Shurfine-Central Corp.

648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerce our employees in the exercise of their right to self-organization, to form, join, or assist Food Handlers Union Local 371, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by the provisos in Section 8(a)(3) of the Act. All of our employees are free to become, remain, or refrain from becoming or remaining, members of Food Handlers Union Local 371, Amalgamated Meat Cut- ters & Butcher Workmen of North America, AFL-CIO, or any other labor organization. HOME PRIDE PROVISIONS, 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 compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts 02108, Telephone 223-3353. Viking Bag Division, Shurfine-Central Corporation and Interna- tional Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO. Case 26-CA-1289. October 31,1966 DECISION AND ORDER On July 1, 1966, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled case, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Neither the General Counsel nor the Charging Party filed exceptions in the above case. 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 [Chairman McCulloch and Members 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 161 NLRB No. 51. VIKING BAG DIVISION TRIAL EXAMINER'S DECISION 649 STATEMENT OF THE CASE Hearing was held before Trial Examiner Benjamin B. Lipton in this proceeding in Pine Bluff, Arkansas, on March 29, 30, and 31, 1966, upon a complaint by the General Counsel of the National Labor Relations Board alleging that the above- captioned Respondent committed certain independent violations of Section 8(a) (1), (3), and (5) of the Act.' All parties were represented at the hearing and were afforded full opportunity to examine witnesses and to present relevant evidence. At the close of the hearing, oral argument on the recoid was waived by all parties. Comprehensive briefs filed by the General Counsel and Respondent have been care- fully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Viking Bag Division, Shurfine-Central Corporation operates a plant at Pine Bluff, Arkansas, solely the subject of this proceeding, where it is engaged in the manu- facture of paper bags. During the year preceding issuance of the complaint, Respondent sold and shipped from its Pine Bluff plant to points outside the State of Arkansas finished products valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential positions and issues Relying principally upon the well-known Joy Silk Mills doctrine,2 the -General Counsel seeks to establish that Respondent engaged in serious and substantial coercive practices following the Union's recognition request based upon signed authorization cards, and that Respondent thereby rendered a free election impossible and demonstrated that its refusal to recognize the Union was motivated by a rejec- tion of the collective-bargaining principle and a desire to gain time within which to destroy the Union's majority representation. In its formal answer (dated Febru- ary 11, 1966), Respondent denies the commission of any of the alleged violations, and states that "it does not believe the Union represents" a majority, that it "now refuses to recognize or bargain" with the Union, and that it has been presented with information of coercion and misrepresentation by agents of the Union in secur- ing authorization cards from the employees. It further contends that its good faith in questioning the Union's majority status is shown by its filing of an employer petition for an election. From the pleadings and the litigated record, the main issues which emerge are: 1. Whether, at the time of its recognition request, the Union had valid authoriza- tion cards signed by a majority of the employees in an appropriate unit. 2. Whether Respondent's refusal to meet with and to reply to the formal recogni- tion requests of the Union constitutes evidence of bad faith. 3. Whether Respondent committed any or all the numerous acts of coercion alleged. 4. Whether Respondent is responsible for the alleged coercive conduct of John Blackmon. I The original charge by the Union was filed on December 22, 1965, and served on December 23, 1965 Thereafter, an amended charge was filed and served, respectively, on January 21 and 24 , 1966 . The General Counsel's complaint thereon was Issued on February 4, 1966. 2 Joy Silk Mills, Ine, 85 NLRB 1263, enfd 185 F 2d 732 (C A D C.), cert. denied 341 U S. 914 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Whether Respondent unilaterally changed its vacation policy and working rules in violation of the Act. 6. Whether Respondent unlawfully refused to bargain with the Union. B. The appropriate unit It is undisputed, and I find, that an appropriate unit for the purposes of collective bargaining consists of: All production and maintenance employees at Respondent's Pine Bluff, Arkansas, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. Respondent contends that four employees, 3 who perform identical cleanup and watchman functions, should be excluded from the unit as guards. During the week- days the work of these employees is confined to various cleaning-up jobs in the plant. On Saturdays and Sundays, when the plant is not in operation, they perform certain watchman duties in addition to prescribed cleaning chores? Concerning their weekend watchman duties the following pertinent facts are shown: They punch a timeclock they carry while making rounds every 2 hours at 6 stations inside and outside the plant. The property is enclosed by a fence with three locked gates and a fourth unlocked gate at a railroad siding. A person seeking entry sounds an elec- trical signal provided at one of the gates. The cleanup-watchman on duty brings a key, which is kept in the plant, and lets the person through the gate-"if its an employee or a foreman, anybody that works out there." In cases of doubt or if the person is unknown, instructions are sought from higher authority of Respondent. Of those allowed entry, a record is made of their identity, purpose, and times of arrival and departure. The employees in question wear no uniform or badge, are not armed, and have no authority to arrest or restrain any person. In the event of dif- ficulty with an intruder they are supposed to telephone the police or fire depart- ment. During their employment extending over 4 years, they have never enforced plant rules against employees, 5 nor ever had occasion to ask any unauthorized person to leave the plant. Their "instruction calls for watching for fires, specifically, more than anything else," and they are required to check the gauges indicating the pressure of the sprinkler system. On all the evidence, I find that these employees are not guards within the mean- ing of Section 9(b)(3). They do not enforce against employees and other persons rules to protect property or to protect the safety of persons on Respondent' s prem- ises. Their watchman duties are performed when the plant is shut down and nor- mally no other employees or persons are present. They hold employment essentially as cleanup men, with partial duties as watchmen on weekends which are merely of an incidental nature carrying no appreciable authority of a plant guard as con- templated by the Act.6 With the inclusion of the cleanup-watchmen, and the exclusion of John Blackmon as a supervisor for reasons subsequently stated, there were 50 employees comprising the appropriate unit as of the critical dates of the Union 's recognition demands? C. The Union's majority in authorization cards Beginning on November 27, 1965, 8 cards were signed by individual employees authorizing the Union to represent them in collective bargaining. By December 13, when the first recognition request was made, infra, the Union had obtained from employees in the appropriate unit 27 valid authorization cards. Additional valid cards from 9 employees were in the Union's possession when it next presented a formal demand upon Respondent on December 17; and by January 15 on the basis 3 L. V. Chambliss, Wallace W. Jones, Luther H. Pearson, and Danny D. Kelley. 4 During the weekend, they work particular 8-hour shifts, which are rotated on a weekly basis. 5 Although required to keep out unauthorized personnel, which may include employees who are not supposed to report at that time, the cleanup-watchmen were given no direct instructions relating to employees 6 E.g., United States Gypsum Company, 152 NLRB 624; Heck's Inc, 156 NLRB 760; Sears, Roebuck and Co., 157 NLRB 32. 7 The size and employee composition of the unit remained materially unchanged at least through the payroll period ending March 20, 1966. s All dates are progressively in 1965 or 1966 unless otherwise specified. VIKING BAG DIVISION 651 .of its repeated and continuing recognition demands, the Union had a total of 41 such cards of the 50 employees in the unit, all properly authenticated and admitted in evidence.9 Therefore, it is found that at all material times the Union represented a majority of employees in the appropriate unit.10 D. Respondent's refusal to meet with or to answer the Union On December 13 the Union's vice president, Wayne E. Glenn, telephoned Ervin Graham, Respondent's plant manager. He notified Graham of the Union's majority representation and requested a meeting to afford the Union an opportunity to prove the same by means of a card check. After discussion of an appropriate date, upon Graham's suggestion they agreed to meet at the plant on December 17, at 9:30 a.m." Dated December 13, the following letter, in substance, was sent and received: Dear Mr. Graham: This will confirm my telephone conversation with you on Monday, Decem- ber 13, 1965, during which you agreed to meet with me Friday morning, December 17, at 9:30 A.M. giving us an opportunity to prove majority status for our Union. This will further confirm that [the Union] represent[s] a majority of the employees of your establishment in a unit consisting of all production and maintenance employees . I respectfully urge that [the Union] is the exclusive bargaining representa- tive.... Because of these facts, I suggest that unilateral changes in rates of pay, wages, hours of employment or other conditions of employment, would constitute an unfair labor practice within the meaning of the National Labor Relations Act of 1947, as amended. I respectfully urge that these matters be made the subject of negotiation between the Union and the Company before any such changes are put into effect. Sincerely yours, (S) Wayne E. Glenn WAYNE E. GLENN Vice President O Respondent in its brief challenged the validity of the cards signed by Davis (on December 8), Timmons (on December 11), Robert Chambliss (on December 15), and O'Bryant (on December 14), although it made no objection to the admission of these ,cards when offered. Regarding an alleged 8(a) (1) violation, discussed infra, Davis testi- fied he went to the home of Foreman Hawkins about December 9 or 10 (not recalling the exact date), whereas in his affidavit given to a Board agent on January 12, he indicated that this visit was made about a week before he signed his card. Timmons signed and returned her card, originally dated December 13, to employee Trammell. As both testified, Timmons thereafter promptly telephoned-Trammell requesting that she redate the card to reflect the accurate date of December 11-which was done Robert Chambliss testified that, in response to an interrogation by Supervisor Geuin concerning the Union, con- sidered infra, he stated that the Union "already got 70 percent signed up." Manager Graham testified on cross-examination that O'Bryant advised him that a union agent told O'Bryant "he may as well sign, they already had 70 percent, or the majority of the people signed up." As to the cards of Chambliss and O'Bryant, Respondent now argues that the Union engaged in a "calculated and coercive misrepresentation." O'Bryant, in his cross-examination, effectively denied that he made such a statement to Graham (which, even if made, would not evidence any material misrepresentation. Merrill Engineering Laboratories, 158 NLRB 1108). However, I credit O'Bryant and not Graham. Respondent's contentions as to all four cards are rejected as devoid of any substance. It is noted, fur- ther, that Respondent adduced no evidence (beyond that aforementioned relating to O'Bryant) to support the position in its answer, supra, that the union agents engaged in coercion and misrepresentation in securing cards from employees. Is The Union's majority status is evident even on the basis of Respondent's unit con- tentions, since valid cards were signed by two of the cleanup-watchmen (Chambliss and Kelley). u Graham's testimony that Glenn suggested this date and time and that Graham merely said "it was possible if I was in"-is not credited. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On December 17, when Glenn and Union Representative C. L. Hughes appeared at Graham's office to keep the appointment, they were told by the receptionist 12 that Graham was not available to meet with them. On December 17 Glenn wrote Graham that he kept the appointment set for December 17 "to prove by a card check" that the Union represented a majority of the unit employees, again requested a meeting for the same purpose, and suggested the afternoon of either December 20 or 21. On December 21, at 2:10 p.m., Glenn and Hughes came to the plant. They asked to see Graham, stating that it was "very important," but were informed by the same receptionist that Graham was unavailable to meet with them. They left a telephone number and asked to have Graham call. That afternoon, Glenn and Hughes sought to encounter Graham in the Pine Bluff locality. About 4 p.m. they saw and approached Graham in the company of another man emerging from a cafe towaid an automobile. Glenn introduced himself and stated that the Union wanted an opportunity to prove it represented a majority of the employees. Graham refused Glenn's proferred hand, said something which was inaudible to Glenn, entered the car, rolled up the window, and departed. On December 22 Glenn sent Respondent a telegram which confirmed that on the previous day he made offers to prove majority status, stated that charges against Respondent were filed with the Board that day, and continued the offer to prove majority by card check.13 By wire on December 29, the Union again notified Respondent that it was the designated majority representative. At no time did Respondent attempt to meet with the Union or to respond in any way to the Union's repeated requests. The foregoing stands virtually unrefuted The employer petition filed by Respond- ent on January 13, supra, was dismissed by the Regional Director, in view of the unfair labor practice charges of the Union. Graham testified that he personally made the decision not to recognize the Union precisely at the time the Union pre- sented its initial demand on December 13. While he asserted on the stand that there was a doubt in his mind, he admitted that he had no reason to believe "one way or the other" the Union's claim of majority representation. He averred that he told none of his superiors at the parent company in Chicago of the Union's formal demands for recognition-until December 29 or 30.14 I have found Graham wholly unreliable as a witness and do not credit his testi- mony, apart from admissions.15 In its brief, Respondent argues that Union Agent Glenn's "assiduous pursuit" of Manager Graham, who "was totally inexperienced in labor law and was attempting unwisely but not in bad faith to survive without help . gives rise to the strong inference of bad faith on the union's part and attempted entrapment by avoiding the simple and plausible action of filing a petition under 9(c) of the Act and harassing Respondent for recognition " Factually, there is utterly no basis for such a claim of harassment and entrapment, even assuming its relevance to the issues. Indeed, the asserted position cannot be regarded as other than frivolous and cap- tious in the actual circumstances. For the converse has been shown to be true- that Respondent was engaging in a studied avoidance of the Union. It was entirely proper for the Union to repeat and press its demand to be recognized as majority representative, and it was not bound in support of its agency claim to furnish 13 Identified as Dorothy Ponder 13 The written communications of December 13, 17, and 22 indicated in each instance that a copy was forwarded to the Board's Regional Director 14 Elsewhere in the record it appears that Graham was in close communication by tele- phone and memorandums with the Chicago offices and particularly with II W Garbei5, general manager, of Shurfine-Central Corporation, and that the Pine Bluff plant was being regulated from Chicago litter aria, Graham testified that during the 4 years of the plant's existence, he heard rumors of union actisity "a couple of times" each year, and that he had mentioned these to Garber.-. In the Instant situation, he cloarly contradicted himself by stating that lie first learned of the Union's drive early in December but told "no one whatsoever" In Chicago until the latter part of December , then lie Iatei testified that he had informed Garbers by telephone at the time he first learned about the Union 15 Generally throughout his long testimony, there was a considerable amount of leading, despite rulings and cautionary comments by me In other respects, as noted herein, Graham's testimony was found seriously deficient and unacceptable VIKING BAG DIVISION 653 certification upon a Board election.16 For its part , in response to the Union, Respondent expressed no doubt regarding majority status , nor intimated that it desired any proof by Board certification or in any form . It did deliberately fail to keep the initial appointment it made with the Union and thereafter chose to resist and ignore all of the Union's various approaches and communications seeking a basis for obtaining prompt recognition as the employees ' bargaining agent. It is, of course , the General Counsel's burden in this type of case to prove not only that a majority of the employees in the unit signed authorization cards but also that Respondent acted in bad faith when it refused to recognize and bargain with the Union. And "usually" such bad faith is established upon evidence of a complete rejection of the collective-bargaining principle or of a desire to gain time within which to dissipate the Union's majority.17 In general, the determination of good or bad faith in such situation must be made in light of all the relevant facts in the record.18 Certainly, a relevant factor to be considered here is Respondent's conduct in refusing to meet with or reply to the formal requests of the Union.19 E. Restraint and coeicion 1. Plant Manager Graham (a) Edward O'Bryant testified concerning two conversations with Graham in the plant warehouse , as alleged in the complaint . On December 11 or 12, Graham inquired if "the union man had been to his home." O'Bryant answered negatively, following which Graham stated , "He will be." Asked how he knew , Graham said that the union man "had already been to several employees ' homes." O'Bryant was then requested to let Graham know if the union agent came by his house, and he replied that he would. (b) About December 15, after O'Bryant had signed an authorization card, Graham asked if "the union man" had been to see him yet. O'Bryant said he had not. Graham stated, "Well, if he does, if you hear anything keep your eyes open." 20 2. Foreman Morris Wayne Geuin 21 (a) On December 11, at Respondent 's annual Christmas party held at a country club, Geuin asked Robert Chambliss if be heard anything about a union trying to 16 United Mine Workers of America v. Arkansas Oak Flooring Co , 351 U. S. 62, 74-75; N.L R.B. v. Trimfit of California, Inc., 211 F.2d 206, 209 ( C.A. 9). 17 John P. Serpa, Inc., 155 NLRB 99 1s Aaron Brothers Company of California, 158 NLRB 1077 19As shown , the Union in fact had a clear majority of valid authorization cards when it made its demands upon Respondent . Aside from any consideration of common business courtesy , a serious question is raised whether the statutory and public policy in further- ance of collective -bargaining procedures makes it obligatory upon an employer reasonably to receive and respond to an initial recognition request of an established union. How- ever, in view of the additional elements present in the case, it is unnecessary for me specifically to hold that Respondent 's absolute refusal to answer or meet with the Union in these circumstances in and of itself violated Section 8(a) (5). See, for example, Action Wholesale Co., Inc, d/ b/a A L . French Co , 145 NLRB 627 , 637, enfd. 342 F.2d 798 (C A. 9) ; Lone Star Co , 149 NLRB 688, 701 ; Elmira Machine it Specialty Works, 138 NLRB 1393, 1401-02 And cf. James H. Matthews it Co v. N L.R B ., 354 F.2d 432, 439 ( C A. 8), enfg. 149 NLRB 161. 20 Graham ' s denial that he had these two conversations with O 'Bryant is rejected. On cross-examination , O'Bryant testified to it third conversation (see footnote 9, supra), which took place in Graham's office This discussion related to a visit to O'Bryant's home by Union Agent Hughes during which Hughes wrote out an address where he could be reached for O'Bryant O'Bryant estimated the date of his conversation in Graham's office as occurring between the two conversations described in the text and before he had signed a card on December 14 However, he was unsure of this date , and, from the nature of the conversation he had with Hughes, it would more plausibly appear that he had then or previously signed the authorization card. Contrary to Respondent , I would not discredit O'Bryant for this discrepancy. 21 Respondent affirmatively states in its answer , and I accept , that Genin is "Assistant to Manager." Geuin himself denied that he holds such a position although his testimony shows that lie substitutes for Graham in the latter ' s absence ; that lie was in "complete charge of plant" during Graham 's 2 weeks' vacation , that he carries out Graham 's Instruc- tions which are channeled through him to other supervisors ; and that he has regular duties above and beyond that of a shift foreman. Graham also testified that Geuin was merely a shift foreman. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD come into the plant. Chambliss replied that he had. Geuin said he did not think it was "going to go over." Chambliss stated that the Union already had "70 percent signed up." Geuin then remarked, "Well, just between you and me, . I know who started it and what shift they work on . I don't think you had anything to do with it." At this point Chambliss indicated he could not talk to Geuin about the subject-that perhaps Sherman Peacock, sitting nearby, could tell him some- thing. Geuin then asked Peacock, "What do you know about it?" Peacock shook this head and left the table.22 (b) About December 15 or 17, in the presence of Billy Taylor and Deva Adair, Geuin stated that he hated to see the Union come in because he felt that it would take away some of the employees' privileges.23 (c) In mid-December, in the canteen area, Geuin stated in the presence of several employees, including Dean Crosby and Adair, that he hated to see the Union come in because it would take away some of the employees' privileges.24 3. Foreman Lloyd Carter (a) On December 11, at the country club Christmas party, Carter asked Leonard C. Morgan if he had heard anything about the Union and was answered in the negative. Carter said he would like to know who got it started. Morgan replied that he had no idea.25 Morgan had signed a card on December 7. (b) In the week of December 13 Wanda Burr received a telephone call at her home from Carter. He was getting some personal information and was not speaking for the Company. There was a rumor that the Union was trying to get in, and he wanted to know if she had heard anything.about it. She said no. Had she signed a card? She said no. Did she know anyone else who had? She said no and that she would not tell him if she knew. He then said, "Wanda, you know that if the union gets in, the plant will be integrated." 26 4. Foreman Billy' Gene Hawkins (a) About a week after December 1, in the plant, Samuel Mercer was asked if "the union man" had contacted him yet. Several days later, Hawkins asked him the same question. On both occasions, the answer was no21 Mercer had signed a card on December 1. (b) About December 10 Jimmy H. Davis came to Hawkins' home for a social visit. At the door, Hawkins said he was' "just fixing" to go to Davis' house, as he had "heard something about a union coming in at the plant." Davis answered that he knew nothing about it. However, his card was signed on December 8.28 (c) In mid-December, Hawkins called Davis aside in the plant and said , "Jimmy, I thought we wasn't going to have anything to do with that union." Davis denied that he had. Using a "kind of profanity word," Hawkins then stated that "if a union come in out there that the plant would be shut down, and if that didn't get it, the plant would be integrated." (d) About a week after he signed his card on November 27, Sherman Peacock was asked if any "union men" had been around to talk to him. He said he knew 22 Geuin's version was substantially similar, except that he did not question Peacock. Geuin admitted that , despite his statement to Chambliss , he did not actually know "'the man that brought it into the plant." He also revealed that he told Graham of Chambliss' statement that the Union had 70 percent signed up. 23 Geuin testified that all he said was that he hated to see the Union collie into the plant. Adair was not called. 24 Geuin testified he had only remarked , upon Adair's complaint regarding the State withholding tax, that with the union dues coming out there would hardly be anything left. zs Under Carter's version , he said he understood that the man carrying the cards was not on his shift, and he hoped "whoever's having anything to do with it" was not from his shift. 20 Carter denied saying anything about plant integration , but admitted that he had questioned Burr generally about "the union activity " and had asked "if the NAACP was working with them." 27 Hawkins did not recall the second conversation. 28 In a pretrial affidavit to a Board agent , Davis indicated that the conversation occurred a week before he had signed the card, but on the stand credibly explained that his testi- mony was correct and that he had been mistaken as to the date given in the affidavit Hawkins himself fixed the date in the second week of December. VIKING BAG DIVISION 655 nothing about it. A week or so later, Hawkins asked the same question and received the same answer. (e) About a week or so before Christmas, in "the foreman's office," Hawkins remarked to Peacock that Peacock and Jeff McMurtrey were going to have to go in the Army before long, and if the employees voted the Union in, they might not have a job when they got back.29 (f) A little after December 15 Jeff Davis McMurtrey, Jr., came into the canteen area and overheard Hawkins talking to Bob Worthen. Hawkins said that if the employees voted the Union in while McMurtrey and Peacock were away for 6 months on training duty with the Army, they "may not have a job" when they returned 30 (g) As he was leaving the canteen area, Hawkins remarked to McMurtrey- "We sure don't want a union in here because we'll lose what privileges we already have." (h) On December 22 a Christmas party for the shift was held in the plant. It was the practice for the female employees, who brought food, to fix platters which were carried to the Negro employees in the warehouse. McMurtrey had heard that, on the previous shift, the Negro employees "would not take their dinner," and he asked Hawkins about it. Hawkins said, "Well, that's the union working for you . . . If the union comes in . . . the Negroes will be working right beside you." 31 5. Warehouse Foreman Jake McLemore (a) On December 12 McLemore asked U. Z. Williams whether "the union man" had been to his home yet. Williams replied he did not know as he had not been at home. His card was signed on December 14. (b) On December 13 McLemore asked Lloyd Smith the same question. Receiv- ing a negative response, McLemore said, "Well, if he follows the same procedures he will get around to you." Asked if he knew who it was, McLemore said yes. Smith had signed a card on December 8. (c) On December 15 Relis E. Eastmen was also asked this question, and he replied affirmatively. (d) On December 18 the same question was put to Orelious H. Henderson who answered yes. McLemore then asked if it was Hughes "or the other one," and if he had any cards. Henderson replied that the union man, whose name he had forgotten, had one card in his pocket and had said that he had "the majority of the people." 32 (e) About December 21, in the warehouse smoking area, McLemore asked O'Bryant if he had heard anything about the Union. O'Bryant said no-"no more than I heard the union was coming in." McLemore was then asked what he thought of the Union, and he stated, inter alia: "I hope you fellows realize that you might get cut short of your 40 hours where we let you stay around and clean up and sweep . . . . You might not be able to do that if the union comes in." O'Bryant was also questioned as to whether he had seen or talked to "the union man," and he answered that he had not. His card was signed on December 1433 Section 8 (a)(1) findings in part The various statements and conduct of Respondent, above described, were engaged in by all of the admitted supervisors, but one,34 during the critical period a Hawkins testified that Peacock came to him about the matter, and he told Peacock to "get an understanding" with Manager Graham "before he joined anything." So Hawkins gave the version that Worthen came to him in the presence of Peacock and McMurtrey and asked if "these two boys" would have a job after coming back from the service, and that he answered if the Union carne in there would be a lot of changes, and even if Graham said they could come back, "it might be that Graham might not be here when they came back " 31 Hawkins had no recollection of a conversation concerning the Union that night He testified merely that McMurtrey commented "about the colored people not taking their supper," to which he said-"It looks like they're following suit , they didn't do it on the other shifts, either 3i McLemore admitted that he questioned Smith, Williams, Eastman, and Henderson 3 McLemore's testimony was confined to a conversation with 0 Bryant aroumi Deceni- ber 13 or 14, in which he asked whether the union man had been b3 to see him and O'Bryant said yes S4 Supervisor Foote, in charge of the machine maintenance crew 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Union's organizing campaign, immediately preceding and following the first recognition request of December 13. There can be no doubt under the cir- cumstances that Respondent was consciously embarked upon a broad-gauged course of coercing the employees in an effort to defeat the Union. The specific violations which Respondent committed may be identified, as follows: Duect or implied threats relating to the Union: That the employees would lose company privileges-made by Geuin at separate times to Taylor and Crosby; and by Hawkins to McMurtrey. That the plant would be shutdown-made by Hawkins to Davis. That their jobs would be lost upon return from military service-made by Hawkins on separate occasions to Peacock and McMurtrey. That working hours would be cut-made by McLemore to O'Bryant. Cieating impression among employees that their union activities are under surveillance-by Graham to O'Bryant; Geuin to Chambliss; and McLemore to Smith. Request to iepoit on union activities of other employees35-in two instances by Graham to O'Bryant. Coercive interrogation: These were not innocent, casual discussions of a subject of common and current interest. The evidence plainly reveals a widespread and systematic pattern of the same type of interrogation by substantially the entire supervision. In various ways, the information sought by the questions would be revelatory of the particular employees sentiment toward the Union in a general atmosphere of employer hostility. Other unfair labor practices, including serious threats, were contemporaneously being committed. That the employees were affected by restraint and fear is well shown in the untruthfulness of the many negative replies to the questions. No valid purpose was put forward or is conceivable for these extensive interrogations; and their coercive effect upon the employees reason- ably tends to flow from the action.36 Threats to integrate the plant-made by Carter to Burr; Hawkins to Davis; and by Hawkins to McMurtrey. The record reflects that a relatively small number of Negros are employed in duties confined to a warehouse. In substance these employees were told that if the Union came in, the plant would be "integrated," and the colored employees would be permitted to work alongside the white employees, in the same departments and functions. These utterances cannot be viewed as isolated or unauthorized as they were repeatedly given voice by fore- men 37 who are statutorily responsible spokesmen for management-at least in terms of impact on employees. Inherent in these statements is the admission that a practice of segregation exists at Respondent's plant with respect to the employment conditions of Negroes, and a warning that the practice would be eliminated if the Union were allowed to succeed in its organizational effort. The ultimate decision of continuing or abolishing this practice lay with Respondent, not with the Union. The same result will follow whether the statements are construed as a prediction that Respondent would yield to the Union's collective-bargaining demand for integration of the plant,38 or as direct threats that on its own initiative, Respondent would desegregate the plant upon the advent of the Union.39 That the threatened action, if taken, would literally produce a laudable and lawful result does not diminish its coercive character in the circumstances present. Obviously it was not Respondent's purpose in these statements to promise conformance with the national policy which forbids discriminatory employment practices for reasons of race.40 Palpably, these statements constituted a reprehensible exploitation of racial prej- udice. Their sole design was to coerce the employees in regard to their organiza- tional rights under Section 7, and they reasonably tended to have such effect. As such, they flagrant violations of Section 8 (a)( 1)41 36 E.g., Colony Furniture Co , 156 NLRB 728. 38 E g, N L R B. v. Cameo, Incorporated, 340 F.2d 803 (C A 5) ; N L R B v The Lorben Corp., 345 F.2d 346 (C A 2) ; Operating Engineers Local Jig v N L R B , 353 F 2d 852 (C A D C) ; Bourne Co. v. N L R B., 332 F 2d 47 (C A 2) ; Blue Flash Express, 109 NLRB 591; Cannon Electric Co , 151 NLRB 1465. 37 See also the similar statements of John Blackmon, infra 38 Boyce Machines y Corp , 141 NLRB 756, 762-763 39 Petroleum Carrier Corporation, of Tampa, 126 NLRB 1031, 1038-39. 40 Civil Rights Act of 1964, Title VII, Sec. 703, 78 Stat 255 41 General Steel Products, Inc, 157 NLRB 636, Certain-Teed Products, Inc., 153 NLRB 495; Atkins Saw Division, Borg-Warner Corporation, 148 NLRB 949; Empire Manufactur- ing Corporation, 120 NLRB 1300, cf. Sewell Manufacturing Company, 138 NLRB 66, 71-72. VIKING BAG DIVISION 657 Without more, the above-found violations amply demonstrate Respondent's bad faith in refusing to recognize and bargain with the Union within the criteria of the Joy Silk Mills, Serpa, and Aaron cases, supra. Reinforcing this conclusion is the evidence, earlier discussed, of Respondent's absolute refusal to meet with the Union or answer its formal requests. As thus far reviewed, Respondent's conduct effectively refutes its belated expressions of doubt of the Union's majority and its references to the preferred reliability of a Board election; it exposes rather a motivation which completely rejects the collective-bargaining concept of the Act. F. The supervisory and agency status of John Blackmon Evidence and argument have been presented to a degree considerably more than necessary for adequate litigation and disposition of this issue. A good deal of the evidence, though generally relevant, is of a secondary character as to which any detailed treatment would only serve to burden this Decision. A brief background: Operating in the machine room around the clock on week- days are three shifts, designated A, B, and C, which rotate weekly.42 On each shift, consisting of about 15 employees and specific foreman, the functions per- formed in the respective positions are virtually identical. In early May 1965, the foreman of the B shift, Harvey Mann, left the employ of the Company. Blackmon was then transferred to the shift from his job of machine operator on A shift. Geuin, assistant to manager, told the B shift employees, in substance, that he would be acting foreman while Blackmon was in training for about 60-90 days, or for "an adequate time." The testimony is conflicting as to whether Geuin said Blackmon would be in training to "take over" the shift, or for the job of junior adjuster,43 or both. Geuin testified that, until about August 1, he devoted full time 44 to the B shift. Thereafter, as appears, he worked days in the office and sharply curtailed the amount of time he spent with the B shift. Commencing at such time, Blackmon was alone in authority on the B shift during the great majority of its operating hours. For example, during the graveyard shift, from 11 p.m. to 7 a.m., Geuin visited the shop only in instances when Blackmon called for his assistance 45 in adjusting a machine in disrepair.46 In my opinion, there is an abundance of evidence establishing the entire respon- sibility of Respondent for Blackmon's conduct during the Union's campaign. It is sufficient to indicate the following principal factors: 47 (1) While Blackmon was in sole charge of the B shift, the employees were not under close, continual control of other or higher supervision.48 (2) His functions are virtually the same as those of the B and C shift foremen, who are admitted supervisors.49 (3) The prepared schedules of machine operation and processing orders did not obviate the need and exercise of responsible direction of the shift employees. Among other things, Blackmon in certain circumstances assigned and transferred machine tenders and balers to particular machines; instructed operators 42 Two additional departments, with separate foremen, consist of the warehouse and the maintenance crew. The cleanup-watchmen are assigned to particular shift foremen 43 A skilled mechanic primarily concerned with the adjustment and efficient mechanical operation of the machines used in the manufacture of paper bags 44A number of employees estimated this full-time period as coveting about 1 to 2 months from May 14. 45 Since early January, however, on several occasions Geuin cane to B shift at night for an hour or two without having been called by Blackmon. Olt was a general practice for the foremen to assist each other in making adjustments and repairs when there was difficult machine trouble 47 There is no other person in the plant with such title as adjuster or junior adjuster, and it was not shown that the employees were informed or knew the content and authority of such classification. (Cf. Luckenbill's uncontradicted testimony that Graham told him in 1962 that machine operators were junior adjusters.) However, it is immaterial whether, as Respondent strenuously argues, Blackmon was being trained as a junior adjuster, in view of the independent evidence of his supervisory and agency powers 48 E.g , N.L R B. v. Greenfield Components Corporation, 317 F.2d 85 (C.A 1), enfg 135 NLRB 479; N L.R B v. Inland Motor Corp of Virginia, 322 F.2d 457 (C.A. 4), enfg. 138 NLRB 516, Keener Rubber Inc, 138 NLRB 613, enfd. In part 326 F.2d 968 (C.A. 6) ; Sehon Stevenson Co„ Inc., 150 NLRB 675; West Virginia Pulp and Paper Co., 122 NLRB 738. 4B Bauer Welding & Metal Fabricators, Inc., 154 NLRB 954. 264-188-67-vol. 161-43 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which print orders to run and when to blow off the machines; let the machine ten- ders go home early when the machines were shut down 20 minutes before 11 p.m. on Fridays for "weekend cleanup"; ordered employees to perform miscellaneous tasks such as cleaning up; and summoned employees away from their stations to interview them. The employees were fully expected to and did obey his orders.50 (4) Employees came to him with requests for time off, which he granted. (I find incredible, and in conflict with the Manual, Geum's testimony that, when he is absent from B shift, and employee who is sick simply goes home without asking permission.) (5) As did other foremen, he handed out the paychecks to employ- ees and they come to him to have their timecards corrected and initialed 5i (6) Within the awareness of higher management, Blackmon made out "Performance Reviews" of the shift employees, interviewed and explained these to the particular employees and signed his name on each form as "Supervisor." 52 In other respects he held himself out to the employees as a supervisor. (7) Within Respondent's knowledge, the employees made out daily "Machine Running Reports" in which Blackmon's name was regularly entered as "Foreman." Some dozen employees testified that they regarded Blackmon as their foreman, and no employee was produced in controversion 53 Nor was any effort made by Respondent to dis- avow such apparent authority.54 (8) As will be shown, Blackmon conveyed to the employees, as emanating from management, numerous and grave threats relating to the Union which are undenied, and many of which closely resembled the unlawful conduct of Respondent earlier found 55 Manager Graham admitted that he was aware of certain of Blackmon's activities and did nothing to repudiate such conduct.56 (9) Significantly, though Blackmon was available in the hearing room, Respondent did not put him on to testify regarding his supervisory and agency authority, or as to what transpired between his superiors and himself regarding his unlawful conduct during the union campaign. I conclude that Blackmon was a supervisor within the meaning of the Act and, in any case, that he had actual or apparent authority as an agent of Respondent in the commission of the unfair labor practices found hereinbelow. G. Additional 8(a) (1) conduct On December 10 Blackmon summoned the B shift employees, individually, into "the foreman's office." He asked Crosby if he had "heard anything about the Union, or if anybody had visited him." He told Crosby that Manager Graham had heard that the Union lacked one card in having 70 percent of all the employees signed up, that Graham knew who was behind it, and that "they would be dealt with accordingly." Upon Crosby's response that he had not heard anything, Blackmon indicated that the "company knew the Union was coming in." He asked Hall if she had heard anything about the Union coming in, and any- body had contacted her. He stated "Well, if the Union came in that the plant would have to hire more niggers, and that it wasn't for anybody but niggers, and that a lot of people would be fired or lose their jobs over it." Quoting Graham, he also said that Garbers 57 would shut down the plant if the Union came in. He asked Wallace if he had signed a card. Then he told Jones that if the Union came in, "the machinery would be integrated," and also "that the plant would close." '' Sin1,o Manufactiu n7 and Tool Conipani, 149 NLRB 206 m Ertel Atanntactui ins Corp . 147 NLRB 312 15° Badenbausen Corporation, 113 NLRB, 867 r' Southland Paint Company, Inc, 156 NLRB 22 04 Betts Baking Company. 155 NLRB, 1313 Walsh-Lainplin Wholesale Ding Company 129 NLRB 294 GS Daniel Construction Co v Al L R B . 341 F 2d 805 (C k 4), enfg in part 145 NLRB 1397 '-One interesting position of Respondent is that the B shift employees, allegedly in- cluding Blackmon, were adequately supervised solely by 6:euin whole he was not phv,i- cally present On such theory. Geuin would presumably know of Blackmon's coercive practices imparted pervasively to the entire shitt complement, particularly in summoning individual employees away from his or her work station to engage in such conduct, infra cv General Manager Gathers, who was present in the hearing room, was not called to testify on any of the matters in connection with which he was directly or indirectly in- volved in the testimony herein. VIKING BAG DIVISION 659 He asked Luckenbill if he was in favor of the Union. Hearing a negative reply, Blackmon remarked, "Well, you're the fellow I'm looking for." He also referred to Garbers as having made the statement that Respondent had "made arrangements with other plant to make the bags because if we went union they would shut the plant down." He then asked Luckenbill if he intended "going union," and was answered-"not if I can keep from it " Thereupon Blackmon iequested, "If you hear anything let me know, I would like to know who it was that got it started." He wrote Luckenbill's name on a yellow tablet followed by the word "no." 58 He asked McClellan if he had heard anything about the Union, and noted on the tablet that McClellan "hadn't heard anything." He asked Blalock if she had knowledge of anyone trying to organize a union, and stated that several people had been signing cards. He told Billy Taylor "that the Company heard they were trying to get the Union in, and that according to the union man they had 70 percent already signed up." He asked Taylor if he knew anything. He also made the statements (a) that the Union "would hurt us and take away some of our privileges," (b) that if the Union came in "we would probably have to start paying our own insurance," (c) that "Mr. Garbers had told Mr. Graham that if the union came in they would probably have to close the plant," and (d) that "Graham said we would have to integrate the plant." About an hour later, in Blackmon' s presence, employee Adair told Taylor that she was going to ask all the girls if they had signed cards. Taylor said it was none of her business. Blackmon then told Adair to go ahead and ask the employees if they had signed union cards. He told Trammell that Graham had heard that a union was trying to organize the plant, and he asked her if a union agent had been by to see her or if any other employee had spoken to her about the Union. He asked Weatherly if she knew anything about the rumors that the Union was trying to organize the plant. She said she did not want to break the promise she made (not to reveal information about the Union) unless she "had to if it meant her job." Blackmon stated that he was against the Union and "so were the rest of the bosses." He said that, if the Union came into the plant, "there would be stricter working conditions and some people would be out of a job." He said that, for one thing, the employees would not have as many breaks, and they would not be as long. He asked her if she had spoken to anybody that had signed a card, and she said she did not know of anyone. He also said "something about if the Union got in that we would work beside colored people . . . that now they were working in the back, and if the Union got in they would be working up there with us." He asked Williams if she had been contacted yet by "the union man," and said that the Union lacked a few cards from having 70 percent. He wanted her to let him know if anyone approached her about the Union. He stated that "he was strictly against the Union, that Mr. Graham was against the Union, and that if the Company found anyone that had signed a card that they were fired and that Mr. Garbers had stated that he would close the plant before he would let a Union come in." He asked Wiley Taylor if he heard anything about the Union, and whether he "was for it." Accordingly, it is found that, through Blackmon, Respondent committed serious violations of Section 8(a) (1) : by the systematic interrogation of employees concern- ing their union activities; 59 by instilling in the employees the impression that their activities were under surveillance; by requesting and encouraging them to report on the activities of their fellow employees; by threats of discharge, plant closure, stricter working conditions, loss of privileges, and loss of the benefit of company-paid in- surance; and by threats to "integrate" the plant, or to allow Negro employees to work together with white employees in the same functions and departments. Patently, these additional unfair labor practices of Blackmon substantially bolster the earlier finding made herein that Responden's refusal to recognize and bargain 51 Blackmon testified specially with respect to a subpoena daces tecum, served upon him by the General Counsel to produce these notes He admitted that he had made the notes. that he had related their substance to Manager Graham, but had throi%n them away 5B It is noted that all but one of the aboNe employees ans« ered the queries negatively, that most of them had actually signed cards prior to December 10, and that the others signed thereafter. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the Union was motivated, in bad faith, by a rejection of the collective-bargaining principle and by a desire to destroy the Union's majority status. Accordingly, it is concluded that Respondent violated Section 8(a)(5) of the Act. H. Change in vacation policy Dated January 1 , a notice was posted on the bulletin board listing the vacation schedule "for the year 1966." The employees were notified that they would have to take the first week of their vacation during the period from July 1 to 10, and their second week from December 22 to January 2, and that "during these vacation pe- riods the plant will be down." During the December shutdown, only those employees eligible for 2 weeks of vacation would be paid for the time off. Theretofore, the ,employees had been given their choice of vacation periods. In its answer to the complaint, Respondent states that it changed is "vacation policy" to provide for two periods of plant shutdown pursuant to determination which it made in July 1965 to coordinate Respondent's operations with those of the papermills which furnish its paper supply, and that "the alternative vacation pol- icy had long been published and was well known" to the employees. The "Employ- ees Manual," published in 1963, contains the statement: Employees should be aware of the possibility of a plantwide shutdown for a week's duration, perhaps over the 4th of July, and again during the Christmas, at which times all eligible employees would be asked to take their vacations. Graham testified that the papermills are shut down around Christmas and early July and that Respondent has had to shut down during these periods because its supply of paper was cut off. However, he testified more specifically that, since the plant's inception in 1961, it was shut down around Christmas time in 1962, 1963, and 1965 for a period of 7 to 10 days, but did not indicate the times and duration of plant closures in July. In any case, it is clear that the employees were not asked to take their vacations in the past during any such periods that the plant was shut down Respondent contends that the new vacation policy was adopted by Respondent earlier in 1965, before the advent of the Union. Its purported proof consisted of Graham's testimony and memorandums from his notebook in his handwriting. Relat- ing to meetings he had with General Manager Garbers, a leaf from his notebook, dated April 25, merely states-"Give Consideration to Closing down at Xmas." Another note on July 13 indicates-"Vacation shut-down time-1 week of July. Possibly Xmas Week." The note on July 13 scarcely reflects any clear decision to institute the changed policy; nor is it corroborated by evidence of any action taken at that time. I am unable to credit Graham's further testimony that the supervisors were told of the new vacation policy at a staff meeting in September and that notice would be posted the first of the year 1966. None of the supervisors who testified was questioned about the matter and, curiously, the employees themselves were given no inkling of the change prior to the posting of the notice in January. The circumstances were the same throughout more than 4 years of Respondent's operation. No reason was shown why it was necessary to announce the change on January 1 requiring employees to take their vacations at these specific times for the year 1966 but not in any of the past years. Significantly, if a firm decision had been made in July, as Graham asserts, it is not explained why the new policy could not have been put into effect for the 1965 Christmas, during which there was actu- ally a plant shutdown.s° Additionally, the timing of the announcement on January 1, after the Union's recognition request and contemporaneous with the indicated coer- cive practices by Respondent, must be viewed as bearing upon Respondent's motive.ei I am constrained to find that, as alleged, the announced change in vaca- tion practices was intended to discriminate against the employees , or had the natural and foreseeable consequence of discouraging their union activity-thereby violating Section 8(a)(3) and (1) of the Act. Furthermore, this decision to change working 11 No contention was made or evidence adduced that vacations are accorded on a calendar year basis, or that any unfair effect would result from a mid-year application of such a changed vacation policy. 81 While the General Counsel and the Respondent speak in terms of a change in vaca- tion "policy," it is only evident , as noted, that the announced change was related to the year 1966. VIKING BAG DIVISION 661 conditions was made by Respondent unilaterally without fulfilling its obligation to bargain with the Union as the employees' exclusive representative, and thus violated Section 8(a) (5).62 1. Change in work rules The complaint alleges that, about February 13, Respondent unilaterally changed its work rules because its employees joined or assisted the Union-by forbidding employees to smoke in the restrooms and by prohibiting more than one employee from going to the restrooms or break areas at any one time. In its answer, Respondent denies that it changed its rules. Affirmatively, it states that "only one employee each in the classifications of machine operators, baler, and machine tender is normally permitted to be away from the machines at one time"; that this working rule has been long established and well known to the employees; that "no smoking" signs were placed on the restroom doors and in the restrooms used by male employees because of a "requirement" of the State Labor Department safety inspector; that Respondent's insurance carrier has "stringent rules" with respect to "no smoking" signs and regulations in paper storage areas; 63 that after an inspection in early February by the Labor Department and the insurance carrier, the "no smoking" signs were posted; and that the "Employees Manual" expressly prohibits employees from smoking in the plant, "except in designated areas," but that the restrooms are not included as designated smoking areas.64 About February 13 a rule prohibiting employees from smoking in the rest- rooms 65 was inaugurated by the posting of signs and by verbal orders to the employees Notwithstanding Respondent's contentions regarding the provisions in the Employee Manual, it is undisputed that Respondent had knowingly permitted the employees freely to smoke in the restrooms, and that the new rule in question constituted a change in this policy. By way of Graham's testimony various reasons were given in justification of the rule: (1) Employees of a construction contractor working on an addition to Respondent's warehouse were coming through the ware- house, while smoking, in order to use the restroom.66 These crew members and their superintendent were notified several times to stop this practice. However, as of the hearing date on March 30, the "no smoking" signs were still posted in the rest- rooms, even though about 3 weeks earlier the construction work had been com- pleted (2) Inspection of the plant by the State Labor Department takes place every 6 months. On the previous occasions, the inspecter had made no remarks about smoking. In February, he "commented" that there were open waste containers in the restrooms which were a fire hazard and "suggested" something be done about it. In one restroom Respondent had stored paper towels, tissue, paint, and cleaning fluid. After the inspector's visit these materials were removed. (3) The insurance inspector looks over the plant every 4 to 5 months and later sends back a written recommendation on changes. His previous letter contained nothing critical. In February he "commented" about the construction crew "smoking all through" the warehouse. However, there had been no notice or letter from the insurance com- pany as of the time of the hearing. Contrary to the claim, it is clear that no "requirement" of any kind for the new rule was indicated by the State Labor Department and insurance inspectors. The presence of the construction crew was anticipatorily temporary, and their smoking practices in the warehouse could well have been, and perhaps were, halted by other means.67 62 E.g., N.L R B v. Exchange Parts Co, 375 U S 405, Caldwell Mfg Co , Inc, 149 NLRB 112; Brennan's Inc, 147 NLRB 1545 03 Respondent's testimony was that the paper storage was located in the warehouse about 30 feet from the restrooms. 04 Thesc positions ale reflected in an amended complaint dated March 16, and Respond- ent's answer thereto dated March 24 65 Three adjoining restrooms were provided in the warehouse area. 00 The warehouse area, as such, has had "no smoking" signs posted "for some time " 67 Graham did not testify that the construction crew deliberately disregarded the explicit warnings of Respondent and their superintendent. (Hawkins indicated theme was never more than one crew member at a time going to the restroom ) Moreover, for this pur- ported purpose, the "no smoking" signs added to the restrooms, which more directly affected Respondent's employees, did not significantly add to the signs aheady posted in the warehouse. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Graham and Geuin both firmly testified that, prior to the hearing, the rule against smoking in the restrooms was not being enforced Robert Chambliss testified without contradiction to the effect that, about in mid- February, Foreman Carter notified the operators, inter alia,68 that only one oper- ator or one baler at a time would be permitted to go to the designated smoking area or to the restroom.69 Theretofore, no such restrictions were in practice. Cham- bliss further related that, 2 or 3 weeks after the new orders, two operators were permitted in the smoking area, if only one of them were smoking. The operators had no specified "break time," and were mindful that their machines had to be watched, particularly at times of machine difficulty. They "always" tried to work it out among themselves and took their breaks when least needed on the machines. Geum testified that, at a foremen's meeting on February 2, among other things, Manager Graham ordered the restriction of one baler and one operator within the designated smoking area Germ said this rule was always in effect, but was not enforced until February 2 However, he indicated that recently he was aware that the rule was regularly not being observed, and he stated flatly that the iule is not now enforced as long as the machines are "running good " Graham testified that no change was made in existing work rules which prohib- ited smoking in the restrooms and which forbade two operators or two balers at the same time from leaving their machines in order to smoke 70 But in mid-February he decided to enforce these rules as he found that the "costs of operating had bal- looned up" because of "inattention to production " On request, production records were furnished by Respondent for the period from June 1965 through Febru- ary 1966, 71 but the figures were unavailable for the comparable months of Decem- ber, January, and February of the previous year. Assuming a causal relation between the operating costs and the necessity to change past practices by enforcing the work rules in question-the records which were introduced fall far short of substantiating such alleged "ballooning" of costs Moreover, there is unrefuted testimony which apparently accounts for a rise in labor costs in January, i.e., that the machines had been individually shut down for periods as long as 8 hours to make major repairs, during which time the operators were being paid There is no question that Respondent would be fully justified in establishing or enforcing any reasonable rule which in its subjective judgment it deemed necessary for the safety of plant property or the elimination of production inefficiency How- ever, as the very issue here is presented, it would be unlawful if a substantial moti- vating reason for Respondent's action was to inhibit the employees or take reprisal against them because of their union activities. In my opinion, the General Counsel made out a puma facie case by showing material changes affecting the employees' working conditions at a time of attempted union representation and in a context of strong union animus by Respondent. Before, during, and after the changes, the conditions which existed were substantially the same as in past years Whether these were new rules or decisions to invoke previously unenforced rules, Respondent's actions were abruptly instituted essentially without any reason given or reason apparent to the employees, thereby tending to discourage their union membership. Respondent's affirmative defenses are, in least, greatly exaggerated and unsup- ported in the evidence it proferred-largely limited to uncorroborated testimony of Graham The admitted fact that Respondent had again abandoned enforcement of the rules in question prior to the instant hearing would attest its lack of urgent need in the first instance. Again, credibility is a factor. In view of the implausibil- 69 At the same time they were told there would he no smoking in the restroone 69 _\TcMiirtrev. ATcClellan, -Morgan and Peacock gave similar testimony of instructions received fro',? Hawkins, Carter and Coma Tilly Taylor testified that Genin said that two of the balers or two of the operators could sit in the smoking area, but only one of each such classification was allowed to smoke 70He stated that there was no rule iestricting lice of the restrooms that no change was made However, the testimony of numerous emplovees that they were told of such restriction by their supervisors was not directly contradicted ,'Production figures are Labor Cost Per Ton of Paper June 1965 ------- $14 63 September ------- $13 80 December -------- - $14 70 Ju13 ------------ 14 92 October --------- 13 58 January 1966 ____ 16 16 August ---------- 13 52 \ovembei -------- 13 51 February -------- 14 05 VIKING BAG DIVISION 663 ities, exaggerations , and contradictions in Respondent's defense, and Graham's dem- onstrated unieliability on other issues, I discredit him here as well in face of the strong testimony of the employees . I find, rather, that Respondent seized upon the asserted justifications (e.g , the fire safety inspections and "ballooning " of operat- ing costs ) as pretexts for restricting the employees and visiting reprisals against them on account of their selection of the Union-in violation of Section 8(a)(1), (3), and (5), as alleged.72 IV THE EFFECT OF 1 ,iE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section 111, above, occurring in connec- tion 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 obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom and take ceitain affirmative action designed to effectuate the policies of the Act. A broad cease-and-desist order appears warranted in view of the extensive and serious character of the violations committed, which indicates a propensity generally to violate the Act 73 Upon the foregoing findings of fact, and upon the entire record in the case, I make the following* CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By instituting detrimental changes in working conditions of employees, thereby discouraging membership in the Union, Respondent has engaged in and is engaging in unfair labor piactices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing, and by various other conduct interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. Since December 13, 1965, and at all material times, the Union has been the exclusive representative of all employees in the following appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees at Respondent's Pine Bluff, Arkan- sas, plant, excluding all office clerical employees, professional employees, guards, and supervisors as defined in the Act. 6. By refusing to bargain collectively with the Union as the exclusive repre- sentative of its employees in the appropriate unit, and by unilaterally changing working conditions of employees, Respondent has engaged in and is engaging in .unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case , it is recommended that Respondent, Viking Bag Division , Shurfine-Central Corporation , Pine Bluff, Arkansas , its officers, agents, successors, and assigns, shall. 1 Cease and desist from: (a) Refusing to bargain collectively with International Brotherhood of Pulp, Sulphite and Paper Mill Workers , AFL-CIO, as the exclusive representative of all Respondent's employees in the appropriate unit described hereinabove. 72 Cases cited footnote 62, supra ,3 N L R B v Laps ess Publishing Company, 312 U S 426. X, L £Z B v Entwistle Mfg Co. 120 F 2d 532 (C A. 4). 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Unilaterally changing vacation practices or policy, working rules, or other conditions of employment, without notifying and consulting with the above-named Union, as the exclusive representative of the employees. (c) Coercively interrogating employees; requiring or encouraging them to report on union activities of other employees; instilling in employees the impression that their activities are under surveillance. (d) Threatening employees that, if they selected the Union to represent them, the plant would be "integrated," and Negro employees would be permitted to work together with white employees in the same functions and departments. (f) Discouraging membership in International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, or in any other labor organization, by chang- ing its vacation policy, or practices, or employee work rules, or in any other manner discriminating in regard to hire or tenure of employment or any term or condition of employment. (g) In any othe manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its Pine Bluff, Arkansas, plant copies of the attached notice marked "Appendix." 74 Copies of said notice, to be furnished by the Regional Director for Region 26, after being duly signed by Respondent, shall be posted immediately upon receipt thereof, in conspicuous places, and be maintained for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 26, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith 75 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, as the exclusive repre- sentative of the employees in the appropriate bargaining unit described below. WE WILL NOT unilaterally change vacation practices or policy, working rules, or other conditions of employment, without notifying and consulting the above-named labor organization as the exclusive representative of the employees. WE WILL NOT coercively interrogate employees concerning their union activities; require or encourage them to report on the union activities of other employees; or instill in them the impression that their union activities are under surveillance. WE WILL NOT threaten employees with discharge, loss of jobs, closing down the plant, reduction in working hours, loss of privileges, loss of employment benefits, or with any other reprisal, to discourage their union adherence or activities. "In the event that this Recommended Order is adopted by the Board, the words, "a Deci- sion 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" 711n the event that this Recommended Order is adopted by the Board, this provision shall be modified to read. "Notify the Regional Director for Region 20, in writing, within 10 days from the date of this Decision, ixhat steps the Respondent has taken to comply herewith." BREWERY WORKERS LOCAL UNION NO. 3, TEAMSTERS 665 WE WILL NOT threaten employees that, if the Union comes in, we will "integrate" the plant, or permit Negro employees to work together with white employees in the same functions and departments. WE WILL NOT discourage membership in the above-named or any other labor organization by changing our vacation policy or practices or by chang- ing the employees' work rules, or in any other manner discriminate in regard to hire or tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above-named, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in any other concerted activity for the purpose of collective bargaining , or other mutual aid or protection, or to refrain from any and all such activities. WE WILL upon request, bargain collectively with the above-named Union as the exclusive bargaining representative of all employees in the bargaining unit with respect to rates of pay, wages , hours of employment, and other conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees at the Pine Bluff, Arkansas, plant, excluding office clerical employees , professional employees, guards, and supervisors as defined in the Act. VIKING BAG DIvIsION, SHURFINE-CENTRAL CORPORATION, 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 compliance with its provisions, they may communicate directly with the Board 's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee 38103, Telephone 534-3161. Brewery Workers Local Union No. 3, International Brotherhood of Teamsters, Chauffeurs; Warehousemen and Helpers of America and Rheingold Breweries, Inc. and Local 56, Interna- tional Brotherhood of Firemen, Oilers, and Maintenance Me- chanics, AFL-CIO. Case 29-CD-28. October 31, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10(k) of, the National Labor Relations Act, as amended, following charges filed by Rheingold Breweries,, Inc., herein referred to as Rheingold or the Employer, alleging that the Brewery Workers Local Union No. 3, International, Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Local No. 3 or the Respondent, had induced and encouraged employees of Rheingold to strike for the purpose of forcing or requiring the Employer to assign particular work to members of Local 3 rather than to members of Local 56, International Brotherhood of Firemen, Oilers, and Maintenance 161 NLRB No. 52.