Dan Carter Co.

314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dan Carter Company and Carpenters Local Union No. 2139, United Brotherhood of Carpenters & Joiners of America, AFL-CIO. Case 12-CA-3743 November 20, 1967 DECISION AND ORDER By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 19, 1967, Trial Examiner Lau- rence A. Knapp issued his Decision in the above- entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommend- ing that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Re- spondent filed exceptions to the Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three- member panel. 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 the case, and hereby adopts the findings, conclusions,' and recommenda- tions of the Trial Examiner. ORDER Pursuant to Section I0(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Dan Carter Company, Tallahassee, Florida, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. the "Act").' Respondent's counsel filed a brief but I did not have the henelit of one from counsel for the General ^. ounse Upon the entire record of the case, including my observation of the demeanor of the various witnesses. I make the following. FINDINGS OF FACT I THE BUSINESS 01= RESPONDENT . THE LABOR ORGANIZA- TION INVOLVED Respondent , a corporation,2 operates at Tallahassee, Florida, a plant for the manufacture of windows , doors, mouldings, and like custom woodwork products used in the building industry. In the 12 months preceding is- suance of the complaint , Respondent received from Florida suppliers goods and materials valued in excess of $50,000 which said suppliers , in turn , had received directly from States other than the State of Florida. Respondent's operations are activities affecting com- merce within the meaning of Section 2(7) of the Act, and assertion of jurisdiction by the Board over Respondent will effectuate the policies of the Act. The Charging Party, Carpenters Local Union No. 2139, United Brotherhood of Carpenters & Joiners of America, AFL-CIO (herein usually called the " Union"), is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES The complaint charges Respondent with refusing to bargain collectively with the Union as the majority representative of Respondent's production and main- tenance employees; and, in this connection, with engag- ing in various acts of interference, restraint, and coercion designed to discourage membership in the Union and to destroy its majority representative status. The foregoing acts are alleged to have been committed in the period from January 16 to 31, 1967, a period immediately coin- cident, as will be seen, with the initial union activity among Respondent's employees. The complaint further alleges that Respondent requested and received a sworn evidentiary statement given by one of its employees to an investigating representative of the Board, and that on April 28, 1967, the last working day but one prior to the scheduled date of the hearing herein, Respondent ter- minated the employment of employees composing its then complement of production and maintenance em- ployees to discourage membership in the Union. ' In addition to the reasons given by the Trial Examiner for finding valid the authorization cards offered to support the union's majority status Member Brown relies upon his separately stated view in Dan Howard Mfg Co, and Dan Howard Sportswear, Inc , 158 N LRB 805, 807, fn 5 TRIAL EXAMINER'S DECISION STATEMENT OF THE C %SE I AURENCE A. KNAPP, Tria Examiner: I heard this case in Tallahassee. Florida, on May 2 to 4, 1Y67, pur- suant to preliminary procedures in compliance with the National Labor Relations Act, as amended therein called ' Following charges filed on January 31 and February 23, 1967, the complaint herein issued on March 22, 1967, to which Respondent filed its answer on March 31, 1967 On April 11, 1967, on motion of the General Counsel not opposed by Respondent, Trial Examiner Schneider entered an order deeming to be admitted as true certain allegations of the com- plaint not pleaded to by Respondent in compliance with Section 102 20 of the Board's Rules and Regulations, Series 8, as amended On May I, 1967, the Charging Party filed an additional charge At the outset of the hearing motions of the General Counsel variously to modify and add to the unfair labor practice allegations of the complaint were granted; to these amendments the Examiner accepted the oral pleas of denial made on the record by counsel for Respondent I The complaint makes no reference to Respondent as a corporation, but it developed in the course of the examination of Mrs Fae Rountree Carter, its president, that it is a corporate enterprise (of what State the record does not show) 168 N LRB No. 44 DAN CARTER COMPANY 315 In considering the issues and evidence in the case, it is enlightening to bear in mind that Respondent, a manufac- turer of custom woodwork products, is a very small enter- prise. As of mid-January 1967, the starting point of the case, Respondent had only some 16 or 17 production and maintenance workers, and an office staff consisting of a clerk, a salesman, and an estimator. Respondent has but two persons with supervisory authority, James English, foreman in charge of the production shop, and Mrs. Fae Rountree Carter, Respondent's president, chief execu- tive, and dominant figure.3 In this employment microcosm, as will be seen, an atmosphere of familiarity and free and easy communication prevails among the production employees and between them and Foreman English. As English described the situation in part, "we're a group, a small group of men that talk over their problems together...." In late 1966 and the early days of January 1967, production employee Benny Cunningham promoted among his fellow shop employees the idea of their representation by a union by querying them concerning their willingness to attend a meeting with union repre- sentatives which he proposed to arrange, and which was held at the local Labor Temple on the evening of January 16, 1967.4 Thirteen of Respondent's shop em- ployees attended. Present for the Union were Mr. T. L. Carlton, International Representative, and Mr. Edgar Davis, business manager of the local Union. Carlton in effect presided at the meeting. Toward the end of the meeting he had distributed among the employees the Union's authorization cards, which provide that the signer designates the Union as his bargaining representa- tive. After he had read aloud the wording of the card, each of the 13 employees present executed a card (G.C. Exhs. 6(a) to 6(m), inclusive).5 On the next day, January 17, as he had explained at the meeting he would do, Carlton mailed (1) to the Board's Office in Jacksonville, Florida, the Union's petition for certification as the majority representative of Respond- ent's production and maintenance employees (accom- panied, I infer, by the 13 signed cards); and (2) to Mrs. Carter, as Respondent's president, a registered letter as- serting the Union's majority status and requesting a meet- 7 Mrs Carter suceeded to the presidency and, together with her son, Paul Hodges (the salesman referred to above), to majority stock control of Respondent upon the death of her husband, Dan Carter (Respondent's founder, I infer), in late 1965 The other and minority stockholders consist of employees and other persons intimately associated with the Company, such as Foreman English (who is also a vice president of the Company), estimator "Ted" Folmar, Mr Henderson, of counsel to the Company, and the latter's secretary The evidence leaves no doubt that Mrs Carter has the decisive say in the conduct of Respondent's affairs, that she is a per- son of strong-willed character, and that she is decidedly opposed to labor organizations in principle " All dates used hereinafter refer to the year 1967 ' On the basis of employee Retherford's testimony, which I credit over that of Foreman English to the extent that the two versions vary, I find (1) that on the afternoon of January 16, English asked Retherford if he was going to attend the meeting that night and Retherford replied in the af- firmative, and (2) that the next day English asked Retherford whether he had attended, and, when Retherford replied that he had, English further asked Retherford what or how many employees were there and had signed cards, to which questions Retherford replied that about all the employees had been present and had signed union cards fi At the hearing the parties stipulated that Respondent received the letter on January 23. Fiom additional evidence adduced from Mrs Carter, it appears that the postal authorities kept the letter in her personal post box at the local post office, while sending the customary notice to Respondent's plant, she was absent from the plant for several days before ing concerning recognition of and bargaining with the Union. Mrs. Carter did not obtain personal possession of Carlton's letter until the afternoon of January 23,6 and did not reply to it. On January 19, however, she was notified of the Union's petition and the fact that it was supported by the signatures of 30 percent or more of the employees, in the course of telephone calls she received from Board representatives seeking her cooperation in the holding of an election. Also, beginning about January 19, the employee card signers began to display, and by January 23 practically all of them were wearing, "VOTE CARPENTERS" buttons Carlton had given them at the January 16 meeting with corresponding instructions. And in the period immediately following the January 16 meet- ing the matter of the Union became the subject of general conversation among the employees, and between them and Foreman English, in the shop. About January 19, employee Thompson, who rode to and from work with Foreman English, asked English what he thought Mrs. Carter would do if the shop "went" union, to which English replied that he thought that she would close the plant.' On Monday, January 23, during the midmorning "break" period, Mrs. Carter addressed an assembly of the shop employees which Foreman English had con- vened at her direction. Referring to the prospective elec- tion and admitting her understanding that the Union's petition had the support of a considerable percentage of the employees present, she dwelt on the benefits Respondent had extended to the employees by way of wage increases, Christmas bonuses, and the like; and stated that Respondent had lost money in 1966 and was unable, due to competitive conditions, to assume greater costs (which she was necessarily implying plant union- ization would entail). She likewise stated that at the time of her husband's death she had been advised to terminate the business but that she had kept it in operation for the benefit of the employees dependent on it. She further stated that her husband had been opposed to unions and that she wanted to follow in his footsteps; and that if the Union came in she would immediately lock the doors and sell off the equipment piece by piece.' Mrs. Carter's threat to close the plant gave rise to and going there on January 23, and that, after addressing the employees that morning as hereinafter described, she turned to her mail, discovered the notice, and then sent for and received the Union's letter that afternoon ' This finding is based on the testimony of Thompson With reference to this testimony English admitted that, as previously stated, he 'par- ticipated in the then prevalent shop conversation concerning the Union and that "they'd ask me a question," but asserted that there was no talk about the Union "so far as I'm concerned " I interpret this latter reserva- tion on English's part as meaning only his disclaimer that he initiated any such conversation and not as a denial that he made the remark attributed to him by Thompson 6 According to Mrs Carter and Foreman English, Mrs Carter said, in connection with her references to added costs, that if the employees brought the Union in "you [referring to the employees] will close the doors " Even if Mrs Carter put the matter this way, she necessarily was declaring her intention to close the plant rather than deal with a union as the employees' bargaining representative But I do not credit these ver- sions of her remarks Mrs Carter proved herself to be a person deeply hostile to labor organizations as such, and, on demeanor and other evidence, I am satisfied that both she and English were disposed to incline and color their testimony as they thought would best suit Respondent's advantage These are among the reasons why I credit the General Coun- sel's evidence and find, as stated in the text, that she made clear her flat in- tention to close the plant in the event , and at the time when , the Union established its majority representative status 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was the subject of corresponding concern and discussion among the employees, and between them and Foreman English, in the immediately following days. According to the General Counsel's evidence, English told both em- ployees Holm and Alday that Mrs. Carter would definite- ly carry out her threat, and told employee Retherford that he thought she would do so. I credit this testimony, par- ticularly since English himself admitted having made statements of this general character to a number of em- ployees.`' On January 24, the day of his statement to employee Retherford, he also told a group of employees gathered near the timeclock that, by speaking up to Mrs. Carter during her remarks the day before, employee Thompson had "asked" for a reduction to a 3-day week and that anybody else who spoke up for the Union or was for the Union would probably get the same treatment.10 In the same set of remarks, English described Mrs. Carter as "stubborn" at times and made one of his various state- ments that she would close the plant if "there was a union."" Similarly, during the afternoon of January 24, English approached employee Holm (who during the lunch hour had asked one of the employees why he had removed his union button) and asked Holm to quit talking to the men about the Union since everybody knew "all about" this subject. Holm, in reply, asserted his right to talk about any subject during his break and lunch periods. English stated that this was up to Holm but that when "this was all over" Holm would probably be without a job. In the same conversation English said to Holm, refer- ring to Mrs. Carter, "You know how she is. She's op- posed to unions, and she will-if the shop goes union, she will-if the men go union, she will shut the shop." 12 Prior to the morning "break" on January 26, English had a conversation with employee Alday, in which he told Alday that he was not going to let a lot of agitators talk him out of a job and made other remarks equivalant to his soliciting Alday to sign a letter to drop the Union to which English made reference.13 Similarly, prior to the break that morning English approached employee Retherford, whose work station is near English's desk and with whom, the record manifests, English was on talkative terms. According to Retherford's testimony, English said he had talked to two or three other "main leaders" (Cunningham's was the only name he men- tioned) about getting up a letter for the employees to sign and send off stating that they did not want a union or that " English denied having had any conversations concerning union activi- ties with Holm or Alday, and could not recall talking to Retherford on this subject However, he admitted that several employees had asked him if he thought Mrs Carter would close the plant if the Union came in What he replied, he testified, was that he believed Mrs Carter "would have" to close the plant if the Union came in It would in my opinion, make no legal difference if what English said contained the "would have" qualification he described, because employees are not required to make nice grammati- cal distinctions where they in effect are given to understand that their majority adherence to a union endangers the source of their livelihood But in the light of the overt threat I have found Mrs Carter made but a day or so before, I do not believe that English made the careful qualifica- tion he described and find that the statements he made were as described in the text above 10 While Mrs Carter was addressing the employees on January 23, em- ployee Thompson had twice obtained Mrs Carter's recognition and then made remarks having the effect of challenging statements Mrs Carter had made regarding prior wage increases and Respondent's financial condi- tion n English denied having any conversation concerning "union activity" with the employee, Holm, who gave this testimony Holm was not describing a conversation between him and English, but a setting in which they had decided not to have an election; that the others he had talked to had agreed to sign; and then asked Retherford what he felt about this and Retherford replied that, if the "rest" would sign, he would likewise. Rether- ford further testified that in this conversation English also said he was going to telephone Mrs. Carter to come to the plant and type up the letter. On his own initiative, Rether- ford then sought out Cunningham. According to Rether- ford, he asked Cunningham if, and Cunningham con- firmed that, English had talked with him about getting such a letter prepared, signed, and sent off; Retherford asked Cunningham how he felt about this and Cun- ningham said "we might as well forget the whole thing"; and Cunningham further stated that he had informed En- glish that he would sign such a letter and "see" if the rest would and that he was going to get the letter typed up. Cunningham admitted having had a conversation with Retherford but could not rec'll its content and, hence, did not directly deny having made the specific statements at- tributed to him by Retherford. In his further testimony, Cunningham asserted that the idea of the letter originated with h:m. In explanation, he testified that, for reasons which he could not clearly elucidate under extensive in- terrogation by the Examiner, he (and, he said, other em- ployees whom he did not, however, identify) had become disenchanted with the union idea; that friction and an- tagonism were developing between those wanting to drop the Union and those of contrary mind; that he did not know how to go about dropping the Union; that, on January 25, he went to Foreman English for advice, because English was the "supervisor" and he thought English, with whom he was accustomed to confer, might have "better knowledge of the thing" and "probably both of us together could [a sentence he did not conclude] "; and that, as English also testified, when he put the problem to English, including the idea of the employees' letter, English declined to have anything to do with the matter-that "we" had started it and should end it. For his part, English testified that on January 25 Cunningham asked his opinion about a letter to the Board stating that the employees did not want a union, and that he told Cun- ningham such a letter "might help"; and that, on January 26, in a conversation he believed he must have initiated, he had relayed to Retherford this much of what had trans- pired in his talk with Cunningham the day before. On the basis of this evidence, my distinct impression English was speaking to a group of the men Moreover, English did on his own admission make rather similar remarks to a number of employees In the circumstances, and considering the more likely probabilities on the record as a whole, I make the finding stated in the text as to his remarks to the group 12 t make these findings on the basis of Holm's testimony, which I credit over that of English (I) that he did not talk to Holm relative to union activity, and (2) that he did not tell any employee he would find him- self out of a job if he talked continually about the Union 13 According to Alday, English said he had on his desk a paper to give up the Union which he told Alday he could sign anytime he asked to, and further told Alday that employee Quinn was going to quit and he felt Alday could get Quinn's job and perhaps a 10-cent raise While I believe that Alday was endeavoring to testify truthfully, he may have been in error in testifying that English said he had such a letter on his desk, since the letter had not yet been prepared But I believe English in some way urged Alday to sign such a letter, since he knew from his talk'with Cunningham the previous day that such a letter was in train Hence, and since English did not deny having had with Alday a conversation embodying the specific statements Alday attributed to him but contented himself with denying that he had had any conversation with Alday about union activities, I make the findings about this conversation stated in the text DAN CARTER COMPANY 317 that both English and Cunningham sought to slant their testimony in Respondent's favor, and on what I consider are the probabilities toward which the record as a whole points, I believe Retherford's account of what he was told by English and Cunningham. His account can be in- terpreted to mean that the idea of the letter originated with Foreman English, who sought and obtained assent to the plan on the part of Cunningham (and perhaps others) on January 25, just as English clearly was seeking Retherford's adherence to the idea on January 26. I find it difficult to believe that Cunningham broached the idea to English as his own, in the light of Cunningham's own testimony that he did not know how to drop the Union and went to English for advice on the very matter. Moreover, I am impressed by the fact that English never specifically denied either (1) Retherford's testimony that he had told Retherford he was going to arrange for Mrs. Carter to come to the plant to type the letter, or (2) Al- day's testimony that early on January 26 he told Alday he had a paper on his desk to give up the Union which Alday could sign any time he wished to. Hence, while part of Retherford's account of what he was told might, if read apart, be regarded as not precluding the possibility that Cunningham came to English with the letter idea, other things English said to Retherford and Alday, and other circumstances of record, preponderate in favor of finding, as I do, that the idea originated with English and was promoted and advanced by him as a course for the em- ployees to follow.14 - In the course of the morning work period on January 26, Cunningham asked the shop employees to convene during the 10 a.m. break period to see how many em- ployees were for and how many against continuing "to hold out for the Union." The meeting took place with all employees at work present, and, with the employees polled individually by Cunningham, a majority voted in the negative. On the basis of this vote, the employees then concurred in Cunningham's proposal that he get typed up for them to sign a letter to the Board's represent- ative stating that they did not want an election. Cun- ningham then reached Mrs. Carter by telephone at her home and told her that he and others did not want to be represented by the Union, that they regretted their prior decision, and that he wanted Mrs. Carter to come to the plant to type up a corresponding letter to send to Mr. Dean, one of the Board's representatives who had previ- ously been in touch with Mrs. Carter. Mrs. Carter there- upon came to the plant and, according to Cunningham, in the light of explanations given to her by Cunningham composed and typed the actual wording of the letter. The text of the letter (G.C. Exh.4) reads as follows: We, the undersigned employees of the Dan Carter Company, respectively [sic] request that NO elec- tion be held concerning collective bargaining in respect to wages, hours, conditions and [sic] em- ployment of the Dan Carter Company. Cunningham then circulated the letter among the em- ployees for signatures during the balance of the mcrning work hours. Eleven of the 15 union card signers (includ- ing two who had signed at Cunningham's behest sub- sequent to the January 16 meeting) and one noncard signer, signed the letter. Cunningham then had the office secretary type an envelope addressed to Dean, went to English from whom he borrowed sufficient money to cover postal registration costs, and, making use of a com- pany car with Englirh's permission, went to the post of- fice and mailed the letter to Dean by registered mail and a copy by ordinary mail to Carlton, both addresses being supplied by someone in Respondent's office. He returned to Respondent's plant about noontime, and went to English's office where he informed English that he had gotten the letter off. On January 31, Foreman English handed to each of four employees - Alday, Quinn, Holm, and Thompson - a written notice (G.C. Exh. 2) reading as follows: TO WHOM IT MAY CONCERN: Any further malingering or talking on company time will result in immediate dismissal. JAMES ENGLISH SUPERVISOR MILL DAN CARTER CO. These four signed union cards at the January 16 meet- ing and were the only shop employees who did not sign the January 26 letter opposing an election. (Quinn, Al- day, and Holm refused to sign; Thompson was absent from the plant that morning and hence was not shown the letter.) 15 In reference to this matter, it is clear both from the General Counsel's evidence and that of Respondent that talk among the employees, and between them and foreman English, during working time was a frequent and regular occurrence - a characteristic of employment in the shop - and not frowned on unless it resulted in con- versational gatherings of employee groups. English un- derlined and illuminated the picture when he testified in relation to talking, that "We have one of the freest shops you've ever seen," and when he further testified that he had never before issued any such written warnings. It is clear from the entire record that in the days following the January 16 meeting, the Union was a leading topic of such conversations, in some of which English par- ticipated, and that they were abundant in volume and remained so when the employees later split into two op- posing groups as a result of the antiunion leadership taken by Cunningham, with the prounion group narrowed down to the four employees here concerned, as everyone knew. With these basic underlying facts in mind, Foreman English testified that, beginning a couple of days after the January 16 meeting, these four employees bunched together talking and, as other employees passed by, en- gaged them as well in conversation; that the work produc- tion of the four declined and he could not "get any work out of them"; and that he orally warned them "at least, two to three to four times" and then composed and gave them the written notice. English (who previously testified that he did not know what the four were talking about in their allegedly many talking interludes) stated that at this time these four were continuing to speak up for the union " The least that the record warrants is a finding, supported by the necessary implications of Cunningham 's and English's testimony and the surrounding circumstances , that the letter was the product of the joint consultations between Cunningham and English , and one which English supported and encouraged Cunningham to advocate 15 These four prounion employees likewise were not present at an em- ployee gathering at the end of work the previous day, January 30, at which Mrs Carter played a tape recording she had made of the conversation she had had earlier that day concerning the election matter with Mr Dean of the Board's staff But the skimpy evidence as to how English passed out word of the meeting to the shop employees fails to show that these four were intentionally excluded 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause , in contrast , as I interpret his testimony , to a reduc- tion in the volume of talk relative to the Union on the part of the others , that is, those who had signed the January 26 letter. English also described Thompson as an employee who had always talked excessively. Under examination by Respondent's counsel , Cunningham testified that these four talked "an awful lot." Under later examination by counsel for the General Counsel , he stated that the four began their excessive talk about a month before January 31 , and then as beginning after the January 16 meeting. He also described Alday as a fairly quiet man when the other three would leave him alone and in this line of examination sought , as I read his testimony, to place Alday in no worse light than any other employee in the shop . Other of Cunningham's testimony makes clear that the ferment of discussion among the employees after January 16 pertained to the Union , including the division of opinion he stated later developed over this subject, that is, when he and other employees favored dropping the Union these four "other guys" were holding out for the Union. As to the four employees , a composite of their testimony is that talk among the employees was common, that there was much talk about the Union and the prospective election after the January 16 meeting, and that they had not been previously warned orally as English asserted they had. On the basis of the foregoing testimony and other cir- cumstances of record, I think the true facts are, and I find , as to Respondent's contention of excessive talk by these four, that there was an exceptional volume of talk among all the employees relative to the Union from just after the January 16 meeting until just after the signatures and mailing of the January 26 letter; that between Janua- ry 26 and 31 there was more talk on the part of three of the four dissenters (those other than Alday) than on the part of those who had signed the January 26 letter, and that this talk related to their continued espousal of the union cause despite the action of the others in signing that letter ; but that the talking on the part of these three in these final days did not in any significant degree exceed the levels at which all employees had talked in the Janua- ry 16 to 26 period. I further find , as intimated above, that Alday was one of the least talkative of all employees throughout this entire period . In the circumstances, I find that English issued the warning notices to these four em- ployees because of the nature of their talking , that is, their continued support of the union cause , and not because of any infringement of plant discipline or reduction of productive output. On January 31, employee Retherford gave a sworn statement (G.C. Exh. 8) to Board Representative Dean in Tallahassee, presumably responsive to unfair labor practice charges filed that day by the Union. On a later day not certain on the record , but which I conclude from certain evidence was Friday, February 3,16 Retherford quit his employment for reasons not at issue herein. On the following Tuesday or Wednesday , he went to see Foreman English with reference to getting his job back. Just what all transpired in his conversation with English is not clear from Retherford's testimony except that, ac- cording to him, he told English he was through with the Union and wanted to or was going to see Mrs . Carter to tell her this and talk to her about coming back to work." According to Retherford, during the session with English, the latter, in effect at Retherford 's request , called Mrs. Carter at her home and arranged for Retherford to talk with her. Retherford , who had made no mention of his pretrial statement in talking to English , then proceeded to Mrs. Carter's home. There , according to him, he ex- pressed to her his wish or inclination to return to work and volunteered to her that he was through with the Union and that he had given , and had with him, a copy of a sworn statement he had given to Dean. According to Retherford (who testified that he "wanted" to show the statement to Mrs. Carter), Mrs. Carter then asked him to let her read the statement , he handed it to her , and she read it, following which she told him to "go on and go to work" and he replied that he was "thinking" about doing so. Retherford then accompanied Mrs. Carter while she showed one of her rental houses to a prospective tenant and, when the two returned to Mrs. Carter 's home, Mrs. Carter, according to Retherford , asked him and he agreed to let her keep the statement. A day or so later, Rether- ford met again with English , at which time he informed English he had told Mrs. Carter that he was "probably" coming back and that he was forgetting about the Union (to which latter statement English replied that he was "glad"). In connection with returning , Retherford told English he wanted to come back but had another job with more money and as a result it was agreed that Retherford should receive a 25-cent -per-hour increase . He then returned to work. On two or three subsequent occasions, according to Retherford , he asked Foreman English for the return of his statement, and on one of these occasions English told him Mrs. Carter wanted to keep the state- ment and on another told him that he had forgotten "to get it." Mrs. Carter's testimony is that she had no advance word of Retherford's visit to her home and that after she invited Retherford in he said he wanted to talk with her. Then, she testified , Retherford said he wanted to put "the whole thing on the table "; that when he quit he had given to Foreman English an untrue explanation for his depar- ture and explained to her the real reason ; that he also said "You ... may not like me any more.... I don't know what'll come of me after the statement I've given , but I'm going to tell you everything I've done"; that he said he had given to Dean an affidavit containing statements he wished he had not made ; that he took the copy out of his pocket saying he wanted to show it to her; that Rether- ford said "these people " wanted him to "mail it" but he wanted her to have it and, apparently handing it to her at this juncture, said "I'm giving it to you." Then, she testified she read part of the statement and after question- ing Retherford regarding one portion of the statement Retherford said "Now, it's yours. I'm through with the Union." Then , she testified , the affidavit "was put away," she and Retherford went on the real estate journey described by Retherford, and, after they returned to her 16 While Retherford speculated that he quit about January 26 or 28, other evidence indicates that he was still employed at the time he gave the pretrial statement on January 31 Since he seemed relatively confident that he quit on a Friday, I conclude the quitting date was February 3 ' ° English did not testify about this conversation or a second one he had with Retherford after Retherford talked to Mrs Carter as hereinafter described DAN CARTER COMPANY 319 home, she told Retherford that if he wanted to return to work to see English and tell English the truth about why he had quit and why he had given an untrue reason. Asa supporting witness, Respondent called employee Toruno, who was performing some work at Mrs. Carter's residence on the day she and Retherford met. Toruno testified that he was present during the entire initial con- versation between Retherford and Mrs. Carter; that Retherford handed Mrs. Carter the statement and told her he wanted no further part of the Union and was "sick and tired of all this"; and that Retherford, alluding to telephone calls from unidentified parties, further said he was "supposed to mail" the statement but was not going to do so and said "I'll give it to you." Called in rebuttal, Retherford testified that Toruno was not present in the room, but was "working out back," while he was talking to Mrs. Carter; and confirmed his previous testimony that he showed the statement to Mrs. Carter to read, and later let her keep it, each in response to her corresponding requests. 18 The narrow question presented is whether, after Retherford referred to his having given the statement and to having the copy with him, he thereupon gave the state- ment to Mrs. Carter without more, as Mrs. Carter testified, or pursuant to her request to read it, as Rether- ford testified. Very real difficulty surrounds the resolu- tion of this conflict.19 For from Retherford's own testimony and the surrounding circumstances, it is abun- dantly clear that in making his abject approach to Mrs. Carter relative to regaining his job, Retherford was fully prepared to show her the copy of his statement. That, no doubt, is why he had brought the statement with him. On the other hand, on all the record evidence and her demeanor, I am satisfied that Mrs. Carter is the kind of person who would have seized any opportunity, of the kind plainly presented to her by Retherford, to become possessed of evidence given to the Board in support of the Union's unfair labor practices then already on file. But precisely because the statement was adverse to Mrs. Carter's interests, it may be doubted that Retherford would have been disposed to turn the actual statement over to Mrs. Carter unless necessary; i.e., unless requested to do so. And having obtained his job back, with a pay raise, it would seem that at the time of the hearing Retherford would have had good reason to testify that he had given the statement to Mrs. Carter absent any request on her part (or, at least, would have had no strong interest inducing him not so to testify), if that had been the truth. Finally, on an examination of all the testimony of record given by Mrs. Carter and by Retherford, and a comparison of their demeanor, I consider Retherford the more trustworthy of the two witnesses. Accordingly, I credit Retherford's testimony and find that he gave the copy of his statement to Mrs. Carter pursuant to her request to read it. At 10 a.m. on Thursday, April 27, Foreman English addressed the shop employees. He referred to the fact that he and the bulk of the employees had received sub- penas (apparently issued at the behest of the General Counsel) to appear at the hearing herein on the following Tuesday, May 2; stated that the men were nervous and upset and referred to the dangers of injury the men faced if working under such conditions; and said the plant would be closed that evening until, as employee witnesses variously testified, "this thing was settled," "until this was over," "until after we get through up there" ("there" connoting the Federal building where the hearing was to be held); and that if the "shop went Union" the men would be cut to 40 hours per week and, because of the loss of overtime, would lose money. Asked by some em- ployee how long the plant would be closed, English ad- mittedly stated that he did not know-that it might be closed "one day, two days, ten days, or ten years." Later that day, English notified the employees that the plant would operate on the next day, Friday, to complete some orders, which was done.20 On Friday, there was posted on the plant door, along with a Board subpena served on Respondent, a notice composed by Mrs. Carter and posted at her direction reading as follows: Our company is the victim. Until justice is done, the company is forced to close its doors. In connection with this cessation of production opera- tions, Mrs. Carter, on her own initiative, called the editor of the local newspaper - the Tallahassee Democrat - and through him arranged to give and gave to a reporter of that paper an account of her decision to close the plant which appeared in that newspaper on Friday, April 28, the day operations actually were brought to a halt. Mrs. Carter admitted at the hearing that the account published accurately reflects what she said to the reporter (with the exception of two words, only one of which need be and is noticed hereinafter). In the opening sentence, the article refers to Mrs. Carter's decision to close the plant. It then refers immediately to Mrs. Carter's charge that "four men `duped' her employees into joining the Carpenters Union" (in her testimony, Mrs. Carter identified these four as the ones who did not sign the January 26 antielec- tion letter but testified that she used the word "coerced" rather than "duped"). The article then sets forth at length Mrs. Carter's version of events of the case and certain matters at issue herein, in the course of which there is at- tributed to her the statement that, due to the emotionally charged atmosphere, it would be too dangerous for the employees to work- "fingers are cut off under the best of conditions." The article then sets forth various reasons given by Mrs. Carter as to why it would be burdensome, financially or otherwise, for the plant to operate under union rules; refers to her inquiry of a Board representa- tive whether his agency would put up the funds necessary to operate under union conditions and his alleged nega- tive reply; and concludes by quoting the following re- marks of Mrs. Carter: The people should wake up and know that the unions, backed by the federal government, are taking over the country. 18 It is undisputed that Retherford never requested Mrs Carter per- sonally to return the statement 10 The witness Toruno obviously gave so curtailed an account of the conversation between Retherford and Carter (at a meeting which he testified consumed about a half hour) that I do not think it can be relied on to provide an accurate account of what was said or in what order Moreover, in observing his demeanor and his expression of pronounced antiunion feelings, I gained the impression at the hearing that he was straining to testify in Respondent's interests Hence, after careful con- sideration of it, I have in effect decided to disregard his testimony 20 During the course of Friday, English gave to several employees the same vague indications as to how long the plant would be closed, e g , "un- til this was over," "until we go to court and its all over," but again did not state whether or when the plant would resume operations 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the hearing , Mrs. Carter variously testified that she closed the plant because the men were emotionally upset and to protect them from accidents ; that their receipt of the subpenas was the "straw that broke the camel's back"; that she could not say whether or when she would reopen the plant ; and that she would not reopen the plant under the present conditions of "harassment " which she defined, without supporting evidence in the record, as in- cluding: . constantly receiving registered letters, deluged with these problems that you have no knowledge of, you have your telephones ringing constantly at home and in the mill people slamming up - such people as this Holm- interfering with these employees , calling them , threatening , yes, its harassment.21 In further testimony , Mrs. Carter engaged in apparent contradictions , e.g., (1) that while the plant was closed, the employees had not been laid off or terminated ; and (2) that, on the one hand , she planned to complete unfilled or- ders but, on the other , did not know whether she would open the plant again.22 The language of the notice Mrs. Carter had posted on the plant door, the fact that she posted such a notice on closed doors , her concurrent statements to the press and her causing their publication to the entire community, her testimony at the hearing , and other of her conduct as found herein , all combine to establish , as I find , that Mrs. Carter brought production operations to a halt, and deliberately left the employees in suspense as to whether or when they would be resumed , as an act of retaliation and defiance directed against all having any hand in in- volving her in this proceeding : the employees who had in- itiated the union activity , the Union which filed the charges, the Board which investigated the case against her Company and caused the proceeding to come to hear- ing, and the four employees who had declined to abandon the union cause . It may well be that Cunningham and others were nervous and upset over the necessity to ap- pear at the hearing. But I do not consider whether in dif- ferent circumstances such an atmosphere would warrant a cessation of operations for some corresponding period, for that question is not presented here . What this case presents is evidence which leaves no room for any but the conclusion that the asserted emotional atmosphere and working hazards were but a pretextual and, indeed , trans- parent disguise cast over an act springing from deep and sweeping antiunion and antiregulation motivations on Mrs. Carter's part. The evidence further indicates, and I find , that the plant was closed , not pursuant to a decision permanently to cease operations or to go out of business, but one to suspend operations only for a temporary if in- definite period, in short, a temporary and discriminatory layoff, of the production employees concerned. As previously found, Respondent made no reply to the Union's letter asserting majority representation and requesting recognition and collective bargaining, which Mrs. Carter received on the afternoon of January 23. At the hearing, Respondent sought to establish that, despite the language of the cards, those who signed at the January 16 meeting were led to believe by what Carlton then said that the object of signing the cards was merely that of ob- taining an election . In this situation, careful consideration must be given to the pertinent testimony - that of Carlton and of the employees. Passing over Carlton's description of his rather exten- sive preliminary remarks'23 the essence of his more per- tinent testimony is: that in passing out the cards , he read the language of the card aloud to the group and in doing so explained that the card meant exactly what it said - "that you are authorizing the Union to be your collective bar- gaining agent"; that he explained that if 30 percent or more cards were signed, it was the Union' s practice simultaneously to file a petition with the Board requesting an election and to make a written request for recognition from the employer and that he would follow this procedure in this case ; that he further explained that if after these steps were taken the Respondent were to en- gage in intimidation or coercion in the preelection period then, should the Union have a card majority, there was the possibility that the Board might "certify" the Union "without an election"; that he did not tell the employees that the only purpose of the cards was to get an election; and that he told the employees they would not be asked to join the Union until it was certified. Each of the 13 employees who signed union authoriza- tion cards at the January 16 meeting was called to the stand by counsel for the General Counsel, who, in the main, limited his direct examination to obtaining confir- mation of the employee's signature and to establishing that 10 of the 13 had read the language of the card before signing it (including one employee who had the card read to him by a coworker). The more extensive testimony concerning what Carlton had or had not said relative to the cards was then developed in cross-examination by counsel for Respondent , followed in the bulk of cases by some redirect examination by counsel for the General Counsel. I am attaching as Appendix A to this Decision a sum- mary of and quotations from the testimony of each of the 13 employees . As that summary shows , and as is even more evident from reading the complete testimony, the employee witnesses were plagued by the lack of an accu- Li Mrs Carter first testified that she had been called at her home by various employees who were "very upset" because they had received sub- penas accompanied by requests that they contact the local Labor Temple (presumably the Union ) so that Mr Fawcett , counsel for the General Counsel, could interview them But according to her further testimony, the only employee who called her was Cunningham , who allegedly told her that he (and perhaps others ) did not want to be interviewed and asked her advice She testified that she consulted an attorney and passed on to Cunningham the attorney's advice that those who did not want to be inter- viewed should tell the Union that, while stating also that they would be happy to meet Fawcett at the hearing 22 For his part, Foreman English testified that the decision to close the plant was made by him and Mrs Carter and came about as a result of Cun- ningham having told English that the men were nervous and upset by the prospective "hearing" and that he would rather go home, that he, English, had a discussion with Mrs Carter, and that she said that closing the plant "probably was the thing to do " He gave further testimony suggesting that the purpose was merely to close the plant for the duration of the hearing, but he declined to state that , and asserted that he did not know whether, the plant would reopen at the conclusion of the hearing For my part, I am satisfied that the decision to close the plant was that of Mrs Carter, that she is the one with whom rested or rests the decision as to reopening the plant, and that English's testimony on these matters , and his various state- ments to the employees , are to be evaluated accordingly 21 These concerned introducing himself, a description of the Union, its organizatiQnal set up, internal procedures and benefits , the advantages of collective bargaining , an explanation of employees ' self-organizational rights, etc DAN CARTER COMPANY rate recollection as to the specific statements or words Carlton had made or used, a deficiency which remained evident despite the leading questions put to them by counsel for Respondent. In any case, considering their total testimony, no employee was able to give unqualified or convincing testimony that Carlton made any statement to the effect that the cards would be used for election pur- poses only. Some testimony that Carlton made state- ments to this effect was given by employees Thompson, Bernhardt, Quinn, Wester, and Cunningham, usually in response to leading questions put by counsel for Re- spondent. But at some point in their testimony all of these employees conceded their uncertainty of recollection as to what Carlton had said. For this reason, in the end Quinn, Wester, and Thompson admitted they could not stand by their earlier testimony. Bernhardt's testimony I consider of no value because he admitted at the outset that, due to his deafness, he did not hear all that Carlton said; because he receded to the position later that use of the cards "for an election only" was merely "all I under- stood it to be"; and because he also finally admitted that he did not actually remember "just what [Carlton] did say now." I likewise discredit the corresponding portions of Cunningham's testimony, partly because of his admittedly uncertain recollection; because his early testimony that Carlton explained to the employees that the card "was not a membership card, but it was only for an election" refers, as other of Cunningham's testimony and that of Carlton and other employees indicates, and as I find, to Carlton's explanation that the employees would not be asked to become union members unless the Union won the contemplated elec- tion; and because a reading of all of Cunningham's testimony and his demeanor on the stand satisfy me that he had, in fact, no true recollection that Carlton made a specific statement to the effect that the cards would be used solely for purposes of obtaining an election.24 Indeed, a careful review of the entire body of testimony these employees gave convinces me that all that these employees actually could recall was that Carl- ton said that the Union would file a petition for an elec- tion if enough cards were signed , and that the morass of hazy, uncertain, and unpersuasive testimony into which they fell on the question whether Carlton said the cards were only for an election was primarily the product of the fact that, in his remarks, Carlton placed primary emphasis upon an election as the immediate goal of the Union. Cf. Henry!. Siegel, Co., Inc., 165 NLRB 493. In short, I am satisfied that such testimony as was elicited from these employees to the effect that Carlton said the cards were only for an election represented their subjective impres- sions rather than any actual clear and definite recollection on their part. On all the testimony, I find that Carlton did not tell the employees that the sole purpose of their signing the cards was to obtain an election.25 Of course, if in his remarks 24 There is other employee testimony that Carlton said "there had to be an election " But in none of these cases did these employees testify that Carlton then said anything else to the effect that the cards would be used solely for this purpose, some of this testimony was receded from, and some of it was to the effect that Carlton said there had to be an election be- fore the employees couldjoin the Union, or before the Union "could come in the Company " This sort of testimony does not warrant a finding that Carlton made any statement that the Union would not use the cards for any purpose other than in support of the election petition 321 about the cards Carlton had restricted himself to envisag- ing an election as a consequence of their signature, the cards might well be said to have conferred no other authority, even if he had not, in haec verba, have said the cards would be used solely for election purposes, for such a limitation would seem to arise by fair implication. But on evidence I have credited, Carlton did not so restrict himself but, rather, read the language of the card aloud to all signers , explained that the language meant just what it said, and stated that he would demand recognition from Respondent (as was done), as well as petition for an elec- tion, on the authority of the card designations. In these circumstances, I conclude that the cards must be deemed adequate designations of the Union as bargaining agent of the signing employees. ULTIMATE FINDINGS AND CONCLUSIONS OF LAW A. Alleged Independent Violations of Section 8(a)(1) By Foreman English's interrogations of employee Retherford concerning his prospective attendance at the January 16 union meeting and concerning what or how many employees had attended and had signed union cards; by Carter's statements to the employees on Janua- ry 23 that she would close the plant if the Union came in (and by the similar statements made by Foreman English to employees Thompson, Holm, Alday, and Retherford and on another occasion to a group of employees); by Foreman English's statement to a group of employees that any employee who spoke up for the Union would probably be penalized by a reduction in working hours; by Foreman English's remark to employee Alday that he was not going to let a lot of agitators talk him out of a job and his simultaneously encouraging or soliciting Alday to sign a letter to drop the Union; by Foreman English's statement to employee Holm that when "this was all over" he would probably be without a job; by the conduct of Foreman English in promoting, and of Mrs. Carter in assisting in the preparation of, the antielection letter of January 26; by the warning notices issued by Foreman English to employees Alday, Quinn, Holm, and Thomp- son; and by Mrs. Carter's requesting and receiving from employee Retherford a copy of the investigative state- ment he gave to the Board authorities; all as heretofore described and found, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights conferred upon them by Section 7 of the Act and thereby engaged in unfair labor practices violative of Section 8(a)(1) ofthg Act. B. Alleged Violation of Section 8(a)(3) of the Act By its conduct in temporarily terminating its produc- tion operations on April 28, and thereby temporarily lay- ing off its production employees, all as heretofore found, 25 In reaching this conclusion, I also rely not only on the testimony of Carlton but on that of employee Holm, with whose demeanor I was favorably impressed As noted in Appendix A, Holm testified that Carlton told the employees that the cards might "sometimes" be used by the Union as bargaining agent without an election I have also given weight to the fact that various employees testified that Carlton said he would file for an election if sufficient cards were signed without adding, of their own in- dependent recollection, that he also said this would be the sole use to which the cards would be put 322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent discriminated against its employees to discourage membership in the Union , in violation of Sec- tion 8 (a)(3) and (1) of the Act. C. Alleged Violation of Section 8(a)(5) of the Act Respondent does not contest the appropriateness of the bargaining unit set forth in the complaint, and on the evidence I find that such a unit is appropriate for collec- tive-bargaining purposes, viz: All production and maintenance employees includ- ing installers and truck drivers, employed at Re- spondent's mill at Tallahassee, Florida; but exclud- ing all office clerical employees, guards, watchmen and supervisors as defined in the Act. Nor does Respondent contest the fact, which I find on clear and undisputed evidence, that on January 16, 13, and by 2 or 3 days later, 15 of the total of 16 or 17 em- ployees in this unit had signed the cards designating the Union as bargaining agent.26 And it is also clear and I find that, on and after January 23, Mrs. Carter deliberately failed to make any response to the Union's letter seeking recognition and bargaining, and thus failed and refused to bargain collectively with the Union as the majority representative of the employees in the appropriate unit. I have already dealt with and rejected as not supported by the evidence Respondent's contention that Carlton in- formed the employees that the cards they signed would be used only in relation to the petition for certification, i.e., to obtain an election; and that the cards were effective designations of the Union as bargaining agent of the em- ployees. There is likewise no sufficient basis for accept- ing Respondent's contention, barely mentioned in its brief, that it had a good-faith doubt of the Union's majori- ty. Respondent made no such assertion at the time. Moreover, from what employee Retherford told Foreman English on January 17, and on all the evidence and cir- cumstances of record, including those surrounding and in- volved in Mrs. Carter's remarks to the employees on January 23, those surrounding the origin and circulation of the January 26 antielection letter, and Mrs. Carter's later statement to the press that the employees had joined the Union, I am satisfied and find that prior to January 23, or by that date at the latest, English and Mrs. Carter knew that a majority of the employees had previously signed union authorization cards. Indeed, Mrs. Carter's testimony indicates that at the time of these events she was relying on the employee signatures to the antielection letter of January 26 as having disposed of the majority claim of the Union, rather than on any genuine an- tecedent doubt that a majority had signed the authoriza- tion cards. But the signatures to that letter must be disre- garded because they were plainly the coerced result of Respondent's contemporaneous unfair labor practices, including, particularly, Mrs. Carter's January 23 threat to close the plant. Accordingly, I find and conclude that Mrs. Carter's failure to respond to the Union's request was not due to any genuine doubt on her part that a majority of the employees had signed the cards, but, rather, with knowledge that a majority had signed, she and English set about to (and did) vitiate any prospect of a fair election and thus to wipe out such representative status as the Union had been accorded by the cards. In these circumstances, the cards are appropriate proof of the Union's majority and, in disregarding the Union's request, Respondent failed and refused to bargain collec- tively with the Union as the representative of a majority of Respondent's employees in an appropriate bargaining unit, in violation of Section 8(a)(5) of the Act. The unfair labor practices found above are unfair labor practices affecting commerce within the meaning of the Act. Respondent has not engaged in any other unfair labor practices charged or at issue herein. III. THE REMEDY The order I recommend that the Board issue, set forth below, requires Respondent to cease and desist from further violations of the character found, including a broad injunctive provision coterminous with Section 8(a)(1) of the Act in view of the scope and gravity of the unfair labor practices found and the consequent likelihood of their repetition. The order likewise contains provisions for affirmative action on Respondent's part which I consider necessary to remedy Respondent's unfair labor practices and other- wise effectuate the policies of the Act. Thus, the order I recommend requires Respondent to offer to the em- ployees it discriminatorily laid off on April 28 immediate and full reinstatement to their former or substantially equivalent positions and to make them whole for any loss of earnings suffered as a result of Respondent's unlawful conduct. Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest added thereto in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. The order likewise requires Respondent to bargain, upon request, with the Union; to rescind and expunge from its person- nel records the warning notices issued to employees Al- day, Holm, Quinn, and Thompson on January 31; and to post the customary notices. I should add that I have in- cluded the affirmative bargaining provision in the order, not only because of the finding of refusal to bargain and the need to remedy that violation, but as a step I consider necessary to remedy Respondent's other unfair labor practices in all the circumstances of this case, including the effect of Respondent's other unfair labor practices in precluding a fair election, even if it were to be found that Respondent's conduct was not such as to have warranted a finding of violation of Section 8(a)(5) of the Act. Upon the foregoing findings and conclusions and upon the entire record of the case, I recommend that the Board issue, pursuant to Section 10(c) of the Act, the following: ORDER Dan Carter Company, its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Failing and refusing to bargain collectively with Carpenters Local Union No. 2139, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, as the exclusive representative of its employees in a bargaining unit consisting of all production and maintenance em- 26 There were 16 employees in this unit at the pertinent times, excluding a person named Jordan Even if Jordan were included, the Union had a clear majority, hence, it is unnecessary to determine whether Jordan be- longs in the unit, a matter left in such a state of uncertainty by Mrs Carter's vague and obscure testimony as to be impossible of intelligent determination on this record DAN CARTER COMPANY ployees, including installers and truck drivers, employed at its mill at Tallahassee, Forida, but excluding all office clerical employees, guards, watchmen and supervisors as defined in the Act. (b) Laying off or otherwise discriminating against its employees to discourage membership in the above-named or any other labor organization. (c) Coercively interrogating its employees concerning their union activities; threatening to close its plant or to cease production operations because of the union ac- tivites of its employees; threatening employees with reduction of working hours or loss of employment because of their union activities; attempting to bring about the disaffiliation or disassociation of its employees with the above-named or any other labor organization by initiating, participating in, or materially assisting the con- duct of, any corresponding movement or course of action among its employees; issuing warning notices to its em- ployees merely for the purpose of retaliating against them on account of their self-organizational activities or of discouraging such activities on their part; requesting any employee to provide it with or to permit it to read any evidentiary statement given by such employee in the course of an investigation conducted in the adminstration of the Act; or in any other manner interfering with, restraining, or coercing its employees in the exercise of any of the rights conferred on employees as set forth in Section 7 of the Act. 2. Take the following action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with Carpenters Local Union No: 2139, United Brotherhood of Carpen- ters & Joiners of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employ- ment, and, if an agreement is reached, embody it in a signed contract. (b) Offer to all employees within the above-described unit whom it laid off incident to its cessation of produc- tion operations on April 28, 1967, immediate and full reinstatement to their former or substantially equivalent employment, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of wages they may have suffered as a result of Respond- ent's discrimination, in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (c) Notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Rescind the warning notice given on January 31, 1967, to employees Alday, Holm, Quinn, and Thompson and expunge said notice from the personnel records of the said employees. This provision shall not prevent Re- spondent from issuing or enforcing reasonable notices or shop rules for business reasons, provided that any such action is not taken for the purpose of retaliating against its employees for any organizational activity or for the purpose of discouraging organizational activity. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other 323 records necessary to analyze and compute the amount of backpay due and all other rights under the terms of this Order. (f) Post at its plant in Tallahassee, Florida, copies of the attached notice marked "Appendix B."27 Copies of said notice, on forms provided by the Regional Director for Region 12, shall, after being duly signed by the Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, and shall be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not al- tered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 12, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.28 2' In 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 Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " 2e In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith." APPENDIX A Employee Thompson testified that Carlton explained that "You would get a group together, and then you would ... sign cards ... stating that you did want to be- long, or you did not want to belong, and if the majority of the people in this particular place wanted to go ahead and join the Union, then they would have a vote. If the shop went union, why then there would be a bargaining system. Thompson further testified that when Carlton dis- tributed the cards he said those so minded should sign but that it was merely a "request." Asked to state what was meant by "request," Thompson replied "To see that if we could have enough men in the shop to go ahead and go Union," but on cross-examination responded in the affir- mative when asked if the signing "was just a mere request to hold an election." On further cross-examina- tion, Thompson was asked if Carlton had told the group "that the purpose of signing this card was to get an elec- tion," to which he replied "To see how many we could get that would be in favor of joining the Union" and further testified that the purpose, as he understood it, was not that of joining the Union "at that particular time." On redirect, Thompson testified that Carlton said that, if enough cards were signed, the Union would file a petition and the cards with the Board and that he could not re- member whether Carlton said an election was the only thing the cards could be used for. Employee Holm testified that in explaining the purpose of the card, Carlton said it authorized the Union to act as bargaining agent and that if 30 percent of the employees signed, the cards would be filed with the Board with a petition for an election. On cross-examination, he testified that Carlton did not state that "signing this card was just for an election." He further testified that, in addi- 336-845 0 - 70 - 22 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion to stating that the cards would be used to petition for an election if 30 percent or more were signed, Carlton also said that "sometimes an election were not necessa- ry" for the Union to use the cards as bargaining agent-that Carlton said "It was done with a hearing, where an election was not held." Asked to state everything Carlton had said, Employee Alday admittedly could not recall particulars but testified that, so far as he could recall, Carlton said that if there were obtained "a big enough majority to hold an election (or `if we could form a Union,') the Union would stand behind us." Later, Alday testified that Carlton did not state at the time of signing the cards that the Union represented the employees without the necessity of an election but rather, as "the way I see it," Carlton said that the "Union would stand behind us in trying to get an elec- tion and in even further-after the election, if the Union won." Employee Retherford testified that Carlton told the em- ployees there would be an election- that "the card was to see whether we could get the majority of the ones that was at the meeting to sign them, and that he would mail them off somewhere-I don't recall where-to see if there was enough of us signed them to have an election"; and answered in the affirmative in response to leading questions put by counsel for Respondent to the effect that Carlton had said there would be an election if a majority signed and that Carlton said "there had to be an election." He further testified that Carlton said that 30 percent "Would be enough to have an election, that there would be an election." Later asked whether Carlton had said "that there would be an election or did he say that there had to be" one, Retherford testified that Carlton had said "there would be an election." Employee Bernhardt first responded "That's right," when asked by Respondent's counsel if Carlton had said that signing the card "was just for election purposes only?" Asked then to recall all that Carlton had said, Bernhardt stated "Well, I'm a little hard of hearing so I didn't understand everything he said," but he understood that Carlton "wanted to get so many to sign the card" and that "it would not have anything to do with us being in the Union by signing," but Carlton "just wanted to know the ones ... that would sign the card.... And so they could represent the Union"; and that "we had to have an elec- tion before we could get in the Union, see, or before they could do anything about it." He then testified again that he could not remember all that Carlton had said, follow- ing which he was asked if Carlton's statement "was that the signing of this card was for an election only" and he responded "That's all-that's all I understood it to be." Asked what Carlton had said about percentages, the wit- ness replied if "30 percent was-voted-that he could do something about it, could automatically work on the Union-took 30 percent." Subsequently he was asked whether Carlton had said "that there had to be an elec- tion, or that there would be in the future an election," Bernhardt stated he could not remember just what Carl- ton had said-"I don't remember just what he did say now." Employee Hutto did not remember Carlton's "exact words" about the cards but testified that Carlton ex- plained that "we would have to have, I believe, 30 per- cent to establish an election" and that "I think that after 30 percent of us had signed the cards, that the Union would represent us at that time," and that "the cards were to establish a vote." Employee Quinn testified that it was "hard to say" what Carlton had said about the cards. He went on to tes- tify that Carlton said that "If we had 30 percent of the people sign, we could get a vote - I mean - you know - an election"; and that there would be a meeting with Carter to arrange the election. Asked if Carlton had said that the card was just for an election, the witness responded "I'm not certain whether he made that statement, just to get the election, or not. But, I think so." The witness was later asked whether Carlton had said that the cards "would be used to get an election or that it was just for an election" and replied "I don't recall exactly which" but "It was one or the other of them" and "if I had to swear to it either way, I would say it would be for the election, not just for the election." The witness then admitted that he could not recall with any confidence what it was that Carlton had said. Employee Davis could not of his own recollection re- member anything Carlton had said. Asked if Carlton had said the card was just for election purposes, the witness could not remember. He likewise could not remember Carlton mentioning "30 percent" but then testified that Carlton said "if 30 percent signed the card-I mean-probably that would cause the Union to come in." Employee Wester could not recall what Carlton had said other than when he handed out the cards he said "we would sign some cards now for-election on this." Under leading questions then put by counsel for Respondent, the witness variously testified that Carlton said the card "was just for election purposes only"; that "if 30 percent voted, then it would be an election"; that "if 50 percent signed the cards, there would be no election." Later the witness could not recall whether Carlton said the "card was for an election ... or was just or only for an election"; that Carl- ton said "It was for election," that "I know it was 'elec- tion' in it, but I don't know just how he spoke that." Employee Cabler engaged in long pauses when initially asked to state what Carlton had said at the January 16 meeting, and otherwise exhibited a most limited and un- certain recollection. As to an election, all he could recall was that Carlton said "we'd have to have an election to become a member of the Union." He later admitted that he did not have a thorough recollection as to what Carlton had said about an election. Employee Green testified that when Carlton passed out the cards he said "if you get 30 percent of the employees, that they could have an election," and that Carlton did not state that if a majority signed there would "not have to be an election." He later stated that Carlton said "if 30 percent voted ... there had to be an election." Green later testified that Carlton said "it would take at least 30 percent for them to even attempt to hold an election," and that with respect to an election Carlton said "there had to be an election for the Union to come in the Company." Asked whether Carlton had said "there had to be" or "there would be" an election, the witness paused for some time and then stated "If I'm not mistaken, he said there would have to be an election before a union could come in the Company." Having earlier testified that Carl- ton said he would throw the cards away if less than 30 percent signed, the witness later could not recall whether Carlton had said this or had said he would throw the cards away if the Union lost the election. DAN CARTER COMPANY 325 Employee Cunningham , under examination by Respondent's counsel , first testified that Carlton said the Union was trying to get as many cards signed as possible "for an election to be held. If they get enough cards signed , then there would have to be an election "; and that Carlton also said that the card "was not a membership card , but it was only for an election ." He then admitted that he could not remember "just exactly " what Carlton had said during the whole meeting but that , to the best of his recollection , Carlton explained what the employees were to expect from the Union through collective bar- gaining "if we had an election and we did go Union." Asked to recall what Carlton had said about "elections and percentages," he testified that Carlton said "we would have to have at least 30 percent before we could have an election" and that "there would be-would have to be an election before we could be - could become union members." He further testified Carlton said "he just needed a certain percentage , you know , to have an election held . That's about all I can remember of that"; and that Carlton did not state an election would not be necessary if a majority signed. He later testified that Carl- ton said the cards "were to be filed only for an election ... and that Carlton did not mention any other purpose for which they might be used . He later confirmed as cor- rect a statement in his pretrial affidavit that , when Carlton passed out the cards , "He said that the Union was going to request an election , and that if a majority voted against the Union, it would be dropped and the cards be thrown away." Employee Goff admittedly could recall little of what Carlton had said on any topic over a period which he esti- mated as about an hour and a quarter . He did say that Carlton said that "by signing these cards , we could have a vote , and if we had enough of a vote for it, we stood a good chance of getting it ... of getting in the Union," but he gave no testimony bearing on the question whether Carlton said the purpose of the cards was merely to have an election. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT discourage membership in Carpen- ters Local Union No. 2139, United Brotherhood of Carpenters & Joiners of America , AFL-CIO, or designation of that Union as bargaining agent of our employees, by laying off or otherwise discriminating against our employees because of their union activi- ties. WE WILL NOT threaten to close our plant or to cease production operations because of the union ac- tivities of our employees. WE WILL NOT threaten employees with reduction of working hours or loss of their jobs because of their union activities. WE WILL NOT coercively interrogate our em- ployees concerning the attendance of our employees or occurences at union meetings , or concerning other union matters. WE WILL NOT request any employee to permit us to read or to have or retain possession of any evidentiary statement given by such employee to the National Labor Relations Board or any representa- tive thereof in the course of administering the Na- tional Labor Relations Act. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to join or not to join a union or to engage in or refrain from engaging in union or concerted activi- ties. WE WILL offer to the employees we laid off on April 28, 1967, immediate and full reinstatement with backpay, and WE WILL notify any of those em- ployees who may now be serving in the Armed Forces of the United States of his right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL, upon request, bargain collectively with Carpenters Local Union No. 2139, United Brother- hood of Carpenters & Joiners of America, AFL-CIO, as the exclusive representative of our employees in a bargaining unit consisting of all production and maintenance employees, including installers and truckdrivers, but excluding all office clerical employees, guards, watchmen and super- visors, and, if an agreement is reached, embody such understanding in a signed contract. WE WILL rescind the warning notice we gave to employees Alday, Holm, Quinn, and Thompson on January 31, 1967, and expunge that notice from our personnel records. DAN CARTER COMPANY (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.