Medley Distilling Co., Inc.

84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Medley Distilling Company, Inc. and Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO. Cases 25-CA-3452, 25-CA-3516, and 25-RC-4113 December 8, 1970 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On April 21, 1970, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Exam- iner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed . Thereafter, the Respondent, the General Counsel, and the Charging Party filed exceptions to the Trial Examiner's Decision and briefs in support thereof. The Charging Party also filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding 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 briefs, and the entire record in this proceeding, and hereby adopts the findings,' conclusions, and recommendations2 of the Trial Examiner, except as modified below. 1. The Trial Examiner found that Respondent violated Section 8(a)(3) and (1) when it discharged 1 Respondent has excepted to many of the credibility findings made by the Trial Examiner It is the Board's established policy, however, not to overrule a Trial Examiner's resolutions with respect to credibility unless, as is not the case here, the preponderance of all relevant evidence conviences us that the resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3). The Trial Examiner refers to interviews Personnel Director John Medley conducted with employees Herman Boulds , William Thomas, and Francis G. Haynes in 1966 and 1967 in connection with his finding that Medley violated Sec 8(axl) while interviewing employees As the incidents occurred outside of the 10(b) period it is clear that the Trial Examiner's references to these incidents were for background only. We do not construe his findings of 8(a)(I ) violations as including anything which happened during these interviews 2 Most of the unfair labor practices violations found herein occurred between the filing of the petition on June 18 , 1969, and the election on August 28, 1969. These unfair labor practices interfered with the exercise of a free and untrammeled choice in the election Accordingly, we shall order employee Herman V. Payne. We agree for the reasons stated in his decision. The General Counsel and the Charging Party except to the Trial Examiner's failure to find that Respondent violated also Section 8(a)(1) when about 2 weeks prior to his discharge Respon- dent withdrew certain privileges it had previously granted Payne. We find merit in these exceptions. Approximately 1 year prior to Payne's discharge Respondent, because of Payne's family situation, granted Payne special permission to come in late on occasion. Approximately 2 weeks prior to Payne's discharge Respondent withdrew this permission. It is clear from the surrounding circumstances as fully detailed by the Trial Examiner, and especially from John Medley's reference to Respondent's fight against the "activity" (clearly meaning union activity) at the time he was withdrawing the privilege, that Respondent was taking this action as part of its effort to defeat the Union. We find that Respondent's withdrawal of Payne's privilege to be late on occasion constitutes a discriminatory withdrawal of benefits in violation of Section 8(a)(1).3 2. The Trial Examiner found, in our opinion correctly, that Foreman Pete Zarn told employee John Carrol approximately 1 week before the election that the Respondent had promised a 45-cent raise and that Zarn told employee William Thomas that if the Union did not come in the Company would make a better deal for them and that Thomas would get a raise. The Trial Examiner does not pass on whether Zarn by making these statements violated Section 8(a)(1). We find that these statements constituted promises of benefits to employees to induce them to abandon the Union and therefore were made in violation of Section 8(a)(1) of the Act.4 3. The Trial Examiner found that the Respondent violated Section 8(a)(5) by refusing to bargain with the Union as requested and that the only appropriate remedy is an affirmative order to bargain with the Union. We agree. Moreover, in our opinion, Respon- dent's unfair labor practices were so flagrant and coercive in nature as to require, even in the absence of the election set aside Dal-Tex Optical Company, Inc, 137 NLRB 1782 3 Charging Party contends that Respondent, by this conduct, also violated Sec 8(a)(3) However, the complaint alleges only that this conduct violates Sec 8(a)(1) and, in any case, even were we to find the conduct also violated Sec 8(a)(3), the remedy would be unaffected Therefore, we do not find it necessary to determine whether Respondent, by withdrawing Payne's privilege to report late on occasion, violated Sec 8(a)(3) as well as Sect 8(a)(1) 4 The General Counsel and the Charging Party also except to the failure of the Trial Examiner to discuss or pass on allegations that Respondent violated Section 8(a)(1) on other occasions Unlike the incidents set forth above, the Trial Examiner did not make the factual findings which would be necessary to support a conclusion that Respondent violated the Act by engaging in the conduct alleged In view of the already numerous findings of violation of Section 8(a)(1), we find it unnecessary to pass on these additional allegations as any additional finding of violations of Section 8(a)(1) would be cumulative and have no effect on the remedy 187 NLRB No. 12 MEDLEY DISTILLING COMPANY 85 an 8(a)(5) violation, a bargaining order to repair their effect. The Supreme Court, in setting forth general princi- ples applicable to the issuance of bargaining orders, held that the Board has authority to issue such orders to remedy unfair labor practices "so coercive that, even in the absence of a Section 8(a)(5) violation, a bargaining order would have been necessary to repair the unlawful effect of those [unfair labor practices J."5 In addition, the Court approved the Board's authority to issue a bargaining order ". . . in less extraordinary cases marked by less pervasive practices which nevertheless still have the tendency to undermine majority strength and impede the election processes."6 In such a situation, the Board must examine the nature and extent of the employer's unlawful conduct and ascertain the likelihood that the use of traditional remedies would ensure a fair election. The Court instructed the Board to decide whether ". . . even though traditional remedies might be able to ensure a fair election there was insufficient indication that an election . . . would definitely be a more reliable test of the employees' desires than the card count taken before the unfair labor practices occurred." 7 We have examined the facts of this case with these instructions in mind. The Trial Examiner, in our opinion correctly, for the reasons stated in his Decision, found that a majority of Respondent's employees had designated the Union as their bargain- ing representative by means of unambiguous authori- zation cards.8 In response to the Union's organization efforts, however, the Respondent engaged in exten- sive violations of Section 8(a)(1) and discharged two employees in violation of Section 8(a)(3). Respon- dent's course of unlawful conduct has demonstrated, 5 NLRB v Gissel Packing Company, 395 U S 575, 615 6 Id at 614 7 Id at 616 8 Though agreeing with his colleagues that Respondent violated Sec 8(a)(5), Chairman Miller would not count the cards of James R Foster, Ronald C Jones, Terry Bennett, or Esther Roby Foster testified he was told the card would be used "only for an election " Jones signed a card at a meeting where he was told the cards would be used "to hold an election and to hold your job " Bennett testified the solicitor "just said they had to get so many cards signed to have an election " Roby was told by solicitor Morgan that "it was to get an election it didn't obligate you Though the Trial Examiner found that Roby exaggerated , Morgan herself testified, "]' just tried to explain to her that we was trying to see how many cards we could get signed to see-we was trying to get an election for the union " The Supreme Court, in its Gissel opinion, supra (395 U S at 608-609), cautioned the Board against extending its Cumberland Shoe, 144 NLRB 1268, doctrine I find the aforementioned circumstances invalidated the four-named authorization cards This does not, however , affect the Union's majority status Members Fanning and Brown adopt the Trial Examiner's finding that the Foster , Jones, Bennett, and Roby cards should be counted In the case of the Jones' card , the talk that the card was for an election and necessary in order that Jones could hold his job , referred to by Chairman Miller, was not by the solicitor but by his fellow employees urging him to sign the card As to the remaining three cards , the solicitor's election comments were at most ambiguous and do not constitute solicitation on the basis that the we believe, a propensity to engage in violations of the Act by their nature designed to undermine the Union's support among the employees . Its unfair labor practices were so flagrant and coercive in nature as to require, even in the absence of an 8(a)(5) violation , a bargaining order to repair their effect. But we find, in any event, that Respondent's unfair labor practices were of such a pervasive character as to make it unlikely that their coercive effects would be neutralized by conventional remedies so as to produce a fair election . In these circumstances, we believe that employee sentiment as expressed through the authori- zation card is a more reliable measure of their desires on the issue of representation in this case than an election would be. We therefore find that by refusing to bargain with the Union and engaging in extensive unfair labor practices, Respondent violated Section 8(a)(5) and ( 1) and that to effectuate the policies of the Act a bargaining order is required to remedy its refusal to bargain,9 as well as its other unfair labor practices. 10 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and orders that Respondent, Medley Distilling Company, Inc., Owensboro, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommend- ed Order, as herein modified: 1. Insert at the beginning of 1(c) the phrase "Changing the terms and conditions of employment in retaliation for employees' union activities." 2. In the seventh indented paragraph of the cards were to be used only for an election The closest case is that of Foster Even though Foster uses the term "only" when testifying as to what the solicitor told him about an election, when considered in context, we conclude that Foster was simply testifying that an election was the only specific use for the card mentioned by solicitor Joe Blandford , but not that Blandford said or implied that that was the sole purpose for which the card would be used Under these circumstances we find that Foster card, as well as the other three cards, were correctly counted by the Trial Examiner In our opinion our finding does not represent any extension of Cumberland Shoe, supra In any case , as noted by Chairman Miller, these cards are not determinative of the Union's majority status 9 The Charging Party has filed exceptions to the failure of the Trial Examiner to recommend a remedy which would make whole all of Respondent's employees for contractual benefits which would have accrued to them had Respondent not refused to bargain and negotiated a collective-bargaining agreement, or at least to make all economic contract terms retroactive to the date bargaining would have occurred had Respondent accepted its statutory responsibility The granting of remedies of this type in 8(a)(I) and (5) refusal-to-bargain cases is not within the authority of the Board Ex-Cell-0 Corporation, 185 NLRB No 20 Accordingly, we find no merit in these exceptions Member Brown would grant such remedy for the reasons stated in the dissenting opinion in the Ex-Cell-0 case 10 Conclusion of Law 7 is hereby amended by inserting the phrase "by changing employees terms and conditions of employment in retaliation for their union activities" after the phrase "By the foregoing conduct " 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix to the Trial Examiner's Decision insert the phrase "change employees terms and conditions of employment in retaliation for employees' union activities" after the words "WE WILL NOT." IT IS FURTHER ORDERED that the complaint be dismissed insofar as is alleged unfair labor practices not specifically found. IT IS HEREBY FURTHER ORDERED that the election held on August 28, 1969, among the Respondent's employees in the appropriate unit, be, and it hereby is, set aside and that the petition in Case 25-RC-4413 be, and it hereby is, dismissed. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on January 13 through 16, and on February 2 and 3, 1970, at Owensboro, Kentucky. This is a consolidated case; in Cases 25-CA-3452 and 3516, the charges were filed on July 22 and September 19, 1969, respectively, by Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO, herein called the Union; the General Counsel issued a complaint on September 30, 1969, against Medley Distilling Company, Inc., herein called the Respondent or the Company. In Case 25-RC-4113 the Board conducted an election on August 28, 1969, and the Union thereafter filed objections to the election; on October 31 the Regional Director directed a hearing on the objections. The issues arising from both cases are whether the Company improperly interfered with a free election, and whether it violated Section 8(a)(1), (3), and (5) of the Act. Briefs were filed after the close of the hearing by all parties. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Medley Distilling Company, Inc., a Kentucky corpora- tion, maintains its principal office and place of business at Owensboro, Kentucky, where it is engaged in the business of distilling, storing, selling, and distributing alcoholic spirits. During the past 12 months, a representative period, it manufactured, sold, and shipped from this facility finished products valued in excess of $50,000 directly to points outside the State of Kentucky. During the same period it purchased, transferred, and delivered to its Owensboro facility goods and materials valued in excess of $50,000 which were transported to that location directly from States other than the State of Kentucky. I find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A Picture of the Case In May 1969 a substantial number of the Respondent's employees gathered to formulate demands for improve- ments in working conditions and to select a small group of spokesmen to articulate their desires to management; their purpose was to present a united front in support of their position. Unsatisfied by the Company's reaction, they turned to the Union. Between Friday, June 6, and Monday, June 9, 97 of the approximately 160 employees then at work signed regular authorization cards in favor of the Union. On June 13 the Union wrote to the Company advising that the employees had designated the Union as their bargain- ing agent and authorized it to negotiate for a contract; a reply was requested. The Respondent answered by letter dated June 17, acknowledging the communication and saying nothing more. By this time several more employees had signed union cards. The next day the Union filed a petition requesting a Board election. The Respondent is opposed to the principle of collective bargaining. In furtherance of this policy repeated steps were taken to assure defeat of the Union in the election that was coming. Supervisors at every level, up to and including John Medley, personnel director and a former individual owner of the business, coercively interrogated the employ- ees, spied upon their union activities, threatened them with discharge to compel abandonment of their prounion resolve, etc. More than 10 employees testified to being called into the personnel director's office to be told, in the privacy of the room, that they were being watched and that they would be fired if they did not desist. Medley was present throughout the first 4 days of the hearing while this story was being told; he did not deny any part of it. Nor were any of the supervisors called to contradict the direct and consistent recital of the employees. Two employees who were active in the organizational campaign were discharged-Herman Vincent Payne and Herman Boulds-and the complaint alleges each was dismissed as punishment for his union activities. As to Boulds, the Respondent denies the charge and contends he was released purely for economic reasons. With respect to Payne, his direct testimony that he was told, in conversa- tions connected with his discharge, by two members of management-the personnel director and Hugh Cecil, the superintendent of the bottling and shipping department-that it was his union activity the Company resented also stands completely undenied. The defense as to Payne is that he was a supervisor, and therefore could be discharged for union activities with impumty. The election took place on August 28, 1969, and the Union lost-67 votes for and 94 against. The Union filed objections to the Company's interference conduct and a charge of illegal refusal to bargain. The two cases were consolidated for a single hearing, on the objections and on the merits of the complaint. If the evidence supports the objections and proves the unfair labor practices allegations of the complaint, the General Counsel asks, as remedial MEDLEY DISTILLING COMPANY measures, that the results of the election be set aside, that the Respondent be enjoined from further misconduct prohibited by the statute-including violations of Section 8(a)(1), (3), and (5)-and that it be ordered to bargain now with the Union as exclusive representative of the employees in the appropriate unit. One defense to the refusal to bargain charge is that the Union never represented a majority of the employees; this assertion rests on the contention that when the employees signed the union cards-on their face clear and unequivo- cal designation of the Union as immediate collective- bargaining agent-they did not intend to authorize the Union to act on their behalf at all, but only had in mind the thought there would be an election, at which future date they would each decide whether they wished to be represented by the Union. A more pervasive defense is a purely legal one. It is argued that regardless of any written and real authorization of a union by the employees, and regardless of any coercive and unlawful conduct by management in violation of any other sections of the statute--be it Section 8(a)(1) and/or Section 8(a)(3)-in no event may it be found that the employer has unlawfully refused to bargain in violation of Section 8(a)(5) or be ordered to bargain with the union, unless and until the union succeeds in winning a majority of votes in a secret Board election. This is the defense position made clear by counsel for the Respondent during the first day of the hearing. It was in keeping with this view of the law that the Respondent did not bother to contradict any of the voluminous evidence of coercive behavior by its superviso- ry personnel. To this extent, the hearing resembled an inquest, as though the allegations of the complaint were not denied, with the prosecutor put to his proof-a sort of confession and avoidance plea. Appraisal of the two concepts in related context-undenied proof of unlimited violations plus the legal argument-reduces the Respon- dent's ultimate position to the following proposition: no matter what an employer does to "impede the election process," "disruptive of the election process," "with the result that a fair and reliable election cannot be held," i and no matter how often it repeats and continues the same course of conduct, there can be no collective bargaining unless somehow the union finds a way successfully to offset the employer's misconduct. A. Unfair Labor Practices in Violation of Section 8(a)(1) During the month of May 1969, the employees held three meetings-one in a nearby town, one in a church, and one in a local courthouse-to formulate detailed economic demands to pass on to the Company. They elected representatives from the various departments to act as committee spokesmen. Among the six or seven committee- men were Herman Vincent Payne, Herman Boulds, and Joseph Trodglen. The committee met twice with the Company, which promised to consider the collective demands but did not make any offer acceptable to the 87 employees. On May 12 the Company posted a notice on the bulletin boards reading as follows: There shall be no distribution of literature in any of the company's production areas. There shall be no solicitation at any time during an employee's actual working time. Free conversation among the employees in this plant had always been permitted; solicitation for social activities, participation in friendly and money-involving numbers games, and ordinary chitchat of the usual kind had never been prohibited. There had never before been any no- solicitation rule in this plant. The year before, on another occasion when the employees had chosen spokesmen to press economic demands jointly upon management, the personnel director told one of the committeemen "that right away when we are classified as spokesmen we are linked with the union." A number of times after posting of the notice the personnel director referred to it when telling individual employees to stop their union activities, and no other purpose has been suggested to explain the significant timing. That the purpose of this notice, posted at this moment for the first time in the Respondent's long history, was to cut off before its inception formal union activity connected with outside labor organizations is an inescapa- ble inference. The Board has held that establishment of no- solicitation rules for the first time at the very birth of union activity is in itself a coercive step in violation of Section 8(a)(1) of the Act, and I so find in this case.2 As stated above the employees started signing union cards on June 6. Employee witnesses testified to conversa- tions with a number of admitted supervisors as follows: 1. Hugh Cecil-bottling house superintendent Employee Martha Hamilton, a former employee whose husband is now in the Respondent's employ. On August 5, 1969, Cecil telephoned her at home: "And he said that he thought that I could influence Donnie, my husband's vote against the union because I was his wife and had a child. And he talked on for several minutes, but he repeated this one thing two or three times. And he also said that since Donnie hadn't worked there very long that if the union got in he would probably be one of the first ones to be laid off. And he said that if Donnie would talk to the Glenmore employees that he would find out that they were dissatisfied with that union. And he referred to my brother-in-law, Vincent Payne, and he said that Donnie had probably been talking to him, that he was strong for the union. And he asked me if I was working at that time. And I said no. And he reemphasized the fact that we'd be in trouble if Donnie was laid off." Employee Vincent I. Johnson: On June 15 he asked Cecil for permission to post a notice of union meeting on the bulletin board, and the superintendent answered: " 'No. ... The Medleys were opposed to the union,' and he didn't think they would grant permission." Two or three weeks before the election: "He asked me to go to the main office and tell the Medleys that I was pulling out, and he said that I was just the man that could throw the 1 N L R B v Gissel Packing Co, Inc, 395 U S 575 2 The Wm H Block Co, 150 NLRB 341 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD election. . . . `If you will go to the office and tell them that you're pulling out ... I'm sure it will make them very happy.' . . . He told me he was sure if I would do that I could have ajob there as long as I wanted to.,, I find that Superintendent Cecil 's threat to discharge employee Donnie Hamilton if he continued to favor the Union and his promise to Johnson of permanent employ- ment in return for assistance to the Company's antiunion campaign were each coercive statements in violation of Section 8(a)(1) of the Act. 2. Roy Payne-foreman Employee Herman Boulds, a miller regularly working 48 hours a week under Foreman Payne. Beginning a week after the June 8 weekend : ". . . he'd tell me how we was going to lose our-be cut to 48 hours, lose our overtime if we went union ; and the company could close down, and when they went down for repairs they'd lay everyone off and contract all the work out. . . . He would-he always told me, he said-Skippy didn't sign a card, you know, and he always wanted, he was always asking me did Skippy, you know, sign a card, and I told him I wouldn't tell him, you know." Employee James Kirk: On August 1: "And he asked me how I felt about the union. . . . And he told me that I should be thinking about it, because seniority, and everything. He told me that if the union come in that I knowed I was the youngest man down there and I 'd be the first to be laid off. . . . He said if the union come in he was pretty sure there would be a layoff." On the day before the election : "-he come back there and was talking with me, and he asked me how I was going to vote. And I told him , well, I didn't know. And he told me to go home and talk it over with my wife, he was pretty sure she could convince me not voting for it . I told him I would. And before he left he said he was going to come back tomorrow and he wanted a definite answer." I find that, by Foreman Roy Payne's interrogation of employee Kirk, by his threat of layoff to Kirk, and by his repeated and various threats of discharge and loss of employment benefits to Boulds, the Respondent violated Section 8(a)(1). 3. Gerard (Jerry) Kuntz-purchasing agent Employee Wendell Bennett: In Kuntz' office on about July 1: ". . . he asked me to shut the door and said there was some other matters he'd like to discuss with me. He then mentioned the union activities that was going on in the plant, and asked me if I was aware of them . I told him that I was. And he discussed some of the benefits that we were receiving from the company , uniforms, and insurance, and retiremen, [sic] what it actually meant for us paywise, so forth, and told me he thought it was morally wrong for us to try to bring in a union when we knew the company was against it. . . . He did mention that there were some raises in the planning stage. He said he didn 't know how much they would be but probably upwards of 20 [cents ]." Employee William Payne: Two or three weeks before the election . ". . . he was talking about how much better off we'd be if the-how much better off we 'd be without the union, and everything . And I asked him how we'd be better off without the union. . . . And I asked him if it was true about the company fixing to go down to forty hours. And he said, `Well,' he said, `there's been some talk about it.' The company was kicking it around some , he said.. . . He said, `Well,' he said, `if the union didn't come in,' or anything like that , he said, `they was going to cut the hours down to forty hours.' He said-he asked me what I was making. I told him $2 .59. He said, `Well,' he said, `with a 47 [cent] raise, then,' he said, `you'd be making , with five hours less,' he said, `with what you're making right now that that 47 [cent] raise would put you up, give you your overtime back, and,' he said, `you'll have five hours less for the same money.' He said that's what they were talking about.. . . He said that was an idea that he had been kicking around. He said he thought something like that could be worked out if the union didn't-if we would forget the union idea." Kuntz testified for the Respondent on a supervisory issue. He is the personnel director's son-in-law. Asked had he ever mentioned a 20-cent wage increase to Bennett, he answered: "I can't say-I never spelled anything out like that in terms of cents, or anything , in any conversation with him, no." Had he told William Payne the hours would be reduced to 40? "No, I didn't say it that way at all. I said what I would like to try to do, particularly in the bottling house, I'd like to see it in the whole plant, is eventually have the whole plant on a 40-hour week. I told him I'd like to do that without having to cut anybody , you know, without having to cut their take-home pay. And if we could get the work out in a 40-hour week that we are now getting out in more hours, that everybody could actually have more money." I consider Kuntz' explanation of the talk with Bennett of wage increases to be an equivocation and not a real denial of the contrary testimony, and his version of the talk with Payne not a true contradiction of the employee 's story. I find that Foreman Kuntz interrogated Bennett about union activities, promised him increases in pay if he would abandon the Union, and held out to Payne a promise of fewer hours of work without loss of earnings in return for a vote against the Union in the imminent election, and by each such statement violated Section 8(a)(1) of the Act. 4. Pete Zarn-foreman Employee John Carrol: In the cafeteria room in mid-July: "He said, `Well, the company and I have been talking and they told me that if the union comes in they're going to contract out the painting.... When the Union comes in you all won't have a job.' " In August : "Pete come to me and he said, `If you don't quit soliciting for the union you're going to get fired.' " A week after the election : "He told me, he says, `Why don't you stop this damn union talk?' He says, `As you know, the company is going to give you a raise.' . . . He said that the company had promised us a 45 [cent ] raise." Employee William Thomas: The month after the cards were signed: ". . . we was sitting there and Pete Zarn came in, and he sit down and started talking about the union And he said, `Well,' he said, `if the union comes in,' he said, `the company is going to contract out all of its painting work.' " MEDLEY DISTILLING COMPANY 89 A week later: "Pete, he came up on us there and, you know, got to talking, and he brings the union up.. . . And he said, 'Billy,' he said, 'if the union does not come in,' he said, `the company will make you a better deal than .... ' well, he was talking about raise , seniority, you know, such as that. . . He said, `You'll get a raise.' " Employee Joseph Evans• ". . . he was talking about the union coming in. He said if the union come in they would contract the painting out.... And he said they would contract the painting out and that we would lose our insurance premium , insurance benefits." I find that Foreman Zarn threatened Carrol, Thomas, and Evans, all painters, that the Respondent would contract out the painting work in retaliation if the employees voted in favor of the Union, and that they would in consequence lose theirjobs, and thereby violated Section 8(a)(l ). _i. Charles Medley-plant superintendent Employee Joseph Trodglen: In July: "I asked him, told him that I had some work that needed to be done, but I couldn't get no okay from nobody. And he said, `Joe,' he said, `if we beat this election,' he said, `I'm going to try to make it where you can do what you need to do without asking.' " Employee Carroll- In July: "Charles walked up to me and I was getting ready to get a drink, and he said, `John . Carroll,' he said, `I got a bad report on you yesterday.'. I said, `You did? . . . What have I done now, Charles?' .. `You were down here talking union. ... I'll have you know,' he said, `we don't want union talk going on down here.' He says, `If it happens again,' he said, `You'll be sorry.' " I find that the plant superintendent told Carroll he was being watched in his union activities and threatened him with economic reprisal if he continued it, and thereby violated Section 8(a)(1). 6. John Medley-personnel director Employee Herman Boulds, the day he was hired in September 1966: "And he brought up, he mentioned they didn't have no union down there, they didn't want none, and if I mentioned the word I would hear about it, he had people throughout the plant, it would get back to him." Employee William Thomas: At his hiring interview on December 26, 1967: "Well, he told me the rules that they have down there. He said if he caught me stealing or drinking on the job they would fire me. And he mentioned the union, they didn't want a union. And he said if a union tried to get in down here, he said, `I'm going to do everything in my power to keep it out' And he said, `If I ever hear of you talking union,' he said, 'I'm going to fire you.' And he said, `You've got a big family and you can't take any chances.' " Employee Francis G. Haynes At his hiring interview in 1967: " . he hesitated hiring me on account of my eye. And he started, he mentioned union. He said this wasn't a union plant, and he'd do everything in his power to keep the union out And he said if he ever heard of any union talk out of me he would fire me." Three weeks before the election : "Well, he said he had heard some union talk about me, not much , but from his officials he said he had heard that I had been talking union. And he got on to talking about my eye, and he said he would fire me if he heard any more talk, and it would be hard for me to get anotherjob.... And he also mentioned that he didn't have enough informers on the yard crew and he wondered, in a round about way he wondered if I would-well, what would you say-be a squealer, or whatever you call it.... If I would be an informer. And I never answered yes or no." Employee Joseph Evans: At his hiring interview on May 24, 1969 : ". . . and he asked me if they had a union over there. [The applicant's prior employment.] I said, `Yes, they did.' And he asked me if I belonged to it. And I told him I didn't. . . . He made reference to-see , I had, one of the references I had on my application was Snookie, or Herman Boulds , and he asked me how well I knew him. And I told him that we run around together, you know, before we got married . And he said then that Snookie was, or Herman was a strong union organizer, and he said he didn't know why he was like that because he was, he said he was picking shit with the chickens when he came there. And he asked me how I felt about a union . And I told him that I was against it." In July: "He called me over to the office .. . he asked me if I was still of the same opinion concerning the union as I was when I first came in, you know. And I told him yes. And he told me about the same thing that Pete Zarn told me, that if the union did come in they would contract the painting out. And he didn't say anything about the insurance, but he did say they would contract the painting out . . . he said that he knew that I was under pressure, you know, from John Carroll, a fellow worker, you know, he's a painter, to sign a union card, or vote for the union . . . he said, you know, just hold out." Employee Carroll: After the card signing started he was called to the office where Medley told him he had been seen in the boilerroom talking with other persons ; Carroll explained he had been seeking a telephone number: "And then he proceeds to bring me up to date on this soliciting. He asked me, he said, `Did you see this notice that was posted on May 21st,' which is May the 12th on the poster. I said, `Yes, sir.' I said, `I remember this.' He says, 'Do you know what that means?' I said , `Yes, sir,' I said, I understood it fully when you,' he said, `you're asking for a lot of trouble! He said, 'I know I read it.' He said, `Well,' he said, 'now,' he said, `I'm telling what you were doing in the boiler room.' And he said, `I don't want to see it anymore.' He said, `If I hear any more union talk out of you in any way,' he said, `you'll be discharged.' He said, `And I don't want to see you up here no more.' " Employee Wendell Bennett: About June 15: "He told me that he knew that I had been attending union meetings, that he had had some bad reports on me, and he told me about no-solicition rules on the company property, and he also told me that what I done outside of the plant was my own business and none of his. And he stated that regardless of which way the election went my ass was grass." Employee Herman Y. Payne: Three weeks before his August 17 discharge he was called to Medley's office: ".. . 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as I entered Mr. Medley's office he told me to be seated. ... And he sort of looked up, and he said, `Vince, I'm disappointed with you, I hear that you have been engaged in umon activities, and even soliciting on the job.' And he said, `After all that I have done for you, and all the privileges I have given to you I can't understand why in the world you want to do something like this.' I says, `Well, how do you know this? How do you know it's true?' He said, `My security men have told me that you have been engaged in these things.' And I said, `Well, there's no way of proving it.' He says, `I don't have to prove it. I don't want to get mad.' He said, `From now on if I hear of you doing anything wrong, or talking in any way towards these activities, or anything that I can catch you on,' he said, `I'll have to dismiss you.' And he said, `That's all I've got to say to you right now.' " Employee Kirk: At his initial hiring interview in February 1968: "He asked me how I felt about the union, and I told him, well, I have been in a union before and I never thought too much about it. He told me if word ever got back to him, or anything, that I had said about the union that I'd be gone. And he said he had ways of finding these things out." Employee Joseph Trodglen: Called to the office a few weeks after signing a union card: "He just told me that we didn't need no union, that we was doing well enough as it was, we didn't need somebody else to tell us how to run the business.... And he said that we should think before we signed-before we got into it.. . . He asked me at that time how I felt about it. . . . Well, it was brought up every time we talked, and the way of we didn't need a union.. . . At one time, and I can't tell you just exactly which time it was, he asked me if I signed a card. And I told him I did.. . . I talked to Mr. John one time and told him that I thought there was a lot of tales being carried to him because we had always been friendly. . . . But then later on he told me that they had been coming to him telling him that I was causing disturbance, still talking union, and that he was sure that it was a mistake." Employee Vincent I. Johnson. In Medley's office on the 9th or 10th of June: "He told me he had me down for distribution. . . . `Well, let's see what I've got you down for.' He said, `December 9th,' of the following year, which was before we had started any of this. . . . He told me, he says, `Now, I don't want to hear any more of this union from you. If you do, that's all of it for you.' " Employee William Payne: Late in June called to Medley's office: "Well, he told me that he'd been getting several reports on me about me going for the union, and everything. And he said in the past he'd never had any trouble with me and he thought he'd call me in and thought I deserved a warning ; that he'd never had any trouble with me, and he said he'd been getting all those bad reports, and he told me that if I didn't stop it that he wouldn't have no alternative or nothing.. . . And when the conversation was about to break up I asked him if anyone was going to be fired over this umon activity after it was all through. He said, `Well, you don't have any witnesses and I don't either.' He said, `You can better bet there's going to be five or six asses that's going to burn.' " Employee A. J. Wilson: Called three times to Medley's office. In early June: "He said, 'Come in and close the door,' when I first went in, and he wanted to know if I had saw the sign about soliciting on the board. He said some of his informers had told him that I had been soliciting, he never said specifically what it was, but he left the impression, you know, union cards, that I had tried to get someone to sign some union cards. And I told him, I said, `You should have called me up here and asked me instead of depending on your other source of information.' And then he said in this meeting, `If I hear of this any more you area gone goose.' " In mid-July: "He said, `Come in, close the door.' And he said, `You keep soliciting and soliciting. I wonder why you keep on, A. J. . . . He told me, he said, `You know what I told you last time would happen if I heard of you soliciting any more.' " First of August: "Well, this particular time we talked about several things. It was about a two-hour session this time-bottle collection, different things, various things. And we got back to it, where I had said I had solicited money for the boy that was dismissed, or fired, whatever you want to call it, the Boulds boy that was dismissed... . He said on this particular time, the best I can remember, he said, `Well,' he said, `I told you about this, an,' he said, `it's not up to me any more. I have to take it up with the rest of them. And I'll let you know the first part of the week what we will do with you.' " Medley listened to all this testimony without comment. There could be no clearer picture of a fixed determination to frustrate the employees' desire to engage in collective bargaining without regard to the extremity of measures necessary. He was completely indifferent to any and all proscriptions of law or rights of employees guaranteed by the statute. There is nothing to be gained by precise, enumerated, and repetitive findings of separate unfair labor practices committed, as in the usual case. Medley unlawfully interrogated employees, he told them he had spies throughout the plant surveying their union activities, he threatened them with adverse discrimination and outright discharge in retaliation, he confronted them with his confidentially reported knowledge in a way that of necessity must intimidate them, and he even invited them, with promise of reward, to be his "security men," and turn against their fellow workmen to help defeat the remaining desire of others to be represented by any union. All these were out-and-out unfair labor practices in direct violation of Section 8(a)(1) of the Act. They shed a revealing light upon the discharge of Boulds and Herman Payne, which came before the election and in the midst of the Union's continuing effort to maintain its representative strength. They also remove any doubt as to the intendment of any seemingly ambiguous words used by his underlings when they spoke of the Union to employees in their own private conversations. As subordinate agents of management they necessarily acted consistent with company policy, so clearly set by the personnel director. If they were devious in any of their messages to employees, the vagaries must be resolved as a cloak to cover antiunion animus. With so widespread a practice of direct intimida- tion by the personnel director, with so clear and direct warning by him to all that there existed a network of deceptive persons in confidence with Medley to keep him MEDLEY DISTILLING COMPANY 91 informed, every person with whom the supervisors talked of the Union knew what was meant. And, of course, what all this also proves is that when , after the Union advised that the employees had designated it to negotiate a contract for them, and the company president, John Medley's brother, sat back to await an election, the purpose of the Respondent was to gain time in order to make impossible any free and fair expression of choice by its worker complement. There is also a series of exhibits, numbering six, not really necessary to prove the merits of the complaint, but which, in the light of this testimony and of certain admissions extracted from the personnel director when called as an adverse witness by the General Counsel , are established as his original memoranda of conversations he had with employees called to his office in furtherance of his antiunion campaign. Each is a typewritten sheet, or portion of such a sheet, once torn into bits, and later painstakingly put together coherently in legible arrangement with scotch tape. A reading shows clearly that they are notes of conversations with one or more employees on the subject of which employees were active in the union activities, and what they were doing; all are dated during the month of June 1969. Two of them contain the statements "I talked with . . ." and lists seven names of employees in type. The other four reflect interviews with six persons whose names appear in pencil, instead of type, with the writing so garbled as to be unintelligible. One bears the initials J. A. M.-mph; Medley's secretary is May Jane Hurst. Medley was asked were these his notes; he equivocated. Did he prepare General Counsel Exhibit 14-one listing six employees as being interviewed: "I have talked to basically all the fellows that you've got lasted on here." "Q Didn't you cause that to be prepared? A. You said Bodie Wallace. This is more than any Bodie Wallace conversation.. . . A part of phis I didn't say to Bodie. A part of this I said at that time." One particular exhibit reads: "I talked to Bodie Wallace and told him that it has been reported that he was favorable to the Union. I told him that this was his privilege; but after what I had done for him and how I kept him from being fired, he had better do some more serious thinking." Before being shown the exhibit Medley had testified "I talked to Bodie. In fact I talked to basically every employee in the plant.. . . Dust asked Bodie how he felt, was he interested " "Q. You did ask him how he felt about the union? A. I probably did, but I didn't tell him he'd have to do anything about it." Exhibit 15 shows an interview with Troy Bybee. Medley testified : "I remember I talked probably to Troy, I probably talked to him in the yard, or office. . . . I just asked him how he felt about the situation, what was going on, and that we didn't want a union but that was his prerogative, I couldn't tell him what to do." "Q. Now, isn't this in fact, General Counsel's 15, notes of that conversa- tion that you had with Troy Bybee? [Document handed to witness.] A. It's reasonable, but I can't verify that absolutely. . Q. What did you do with the notes? A. I destroyed all my papers. They wouldn't be any good to anyone but me. Q. What did you do with the papers in destroying them? A. That's not anybody's business but mine." Examination of Medley continued in this vein. As the various exhibits were placed in his hands he said a number of things all more and more tending to establish their authenticity. Referring to one name he said had been deliberately written illegibly : "I can read the name, but I don't see why I should read that name." Did a certain one of the exhibits reflect his notes on a conversation with the employee? "This would be a reflection of them." Why did he write the names of employees in code ? "Because that is a personal business of mine , my personal operations , and it is not for the perusal of everybody as to whose names, who, what, or why." "Trial Examiner : Does that sheet of paper state something about a conversation you had with some other employee? The Witness: This is an employee that came to me. This is basically the same thing. . . . Q. And this was some other notes prepared by your secretary? A. Could be." At the close of his testimony Medley said he did not authorize anyone to reassemble the torn sheets in the coherently legible form in which they were produced at the hearing. Counsel for the Respondent also had him say he had not authorized anyone to turn "those" over to the National Labor Relations Board. In its brief the Respon- dent says: "Some of the 8 (a)(1) evidence was apparently taken or, better, purloined from Respondent, and it would seem strange indeed were the charging party or General Counsel to be rewarded for this type of conduct-unless two wrongs make a right." No useful purpose would be served by further belaboring these exhibits, or in making further pinpointed unfair labor practice findings based upon them . They are Medley's notes, and all they prove is further unlawful conduct exactly like that shown in full pattern by the uncontradicted oral testimony of so many employees at the hearing. Were there any dispute-and there is none-that the Respondent maintained a centralized system of surveillance and funneling of information into the personnel director's office, these exhibits would serve to remove all doubt on the matter. B. Unfair Labor Practices in Violation of Section 8(a)(3) 1. The discharge of Herman V. Payne Herman Payne worked for the Respondent upwards of 12 years, the last several as a shipping clerk. According to Foreman Kuntz, director of bottling operations and who was ultimately in charge of the work Payne did, he was "a good man," "he had his job, he did it well." Because he has nine children , and attendant family obligations, he was given special permission by the personnel director to come in late on occasions ; he made up the time during coffeebreaks and at lunch. The privilege was over a year old. The men do not punch timecards in this plant, but starting time is 7 a.m. On August 17 Payne arrived at the parking lot before 7 o'clock and in walking towards the building stopped to talk to a fellow employee about a personal matter. The bell rang while he was standing in the yard, and he set foot on the loading dock outside the shipping room-his actual work area-a minute or a 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD minute and a half after 7. He was discharged then and there. The Respondent's assertion that Payne was released because he came to work late is a pretext and is not credible. He was a very active union man, first as an elected spokesman of his department when the employees chose a committee to press their demands directly upon the Company, and later by successfully soliciting 12 authoriza- tion cards for the Union inside the plant. The Company knew he was doing this. Unlawful motivation is no less clear on the record. As Payne testified, without contradiction, the personnel director told him, 3 weeks before the discharge, he knew Payne was "engaged in union activities," and even "soliciting," despite the "privileges" he had extended, and therefore, if he heard of Payne doing "anything wrong .. . anything that I can catch you on," he would dismiss him. A week later Charles Medley, the plant superintendent, told Payne "I want you in here at 7:00 o'clock from now on," and brushed off the employee's reminder that John Medley had given him permission to come late. The next day Payne went back to the personnel director, who now told him "I have a wildcat on my ass.... I'm going to fight.... I can get rough . . . You can forget about any privilege that I have given you.. . . From now on I want you here on time. I want you to stay out of the bottling house." He then told Payne that if his work took him into the bottling house-this was where the man obtained the union card signatures-he is "not to say anything at all to any of the women on the line, or to any of the men on the line whatsoever." And during the next 2 weeks the plant superintendent-whose arrival time had long been 8:30 a.m.-started coming to the plant before 7. And then Payne's work required him to go into the bottling house. With this, Cecil, the bottling house superintendent, told him: "Don't even come in here for Cokes, don't come in here to even use the restrooms, or anything. . . . If you change your mind about the union maybe they wouldn't be so hard on you." All this is uncontradicted testimony. I find Payne was discharged because the Respondent resented his union activities and wanted to put a stop to them. The question remains whether he was a supervisor, and I find the record in its entirety does not support the defense assertion. A better name for his job duties would be shipping clerk-checker. He worked where the case whiskey is selected out of the stockroom and moved, in fulfillment of detailed purchase orders, out of the loading area and into trucks or railroad boxcars, via conveyor, and sometimes onto pallets. It was important to fill each order correctly, not to get the products mixed up, and to see that appropriate stencils were placed on the boxes For some time Payne had worked along with the other shipping clerks, lifted the stock, and actually put it in place in the 3 No one contradicted Payne's following explanation of what passing on Randall Wahl's orders meant. After he would tell me I would tell them [the shipping clerks ] If they were in the back, I would tell them, then, that Randall said to get this next, or get that next , or put this on And he [Wahl] would call the trucks, and keep a record of what cars we loaded, and so forth , or numbers See, we called the cars and the trucks, and we would check-the whiskey would be thrown on the vehicles. With more and more errors being made, it was decided he should do a minimum of physical work, or none at all, but concern himself only with assuring that the correct stock was shipped, that all orders were filled correctly, and that cases were properly stacked in the vehicles. There are multiple copies of every order, one always given to him and another to a clerk who did most of the actual physical moving of whiskey cases. The regular clerk was responsible to see that things went right, but Payne always checked the end of the line to be sure there were no mistakes. Randall Wahl is Payne's supervisor in this work; Wahl is a blue card man-all blue card men are salaried and enjoy greater fringe benefits. Payne was hourly paid, like all rank- and-file employees. When Payne was told to limit his activities to checking the moving stock, about a year before his dismissal, his pay was not changed. A raise he received at or about that time was only an incident of a plantwide increase in wages. In the attempt to make him a supervisor at the hearing the personnel director called him a leadman; he then admitted there are others also called leadmen, or leadladies-none of them blue card personnel-and named three such women, Geraldine Rowland, Margaret or Kay Sapp, and Kay Durham. He described their duties substantially as he did Payne's, but the names of all three appear on the stipulated list of nonsupervisory employees in the bargaining unit. Work started in the shipping department with Wahl giving the shipping orders to Payne in the morning and telling him which vehicles were to be used for which shipments. When Wahl, who often leaves the department, was not there, Payne passed the directions on to the other men. When Wahl was on vacation, or otherwise absent, Cecil, Wahl's superior, gave Payne the necessary orders. Payne carried a clipboard with the orders; the other men did the same. Both checked what they were doing and Payne made the final check in the end. Sometimes additional help was needed for short periods and Wahl asked Fulkerson, who supervises the yard crew, to send a man or two for a while. When the work was pressing, and Wahl was not nearby, Payne told Fulkerson more men were needed. It is this duty to pass Wahl's instructions to the men, to call for help from the yard, and even to tell Wahl some of the clerks are not working, if it should ever happen that any of them were deliberately idling-an eventuality not shown ever to have happened-that the Respondent contends proves Payne "responsibly" directed others and was therefore a supervisor. And it was this sort of directing that employees Terry Bennett and John Millay were talking about when they testified, in conclusionary words and in agreement to purely leading questions, that Payne told them "what to do "3 The only time Payne was shown to have spoken to line, and I would check the end of the line to make sure that the numbers corresponded See, he had a shipping order and I had a shipping order Q Who is he9 A Just a regular laborer It might be anyone back there I have a shipping order and he has a shipping order, and I just check at the end of the line the cases that they throw on That was the same procedure every day MEDLEY DISTILLING COMPANY 93 management about raises for the men was when he acted as a committeeman with the elected representatives in May 1969 to press the concerted demands of all employees on the Company. He had no authority to hire or discharge anyone. He recommends hiring no more effectively than does any other rank-and-file employee. I find that the Respondent discharged Herman V. Payne because of his union activities, to increase the chances that the employees would vote against union representation in the election scheduled for 11 days later, and thereby violated Section 8(a)(3) of the Act. 2. The discharge of Herman Boulds Herman Boulds worked for 3 years with the Respondent, his last years as a miller. Together with a longtime miller called William E. Payne, his job was to help unload grain and run it through a milling machine ; he watched for breakdowns in the machinery, checked certain cleaners in the operation, and generally assisted in that particular function, including a certain amount of cleaning up. In June 1969 a new, more modern, and more automatic milling machine was installed to replace the old. In consequence less man hours of work were required daily than had previously been performed by the two men, and Boulds was discharged on July 17. He was a very active union man, the Company knew it, and management had its eye on him because of it. When the employees began their concerted activities in April and May, and elected a committee of spokesmen from the various departments , Boulds was chosen to speak on behalf of the employees in the distillery department He met several times with management agents while the committee attempted to win the joint demands of all the employees for betterment of working conditions. With the employees still unsatisfied, Boulds, together with "Vincent Payne" (the Herman Vincent Payne discharged in August), sought out the union agent on the 6th of June, the first step leading to all the signing of cards. He then distributed cards and testified to being present when 13, other than his own, were signed. The defense to the complaint allegation that this man was discharged because of his union activities is simply that with installation of the new milling machines there was no further need for his full-time services in that room and that this is the reason for his dismissal. And it is true that with the mechanical change two men were not needed as before. A portion of the work Boulds used to do there has since been done by someone else, Lyman Pierce, called when necessary from a nearby department. Part of Boulds' work was to be relief man during certain hours for the regular miller, Payne, whose hours were different from those of Boulds. Payne, a witness for the Company, testified that Pierce only started helping him after Boulds left. It has long been this Company's policy not to discharge its employees when need for their services on any particular assignment ends, but to reassign them and to find other work expressly to avoid leaving them without jobs. This is the testimony of John Medley, the personnel director. ".. . [I ]f we can work a fellow around we try it if we can. .. . A prehearing statement of position written by company counsel reads, in part: "Employer does not have layoffs as such although on occasion it has modernized or automated its operation and taken care of the slack by not replacing employees who quit or leave its employ for any reason. It is following this policy now and the last fifteen employees who left the Company have not been replaced." Company records back only to January 1, 1968, show that from that date on, at least , no one other than Boulds was discharged for lack of work or discontinuance of his job. Walthen Medley, the company president, explained how the change in the milling operation had long been planned, the new machine ready, and the physical work starting in June. The very purpose of the change was to achieve improved efficiency with less labor. But despite the advanced knowledge, nothing was done about Boulds. Instead, the Company hired new people in the interim-one on June 15, three between June 23 and 29, and three on July 2. There is no indication special skills or training were required for the newly hired person , such as Boulds might not have himself. Why was this extraordinary and unprecedented discnmi- nation practiced on Boulds? The answer appears in the plain evidence on antiunion animus directed towards him personally. He was told the day he was hired that he "would hear about it" if he as much as mentioned the word "union." Foreman Roy Payne kept asking Boulds whether Skippy had signed a union card; he must have had Boulds marked as one who would know. Two months before the discharge, on May 24, 1969, while the personnel director was warning a new employee about union activities, he asked the applicant did he know Boulds, and referred to Boulds as a "strong union organizer." And when Foreman Payne sent Boulds into the personnel director 's office to be dismissed, he said "there was more yet to come," but he "wasn't going to tell me [Boulds ] what it was." Boulds asked John Medley was he going to be transferred to the yard, and the answer was: "No, not even in this plant." I find on the basis of the entire record, including especially the very persuasive picture of deep-seated antiunion animus in the Respondent generally towards the organizational campaign then current, that it discharged Herman Boulds to put a stop to his union activities, and thereby violated Section 8(a)(3) of the Act . The conclusion is not effectively weakened by the fact Medley recommend- ed Boulds for a job elsewhere . The illegal objective was to remove him from the area of the plant and from contact with the employees then preparing for the imminent election, and the fact that the personnel director sought to find him other work is irrelevant to the main question. C. Violation of Section 8(a)(5) Appropriate Unit The unit description was established by precise amend- ment of the complaint at the hearing, now an allegation which the Respondent admitted is correct . Accordingly I find that all production and maintenance employees at the Respondent's Owensboro facility, including all truckdri- vers, power plant employees, cafeteria employees , working foremen, crew leaders , line floorladies, and laboratory employees, but excluding all office clerical employees, casual and seasonal employees , purchasing agents, profes- 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sional employees, guards and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. The parties stipulated that a list exhibit received in evidence contains the names of persons working in the bargaining unit between June 6 and October 17, 1969, with dates of entry and exit from the unit during that period; it shows 170 names. In his brief the General Counsel asked that June 13-the day the Union mailed its demand for recognition-be the time for testing majority, and therefore the day when the total employee complement must be determined. The exhibit shows that eight of the listed persons either started work after June 13 or left the Company before that date, and therefore all these must be excluded from the count. They are: Raymond Thomas, left the Company on June 9; Jerry Devins, hired June 26; Allene Blanford, hired on July 2; Allen Levy, hired June 29; Margaret Love, hired July 2; Edward Lyons, hired June 23; Joyce Settles, hired July 2; and Jack Wilson, hired June 15. With this, the total becomes 162. The parties agreed to exclude Homer Barton, as a supervisor. The list of employees, as of June 13, therefore, is reduced to 161. There was dispute as to the alleged supervisory status of Ben Medley and William Medley, whose names the General Counsel would remove from the list. The evidence does not prove Ben Medley to have been a supervisor, and for reasons stated below I will remove William Medley from the list. The total then is reduced to 160. At the hearing the General Counsel also urged addition of three other names, persons he called regular part-timers. While disputing this last assertion, the Respondent stipulated with the other parties that the employees listed on the exhibit were all employed as indicated and that there were no other employees at work in the agreed-upon production and maintenance unit. Three women worked in the bottling house, their names are not on the stipulated list. Mary O'Bryan, who in May 1969 became Mary Ebelhar, worked the following hours during 1969: January 19-16-1/4; January 26-14-3/4; February 2-12; March 2-8; March 19-24; March 16-8; March 23-8; March 30-16; April 13-24; April 20-12; May 11-8; May 18-16-1/2; May 25-8; June 8-31-3/4; June 15-31-1/2; June 23-31; June 29-25; July 6-16; and July 13-30. Martha Jones did the same work and her records show the following hours worked: January 19-16-1/4; January 26-30-1/4; February 16-16; February 23-16; March 9-24; March 16-15- 3/4; March 23-16; March 30-0; April 6-8-1/4; April 13-24; April 20-36; April 27-4; May 4-23-3/4; May 11-16; May 18-24-1/2; May 25-35; June 1-8; June 8-32; June 15-31-1/2; June 29-25; July 6-16; and July 13-30. I find that both Mary Ebelhar and Martha Jones were regular part-time employees appropriately to be included in the bargaining unit as of June 1969? " At the hearing the General Counsel also urged inclusion of Margaret O'Bryan, but in his brief withdraws the contention The record shows clearly she was no more than a casual employee 5 Walter E Schwartz, Mary Ebelhar, Margaret O'Byran, Martha Jones, Bertha L Young, James Nicely, Anna Nicely, Essie D Cox, James E McDaniel, Joseph A O'Bryan, Jr ., Martha Sims, Larry E Payne, Edward Payne, William Lanham, Billy Haynes, Frank Fulkerson, Rex G Howard, Accordingly I find that as of June 13, 1969, there were 162 rank-and-file employees in the appropriate bargaining unit at most. Union Authorization There were received in evidence 109 signed authorization cards in favor of the Union. Each reads as follows: DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS' INTERNATIONAL UNION OF AMERICA, AFL-CIO I hereby designate Local No. - Distillery, Rectify- ing, Wine and Allied Workers' International Union of America, AFL-CIO, or its representatives, as my sole collective bargaining agent, and authorize them to represent me in any and all proceedings involving my right to designate a collective bargaining agent and also grant them the right to negotiate with my employer an agreement relating to wages, hours and other conditions of employment. One card was signed by Margaret O'Bryan, the casual employee who is not counted in the unit; it will be ignored. One was signed by Charles P. Drury, who testified at the hearing and said he was employed by the Company both then and when he signed the card. The name as he signs it does not appear on the stipulated list, but there is a Paul Drury. No one on behalf of the Company questioned his testimony and his card will therefore be counted. The witness Wilson testified there is an employee named Thomas Boehman and that he saw the man sign a card; no objection was made to its authenticity. The employee list shows only a Thomas Ray Boehmann, but I am satisfied it is the same man . There is like ambiguity in two other cards-signed by Eugene C. Brooks and Frank Fulkerson-both identified by other persons who testified. Although the employee list shows only a Coleman Brooks, a Sam Fulkerson, and a Joseph F. Fulkerson, no objection was made to Brooks' card and no issue was taken when the witness said Frank Fulkerson was in fact an employee. The record reflects a great number of instances where employees in this plant commonly use their middle instead of their first names. I will count both these cards. All of the remaining cards in evidence appear on their face to have been signed by employees listed on the stipulated exhibit. For the total of 108 cards, 52 were proved by the employee's appearance and testimony given at the hearing. Forty cards were authenthicated by direct testimony of witnesses that they actually saw the employees sign the cards.5 The remaining cards were received in evidence on the strength of the oral testimony of the employee who solicited the signature and then, within a very short time, usually a matter of minutes, received the card personally from the Oswald Howard, Joseph E Mills, Paul J Drury, Wavie Johnson, Jr, Eugene C Brooks, Francis E Payne, Wm Weise, Daniel Haynes, Donald R Hamilton, Mary Husk, Forest Husk, Charles V Mattingly, Sam Fulkerson, Thomas McPherson, Paul Hedrick, Charles Young, William Millay, Helen Bumm, Catherine Ferrell, Judy Hartz, Teresa Henderson, John W Mattingly, Thomas Balhman MEDLEY DISTILLING COMPANY 95 employee in question, whom he in each case knew personally, fully signed.6 I. Taitel and Son, 119 NLRB 910. Of the 108 cards, all but 11 bear the date June 6, 7, 8, or 9. The oral testimony shows that a few were dated the 7th or 8th, although actually signed on the 9th, because the employee involved, sensitive to possible criticism for signing in the plant on a workday, sought to protect himself by predating the card to the weekend. The evidence is unconlradicted, however, that in each instance 97 cards were signed no later than June 9. Two cards were signed on June 10-Conkright and V. Richard-and three on the 13th-P. Hedricks, R. Jones, and Mary Adkisson. This means that the Union was in possession of 102 signed cards when it wrote the demand letter of June 13. The last six cards bear the following dates: M. Jones--June 15, R. Young-June 16, L. Morgan-June 18, C. P. Drury-July 11, C. Young-July 15, and J. Willianns-June 16. Are the 102 cards dated no later than June 13 valid authorizations? In the course of the organizational campaign there was talk of the procedures being followed, by McKiernan, a union agent from out of town at a union meeting or two, as well as by some of the solicitors who later testified to having obtained signatures on the cards. And the record does show that in the general discussions the possibility that an election might be necessary before recognition could be won was a subject of concern. It is a defense argument by the Respondent that the cards cannot be used now-any of them-as evidence of an intent by the employees to authorise collective bargaining at the time they were signed, because, as it asserts, the employees were then told, or they believed, that the sole purpose of the cards was to bring about such an election, and not to designate the Union as their agent without more. It is also argued that some employees signed on the threat of later discharge. In support of this position the Respondent called 17 witnesses-all employees who had signed cards. In some instances their oral testimony, placed against that of the solicitors who invited them to sign and who also testified, presents a question of credibility. In the light of the clear language of the cards, plainly stating a present intent to authorize the Union to negotiate a collective- bargaining agreement on all working conditions, and the fact that the employees do speak English and said they read the cards, resolution of the matter of who gave the more reliable story at the heanng-in those few instances where resolution is required-demands that consideration be given to a very significant factor pervading the case as a whole. After signing the cards, employees without number had been subjected to the most intimidating form of coercion-direct threats of discharge voiced in the office of personnel director to many of them, individually and alone. The pattern of threats emanated from the office of the personnel director and spread throughout the plant for many weeks before the election, and it would be unrealistic to ignore the Respondent's illegal conduct towards the employees between the signing of the cards and the time of the hearing.7 6 James E Higdon, Joseph K Blandford, Francis E Aull, Joseph C Aull, Thomas Payne, Paul E Ralph, Paul Rickard, Joseph Tweddell, Herman Higdon, James Earl Cecil, Ernest H. Wiggin, Samuel Hardesty, Be that as it may, for the most part the employee witnesses whom the Respondent did call-all of whom had signed cards-not only did not give comfort to its defense, but gave supporting substance to other evidence that what reference was made to an election was in the context that it might be necessary only if a majority of cards were not signed, or if the Employer refused to recognize a proper majority and forced the Union into a Labor Board proceeding. Jack Hanks' first version of what the solicitor, Wilson, told him was: ". . . the cards could be used for union vote, but that the main reason why that he was wanting to use them was this committee . . . that they had formed, they were going to use these cards as a leverage to force the company into accepting some of the demands that they had made for, you know, higher wages, and for better retirement plans, stuff like that." The witness then said he asked Wilson " `Will this get a union in here?' And he said, no, you'd have to have a vote to get the union in. And so that's the opinion I had.' " Hanks also recalled it this way: "Well, all he said was that they wanted us to sign these cards so that it may throw a scare into the company to, you know, accept some of the demands that they had there. That's about all he told us. . . . He said that it could be used for an election, but he didn't think that it would be necessary." Benjamin Pruden also signed at Wilson's request. He testified Wilson ". . . said it's sole purpose was to be used as a bargaining agent when they were bargaining with the company, to help us get a raise. But no union was mentioned at the time . . . of course I may have understood it wrong, that there wouldn't be any union involved .... " "Trial Examiner: Did he say the union would not be involved? The Witness: He didn't exactly say not, but he said when I signed the card that they wasn't going to have a union, and didn't want a union; all they wanted was to use it as a bargaining agent to try to get us a raise. And that's the way that I took it . . . he might have said something different. That's the way I interpreted it." And again the witness' own version fits the pattern of the overall solicitation that was going on-bargaining now, and an election only if unavoidable despite designations. Steve Nix also signed at Wilson's request. All he could recall of the conversation, when Wilson had gone to see him expressly to obtain his signature, was: "Nothing specifical- ly. Just that this would just be for, more or less just to see whether anybody wanted to have an election." Wilson expressly denied telling any of these three men, or anyone else, the purpose of the cards was to obtain an election . He denied telling Pruden no union was involved. He said flatly he explained to everybody the purpose was to have the Union "represent" the employees. I credit him. William E. Payne was solicited by Herman Boulds. "Well, I don't remember what was said. One thing, he said I wouldn't have ajob if the union came in and I didn't sign it. What else was said, I don't remember." Payne refused to sign the card at first. "So he came again and asked me again. So things were in bad shape, so I thought that we Joe Curtis, Glen R Finley, John Horn, Mike Fulton, Jerry Payne 7 See Liz of Rutland, Inc, 156 NLRB 121, 133 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD needed the election to settle the thing one way or the other, so I did sign the card." Verdie L. Shouse also signed for Boulds. "... [H ]e told me all the rest of them had signed except one man. And so-He said, `Well, if you want to work here you'd better sign this card.' He said, `If the union does come in, if you . . . I don't have a card signed you may not have a job.' didn't read it, but I knew what it was for.... it was actually bunging-it was to bring in the union . . . . But I figured the voting is what counted, so I signed the card." Shouse then explained that what Boulds said was that everybody but one in the distillery department had signed. James A. Millay received his card from Boulds. Three times the witness responded that Boulds had said nothing to him when inviting him to sign. "He just asked me if I'd take it, and I told him I would." With the Respondent's counsel pressing him, he then said "I taken the cardjust to sign it, have an election . Q. Well, was that said to you? A. No, it wasn't said to me.... I can't recall whether I said it or not. I might have said it." And then there is the testimony of E. B. Wallace. His name is Everette Brodie Wallace , and he is called Bodie Wallace. This is the man the personnel director admitted having called to his office-in closeted interrogation, only one of many-to ask how he felt about the Union, and who, according to the written memoranda exhibits, was told "what I have done for him and how I had kept him from being fired, he had better do some more serious thinking." He denied flatly having talked to Medley about signing a union card before the election , or ever having been in his office ; he lied . He testified Boulds told him "It looks like we're going to have an election before we get this thing settled. . . . [W]e've got to have so many before we can have an election." Elvy Edwards also signed at Boulds' request. He started by saying what he heard at the union meeting when a union agent was present. "They wanted to sign some cards for the union to have a meeting . They was talking about that. And they was talking about some other benefits, or something, they might have. But that's about all that I can remember." Then he added "They wanted to get cards signed so they could have an election ." Later he rephrased this as to the union meeting : "I just said they said that they wanted to get a union, or something like that, in, and they had to have so many cards before they could have an election." Edwards continued that Boulds came to his home seeking his signature. ". . . I didn't want to sign the card really, but in order to get an election, or something, to settle the thing they had to have some cards, and he said about 80%, or something like that had already signed cards, so I went ahead and signed the card so they could have an election and settle it some way or another." "Q. Did he [Boulds ] say anything to you? A. Nothing only he asked me to sign the card." Boulds denied telling anyone he solicited that the purpose of the cards was for an election . Testifying before hearing the Respondent's witnesses, he expressly denied such talk with Payne, Shouse, Wallace, or Edwards; Edwards' admission Boulds said nothing about an election supports the finding. Boulds also denied saying employees who did not sign cards then would be without jobs later I credit him. Shouse remembered talk that employees "may not have a job" with a union in the picture . More likely this was his recollection of general talk, of which there was some, of a possible union-shop contract that might later be negotiated. Moreover, the testimony reduces itself to no more than a present assertion of what the men had in mind 8 months earlier when they read and personally filled in the cards. These cards are good and I find that , when they signed them, these employees did intend to have the Union bargain for them. John W. Millay said Herman Payne gave him the card. "Q. And was anything said at that time? A. No, sir. They was all signing them at the time and he handed it to me, and he filled it out and I signed it." He then added he thought it was for an election because he "heard them talking... The ones, you know , around." Mary K. Clark went to a union meeting . "I don't remember, really." What was said at the meeting? ". . . I don't remember if an election was brought up or not at that meeting." Vincent Johnson brought the card to her home for signing. What had Johnson said about it? "Nothing important I don't guess . I don't remember." Delbert Ashton signed at home for Carroll ; first he said he signed after a union meeting and then that it happened before. All he could remember despite much prodding was that the man at the meeting had said "the cards was for the election day." Asked to repeat, it came out ". . . he just said you get better, you know, better, you know, benefits, and stuff, you know." In the circumstances of this case vague generalities of this kind cannot serve to offset the clear designation spelled out in the cards these employees signed . The best evidence of what references were made to any election by the prounion campaigners came from Thomas Dant, also a company witness. With his family he was a dinner guest at the home of J. A. Payne and they discussed "the pros and cons" of unionism. He had great difficulty remembering anything Payne said . At one point came this : "[H ]e said the people wanted a union and we should at least give them a chance to decide what they wanted because it was an election, an election to see what the people wanted." Pressed to remember more, Dant finally said : "I remember only one thing, and this is vague now, I may have it wrong, I don't swear, I don't know for sure dust the way he stated it. I remember he said, maybe, maybe if we get enough cards we won't have to have an election." Again the testimony fits precisely into what the union representatives would most likely say, and comports with other record indications of what was said. If not more than 50 percent of the cards could be obtained, there would have to be an election; if more, a demand for bargaining without need for voting. Esther Roby and Mary Rowan both were solicited by Lucy Morgan . Roby's direct testimony was: "She told me that it was to get an election, to see if the people wanted the union in the company . And she said it didn't put you in the union, and it didn't obligate you. It was just to get an election." Mary Rowan testified : "She told me that the reason for the card, wanting the card was for the election, to have the election . She said that would be all. The card really didn't mean nothing . . . just about everybody had signed, and that they needed the signatures in order to have the MEDLEY DISTILLING COMPANY 97 election . . . . Whether the union was to be voted in or not. She said that was the main thing." Morgan denied having said the purpose of the card was to obtain an election , or that any certain number or percentage of signatures was being sought. While her purpose at the hearing was to stress the point her appeal had been "to get the Union in" at Medley's, she did admit having talked of or mentioned a possible election to Roby. "I just tried to explain to her that we was trying to see how many cards we could get signed to see-we was trying to get an election for the union , for getting a union in Medley's, sure." As to Rowan, Morgan said clearly there was no talk of any election. Roby was a suspect witness. She was laid off after signing the card and appealed to the Union's lawyer in Louisville for assistance, claiming she had been wrongly laid off out of seniority . She was later put back to work. In the context of the total picture of illegal interference and coercion-Roby even said she went back to the personnel director after seeing the union lawyer-I am convinced she exaggerated greatly in her recital. After saying Morgan had told her a percentage was necessary for an election , she added Morgan also said "they had enough cards to have an election." But, if she knew an election was already assured, Roby must also have known there was another purpose in obtaining still more signatures. Both girls admitted they filled in the entire card when they signed. It is, of course, possible a woman could misunderstand when talk is general . The only card that gives pause is that of Rowan, for she particularly impressed me as a very honest person. I find Roby's card was a valid designation, but shall , without deciding, ignore Rowan's, which in no event is of moment. Adrian Clark was solicited by William D. Millay; he shifted his testimony back and forth from page to page, almost from one answer to another. He said he refused to sign when Millay first asked him, and did so when Millay tried again "about a week later." But no cards existed before June 6 and he filled out his own in full and signed it on June 9. He said Millay told him the card ". . . really didn't mean anything at that time to sign the union card; they just wanted to see how many they could get signed." Then he added there had been "rumors you heard around .. . that if you didn't sign a card you couldn't got to the meetings." What had Millay said the second time he came? .. [N ]othing other than the majority of them had signed them, and he just said he'd like for me to sign one, but I wasn't--but I did not have to sign it, I could use my own judgment on it." Finally counsel for the Respondent asked the witness had Millay said anything about an election, and the answer came ". . . he said ... regardless of how many cards were signed there would still be an election, that that was the law, there had to be an election." Had Millay said anything "about the rumor"? "No; he didn't say nothing about that." Clark also told of having attended a union meeting. His first recollection was that the man-apparently a union agent--said the cards "really didn't mean anything; they wanted to see how many they could get signed." And then again came the question-had the man talked of an election ? "He said the cards didn't mean too much; that there definitely would be an election." On cross-examina- tion Clark then said that at a first union meeting ". . . it seemed like he [the union agent] didn't talk too much about the election that I can remember . It was just more or less benefits, and stuff like that," and that it was at the second meeting-necessarily after he had signed the June 9 card-that an election was mentioned. Millay testified all he told the man was that the purpose of the card was "To let Local 31 represent us." Clark vacillated too much as a witness for his uncertain testimony, in its totality, to constitute probative evidence that he was told the card had any definitive purpose other than what was plainly wntten on its face. I credit Millay and find Clark's card was a valid one. Larry Bartley signed at the request of Vincent Payne, when a group of employees were gathered together. His testimony, intended to invalidate his card , is unpersuasive. Bartley said Horn, also present in the group, had pressed him to sign "four or five days," kept after him "from Monday to Friday," but the card, in Bartley's handwriting, is dated the 9th, Monday , only 3 days after any cards appeared . Bartley said that finally , "towards the end of the week . . . [H ]e [Horn ] said it was to have an election. And so he gave me the card , and I read it. And that's what I got out it, so I went ahead and signed the card ." But as his card is dated Monday, it is clear that any talk of an election could not have come until several days after he signed, and therefore can in no event invalidate his card. Employee V. I. Johnson was one of the effective organizers ; he authenticated eight cards other than his own. He testified that after the first meeting with the union organizer someone mentioned the fact 30 percent of the employees' signatures were necessary for an election and that there was talk the cards were being signed for the Union "to be our representative." He added that later someone-he could not remember who-asked him was it necessary to have an election "since we had so many cards signed," and that he promised to check with McKiernan, the union agent , and to report later. Johnson also said there was no talk about an election when the men signed the cards for him, either by him or by them. Mickey Conkright was one of the men who signed for Johnson, and he was called by the Respondent for the purpose of invalidating his own card . He said he signed it for Johnson before heanng anything at any union meeting, and that when he did sign-the card entirely filled in by himself-Johnson said nothing to him about an election. Conkright was asked to tell what he later heard at the union meeting; all he could recall was that the union agent had "talked about we needed to all stay together , stay with the union . . . those that hadn't signed the card ought to sign .. . some of the reasons was that better wages, possibly ... nobody would ever see the cards except the N.L.R.B. and the union." He repeated several times he could recall nothing else. "Q. Did he say anything about what the cards would be used for? A. No, sir." At this point his testimony became confused, almost unintelligible : "He said ... if we didn't vote for the election, if we didn't want the election, then those that voted for the election, or had anything to do with the election would possibly be fired or dismissed, he said." He repeated nothing had been said about the cards 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "being used for an election," and then added the agent said that they had enough cards, "the election was supposed to have been guaranteed" with the cards that they already had signed. In its brief the Respondent joins this almost incoherent testimony by Conkright to Johnson's statement at the hearing "I think it was in our minds that we had to have an election," and argues it therefore must be found all the employees who signed were told the sole purpose of the cards was to go to an election. But the testimony of the witness does not so read. Rather, Johnson's testimony, taken in totality, is consistent with what is shown by other evidence, that at the start of the campaign no one could be sure how the Employer would react to the Union's campaign, and whether or not a majority could be achieved so as to demand exclusive recognition. Both less than a majority of cards and refusal by the Employer to deal with the Union were eventualities that had to be reckoned with, and, if there was talk of such possibility, it supplies no reason now for rejecting perfectly valid cards signed in the absence of any misleading inducement. I find that both on June 13, 1969, when the Union demanded recognition, and on June 17, when the Respondent refused to recognize it, the Union was the representative for the purposes of collective bargaining of a majority of the employees in the appropriate unit, 101 out of a total of 162, and by virtue of Section 9(a) of the Act has been and is now the exclusive representative of all the employees in said unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment. Demand and Refusal On June 13 the Union wrote the following letter to the Respondent: This letter will serve to officially advise that the employees of your Company have designated this Union to represent them as their bargaining agent and have also authorized this Union to negotiate with the Company a Labor Agreement relating to all matters of wages, hours and other conditions of employment. An early reply in this matter will be appreciated. On June 17 the Company responded; in pertinent part it said only: In response to your letter, be advised that we take note of the fact that you claim that some of our employees have designated your union to represent them as their bargaining agent. In its answer the Respondent denied that it refused to bargain on request, and at the hearing its counsel tangentially suggested the demand letter fell short of a direct request for immediate recognition and negotiations. In its brief, however, the Respondent quarrels only with the General Counsel's contention that, in the event a valid majority was not shown, there should issue an order to 8 The amendment is a very precise one, limited to the refusal to pay a certain amount assertedly due Trodglen that particular Sunday, it reads. Respondent, by its supervisor and agent, Charles Medley, on or about late August, 1969, at its Owensboro, Kentucky facility, suspended certain privileges of employee Joseph Trodglen, TO WIT bargain predicated upon the violations of Section 8(a)(l) and (3) of the Act. The Respondent's true defense is that the Union never represented a majority of employees in an appropriate unit. Despite the perhaps inartful wording of the demand letter, there is no question but that the Respondent fully understood the Union was requesting immediate recogni- tion and collective bargaining. More than once the personnel director, while talking with individual employees, equated their May activities-when they sent elected representatives to management to press economic demands-with pure unionism. That the employees turned to the Union as another way of dealing with the Company to achieve the money improvements they had previously sought was common knowledge. In any event there is nothing to indicate the letter meant to convey any other thought to the Company. I find that on June 17, 1969, the Respondent refused to bargain with the Union as requested. I also find that by such refusal the Respondent violated Section 8(a)(5) of the Act. However the matter be phrased-rejection of the principle of collective bargaining, denial to the employees of their statutory rights to self- organization, or a planned strategy to gain time in which to intimidate the employees so as to make a fair and open election impossible-the Respondent's purpose was clearly to flout the statutory duty resting upon it to bargain with the majority representative of its employees, regardless of the employees' desire and regardless of the Union's numerical representative strength. If the phrase "bad faith refusal to bargain" has any meaning, this is the case. And that, in the total circumstances revealed by the record as a whole, the only appropriate remedy is an affirmative order to bargain with the Union now is beyond question. See N. L. R. B. v. Gissel Packing Co., supra. The case in support of the complaint is even stronger if the activities of William Medley, a foreman, be considered. He is the son of the personnel director, a blue card man, and the evidence suffices to prove him a supervisor. The Company had him on its side of the table when management met with the employee spokesman to consider their joint economic demands before the employees started signing union cards. But there is a point beyond which no useful purpose would be served by belaboring testimony over and above that which is already more than sufficient. The Trodglen Incident Joseph Trodglen is the boilerrootn maintenance man; it is sometimes necessary for him to return to the plant on Sundays to make repairs or adjustments of one kind or another that cannot be made while the machines are in operation. At the start of the hearing the General Counsel added an amendment to the complaint, charging that for certain Sunday work performed on October 12, 1969, the Respondent withheld 2 hours' pay from Trodglen as punishment for his union activities.8 the payment of four hours Sunday call-in time because said employee had become or remained a member of the Union or had given assistance and support to it In his brief the General Counsel points to the fact Trodglen did less Sunday work after the October incident than before, but there was no MEDLEY DISTILLING COMPANY 99 Trodglen's story is that he regularly came in Sundays, about three times each month, and that sometimes his foreman directed him to come and sometimes he came on his own; he was free to use his ownjudgment. He added he had always been paid a minimum of 4 hours' call-in pay, even when he did less work. He made out his own timecard on Sundays. He went to the plant on his own on October 12, worked 2-3/4 hours, and noted 4 hours' of work on the card. The next day the plant superintendent, Charles Medley, told him to remove the excess time, that he would be paid only for time actually worked. Trodglen protested the past practice, but was only paid the lesser amount .9 Then came that testimony by Trodglen which the General Counsel contends proves the illegal motive. When Trodglen argued the matter that day, Medley asked why did he not quit, and Trodglen went on: "You can fire me but I won't quit." I said, "I've always had the feeling that you had the feeling that I was too strong for the union, and that's the reason why you have done me like you have." And he said, "Well, I've always told you that." I said, "Charlie, you're a damn liar. You never did tell me that I was strong against the union or for the union for any time before." All relevant matters consider--d, I find the evidence in its totality insufficient to prove this pinpointed allegation now added to the complaint. This Company was so determined to put a stop to the union activities and its coercive techniques reached so many individual employees, it would be difficult to find a single prounion man to whom some kind of illegal statement was not made. If the effort were made, it could probably be proved the personnel director knew the identity of each and every union adherent. But this does not mean that every incident in the normal course of business when a union-minded employee came out second best economically is ipso facto an unfair labor practice. Carefully appraised, Trodglen's testimony of what Medley told him that day does not quite reflect admission of illegal motivation. He admitted having once told Trodglien he was very strong for the Union, but he did not admit the Sunday work pay had been made more strict for that reason. The man had not been instructed by his foreman to come in that Sunday, he had made his own decision, and Medley did tell him the foreman had reported there was no need for Sunday work on that occasion. Sunday time has always been paid at double the regular rate. At one point Trodglen, a 13-year employee, said he had been paid 4 hours although working less, "ever since I've been here"; at another point he said it had happened "maybe once or twice a year." It could not have been much of an established practice. There is simply not enough affirmative evidence of unlawful motivation, and I therefore make no finding of a violation of Section 8(a)(3) or (1) with respect to this incident. THE REMEDY Having found that the Respondent has engaged in an litigated issue about subsequent denial of work opportunity The August date in the amendment to the complaint was an obvious error, for the record shows clearly the incident occurred in October 9 At one point the record indicates he was paid only for 2 hours , instead unlawful refusal to bargain with the Union in good faith, I shall recommend that it be ordered to do so upon request and to cease and desist from further such unfair labor practices. The Respondent must also be ordered to offer full reinstatement and backpay to Payne and Boulds, both of whom were discharged because of their union activity in violation of the statute. In the light of the nature and extent of the unfair labor practices found, I shall also order that the Respondent cease and desist from in any other manner interfering with the rights of its employees to enjoy the statutory guarantees of self-organization. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's 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. CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's Owensboro facility, including all truckdri- vers, power plant employees, cafeteria employees, working foreman, crew leaders, line floor ladies, and laboratory employees, but excluding all office clerical employees, casual and seasonal employees, purchasing agents, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO, was on June 13, 1969, and all times thereafter has been the exclusive collective-bargaining representative of Respondent's em- ployees in the appropriate unit, within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the above-named labor organization in good faith, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5). 6. By discharging Herman V. Payne and Herman Boulds for engaging in protected concerted activities, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices proscribed by Section 8(aX3). 7. By the foregoing conduct, by threatening to dis- charge employees in retaliation for their union activities, by of the 2-3/4 hours he worked, but no issue was raised on that question, apparently because the record elsewhere states he was paid for whatever time he actually worked 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatening to contract away the employees' work because they choose to be represented by a union, by questioning employees about their umon affiliation and activities, by establishing a no-distribution and no-solicitation rule for the purpose of interfering with self-organizational activities, by promising improvements in working conditions as inducement for employees to assist the Company in discouraging umon activities, by promising increases in wages in return for discontinuance of union activities, by spying upon the employees in their union activities, and by telling employees that agents of management are surveying their union activities, the Respondent has engaged in and is engaging in unfair labor practices with the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Medley Distilling Company, Inc., Owensboro, Kentuc- ky, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with the Union as the exclusive representative of all employees in the bargaining unit. (b) Discharging employees or otherwise discriminating against them in their employment because of their union activities. (c) Threatening to discharge employees in retaliation for their union activities, threatening to contract away the employees' work because they choose to be represented by a union, questioning employees about their union affilia- tion and activities, establishing a no-distribution and no- solicitation rule for the purpose of interfering with self- organizational activities, promising improvements in work- ing conditions as inducement for employees to assist the Company in discouraging union activities, promising increases in wages in return for discontinuance of union activities, spying upon the employees in their union activities, or telling employees that agents of management are surveying their union activities. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form,join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which I find will effectuate the policies of the Act. (a) Upon request, bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed agreement. (b) Offer Herman V. Payne and Herman Boulds immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent's discrimination against them. (c) 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 and all other rights under the terms of this Order. (d) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its place of business in Owensboro, Kentucky, copies of the attached notice marked "Appendix." 10 Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.ii io 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 be 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 NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " ii In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read- "Notify the Regional Director for Region 25, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively with Distillery, Rectifying, Wine and Allied Workers, International Union of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL bargain collectively, upon request, with this Union as the exclusive representative of all our employees in the bargaining unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a sign agree- ment. The bargaining unit is: MEDLEY DISTILLING COMPANY 101 All production and maintenance employees, including all truckdrivers , power plant employees, cafeteria employees, working foreman, crew leaders, line floor ladies , and laboratory employ- ees, but excluding all office clerical employees, casual and seasonal employees, purchasing agents, professional employees , guards and super- visors as defined in the Act. WE WILL NOT discharge or otherwise discriminate against our employees because of their union activities. WE WILL offer Herman V. Payne and Herman Boulds immediate and full reinstatement to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges, and make them whole for any loss of pay they may have suffered by reason of our discrimination against them. WE WILL notify these employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL NOT threaten to discharge employees in retaliation for their union activities, threaten to contract away the employees' work because they choose to be represented by a union, question employees about their union affiliation and activities , establish a no-distribu- tion or no-solicitation rule for the purpose of interfering with self-organizational activities, promise improve- ments in working conditions as inducement for employees to assist the Company in discouraging union activities, promise increases in wages in return for discontinuance of union activities, spy upon employees in their union activities, or tell employees that agents of management are surveying their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. MEDLEY DISTILLING COMPANY, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board 's Office, 614 Ista Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921.