Carolina Paper Board Corp.

544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carolina Paper Board Corporation and United Papermakers and Paperworkers, AFL-CIO. Case 11-CA-3922 June 17, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN , AND JENKINS On March 26, 1970, Trial Examiner Louis Libbin issued his Decision in the above-entitled proceed- ing, 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 recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that these allegations be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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, the 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 10(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 orders that the Respondent, Carolina Paper Board Corporation, Charlotte, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified below.3 ' We hereby correct the following inadvertent errors in the Trial Ex- aminer's Decision , which do not affect the conclusions therein or our adop- tion thereof In the second paragraph of sec 1I1(B), (I ), (b), Respondent's attorney's name is misspelled as "Blackney " instead of Blakeney, and in the last paragraph of sec Ill, (B), (1), (d), it is clear that Respondent's Ex- ecutive Vice President Campe, rather than Union Representative Linn, stated that the Company was willing to put into effect at Charlotte the same paid nonwork holidays as were put in at the other two plants 2 In the absence of exceptions thereto we adopt pro forma the Trial Ex- aminer's conclusion that the Respondent did not independently violate Section 8(a)( I) of the Act by Foreman Roy Wilson's conversation with employee Bobby H Russ, in which Wilson sought to influence Russ against the Union by appealing to racial prejudice Modify paragraph 2(b) of the Recommended Order to read as follows Offer to Bobby H Russ immediate and full reinstatement to his former job or, if that job no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the section entitled "The Remedy " Modify the third indented paragraph of the notice to read as follows WE WILL offer to Bobby H Russ immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges enjoyed and make him whole for any loss of pay he may have suffered as a result of the discrimination against him TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis LIBBIN, Trial Examiner: Upon charges filed on July 12 and August 11, 1969, by United Paper- makers and Paperworkers, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 11 (Winston-Salem , North Carolina), is- sued a complaint dated August 22, 1969 , against Carolina Paper Board Corporation, herein called the Respondent. With respect to the unfair labor practices the complaint alleges, and Respondent's duly filed answer denies, that Respondent (1) vio- lated Section 8(a)(5) of the Act by refusing to bar- gain with the Union, which had been certified by the Board in an admitted appropriate unit; (2) vio- lated Section 8(a)(3) of the Act by the discharge of employee Bobby H. Russ; and (3) violated Section 8(a)(1) of the Act by the foregoing conduct and by other specified statements and conduct of an ad- mitted supervisor and agent. This case was tried before me at Charlotte, North Carolina, on October 28 to 30, 1969, inclusive. All parties appeared and were given full opportunity to participate in said trial. Thereafter, only the General Counsel filed a brief, which I have fully considered. For the reasons hereinafter indicated, I find that Respondent violated Section 8(a)(1), (3), and (5) of the Act. Upon the entire record in the case' and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent Carolina Paper Board Corporation, a North Carolina corporation, operates a plant at Charlotte, North Carolina , where it is engaged in the manufacture of paperboard. During the 12 months preceding the issuance of the instant com- plaint, a representative period, Respondent ' Obvious, inadvertent errors in the typewritten transcript of testimony are noted and corrected in Appendix A I not published I 183 NLRB No. 66 CAROLINA PAPER BOARD CORP. purchased and received at its Charlotte, North Carolina, plant, directly from points and places out- side the State of North Carolina, goods and raw materials valued in excess of $50,000. During the same period Respondent sold and shipped from said plant directly to points outside the State of North Carolina finished products valued in excess of $50,000. Upon the above-admitted facts, I find, as Respon- dent further admits, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, the record shows, and I find , that United Papermakers and Paperworkers , AFL-CIO, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issues Respondent admits that the Union won a valid election conducted by the Board on January 30, 1969, and was properly certified on February 7, 1969, as the exclusive collective-bargaining representative of all the employees in an admitted appropriate unit of Respondent's employees at its Charlotte, North Carolina, plant. During the next several months the parties participated in a number of meetings without reaching final agreement on all the terms of a collective-bargaining agreement. While the negotiations were in progress, Foreman Roy Wilson, an admitted supervisor and agent of Respondent, discharged employee Bobby H. Russ, the head finisher on Wilson's shift, allegedly for "insubordination." Wilson's superiors refused to reinstate Russ or to bargain with the Union about his reinstatement when requested to do so on June 19, 1969. The principal issues litigated in this proceeding are (1) whether Respondent's conduct during the meetings constituted a refusal to bargain within the meaning of Section 8(a)(5) of the Act; (2) whether the discharge of Russ was discriminatorily motivated in violation of Section 8(a)(3) of the Act; and (3) whether Foreman Roy Wilson coer- cively interrogated and threatened employee Russ in violation of Section 8(a)(1) of the Act. In addi- tion, there are the usual credibility issues which have to be resolved. B. The Refusal To Bargain 1. The negotiations2 Respondent was represented at all meetings by Executive Vice President Walter Canipe and Vice 545 President and Secretary Paul Dulin. The Union was represented at the first meeting by International Representative Arnold Price and at all subsequent meetings by International Representative Thomas Linn. Also present for the Union at all meetings was the Local employee bargaining committee, consisting of four or five unit employees with Paul Williams as chairman. a. Meetings prior to April 8 (February 28, March 13, 14, 25, and 26) The first meeting was held on February 28 and its sole purpose was to permit the Union to present its contract proposals. Respondent had no contract proposals to offer. International Representative Price presented a copy of the Union's written con- tract proposal to Respondent's representatives. It consisted of 17 pages, and contained 25 articles plus a preamble. Respondent's representatives then requested time to study them. The meeting lasted about 30 minutes. A double session was held on March 13 and 14. The first session was held in Canipe's office at Respondent's plant, and the second session was held in a room at the county courthouse. At the commencement of the first session , Linn asked Respondent's representatives if they had any coun- terproposals to submit. When they replied in the negative, Linn stated, "We'll take the union's proposal and work from it and see how many arti- cles we can agree to." The procedure followed hen- ceforth was for the parties to take up each article, section by section, in the order listed in the con- tract, and discuss them. Whenever agreement was reached on any article or section, Linn would first ask whether they were "in agreement on this now" and could "make this okay and get it out of the way," and, on receiving an affirmative reply, would then mark it "O K" on his copy of the Union's proposals. Another double session was held on March 25 and 26, during which the parties discussed the matters on which no agreement had been reached at the earlier sessions . The first ses- sion was held in the county courtroom, and the second session was held in the Office of the United States Mediation Service, without the presence of a Federal Mediator. By the end of the meeting on March 26, the parties were in agreement on the fol- lowing articles, sections, or items: The preamble-The insertion of "Local No. 428." Article I, Purpose and Scope of Agreement-All six sections, relating to the "definition" of the term "Union," the "purpose" of the Agreement to promote "industrial relations" and to prevent any "disturbance of the continuity of the work of the Company," the preservation of "management's responsibilities" and "right[s]," "mutual coopera- 2 Unless otherwise indicated, the factual findings herein are based on evidence which is either admitted or undemed All dates are in 1969 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion" to promote "harmonious relationships" and "efficient operations of the plant," "no discrimina- tion," and no "contracting out work normally per- formed by the certified bargaining unit." Article II, Bargaining Unit-setting forth the unit for which the Union was certified by the Board. Article III, Recognition-Stating that Respondent recognizes the Union as the exclusive bargaining agency for all those in the bargaining unit. Article V, Wages- Section 3, Report Pay-providing 4 hours' pay for an employee for whom no work is available when he reports and a guarantee of 8 hours' pay for an employee who starts working. Section 4, Call Out or Call In-guaranteeing an employee, called out or in for work after finishing his regular shift and leaving the plant, the greater amount between 4 hours' pay and the actual hours worked. Canipe testified that "We agreed to it because it was the practice we had already fol- lowed." Section 5, Temporary Transfers-providing for the rate to be received by an employee temporarily transferred to a higher or lower rated job, and setting forth the conditions under which temporary transfers will be made. Canipe and Dulin testified that they told the Union they had no objection to this section "because it coincided with practically with what we did." Section 6, Overtime Pay or Extra Pay-The proposal, as considerably reduced by the Union, for time and a half for hours worked in excess of the 8- hour workday, for work in excess of 40 hours a week, and for work on Saturday; double time for holiday work, in addition to holiday pay; double time for all hours work on Sunday; and triple time for all hours worked in excess of the normal work- day on a paid holiday. As Respondent at that time had no paid nonwork holidays and refused to agree to the Union's proposal in article VII for any paid holidays on which no work was performed, some of these agreements would be effective only when Respondent did in fact establish some paid non- work holidays. Section 7, Shift Differentials-The proposal, as reduced by the Union, for 10 cents per hour for the second shift and 15 cents per hour for the third shift. Section 8, Injuries on the Job-providing for the time for which an injured employee shall be paid, including time for visits to a doctor, and that all visits to a doctor be during working hours. The Union accepted Respondent's suggestion that all accidents be reported to the foreman and be writ- ten up. Section 9, Pay Day-providing for the payment of wages on Wednesday of each week. Canipe pointed out that this was "our present practice." Section 10, Escalator Clause-The Union agreed to drop this proposal. Article VI, Rest Periods-The proposal, as reduced by the Union, for two 15-minute breaks during a regular 8-hour period and a 15-minute break at the end of the 8 hours if the employee had to work into the next shift. Article VII, Paid Holidays-agreement on some preconditions to be eligible for paid nonworked holidays in the event Respondent did grant any paid nonworked holidays. Respondent did not agree to the establishment of any paid nonworked holidays. Article VIII, Jury Duty-providing that an em- ployee be paid the difference between the amount received for jury duty and his regular rate of pay. Canipe testified that "pay for jury duty would not be a big item." Article X, Meetings-providing for payment for employee attendance at certain meetings. The Union accepted Respondent's proposal that the word "union" be deleted. Article XI, Hours of Work- Section 2, Normal Work Week-providing for a normal workday of 8 consecutive hours and the time for the beginning of the scheduled workday on Monday for each of the three shifts. This was Respondent's then current practice. Section 3, Scheduling and Division of Over- time-The sixth or last paragraph, providing for the posting every 2 weeks in each department of a list of employees, showing the amount of overtime worked by each employee. The Union had ac- cepted the Respondent's suggestion to reduce the time period from its proposal of 3 weeks to 2 weeks. The Union also agreed to drop several other paragraphs in this section. Article XIII, Right of Visitation-permitted an International officer or representative to visit the plant on union business or to discuss or investigate a grievance . The Union voluntarily added the sen- tence that, if Respondent thinks the provision is abused, it may stop the pay for the time of a union officer or steward. This was done to meet Respon- dent's original objection. Article XIV, Union Bulletin Boards-the Respondent to provide a bulletin board for sole use of the Union for the posting of specified union notices. Notices not specified must have prior ap- proval of Respondent. Article XV, Grievance Procedure- Section 1, Local Committee-Agreement reached after the Union dropped one paragraph and accepted certain changes suggested by Respon- dent. Section 2, Procedure-After the Union adopted certain changes suggested by Respondent, agree- ment was reached except on step 4 which provided for arbitration. Article XVII, Miscellaneous Working Condi- tions- Section 1, Leave of Absence-Agreement reached after the Union accepted a time change suggested by Respondent. Section 2, Protection of Employees in Bargaining Unit-barring a nonunit employee from performing work customarily performed by unit employees. CAROLINA PAPER BOARD CORP. Section 3, Tools-providing for the furnishing by Respondent of all tools, gloves, and equipment necessary to perform the job. Section 4, No-Strike No-Lockout-Agreement reached on the language but not on the Union's oral condition that it would agree to it only if Respondent agreed to the Union's proposals for ar- bitration and checkoff. Article XVIII, Safety and Health-Agreement reached on sections 1 and 2, relating to protective devices and union cooperation. The Union agreed to drop section 3, relating to a joint safety and health committee. Article XXI, Seniority-Areement reached on all but the next to the last paragraph. Article XXII, Discharges-providing for notice to the Union within 24 hours of discharge, giving reason therefor, and permitting Union to take it up as a grievance within a specified number of days after notification of discharge. Article XXIV, Active Reserve Time National Guard, All Other Branches of Armed Forces- providing for payment to such an employee of 40 hours times his base rate while on duty. The findings in this entire section are based on the credited testimony of Thomas Linn. He testified in a candid, straightforward, and positive manner which inspired confidence in the veracity of his testimony. By his demeanor while testifying under oath, he impressed me as a witness whose testimony is entitled to full credence. I was not similarly im- pressed by the manner in which Canipe and Dulin testified. Except for such items as overtime pay, the last part of report pay, and the wording of the no- strike, no-lockout clause, Canipe and Dulin ad- mitted that agreement was reached on all the other items hereinabove set forth but were not in agree- ment with Linn that they were all reached by the end of the meeting on March 26. However, they could not testify in a positive manner as to the specific date or meeting at which agreement was reached on items. Thus, Canipe testified, at dif- ferent points, with respect to some items that it "may not" have been agreed to in the March ses- sions, or that he did not recall at which meeting agreement was reached, or that "I don't have the date on it," or that "I couldn't go back now and tell exactly which ones were agreed to up to that point," referring to March 26, or "up to the April 8 meeting." Similarly, Dulin testified that he could not "pinpoint" what stage of the negotiations they reached agreement on the first three steps of the grievance procedure. There is also some incon- sistency between the testimony of Canipe and Dulin with respect to the language of the no-strike, no- lockout clause. Thus, Canipe testified that there was no discussion of the actual wording of the clause. On the other hand, Dulin testified that they told the Union that the Company did not object to the clause except that the language did not go far enough, and would not agree to the wording as long as it was tied into a package deal with acceptance 547 of the checkoff and arbitration proposals. In view of all the foregoing, I do not credit the testimony of Canipe and Dulin to the extent that it may conflict with the hereinabove set forth findings which are based on Linn's testimony. b. Meeting of April 8 The next meeting was held on April 8 in the of- fice of the Federal Mediator. The meeting began at 9 a.m., without the presence of a Federal Mediator. At the opening of the meeting, Respondent's representatives slid a document across the table to Linn, a document which they identified as the Company's proposed contract. Linn took the docu- ment, looked it over, and asked if they were "kidding" or were serious about it. When they replied that they were serious about it, Linn stated that the document was so much different from the "vast number of things" that had already been agreed on that he really did not believe they were serious. They merely replied that this was their proposal. Linn told them that he did not think they were acting in good faith and that if they were seri- ous about this document he felt they needed the services of the Federal Mediator. Linn left for the Mediator's office to call the Mediator. After the first March meeting, Respondent's representatives had met and conferred with Attor- ney Blackney, whose partner represented Respon- dent in the instant trial, with respect to the Union's proposed contract. With the advice and assistance of Attorney Blackney, they then began to draft the Company's proposals which were completed just prior to the April 8 meeting. Of the items on which agreement had previously been reached, as detailed in the preceding section, the Company's proposal omitted many entirely and changed others, some substantially. Thus, the following items were entire- ly omitted: In the preamble, "Local No. 428"; in article I, purpose and scope of agreement, sections I and 6; in article V, wages, the second sentence of section 3 (report pay), which guarantees 8 hours' pay to an employee who starts working, and para- graph (c) of section 5 (temporary transfers) which sets forth the conditions under which temporary transfers will be made; in article VII, paid holidays, the preconditions for eligibility for paid nonworked holidays in the event the Company did grant any paid nonworked holidays; article X, meetings, which provided for payment for employee at- tendance at certain meetings; in article XI, hours of work, the last paragraph of section 3 (scheduling and division of overtime) which provides for periodic posting of employee lists showing overtime worked; in article XV, grievance procedure, section 1 (Local committee) which provides for the establishment of a Local grievance committee with regular pay for time spent at grievance meetings and for time off to attend grievance meetings and to visit portions of the plant on union business; in article XVII, miscellaneous working conditions, 427-258 O-LT - 74 - 36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD section 3 (tools) which provides for the furnishing by the Company of all tools, gloves, and equipment necessary to perform the job; in article XVIII, safety and health, the second sentence of section 1 (protective devices) which provides for the furnish- ing by the Company of protective devices and other equipment necessary to properly protect the em- ployee from injury; and article XXIV, active reserve time national guard, etc. The following items contained changes which involved a reduc- tion of agreed on benefits or a limitation on privileges previously agreed on, some of which changes were of a substantial nature, and a much more restrictive no-strike clause with a penalty for its breach: In article V, wages, section 6 (overtime pay or extra pay) and section 8 (injuries on the job); article VI, rest periods; article XIII, right of visitation; article XIV, union bulletin boards; in ar- ticle XV, grievance procedure, step 3 of section 2 (procedure); in article XVII, miscellaneous work- ing conditions, section 1 (leave of absence), section 2 (protection of employees in the bargaining unit) and section 4 (no strike-no lockout); article XXI, seniority; and in article XXII, discharges, sections 1 and 2. When Linn returned with Federal Mediator Hefner, Linn explained they they had spent a number of days bargaining and had agreed on many things. Hefner was given a copy of the Union's and the Company's contract proposals. Linn told Hefner that the Company was now "reneging" on many of the things on which they had previously agreed and that he had no intention of bargaining again on those items on which the Company had agreed. Linn added that he felt that "the thing to get us going was, at least, to get the Company back to the position where we were when we met last time." Hefner explained his position on bargaining and asked which proposal they should work from. Linn suggested that "we work from the union proposal because that's what we've been working from from the first meeting we held on the 13th." Hefner then took the Union's proposal and went through each article, section by section, to ascer- tain the respective positions of the parties. When- ever he came to an item upon which the Company had previously agreed, Linn would interject, "this the company has already agreed upon and we don't intend to bargain on that item any more." The response of Respondent's representatives was mere- ly that they had now made a proposal with respect to that. A discussion would then occur between Hefner and Respondent's representatives. Linn sometimes participated in the discussion on such occasions but most of the time stayed out of it. The Company's proposal was also referred to occa- sionally. There was no further discussion on items on which the Respondent's representatives ad- mitted they had previously agreed. There were This finding is based on the credited testimony of Linn For reasons previously stated, I do not credit Canape's contrary testimony that no such other items with respect to which both parties ad- mitted that no agreement had been reached. Hefner stated that he would at least like to get the parties back to where they were before he was called in. About noon, Respondent's representa- tives indicated that they wanted to confer with their legal advisers. Hefner thereupon adjourned the meeting until 9 o'clock the next morning. c. Further meetings in April and May (April 9, 22, and 23, and May 1) The next four meetings were held with Mediator Hefner. The April 9 meeting began at 9 a.m. and adjourned at noon, again to allow Respondent's representatives to confer with their legal advisors. The April 22 meeting was an all-day session from about 9:30 a.m. to about 3 or 4 p.m. The April 23 meeting was also an all-day session, with adjourn- ment in the early afternoon. The same procedure was followed during these meetings by Mediator Hefner as was followed at the April 8 meeting. Whenever the Mediator covered an item which had already been agreed on at a prior meeting, Linn so stated and announced that he was not going to bargain on it again, pointing out that "if we bargained that way we never could reach an agreement on a contract." He accused the Company of bargaining in bad faith on such items and reiterated that he would not discuss them again . Other items on which no agreement had previously been reached, such as wages, checkoff, arbitration, vacations, and insurance, were also discussed at all four meetings. The April 23 meeting was the last time the parties reviewed the whole contract to see what was still open. At the conclusion of the meeting the parties were back in agreement on those items on which agreement had been reached before the Mediator was called in, except for article V, section 3, pertaining to the last part of report pay, and sec- tion 6, pertaining to overtime pay or extra pay. With respect to the no-strike, no-lockout clause, Respondent had originally agreed to the wording of the Union's proposal with the oral understanding that the Union's proposal was contingent on an agreement being reached on the Union's proposals for checkoff and arbitration. Respondent's written proposal, first submitted at the April 8 meeting, contained a much more restrictive no-strike clause, with a penalty for its breach. However, by the end of the April 23 meeting , Respondent reverted back to its original position and agreed to the wording of the Union's proposal, subject to the oral contingen- cy above stated.3 In addition, agreement was also reached at the April 23 meeting on the following items in the Union's proposals: agreement was reached on the no-strike clause by the end of the April 23 meeting CAROLINA PAPER BOARD CORP. 549 Article IX, Death in the Family-providing for "three (3) working days off, with pay for time lost from work." Agreement was reached after the Union had accepted the Company's suggestion to add the words "requiring his absence from work" after the word "family." Canipe testified that he did not anticipate very much funeral pay. Article XI, Hours of Work-Section 1, Normal Work Week-providing for a normal workweek of "forty (40) hours, Monday through Friday, inclu- sive." Article XXI, Seniority-the next to the last para- graph, the only paragraph in this article which was still open, providing for the granting of leaves of absence to employees acting as union delegates or on temporary missions of the Union, without loss of seniority. Thus, full agreement was reached on the Union's entire seniority proposal. Article XXIV, Active Reserve Time in National Guard, etc-Agreement was reached after the Union accepted the Company's proposed modifica- tion that the employee "be paid the difference between his National Guard pay and forty (40) hours times his base rate while on duty." The meet- ing ended with Mr. Hefner requesting Respondent's representatives to bring in at the next meeting a written document containing all items that had been agreed on up to that time. The next meeting was held on May 1. At that time, the Company submitted a document which contained unresolved items as well as those which had been agreed on up to that point. Linn discussed this document with Respondent's representatives and pointed out that they had again "reneged" on an item previously agreed to, namely, the wording of the no-strike, no-lockout clause. The document contained the same restrictive no-strike clause, with a penalty for its breach, as appeared in the Com- pany's April 8 proposal. Linn pointed out that the Company's representatives had agreed to the word- ing of the Union's written proposal on this item prior to April 8, then reneged in their written proposal submitted on April 8, reverted to their original agreement at the April 23 meeting, and were now reneging again. Their response was that, as long as the Union's proposal was contingent on agreement being reached on checkoff and arbitra- tion, they felt the item was still open and they were free to make this proposal. Linn replied that that was not what they had said at the April 23 meeting. The Mediator then took up other items which were still in dispute, such as wages, holidays, and vacations. He did this collectively with both groups together and also separately with each group. With respect to wages, the Union at an early meeting had made an oral request for a 30-cent wage increase across the board, and was still adhering to this posi- tion. Respondent's representatives never offered any wage increase at all during any of the meetings. Their position was that the Company had granted a general wage increase in the early part of 1969 and they did not feel another wage increase could be granted at that time. With respect to holidays, the Union's proposal called for nine paid nonworked holidays. The Company had no paid nonworked holidays and at no time offered to agree to any. The only change the Company offered to make in its va- cation policy was to offer 42 hours' pay, instead of the then existing 40 hours' pay, for each week of vacation it was then granting.4 At the end of the May 1 meeting, the parties were still in disagree- ment on many items, including reporting pay, over- time, wages, holidays, vacations, insurance, arbitra- tion, checkoff, and the wording of the no-strike, no- lockout clause. The Mediator concluded that the parties were not getting anywhere and that there was no point in continuing to meet any further. He thereupon ad- journed the May 1 meeting, advising that he reserved the right to call the parties back again if he thought a further meeting would be fruitful. d. Meeting of June 19 Respondent has two other paper plants; one is located in Taylors, South Carolina, and the other is in Austell, Georgia. In neither plant are the em- ployees represented by a union. In June, the Union's in-plant negotiating commit- tee, with Paul Williams as chairman, met with Canipe in the latter's office to discuss certain mat- ters relating to the transfer of some employees. Be- fore adjourning, mention was made about a wage increase which Respondent had put into effect at its other two plants as of June 1. Williams reported this matter by telephone to Linn who then came to Charlotte where he had a discussion with the entire in-plant committee. Dur- ing the discussion, Linn was informed that Respon- dent had also put in three paid nonworked holidays at its other two plants. As a result of this discussion, Linn requested the Mediator to arrange another meeting with the Company. The Mediator thereu- pon arranged for a meeting to be held in his office on Thursday, June 19. The Respondent was represented by Canipe and Dulin; the Union, by Linn and the in-plant committee. Mediator Hefner opened the meeting with the statement that he had called the parties back at Linn's request and then "more or less" turned the meeting over to Linn. Linn suggested that they ought to discuss the no-strike clause, the checkoff, and also the discharge of Bobby Russ, the alleged discriminatee who was discharged on April 28, and get him back to work. Respondent's representatives replied that the only thing they would discuss was the wage increase which they had recently put into 4 The Company's then existing policy was to grant a I-week paid vaca- tion after 2 years of service and 2 weeks after 5 years of service 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD effect at the other two plants.5 Canipe said that the Company was willing to put the same increase in ef- fect at the Charlotte plant, 5 percent across the board with some adjustments in a few classifica- tions, if it could be done legally. He also added that the increase would be effective as of Monday, June 23. Linn requested that the wage increase be made retroactive to June 1, the date they went into effect at the other two plants. Canipe replied, "we're not going to do it here," without giving any explanation for the refusal to do so. When Canipe failed to mention that Respondent had also put on some paid nonworked holidays at the other two plants, Linn reminded him about it and asked what he in- tended to do at the Charlotte plant in this regard. Linn replied that the Company was also willing to put the same paid nonworked holidays in effect here as were put in at the other two plants. These were July 4, Labor Day, and Christmas, which con- stituted three of the then existing six nonpaid holidays on which no work was performed. The meeting ended with the agreement that the Com- pany should proceed to put the wage increase and the three paid nonworked holidays in effect, with the understanding that such action would not be used as the basis for an unfair labor practice charge, but that both wages and holidays were still open for negotiations. 2. Concluding findings Upon consideration of the entire record as a whole, I am convinced and find that Respondent's conduct, in its totality, indicated a lack of the good- faith bargaining required by Section 8(a)(5) of the Act. In arriving at this finding, I have been motivated by the following conduct: a. Changes and repudiation of previously agreed-on provisions Respondent repudiated at the April 8 meeting the many substantive provisions to which it had agreed during the four negotiating sessions in March. Respondent's change of position was so drastic that virtually the only agreed-on articles or sections which it left wholly intact at the April 8 meeting were (1) those required by law, such as ar- ticles II and III, which set forth the certified bar- gaining unit and Respondent's exclusive recognition of the Union for the employees in that unit, and (2) those which coincided with the practice which Respondent was already following, such as section 4 of article V, relating to "Call Out or Call In" pay (Canipe testified that "we agreed to it because it was the practice we already followed"); section 9 of article V, providing for the payment of wages on Wednesday of each week (Canipe pointed out that this was "our present practice "); and section 2 of article XI, which set forth Respondent's then cur- rent workday and schedule for each shift. Indeed, Respondent's written proposals submitted at the April 8 meeting even omitted an agreed-on item which constituted its then current practice. Thus, Respondent had previously agreed to the entire sec- tion 5 of article V, relating. to temporary transfers, "because, " as Canipe and Dulin testified , " it coin- cided with practically with what we did." Yet, para- graph (c) of section 5, setting forth the conditions under which temporary transfers will be made, was omitted from Respondent 's written proposals. The only other agreed-on sections or articles left wholly unchanged in Respondent's April 8 proposals were section 7 of article V, providing for shift differentials of 10 and 15 cents per hour for the second and third shifts, respectively (Respon- dent's current practice was a differential of 7 and 14 cents), and article VII, providing that an em- ployee be paid the difference between the amount received for jury pay and his regular rate of pay. With respect to this item, Canipe testified that "pay for jury duty would not be a big item." Respondent's conduct with respect to previously agreed-on items is further graphically demonstrated by its position with respect to the wording of the no-strike, no-lockout clause. Thus, prior to the April 8 meeting, Respondent had agreed to the wording of the Union's written proposal on this item. In its written proposals submitted at the April 8 meeting, Respondent repudiated its agreement on this item by proposing a much more restrictive no- strike clause, with a penalty for its breach. By the end of the April 23 meeting, Respondent reverted back to its original agreement with the wording of the Union's proposal. Finally, in the document sub- mitted by Respondent at the May I meeting, it again repudiated its agreement on this item and again proposed the more restrictive version, with a penalty for its breach. Respondent's above-described conduct evidences a lack of good-faith bargaining.6 As Union Representative Linn stated in the presence of Mediator Hefner at one of the bargaining sessions, "if we bargained that way we never could reach an agreement on a contract." b. Position on checkoff Article IV, union security, of the Union's proposals provides for the checkoff by Respondent 'The findings thus far in this paragraph are based on the credited testimony of Linn Dulm testified that Hefner opened the meeting with the statement that after conferring with both parties he had concluded that no changes had taken place in their respective positions on the issues left open at the last meeting and that therefore the only matter to be treated at this session was the wage issue which Linn wanted to bring up He further testified that Linn did not request that they go into any other contract mat- ters except the wage increase Linn denied that Hefner made any such statements or that Hefner had checked with him concerning any change in position Campe did not corroborate Duhn with respect to his testimony in this respect On the other hand, Paul Williams did corroborate Linn Under these circumstances and for reasons previously stated, I do not credit Du- hn's testimony and credit Linn's denials and his version set forth in the text 'See, e g , San Antonio Machine & Supply Corp, 147 NLRB 1113, 1116-I7 CAROLINA PAPER BOARD CORP. of initiation fees and monthly dues from the earnings of employees who voluntarily sign a checkoff authorization, a sample of which appears in said article . This provision was discussed at the first bargaining session and at many sessions thereafter, with Respondent refusing to agree to any part of it or suggesting any alternative method for the collection of dues. During these discussions, Union Representative Linn explained why the checkoff was essential to a normal operating union . He pointed out that, with employees working many hours on three shifts at Respondent's plant, it was virtually impossible for the financial secretary to see all the employees to collect dues. Both Canipe and Dulin admitted that in refusing to agree to any form of checkoff they "told the union that it was our position that the union should look after its own finances" and "that we thought our payroll department had enough deductions to make without adding to their work." In response to Linn's question, they admitted that Respondent was making deductions for such items as savings bonds, uniforms, hospitalization, and credit union. To no avail, Linn explained that it would be a simple matter to deduct the dues in the same manner as they were deducting the other items, and emphasized that he could not see how they could refuse to make the dues deductions for employees who voluntarily authorized them when "they were making deductions for most everything else." I am not holding that Respondent's refusal to agree to the checkoff provision is a per se refusal to bargain in violation of the Act. However, I am con- vinced from the foregoing and do find that Respon- dent's attitude and position with respect to the issue of a checkoff provision is further evidence of the total conduct which demonstrates a lack of good- faith bargaining.7 c. Position on arbitration and no-strike clause The Union's written no-strike, no-lockout proposal was orally conditioned on Respondent's agreement to the checkoff provision and to the ar- bitration provision which was the final step proposed in the grievance procedure of the Union's proposal. Linn indicated that the Union normally does not propose a no-strike clause but that it was done "in this particular case, just as good will" because he "hoped we might be able to conclude a contract here." Respondent wanted a no-strike clause but was opposed to any arbitration provi- sion. The proposed arbitration provision was probably discussed more than any other item during the bar- gaining sessions . The Respondent's consistent posi- tion at these sessions was that they did not feel that 'See, e g , Kayser-Roth Hosiery Company , Inc , 176 NLRB 998 'Textile Workers Union of America, AFL-CIO v Lincoln Mills of 551 an outsider should come in and tell them how to run their business and that, in effect, that was what arbitration would be. Linn pointed out that, if they got into a dispute, there had to be some way to solve the problem. Dulin's response was that they should never get into a dispute which they them- selves could not resolve. Whereupon Linn posed the question of what would happen if the one time occurred when a dispute did arise which they could not resolve . He spent considerable time explaining the arbitration procedure. Thus, Linn pointed out that the arbitrator would be appointed by the American Arbitration Association or the Federal Mediation and Conciliation Service, that the ar- bitrator would come to any place to which they agreed, that the parties would tell their stories to him, and that the arbitrator would then make an award on the basis of what had been submitted to him. He emphasized that he had won some arbitra- tion cases and had lost others and that, although he did not completely agree with the decisions he sometimes received, he still thought it was the best way to resolve their problems because "somewhere we had to have a way to solve this one time that we might get into a dispute." Linn discussed the matter from every angle, even to the extent of asking if Respondent would prefer to have the no-strike clause eliminated and the "men going out into the street and sitting down" every time they had a grievance which could not be settled. The Company's response was that that would not be "a healthy situation" and that there should be a no-strike clause in the contract. On the one hand Respondent steadfastly adhered to the position that they would not agree to any arbitra- tion clause because they did not want an outsider to have the final say about how to run their business, while on the other hand they wanted the contract to include an even more restrictive no-strike clause, with a penalty for its breach, because they believed that the Union's proposal, the wording to which they had originally agreed, did not "go far enough." Although Dulin and Canipe at no time stated, in haec verba, that they would never sign a contract without a no-strike clause in it, the foregoing clearly demonstrates, that throughout the negotia- tions they remained fixed in their position that they would not agree to the elimination of a no-strike clause or to the inclusion of any arbitration provi- sion. As the Supreme Court has stated, "the agree- ment to arbitrate grievance disputes is the quid pro quo for an agreement not to strike."8 I do not find that Respondent's position with respect to the no- strike and arbitration provisions constitutes a per se refusal to bargain in violation of the Act. However, as in the case of the checkoff, I do find that Respondent's, attitude and position on these issues is additional evidence of the conduct which demon- Alabama, 353 U S 448, 455, United Steelworkers of America v American Manufacturing Co , 363 U S 564, 567 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strates that Respondent was not bargaining in good faith. d. Grant of wage increase and paid nonworked holidays As previously found, at the April 19 meeting, ar- ranged at Linn's request, Canipe voluntarily agreed to put into effect, as of Monday, June 23, the same kind of a wage increase which Respondent had put into effect at its two unorganized plants on June 1, but refused Linn's request to make the wage in- crease retroactive to June 1. Only after Linn re- minded Canipe about the paid nonworked holidays put into effect at the unorganized plants and asked what he intended to do at the Charlotte plant, did Canipe also agree to put into effect the same three paid nonworked holidays at the Charlotte plant. I find that Respondent's refusal, without any ex- planation, to make the wage increases retroactive to June 1, the day they were put into effect at its two unorganized plants, and the failure to offer to put into effect the same number of paid nonworked holidays until Linn reminded Canipe and asked what he intended to do about it, are additional bits of evidence comprising the conduct which demon- strates that Respondent was not bargaining in good faith. e. Outright refusals to bargain As previously found, at the June 19 meeting, Linn requested, and Canipe refused, to bargain further on the unresolved items and with respect to the reinstatement of employee Bobby Russ, hereinafter found to have been discriminatorily discharged. The Union had previously claimed that Russ had been unjustly discharged. I find that this was a union grievance concerning which Respon- dent was statutorily obligated to bargain with the certified bargaining representative, even assuming that Russ had been lawfully discharged for cause. Respondent may not defend its refusal to bargain on the unresolved items on the ground that an al- leged impasse had already been reached. For a "deadlock caused by a party who refuses to bargain in good faith," as I have found the Respondent did in the instant case, "is not a legally cognizable im- passe."9 Moreover, even assuming the existence of a good-faith impasse, such an impasse was broken by Respondent's grant of the wage increase, the first increase ever offered throughout the negotia- tions, and the paid nonworked holidays, also of- fered for the first time. 9 Northland Camps, Inc , 179 NLRB 36 10 The complaint also alleges a refusal to bargain because Respondent "unilaterally transferred employees to different job assignments " How- ever, I am not persuaded that, under the circumstances disclosed by the in- stant record, Respondent 's conduct in making temporary transfers when unforeseen but immediate need arose to man jobs in order to insure unin- I find that Respondent's conduct at the June 19 meeting, as previously described, constituted outright refusals to bargain on mandatory subject matters and was a per se violation of Section 8(a)(5) of the Act. I further find that such outright refusals also reflect adversely on Respondent's good faith in the prior negotiations.10 C. The Discriminatory Discharge of Bobby Russ" 1. The nature of Russ' work under Foreman Roy Wilson Bobby Russ was employed by Respondent from 1963 until his discharge on April 28, 1969. During the last 5-1/2 years he worked as a finisher in the finishing department. In the fall of 1968, he was transferred, at his own request, to work on Foreman Roy Wilson's shift in the finishing depart- ment. Shortly after his transfer, Charles Clark, the head finisher on Roy Wilson's shift, was transferred to another department. Russ was thereupon ap- pointed by Superintendent McCorkle to fill this vacancy, a position which was regarded as a promo- tion both by Respondent and the Union. The head finisher is generally the one who has worked as a finisher longer than any other employee and can do a better job. He is the senior man on the machine job and the leadman in the finishing department. The head finisher receives an additional 5 cents per hour and is next in line for the backtender's job, which pays 10 cents per hour more than the head finisher's job. The finishers work the dry end of the finishing machine where the paper becomes a finished flat product. There are four finishers, including the head finisher, on a shift. They work in pairs as part- ners. Two work on the boxes which are about 2 feet high from the floor; one is the weigher, and the other is the stacker. The weigher lifts the paper out of the boxes onto the scales where it is weighed in 50-pound bundles. This is a rather heavy job. The stacker takes the paper off the scales and puts it on a skid or a pallet to the height, weight, and number of bundles desired by the customer. The partners decide among themselves which one should start weighing and which one should stack. At the same time, the other pair picks up scraps and straps the skids, which are then put out to the shipping room. The pairs switch assignments, but not partners, every hour. When the first pair returns to the boxes, they also switch among themselves; in other words, the one who weighed will now stack, while the one who stacked will now weigh. These changes are made every hour during the shift so that the terrupted production in an essential phase of the plant's operations, should be regarded either as unlawful or as evidence of bad-faith bargaining Sig- nificantly, the General Counsel no longer urges or even mentions this con- duct in his brief " Unless otherwise indicated, the factual findings in this section are based on credited testimony which is either admitted or undisputed CAROLINA PAPER BOARD CORP. jobs are rotated among the four finishers. The men work with the same partners throughout the shift. As head finisher, Russ had some additional duties such as making out the tickets which were put on the skids to identify them for the customer and see- ing to it that skids or pallets were brought in to be available when needed. 2. Roy Wilson's antiunion attitude and knowledge of Russ' support of the Union About 2 weeks after the Union won the Board election conducted on January 30, 1969, Russ was in the canteen room getting a cup of coffee and talking to a fellow employee about the Union. At that point Roy Wilson walked up behind Russ and asked Russ what he thought about the Union. The other employee walked away as soon as Wilson started talking. Russ replied that he thought the Union was "a good deal." Wilson then asked, "What's the union going to get you? Three weeks vacation '12 [and] a Nigger for a boss man?" Russ replied that, if he would treat him half as well as Wilson had been treating him, he would be satisfied. Wilson grinned, turned around, and walked off. Thereafter, Wilson would often walk up to Russ while the latter was on his job and get him behind in his work by discussing the Union. He "always had some little old thing to say" such as, "Red, what's the Union going to get you? Is it going to get you more money?" One night in March when Russ was substituting for the backtender who was absent, Russ was looking for Wilson to get some informa- tion about the running of a certain order. He found Roy Wilson sitting in his automobile with a beer in his hand and crying. Russ asked Wilson what was wrong. Wilson replied, "You and the damn union and Tunney McCorkle" (Respondent's superinten- dent), adding that he could not sleep at night.13 3. Russ complains to Union about Wilson's treatment; Wilson learns of complaints After Foreman Roy Wilson had started talking to Russ about the Union, Russ felt that Wilson's at- titude towards him had changed in connection with the work assignments. Thus he felt that Wilson was now pushing him too hard by requiring him to work " As an employee with more than 5 years of service, Russ was getting 2 weeks' paid vacation at that time "The findings in this section are based on the credited testimony of Bobby Russ who impressed me, by his demeanor while testifying under oath, as a more reliable and trustworthy witness than Roy Wilson who categorically denied ever having mentioned the Union to Russ or having engaged in any conversation with him about the Union or knowing that Russ had anything to do with the Union while he worked there Indeed, he even denied knowing anything about the existence of a union negotiating committee and contradicted himself in some respects in regard to the fore- men's meeting about the Union's complaint concerning the men being worked too hard Russ testified with the detailed specificity which normally does not accompany a fabrication Wilson admitted that it was not unusual 553 with and to train more new men than had been his previous practice. For when a finisher has as his partner a new man whom he is training, it involves more work for the finisher because he is required to do some of the new man's work in addition to his own. Whether or not Wilson was in fact mistreating Russ in this respect, I deem it unnecessary to de- cide. The fact remains that Russ in good faith be- lieved that to be the case, and on three separate oc- casions complained about it to Paul Williams, the chairman of the Local negotiating committee. Russ made his first complaint on March 13, when Union Representative Linn and the negotiating committee were visiting the plant during the noon recess of that day's negotiating session. Russ told Williams that Wilson was working him with all the new men and making it "hard" on him. Williams reported Russ' complaint to Linn, who then protested the foremen's treatment of union em- ployees when the bargaining session resumed on the afternoon of March 13. In response to Canipe's query as to what emplloyees they were referring, Williams replied that "Mr. Wilson was making it hard on Red [Russ]," that he was "putting all the new men on him," and that "it looked like they would take the pressure off him and put the new men on somebody else sometimes." Williams also named Paul Ellis as a complainant. Canipe replied that he knew nothing about it and would talk to the foremen about it. 14 Canipe aid call a meeting of all foremen, includ- ing Superintendent Tunney McCorkle. Canipe relayed the Union's complaint about the foremen working the union employees too hard and stated that, if such a practice existed, he wanted it stopped. All foremen, including Roy Wilson, asked for the names of the employees who were making the complaint and the foremen involved. I do not credit the testimony of Wilson, Canipe, and Mc- Corkle that in response to this query Canipe men- tioned no specific names of employees or foremen. In view of my previous credibility findings with respect to Wilson and Canipe and the fact that, as previously found, Williams had specifically named employees Russ and Ellis and Foreman Roy Wilson, I find that Canipe did in fact mention these names. Further evidence in support of this finding is the previously described incident where Russ found Wilson in his automobile with a beer in his hand and crying. For in response to Russ' query as to for him to be in the canteen , and did not deny the incident when he was sitting in his automobile with a beer in his hand and crying, set forth in the text Under all the circumstances , I do not credit Wilson's denials " The findings in this paragraph are based on the credited and mutually consistent testimony of Russ, Williams, and Linn Campe admitted that such a complaint was made at the negotiating session but testified that there were "no names involved , I don't believe " He further testified in the negative when Respondent 's counsel asked, "do you ever recall Bobby Russ' name being raised in the negotiating meetings)" Duhn also testified, "I don't recall any names being mentioned " I do not credit the testimony of Campe and Duhn to the extent that it may contradict the findings set forth in the text 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what was wrong, Wilson on that occasion retorted, "you and the damn union and Tunney McCorkle." Russ' second complaint to Williams was in early April. W illiams again relayed the information to Linn who brought the matter to the Company's at- tention .at the April 8 bargaining session. On this occasion, no specific names were mentioned. Linn merely protested the supervisors' attitude and treat- ment of the employees. Canipe and Dulin promised to check into it. Russ made a third complaint later in April and Linn brought the matter up at the April 23 bargaining session , pointing out that the practice was still continuing despite their previous complaints. When Dulin stated that they had failed to mention any specific names the last time, Wil- liams named Russ and two other employees. is Canipe admitted that he called another meeting of his foremen on this subject in April, that they again inquired about the names of the employees making these complaints, and that Roy Wilson wanted to know if there were any claims against him. In view of my previous findings, I am con- vinced and find that Canipe again named Russ as one of the complaining employees. 4. The discharge of Russ During his last month of employment, Russ' partner was a new man named Skulley. The other pair during that period was Ellis and Petty. Prior to that time, Ellis had been Russ' regular partner dur- ing the 3-month period that Ellis had been working regularly on Roy Wilson's shift. On Monday night, April 28, Charlie Clark was temporarily transferred back to Wilson's shift to replace Skulley who had quit. Clark was an experienced finisher who had been Russ' predecessor as head finisher on Wilson's shift before he was transferred to another depart- ment. Thus, the four finishers on Wilson's shift on the night of April 28 were Russ, Clark, Ellis, and Petty. Russ and Clark were the two most ex- perienced finishers, having achieved the rank of head finisher; Ellis was next with at least 4 months' full-time experience; and Petty had at least I month's full-time experience with occasional prior work on Saturdays. That night Russ punched in about 10 minutes be- fore the commencement of his 11 p.m. shift. He worked about 8 or 10 minutes on his tickets and on getting his orders that went on the boxes Wilson admittedly had made no previous specific work as- signments for the week of April 28 as to which two were to work as pairs. About 11 p.m., Ellis came over and said he was going to start weighing. Russ stated that he would team up with Ellis because they had four experienced finishers that night. Ellis "These findings are based on the credited testimony of Williams and Linn Campe and Dulm admitted that the Union repeated the same com- plaint at two more bargaining sessions but again denied that any specific names were mentioned Campe testified that despite three admitted com- plaints by the Union , as a result of which he held two meetings of his began taking the paper out of the boxes and throw- ing it onto the scales to be weighed while Russ prepared to do the stacking. At that point, Wilson came up and told Russ that he was not working with Ellis, that Petty was working with Ellis, and that Russ should work with Clark. When Russ pointed out that Ellis was his regular partner, Wil- son retorted, "Punch out, you're fired." Russ remonstrated that they had four experienced men that night and that he would like to, or that he did not see why he could not, work with Ellis. Without replying, Wilson turned around and walked away. Petty thereupon came over and started stacking. The foregoing version is based on a composite of the testimony of Russ, Ellis, and Clark. Wilson testified to an entirely different version as follows: When he saw Ellis weighing and Russ about to do the stacking, he told Russ that he wanted him to work with Charlie Clark and that he wanted Petty to work with Ellis. Russ stated that he wanted to work with Ellis. Wilson replied that one of them would have to work with Petty, that the other would have to work with Clark and that he preferred that Russ should be the one to work with Clark. Russ then stated that he wanted to work with Ellis and Wilson repeated that Russ was going to work with Clark. When Russ again repeated that he was going to work with Ellis, Wilson stated, "No, you're not. You're going to work with Charlie Clark." Russ then stated, "Well, you watch me and see who I work with." Wilson replied, "Well, I am watching right now and you've just been fired; hit that clock and get out of here." I have previously found that Wilson was not a credible witness. His version was not corroborated by any other witness. Wilson admitted that it was not unusual for an employee to tell him that he would prefer to work with another person and that such situations were frequent occurrences. He also admitted that he did not tell Russ why he wanted him to work with Clark rather than with Ellis who had been Russ' regular partner. As previously noted, Clark was just as experienced as Russ. On no other occasion had Russ ever refused to do the work assigned to him or been accused of insubor- dination. It thus seems highly improbable to me that, after voicing his preference as he and others had frequently done in the past, Russ would have insisted on having his way to the point of flatly refusing to comply with Wilson's instructions. Ellis and Clark, who corroborated Russ in vital respects, impressed me as reliable and truthful witnesses. Under all the circumstances, and particularly my observation of the demeanor of the witnesses while testifying under oath, I do not credit Wilson's ver- sion. Based on the credited testimony of Russ, Ellis, and Clark, I find that Russ and Wilson, in sub- foremen on this subject, and despite the Union's continued subsequent complaints on the same subject , the Union never mentioned any specific names and he never asked the Union to identify the employees making the complaint or the foremen involved This testimony just defies belief I do not credit the denials of Canipe and Duhn CAROLINA PAPER BOARD CORP. stance, made the statements hereinabove set forth in the first version. is Russ immediately went to the telephone, located in an aisle leading to the canteen, and called Su- perintendent McCorkle. He told McCorkle that Roy Wilson had fired him because he had wanted to work with Ellis when they had four experienced men there. McCorkle told Russ that he wanted to speak to Wilson. Russ told Wilson that McCorkle wanted to talk to him on the telephone. Wilson refused to talk to McCorkle and Russ so informed McCorkle. At that point Ben Wilson, a brother of Roy Wilson, talked to McCorkle. Meanwhile Russ returned to his work station, paired up with Charlie Clark, and commenced picking up the shavings. He also made out some more tickets. A short time later, he again talked to McCorkle who was still on the telephone. McCorkle told Russ that the best thing would be for him to go home and that Mc- Corkle would talk to him the next morning, after he had had an opportunity to talk to Roy Wilson. Later that night, Wilson telephoned McCorkle and gave his version of what had occurred. The next morning, Wilson and Russ appeared in McCorkle's office. Manager Noble was also present. Russ and Wilson gave their respective ver- sions, as previously set forth. Noble and McCorkle then consulted outside the office. McCorkle returned to the office and told Russ that they had to go along with Wilson. Russ left the office and was paid off. Three days later, Union Representative Linn and the Local bargaining committee met with McCor- kle and Canipe in Respondent's office in connec- tion with Russ' discharge. Also present were Russ, Ellis, and Clark. Foreman Roy Wilson was not present. At the very outset, Canipe stated that he had checked into the matter, that he found it was a clear case of insubordination, and that he had to uphold the discharge. Linn protested that Canipe had not even heard their side of the story and prevailed on him to listen to the version of Russ, El- lis, and Clark concerning Russ' discharge. Canipe refused Linn's request to have Roy Wilson in at- tendance. The meeting ended with Canipe promis- ing to check further and to let Paul Williams know the final decision the following day, pointing out that as of that time he felt the discharge would have to stand. Respondent's final decision remained unchanged. 5. Respondent's contentions and concluding findings Respondent contends that Wilson discharged Russ for insubordination. However, as I have dis- 16 Luther Allen , the backtender on Wilson 's shift, testified that about 6 minutes after I I p in on the night of Russ' discharge he was carrying a sample to the lab and that as he passed Russ on the way to the lab he over- heard Russ say to himself, "I 'm a son of a bitch if I'm going to work " Russ denied having made such a comment Moreover , such a comment is con- trary to the fact because about that time Russ actually went and paired up with Clark to pick up scraps , after having telephoned Superintendent Mc- Corkle about his discharge Allen, who is the brother -in-law of McCorkle, 555 credited Wilson's version of the discharge incident, I find that Russ was not guilty of any insubordina- tion and did not refuse to obey Wilson's instruc- tions. All he did was to express a preference for working with his regular partner because they had four experienced men that night. In so doing he was not acting in any unusual manner. Thus, Wilson ad- mitted that employees had frequently told him that they preferred to work with a different person, that it was not unusual for one person not to want to work with another person, and that such incidents occurred all the time. Yet Wilson admittedly had never previously discharged any employee. Moreover, in view of the admitted excessive tur- nover in the finishing department, it seems strange indeed that Wilson should so precipitously discharge his head finisher who had over 5 years' experience in the finishing department and who, Wilson volunteered, "did a good job." I am con- vinced and find that Wilson seized on Russ' con- duct as a pretext to cloak his true motivation for discharging him. Wilson's antiunion attitude and his knowledge of Russ' strong adherence to the Union are demon- strated by his conversations with Russ about the Union beginning with the canteen incident when Wilson sought to weaken Russ' support for the Union by appealing to racial prejudice. Wilson was unsuccessful in this respect at that time as well as in his subsequent attempts to needle Russ about the Union. Meanwhile, Wilson became aware at the foremen's meetings that Russ was complaining to the Union about Wilson's alleged mistreatment in work assignments, as previously found. I am con- vinced and find that Wilson resented Russ' conduct in making these complaints to the Union. Thus, he blamed Russ and the Union for causing him a lot of trouble when Russ found him in his automobile with a can of beer and crying, as previously found. It is not denied that he also told Russ on several oc- casions that he wished Russ was not on his shift. And it is also not denied that on the last workday before Russ' discharge, when the question was raised as to who would substitute for backtender Luther Allen who had to get off to go to the doctor, Wilson replied, referring to Russ, "that red-headed son-of- a-bitch." That Wilson was looking for an excuse to get rid of Russ is demonstrated by the undenied and credited testimony of Paul Ellis that some weeks before Russ' discharge Wilson attempted to get Ellis to pick a fight with Russ . On that occasion he told Ellis that if he would get into a fight with Russ, he (Wilson) would "turn his head." Upon consideration of all the foregoing, and the entire record as a whole, I am convinced and find testified that he told either Wilson or McCorkle about this remark the day after Russ' discharge because he knew Russ was a union man and would get the Union to back him and that it would be helpful if something came up in court about it McCorkle denied that Allen ever talked to him about it, and Wilson did not corroborate Allen in this respect Under all the circum- stances, I do not credit Allen's testimony Moreover , I could attach no meaningful significance to this remark , overheard under the circumstances described by Allen 556 DECISIONS OF NATIONAL that, in discharging Russ on April 28, Wilson was truly motivated by resentment against Russ for complaining to the Union that Wilson was mistreat- ing and harassing him in connection with the work assignments . Even assuming that Russ' complaints about Wilson 's work assignments lacked merit, his conduct in seeking the Union's help in connection with what he in good faith believed to be a justifia- ble grievance constituted a union activity protected by the Act. It therefore follows , and I find , that his discharge for engaging in such activity was dis- criminatory and violative of the Act. Although I do not impute Wilson 's discriminatory motivation to his superiors, McCorkle and Canipe, who sustained the discharge action on the basis of the version which Wilson reported , Respondent must neverthe- less be held responsible for the unlawful conduct of Roy Wilson , an admitted statutory supervisor and agent of Respondent . For, absent Wilson's dis- criminatory motivation , Russ would not have been discharged in the first place . As the Court of Ap- peals for the Third Circuit stated , " to rule other- wise would provide a simple means for evading the Act by a division of corporate personnel func- tions."" I therefore find that by the discharge of Bobby H. Russ on April 28, 1969, Respondent dis- criminated with respect to his hire and tenure of employment , thereby discouraging membership in the Union in violation of Section 8(a)(1) and (3) of the Act. D. Alleged Independent Violations of Section 8(a)(1) The General Counsel contends that Foreman Roy Wilson's conversation with Russ in the canteen in February 1969, when Wilson sought to influence Russ against the Union by appealing to racial preju- dice , constitutes an independent violation of Sec- tion 8(a)(1) of the Act. I do not agree. I do not re- gard as coercive Wilson's passing comments on that occasion , in the setting and circumstances in which they were made . Nor were they so regarded by Russ, as his reply to Wilson demonstrates . I will ac- cordingly recommend the dismissal of this allega- tion of the complaint. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in sec- tion III, above , occurring in connection with the operations described in section I, above, have a close, intimate , and substantial relationship 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. LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. All production and maintenance employees, including shipping and receiving employees, assistant shipping clerk , laboratory assistant, lead- men, yardmen and janitors, employed at Respon- dent 's Charlotte , North Carolina, plant, excluding truckdrivers , part-time janitress, office clerical em- ployees , chemist, shipping clerk , receiving clerk, professional employees , guards and supervisors as defined in the Act , constitute a unit appropriate for the purpose of collective -bargaining within the meaning of Section 9 ( b) of the Act. 2. At all times since January 30 , 1969, the Union has been , and continues to be , the exclusive bar- gaining representative of all the employees in the aforestated unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 3. By the conduct described in section III, B, 2, supra , Respondent has refused to bargain with the Union and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the discharge of Bobby H. Russ on April 28, 1969 , under the circumstances previously described , Respondent has discriminated with respect to his hire and tenure of employment, thereby discouraging membership in the Union, and has thereby engaged and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) of the Act. 5. By the foregoing conduct, Respondent has in- terfered with , restrained , and coerced its employees in the exercise of their statutory rights guaranteed by Section 7 of the Act and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7. Respondent has not engaged in unfair labor practices independently violative of Section 8(a)(1) of the Act by the conduct of Foreman Roy Wilson , set forth in section III, D, supra. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I will recommend that it cease and desist therefrom and take certain affir- mative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act, I will recommend that, upon request , it bargain collectively with respect to wages, rates of pay, hours of employment, and other conditions of employment , and, if an un- Allegheny Pepsi-Cola Bottling Company v N L R B , 312 F 2d 529, 531,enfg 134 NLRB 388 CAROLINA PAPER BOARD CORP 557 derstanding is reached, embody such understanding in a signed agreement. In view of my finding that Respondent has not engaged in any good-faith bar- gaining , and in order to ensure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, i.e., "a full year of good-faith bar- gaining," I will also recommend that the initial year of certification shall be deemed to begin on the date Respondent commences to bargain in good faith with the Union. Thompson Machine & Tool Corporation, 172 NLRB 1671, fn. 1; Mar-Jac Poultry Company, Inc., 136 NLRB 785; Com- merce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5); and Bur- nett Construction Company, 149 NLRB 1419, 1421. enfd. 350 F.2d 57 (C.A. 10). Having found that Respondent discharged Bobby H. Russ in violation of Section 8(a)(1) and (3) of the Act, I will recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position, without preju- dice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result thereof, by payment of a sum of money equal to that which he normally would have earned as wages from the date of discharge to the date of Respondent's offer of rein- statement, less net earnings during such period, with backpay and interest thereon to be computed in the manner described by the Board in F. W. Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following: RECOMMENDED ORDER Respondent , Carolina Paper Board Corporation, Charlotte , North Carolina, its officers, agents, suc- cessors, and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in United Paper- makers and Paperworkers , AFL-CIO, or any other labor organization , by discriminatorily discharging any employee or by discriminating in any other manner with respect to their hire and tenure of em- ployment or any term or condition of employment. (b) Refusing to bargain collectively in good faith with the above-named Union as the exclusive bar- gaining representative of all the employees in the following appropriate unit: All production and maintenance employees, including shipping and receiving employees, assistant shipping clerk, laboratory assistant, leadmen, yardmen and janitors, employed at our Charlotte, North Carolina, plant, excluding truckdrivers, part-time janitress, office clerical employees, chemist, shipping clerk, receiving clerk, professional employees, guards and su- pervisors as defined in the Act. (c) In any other manner interfering with, restraining , or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the aforesaid Union as the exclusive representative of all the employees in the above- described unit with respect to wages, rates of pay, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, em- body such understanding in a signed agreement. The initial year of the Union's certification shall be deemed to begin on the date the Respondent com- mences to bargain in good faith with the Union as the recognized bargaining representative in the ap- propriate unit. (b) Offer to Bobby H. Russ immediate and full reinstatement to his former or substantially equivalent position, without prejudice to the seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay suffered by reason of his discharge, in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify Bobby H. Russ if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in ac- cordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (e) Post at its place of business in Charlotte, North Carolina, copies of the attached notice marked "Appendix B "t8 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall he deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall he changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 558 DECISIONS OF NATIONAL spicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced , or covered by any other material. (f) Notify the Regional Director for Region 11, in writing, within 20 days from the date of the receipt of this Decision , what steps the Respondent has taken to comply herewith.19 19 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 Respondent has taken to comply herewith " APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in United Papermakers and Paperworkers, AFL-CIO, or any other labor organization, by discriminatorily discharging any employee or by discriminating in any other manner with respect to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL offer to Bobby H. Russ immediate and full reinstatement to his former or substan- tially equivalent position, without prejdudice to his seniority or other rights and privileges, and we will make up to him the pay that he lost, with 6-percent interest. WE WILL, upon request, bargain collectively in good faith with the above -named Union as LABOR RELATIONS BOARD the exclusive representative of all the em- ployees in the unit herein set forth with respect to wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed agreement. The ap- propriate bargaining unit is: All production and maintenance employees, including shipping and receiving employees, assistant shipping clerk, laboratory assistant, Ieadmen, yardmen and janitors, employed at our Charlotte, North Carolina, plant, excluding truckdrivers, part-time janitress, office clerical employees, chemist, shipping clerk, receiving clerk, professional employees, guards and su- pervisors as defined in the Act. CAROLINA PAPER BOARD CORPORATION (Employer) Dated By (Representative) (Title) We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Ser- vice Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211, Extension 360.