommend dis- missal of that portion of the complaint alleging his dismissal. I find that Aclin was discriminatorily terminated because of his union activities which were protected by the Act. I do not conclude as the Respondent avers, that this was not a termi- nation, or that in view of the prompt rescission by the Respondent it was cured. In subsequent testimony by Haley he freely refers to his action as a discharge., Nor do I hold with the Respondent that with respect to Goldbar there can be no discriminatory discharge in view of his alleged status as a supervisor. Although Goldbar was later excluded from the unit because he was being groomed for a supervisory position, it is uncontradicted that at the time of the action under con- sideration, he was in fact working in the field with the other servicemen for the purpose of training in various phases of the work and had not as yet achieved the status of supervisor. In view of this I find that at the time of the termination he was an employee whose union or other concerted activities were protected by the Act. The Yale & Towne Manufacturing Company, 135 NLRB 926. I find therefore that the Respondent did discriminatorily terminate Aclin and Goldbar because of their protected union activity in violation of Section 8(a)(3) and (1) of the Act. I find that Dodson was not improperly discharged and recom- mend dismissal of that portion of the complaint. C. Interference, restraint, and coercion The complaint, as amended, alleges that the Respondent, by its supervisor and agent, Frank Haley, on or about July 13, July 16, late July, August 2, early 1 Haley testified that he told his attorney "that I had fired two of my men . . . ." AMERICAN CABLE SYSTEMS, INC. 339 August, and during late August or early September, at its Tupelo, Mississippi, location interrogated its employees concerning union sympathies, activities, and desires of its • employees; that the Respondent by its supervisor and agent, Frank Haley, on or about mid-August 1965, in a truck on a Tupelo street, advised its employee that he had foregone his chance for advancement by participation in the union or concerted activities; that the Respondent, by Haley, on or about Septem- ber 15, 1965, threatened employees with more stringent and different working conditions if the Union were selected to represent them; and impressed on employ- ees the futility of their selecting the Union as their bargaining representative by warning them that they would not receive any benefits by selecting the Union. The Respondent concedes that there was questioning of employees on July 13. The Respondent contends that the questioning at that time was proper by way of the Respondent's verifying the Union's claimed majority. There is no question but that Haley queried Aclin, Goldbar, and Dodson concerning their connection with the union demand of July 13. I am convinced that this was not done by way of determining whether the Union did in fact have a majority or for a legitimate pur- pose nor was it accomplished in such fashion as to avoid a coercive quality. John- nie's Poultry Co., 146 NLRB 770. From Haley's prompt reaction of dealing out 2 weeks' notice and from additional pertinent testimony of record it is reasonable to find and I do find that the questioning was for the purpose of identifying those who were to be punished because of their union activity. Turning to Haley's actions subsequent to the filing of the petition on July 16, James Dodson testified to a conversation he had with Haley sometime after Haley's return from Denver when Haley said to Dodson that he had done all he could for Mr. Cook, and anything that Cook got from them the Union would have to give to him. Dodson also testified that Haley asked him who among the shopmen had started the union activity, this occurring from 2 weeks to a month following Haley's return from Denver. I credit this testimony by Dodson. Goldbar testified that several weeks after Haley returned from Denver and dur- ing a conversation in the shop Haley asked who started the Union or who was behind it and Goldbar said Freddie Cook; that in September, Haley queried him as to what the boys thought about the Union. I credit this testimony by Goldbar. Haley testified that after his return from Denver on July 27 he had various con- versations with his employees about the Union, that on possibly two occasions within the 2 weeks following his return he expressed a desire to know what he had done, "or what had caused this, why they wanted it." Haley also testified that he told several employees, about the first day of August, that the only reason the Union wanted in was so "the fellows would pay dues and pay the salaries of the union officials." Haley testified further that around August 1 he stated to some of the employees, "Why don't you five, or you men, form your own organization. I said company union. I meant for them, the employees to form their-Union." Q. When you say Company you mean a unit confined to your company? A. Yes. According to Haley, in a conversation with Taylor after the filing of the petition and prior to the election, he told Taylor that he understood that Taylor wanted to make more money, but that since it was not the normal time for Haley to give raises it might be misunderstood. Implicit in this statement is a promise of future benefit. Haley testified that in a heated conversation with Cook, he told Cook "I had gotten him everything he had gotten, and from now on anything he got from the Company would be because the Union got it for him, that I had done as much as I could." Haley sometime in August told some of the employees that regard- less of whether the Union got in or not working rules and job classifications would have to be made up. He stated that if the Union got in they would require job classifications. Haley also stated to an employee sometime in September that he thought the employees would have more to gain in the future without a union. While the Respondent attempted to explain away and dilute the effect of much of Haley's statements I found more of the explanations considerably contrived and of dubious persuasion . For instance in explaining Haley's remarks relative to the formation of a company union, the Respondent made much of the point' that Haley's words were couched in terms of what could have been done rather than as a proposal of what could and should be done. While recognizing the difference I do.not find that it dilutes the effect of the statement on the Respondent's employ- ees. Similarly, in explaining the statement that the employees would have more to 340 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD gain in the future without a union, the Respondent attempted to show that what was meant was that the Company would lose flexibility in the use and development of personnel should the Union be selected. I find this statement however to transmit the thought that if the Union were selected the employees would not receive future benefits otherwise obtainable if the Union were not selected. In explaining the meaning of his conversation with employees at various times in August as to "why they wanted the Union, what he had done to them that made them feel the working conditions were so bad that they needed someone to straighten it out other than themselves," Harley characterized these conversations as "thinking out loud." Their effect is nonetheless coercive. Cook testified that a few days after Haley returned from Denver, Haley stated to the effect that Esau sold his birthright for a bowl of soup and that was what the men did when they signed the union cards. Haley asked Cook why the men wanted the Union to represent them. Cook testified further that on an occasion after Haley's return from Denver, Haley mentioned that the union situation had upset his plans for the men and the Company. Cook stated that Haley had told him that he wanted Cook to help train new men that came into the Company because of Cook's knowledge of the system, that Haley discussed the possibility of Cook's managing a system at some other location. Cook stated that Haley said "due to the fact that since we had started the Union in the Company, that it had messed up plans for him and the Company." Cook indicated on cross-examination that this was not in his early affidavit given to General Counsel because he had not remembered it. While Cook's testimony appeared at times to be confused and contradictory, in view of my observation of Cook's demeanor while so testifying I am inclined to credit this portion of his testimony. On balance I find in the state- ments of Haley an unmistakable threat that if the Union were selected the Respond- ent would change its manner of dealing with the employees to their detriment by way of more stringent and difficult working conditions: that the selection of the Union would be futile as it would result in their failure to achieve benefits. When statements such as were made herein are made by one like Haley, clearly identified as company management and "who has the power to change prophecies into reali- ties" whether couched in terms of probability or certainty they tend to interfere with and restrain employees in the exercise of their protected activities. N.L.R B. v. W. C. Nabors Co., 196 F.2d 272 (C.A. 5). I find in Haley's questioning and in his statements to the employees a dear coercive warning and threat-"that the easy going camaraderie between management and employees would be a thing of the past" if the Union were selected, hence designed to discourage union activity. Shell Oil Company, 95 NLRB 102, 108. I find therefore that through such interrogation, coercive statements, and threats the Respondent did interfere with, restrain, and coerce its employees in the exercise of protected union activity in violation of Sec- tion 8(a)(1) of the Act. D. The alleged refusal to baigain The complaint alleges that since on or about July 12, 1965, and continuing to date the Union has been the representative for collective bargaining of the employ- ees in an appropriate unit and that commencing on or about July 13, 1965,, the Union has requested and is requesting the Respondent to bargain collectively with respect thereto The complaint further alleges that commencing on or about July 13, 1965, and at all times thereafter the Respondent did refuse and continues to refuse to recognize, meet or bargain collectively with the Union as the exclusive collective- bargaining representative of all the production and maintenance employees at the Respondent's West Point, Okolona, and Tupelo, Mississippi, operations excluding office clerical employees, guards, and supervisors as defined in the Act. The com- plaint further alleges that the Respondent refused to recognize or bargain with the Union in order to undermine the Union and destroy its majority and that by such actions the Respondent did engage in and is engaging in unfair labor prac- tices in violation of Section 8(a)(5) of the Act. The General Counsel identifies the issues as whether or not the Union represented a majority of the employees in the appropriate unit either on July 13 or on July 20; whether or not the Respond- ent had a good-faith doubt of the Union's majority status on those dates either in fact or in law and whether or not after the Union filed the petition the Respondent engaged in conduct which would set aside the election. The General Counsel con- tends that the Respondent has not established misrepresentation in the solicitation of the union cards as alleged by the Respondent. On the other hand Respondent contends that it did not unlawfully refuse to bargain, that it entertained a good- AMERICAN CABLE SYSTEMS, INC. 341 faith doubt as to the Union's majority status; that the General Counsel has failed to prove an absence of a good-faith doubt and that in any event the cards were tainted in that they were solicited through misrepresentation and by one considered to be a supervisor. The Respondent also contends that the unit sought by the Union in its demand was inappropriate and that the demand was not a continuing demand but was abandoned at the time the petition was filed. It is evident from the record that on July 13 and 20 the Union did have a majority of the four production and maintenance employees in the unit. On July 13 cards had been executed by Aclin, Dodson, and Cook. On July 20 cards had been executed by Aclin, Dodson, Cook, and Taylor. While the Respondent argues that enough of these cards were tainted so as to vitiate the majority status, I do not so find. I do not find on the basis of credited testimony of record that those who signed the cards were induced to do so by a misrepresentation that the sole or exclusive purpose of the signing of the cards was to get an election. Although Aclin testified that he was told the only purpose of signing the card was to get an election, he also stated that he was given union material and told what the Union would be for. It is clear to me from his testimony that Aclin s as not misinformed or unknowledgeable as to the purpose of signing the union card. The card indicates clearly that the signer designates the Union as his collective-bargaining representative. I find therefore no misrepresentation nor any inducement to sign the card on the basis that it was for the sole purpose of securing a union election, and therefore not tainted within the ambit of Cumbei lcnid Shoe Coi poi atron, 144 NLRB 1268. Similarly in the testimony of Taylor and Dodson I do not find a clear misrepresentation inducing the signing of the cards for the sole purpose of securing a union election . I find therefore that the cards were not tainted. The Respondent contends additionally that since the cards signed by Dodson and Aclin were solicited by Cook whom the employees regarded as a supervisor, this would render them tainted. The Respondent relies heavily on Heck's Inc., 156 NLRB 73. However in Heck's the rejected cards were solicited not only by supervisors or those con- sidered to be supervisors but under circumstances manifesting evidence of threats of job security. I find no comparable situation herein and conclude that these employees were not coerced because of the solicitation by Cook of the cards. Accordingly, I find no reason for their rejection, and find that the Union at the time of demand on July 13 and on July 20 possessed the required majority as evidenced by valid cards. We come then to the matter of the appropriate unit. The appropriate unit has been determined as all production and maintenance employees of the Respondent at its West Point, Okolona, and Tupelo, Mississippi, operations excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. The Respondent contends that when the Union made its letter demand on July 13, the demand encompassed an inappropri- ate unit because it referred to Tupelo only. The issue posed by the Respondent's contention is whether the unit in which bargaining was initially sought is so clearly inappropriate as to relieve the Respondent of any obligation to bargain collectively, or, whether there is a substantial variance between the unit originally sought and the unit found appropriate. I find that the variance is not substantial. The union letter demand referred to the Respondent's production and maintenance employees in the Tupelo area (emphasis supplied). The Respondent employed approximately eight employees five of whom were involved in production and maintenance, one of these was held to be a supervisor. The supervisor was based at Tupelo. Of the four remaining service employees three of them were based at Tupelo, Mississippi, and one of them at West Point. As we have noted supra, these men shifted around from location to location as the requirements of mainte- nance and operations dictated. The only possible confusion which the Respondent could have had with respect to the variance in the original unit was that it might have some doubt as to whether Taylor who was based at West Point was included. But there was indication that Taylor similarly worked at the two other locations when required. Accordingly, I do not find the variance between the unit sought and the unit later found appropriate sufficiently substantial to require a finding that the unit sought was inappropriate. Brewery and Beverage Driveis and Woikeis, Local No. 67, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, AFL-CIO (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F.2d 194, 196. The Respondent alleges finally that the General Counsel failed to establish that the Respondent had no good-faith doubt when it allegedly declined to recognize the Union. After careful consideration, I am persuaded that the Respondent is correct in this contention . Dodson testified significantly that when Haley queried 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him as to whether he was involved in the union demand, Dodson answered that he was not. I credit Haley's straightforward account of surprise receipt of the demand and that he would not have expected Cook and Goldbar whom he considered to be on the management team to have been involved in the union activity . While I am not persuaded, as the Respondent contends, that Haley was confused over the question of the appropriate unit, I am convinced and find that Haley did have a bona fide doubt as to whether the Union had achieved a majority . Where the General Counsel seeks to establish a violation of Section 8(a)(5) he has the burden of proving not only that the majority of employees in the unit designated the union as the bargaining representative but also that the employer in bad faith [emphasis supplied] declined to recognize and bargain with the union . John P. Serpa, Inc., 155 NLRB 99. This is normally based on evidence indicating that the Respondent repected the collective -bargaining principle and sought merely to gain time within which to undermine the union and to dissipate its majority . Joy Silk Mills, Inc., 85 NLRB 1263 . Unlike Joy Silk the Respondent in the case at hand did not actually refuse to bargain. It quite properly set a reasonable and convenient time for responding . Its conduct after the filing of the petition by the Union, while including activity violative of Section 8(a)(1) as found herein, is not of such substance as would overcome the clear and convincing proof of the Respondent 's good-faith doubt established by credited substantial testimony on the record . Ben Duthler, Inc., 157 NLRB 69 . The Respondent's pattern of conduct following the filing of the petition is compatible with a good-faith doubt as to the Union's majority status. Since the mere finding of a violation of Section 8(a)(1) does not automatically raise the presumption that an employer acted in bad faith by refusing to bargain with the union , it certainly follows that here, where there has been no actual refusal to bargain, it may not raise such a presumption . Hammond & Irving, Incor- porated, 154 NLRB 1071. I find therefore that the Respondent did not refuse to bargain with the Union in bad faith, that it entertained a good -faith doubt. Accordingly, I recommend dismissal of that portion of the complaint alleging that Respondent violated Section 8(a)(5) of the Act. E. The objections to the election The matters raised by the Union 's objections to the election herein dealing with the Respondent's conduct following the filing of the petition on July 16 have been referred to me for disposition here. The incidents relied upon by the Petitioner to support the objections were the same as those which were the subject of the unfair labor practice complaint. Having found that the Respondent , through its General Manager Haley, interrogated and threatened the employees of the Respondent in violation of Section 8(a)(1) of the Act, I accordingly find that the Union's objections have been established to the extent indicated in so much of the fore- going findings as deals with Respondent's conduct between the date of the filing of the petition and the election herein . Industrial Steel Products Company, Inc., 143 NLRB 336 ; Dal-Tex Optical Company, Inc., 137 NLRB 1782. I find that dur- ing the period between the filing of the petition and the election the Respondent through its conduct exercised coercive influence on its employees sufficient to interfere with and prevent a free, fair election and did deprive the Respondent's employees of their right under the Act to choose or not to choose a bargaining representative free from interference by the Respondent. It is accordingly recommended that the Union's objections 1, 2, and 3 be sus- stained to the extent indicated above, and that the said election be set aside and declared a nullity. Since I have concluded that the Respondent did not violate Section 8 (a)(5) of the Act, I find it inappropriate to recommend that the Respond- ent be required to bargain with the Union. I do not find this case appropriate for application of the Bernel Foam theory. Bernel Foam Products Co., Inc., 146 NLRB 1277 . Accordingly, I will recommend that a second election by secret ballot be conducted at such time as deemed appropriate by the Board. CONCLUSIONS OF LAW 1. American Cable Systems, Inc., the Respondent herein, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Communications Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct of interrogation, threats, and promises of benefit set forth in section III which have been found to constitute unfair labor practices the Respond- AMERICAN CABLE SYSTEMS, INC. 343 ent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act and has thereby engaged and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. By discriminatorily discharging its employees Aclin and Goldbar because of their union activity protected by the Act the Respondent has engaged in unfair labor practices in violation of Section 8 (a) (3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 6. The Respondent has not refused to bargain in bad faith, and has not violated Section 8(a)(5) of the Act. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. In view of the Respondent's immediate recission of the unlawful discharge of Aclin and Goldbar without loss of pay or privileges no order of reinstatement or backpay is deemed required. As discussed hereinabove, in view of the findings that certain objections to the election herein have been sustained, it is recommended that the election be set aside and declared a nullity and that a second election by secret ballot be conducted at a time deemed appropriate by the Board. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the Respondent, American Cable Systems, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in the Communications Workers of America, AFL-CIO, or in any labor organization, by discharging any of its employees, or in any like manner discriminating in regard to hire or tenure of employment, or any term or condition of employment, in violation of Section 8 (a) (3) and (1) of the Act. (b) Interfering with, restraining, or coercing its employees in the exercise of their right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection through unlawful interrogation, threats, and promises of benefit. 2. Take the following affirmative action, which will effectuate the policies of the Act. (a) Post in conspicuous places at its Tupelo, West Point, and Okolona locations, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained for at least 60 consecutive days thereafter. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith 3 IT IS FURTHER RECOMMENDED that the election held in Case No. 26-RC-2447 be set aside and that the Regional Director be directed to hold a second election at an appropriate time. IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as it alleges that the Respondent engaged in any conduct violative of Section 8(a) (5) of the Act and insofar as it alleges the discriminatory discharge of Dodson. 2In the event that this Recommended Order Is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" In the notice . In the further event that the Board 's Order is 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." s In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in the Communications Workers of America, AFL-CIO, or in any other labor organization, by discharging any of our employees or in any like manner discriminating in regard to hire or tenure of employment, or any term or condition of employment. WE WLL NOT interfere with, restrain, or coerce our employees in the exer- cise of their right to engage in concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection by interrogating or threaten- ing our employees, or by promise of benefit. All our employees are free to become, remain, or to refrain from becoming or remaining, members of the Communications Workers of America, AFL-CIO, or of any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a)(3) of the Act, as amended. AMERICAN CABLE SYSTEMS, 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 questions concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 764 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Tele- phone 534-3161. Local 1341, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, and the Lower Ohio Valley District Coun- cil of Carpenters and Joiners of America , United Brotherhood of Carpenters and Joiners of America, AFL-CIO ( Leonard R. Lanham and Larry E. Lanham, a partnership, d/b/a Lanham Brothers, General Contractors) and Marshall H. Edmonson. Case 05-CB-630. October 24,1966 DECISION AND ORDER On July 1, 1966, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. 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 this case to a three-member panel [Members Fanning, Brown, and Jenkins]. 161 NLRB No. 32.