Kaiser Aluminum & Chemical Corp.

KAISER AGRICULTURAL CHEMICALS 661 Kaiser Agricultural Chemicals, a Division of Kaiser Aluminum & Chemical Corporation and Interna- tional Brotherhood of Firemen & Oilers, AFIs-CIO Kaiser Agricultural Chemicals , a Division of Kaiser Aluminum & Chemical Corporation and Interna- tional Brotherhood of Firemen & Oilers, AFL-CIO, Petitioner. Cases 10-CA-8026, I0-CA-8153, and 10-RC-8013 December 31, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On July 1, 1970, Trial Examiner Joseph L Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain of the unfair labor practices alleged in the complaint in Case l0-CA-8026, 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 further recommended that the election in Case 10-RC-8013 be set aside and that it be dismissed in its entirety. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases 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 supporting briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommenda- tions of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommend- ed Order of the Trial Examiner and hereby orders that the Respondent, Kaiser Agricultural Chemicals, a Division of Kaiser Aluminum & Chemical Corpora- tions, Bainbridge, Georgia, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.3 IT IS FURTHER ORDERED that the election in Case 10-RC-8013 herein be, and it hereby is, dismissed in its entirety. These findings are based , in part, upon credibility determinations of the Trial Examiner to which the Respondent has excepted After careful review of the record, we conclude that these credibility findings are not contrary to the clear preponderance of all the relevant evidence. Accordingly, we find no basis for disturbing these findings Standard Dry Wall Products, inc, 91 NLRB 544, enfd 188 F 2d 363 (C A 3). 2 We correct the following inadvertent errors in the Trial Examiner's Decision , which in no wise affect our disposition of the instant proceeding (I) his statement that the Respondent opposed the issuance of any remedial order, whereas the Respondent would accept an order covering its conceded violations , (2) his misspelling of employee Clemmons' first name, which should read "Lucious"; (3) his inadvertent reference to the Union's meeting of April 24, instead of October 24, the correct date , (4) his establishment of October 25, rather than October 24, as the date of Whidden's conversation with Harris and Neal , (5) his attributing the ownership of a car to Harris and a house to Neal, instead of vice versa, (6) his finding that employee Poitivent sought out Production and Superintendent Smith, rather than Maintenance Supervisor Phillips, (7) his finding that Respondent threatened employees specifically with discontinuance of their use of the Coca-Cola machine, when they were not occupied with work, if the Union came in, and (8) his statement that the incidents referred to in paragraphs 4 through 10 of section C, 1, of his Decision, rather than the Nichols incident referred to in paragraph 4 and the incidents referred to in paragraphs 6 through 9 (there being no paragraph 10), all occurred between the date of the representation petition and the date of the election Finally, we amend the first paragraph of Section 2 of the Trial Examiner's Decision by deleting therefrom the words "calculated to," where they twice appear , and by substituting therefor the words "which tended to," See N L R B v Gissel Packing Co, 395 U S 614 " in footnote 35 of the Trial Examiner's Decision , substitute "20" for "t0" days TRIAL EXAMINER'S DECISION and REPORT ON OBJECTIONS STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner: This matter tried before me at Bainbridge, Georgia, between March 31 and April 2, 1970, with all parties present and represented, involves consolidated complaints' pursuant to Section 10(b) of the National Labor Relations Act, as amended (herein the Act), alleging that Kaiser Agricultural Chemi- cals, a Division of Kaiser Aluminum & Chemical Corporation (herein Respondent or Company), at its Bainbridge, Georgia plant, interfered with, restrained, and coerced employees then the subject of an organizational campaign, in the exercise of rights guaranteed by Section 7 of the Act, and refused to bargain collectively with International Brotherhood of Firemen & Oilers, AFL-CIO (herein Union), the designated collective-bargaining repre- sentative of the employees involved in an appropriate unit. By answer as amended at the trial, Respondent admitted certain allegations of the complaints, including an allega- tion that a supervisor had engaged in surveillance of a union meeting, but urged that under the circumstances of this case, no remedial order should issue. Consolidated for trial with the aforementioned unfair labor practice complaints are objections filed by the Union to conduct i In Case IO-CA-8026, the complaint issued December 15, 1969, on a charge and amended charge filed November 4 and December 1, 1969, respectively in Case lO-CA-8153, the complaint issued February 20, 1970, on a charge and amended charge filed February 3 and February 16, 1970. The last mentioned complaint consolidated the cases for hearing 187 NLRB No. 95 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD affecting the results of an election conducted among I The events of October 24-26 Respondent's employees on January 6 and 7, 1970 2 For reasons hereafter stated, I find and conclude that the evidence sustains the material allegations of the complaints, and that a remedial order, which will include a requirement that Respondent recognize and bargain with the Union, is appropriate As hereafter more fully detailed, I shall in accordance with applicable Board precedent, recommend that the election held on January 6 and 7, 1970, be set aside, and all proceedings in the representation case be vacated and the petition therein dismissed At the trial the parties were afforded full opportunity to adduce relevant evidence, to examine and cross-examine witnesses , to argue orally on the record, and to submit briefs Oral argument was waived Briefs submitted by the General Counsel and Respondent have been duly consid- ered Upon the pleadings, stipulations of counsel,3 the evidence including my observation of the demeanor of the witnesses while testifying, and upon consideration of the briefs of counsel, and the entire record in the case, I make the following FINDINGS OF FACTO I THE UNFAIR LABOR PRACTICES ALLEGED A Interference, Restraint, and Coercion Respondent maintains a plant at Bainbridge, Georgia, where it is engaged in the manufacture and sale of granular fertilizer and other agricultural chemicals Prior to the events hereafter referred to, the employees at the Bain- bridge plant were unorganized On or about September 18,5 Union Agents Bartlett and Cochran who are headquartered in Atlanta, made their first trip to Bainbridge with a view to organize Respondent's employees Following several other trips, a meeting of the employees was arranged for the early evening of October 24, to be held at the Holiday Inn in Bainbridge That Respondent was aware of the planned Union meeting is admitted 6 2 The pertinent events in the representation proceeding are as follows October 27 1969 Representation petition filed by Union December 5 1969 Decision and Direction of Election January 6 & 7 1970 Election conducted Tally of ballots disclosed that of approximately 57 eligible voters 12 votes were cast for and 25 against the Union and that 20 ballots were challenged January 13 1970 Union filed and served objections specifying 6 incidents allegedly affecting the results of the election February 12 1970 Supplemental Decision and Direction of Second election Director sustained the 20 challenges overruled objections 3 and 6 sustained 4, and found it unnecessary to pass on objections 1 2 and 5 Election set aside and new election ordered February 24 1970 Respondent forwards to Board its Request for Review of Director s Supplemental Decision March 6 1970 Request for Review granted Board ordered Director to pass on objections 1 2 and 5 consolidating them with U L P case if necessary Ruling on objection 4 held in abeyance with ruling thereon to be made only if necessary after objections I 2 and 5 have been disposed of March 10 1970 Objections 1 2 and 5 consolidated for hearing with unfair labor practice cases 3 Following the close of the record herein I received a stipulation dated April 22 1970 executed by counsel for the General Counsel and counsel for Respondent but not by the Charging Party Because I regard the facts stated in the stipulation to be irrelevant and immaterial to the alleged On October 24, the Union held its meeting at the Holiday Inn, with a substantial number of Respondent's employees in attendance, 27 of them signing authorization cards for the Union 7 Union Agents Bartlett and Cochran told those in attendance that by signing the cards the employees were authorizing the Union to represent them in all matters of wages, hours, and other conditions of employment, that once a majority of the employees signed cards the Union would be their bargaining agent, that the Union would then seek recognition from the Employer, and if such was not granted the Union would file a representation petition with the Board The employees were also told that while an election could be obtained if as many as 30 percent of the employees indicated support of the Union, the latter as a matter of policy would require a showing of 70-80 percent support before it would proceed, that if the Employer acted in good faith the Union would proceed to an election, but that if it acted in bad faith and indicated an effort to destroy the Union's majority, the Union would seek to establish bargaining rights through a refusal-to-bargain charge Respondent, by amendment of its answer at the trial admitted that while the union meeting at Holiday Inn was in progress on October 24, R L Whidden, an admitted supervisor, "drove into the Holiday Inn parking lot for the purpose of determining the number and identity of employees of Respondent who were attending [the] Union meeting " On October 25 or 26, Plant Manager Montee admittedly learned of Whidden's activity at the Holiday Inn and told the latter that what he had done was a violation of law, and must not be repeated There is no evidence, however, that Respondent made known to employees that Whidden's conduct had not been author- ized, nor where appropriate steps taken to assure employees that Whidden's conduct would not be repeated At midnight following the Union's October 24 meeting, a number of employees reported for work on the shift starting at that time Among these was Donald Corley During this shift, Loren Johnson, an admitted supervisor, approached 8(a)(5) violations with which it deals I reject the same for reasons stated in that part of this Decision which deals with the Section 8(a)(5) allegations The stipulation has however been marked Rejected and is by this reference made a part of the rejected exhibit file + No issue of commerce or labor organization is presented The complaint alleges and the answer admits facts which establish these jurisdictional elements I find those facts to be as pleaded 5 This and all dates hereafter mentioned are 1969 unless otherwise indicated 6 Plant Manager Montee testified that during the afternoon of October 24 while at another of Respondents plants in Dothan Alabama he received a telephone call from F D Smith his production superintendent and an admitted supervisor within the meaning of the Act who stated that there was to be a union meeting at the Holiday Inn that evening Montee gave Smith no instructions but stated that he would be back in Bainbridge as soon as possible How or when Smith learned of the impending union meeting the record does not show r The cards recite that the signing employee authorizes the Union to represent me and in my behalf to negotiate and conclude all Agreements as to hours of labor wages and other employment conditions I further authorize [the Union] in accordance with the provisions of the Federal Labor Management Relations Act to include in any contract a union security clause The validity of these cards as authorizations to the Union is hereafter considered KAISER AGRICULTURAL CHEMICALS 663 Corley while the latter was at work. Johnson asked Corley what his car was doing at the Holiday Inn that night. Corley at first denied that his car was there. Johnson then stated, "Oh, come on, I know it was out there." Corley then replied, "We were having a little meeting," and asked, "How did you know about it?" Johnson replied that he had known about it for some times Also on October 25, Johnson approached employee Gary Nichols, while the latter was at work, and asked if Nichols "had attended the meeting." Nichols asked what Johnson was referring to, and the latter replied, "The meeting you had at the Holiday Inn." Nichols then admitted that he had attended the union meeting, and asked Johnson how he knew about it. Johnson merely replied that he knew .9 Also on the day following the union meeting of October 24, employees Isaiah Harris and Chester Neal were approached at their work station by Supervisor Whidden, who first asked Neal what he thought of the Union. Neal responded that he thought the Union would be a good thing. Whidden admittedly then told Neal and Harris that if the Union came in and asked for increased wages, a strike would follow which the Company was prepared to take, which would put striking employees out of work, and commented that while Harris and Neal would be out carrying picket signs, he (Whidden) would be working. Whidden then commented that Neal had just bought a new home, and asked how he would make the payments on it if he were out of work for several months, and asked Harris how he would make payments on his car. Neal replied that the matter had been considered and that they thought the necessary arrangements could be made.io On the night shift following the union meeting on October 24, employee Wayne Mercer, while at work in the granulation plant, had a conversation with J. B. Swicord, an admitted supervisor. It appears that Mercer and Swicord live near each other, with their families and have frequent social contacts. Mercer and Swicord had made arrange- ments to meet on October 24. During that day Mercer notified Swicord that he had other business to attend to and would be unable to meet as previously agreed, but did not indicate the nature of the business that he would attend to. When the two met in the plant after the beginning of the midnight shift, Swicord asked if Mercer had attended the union meeting. Mercer admitted that he had, and commented that he did not feel that he had done anything wrong. Swicord then asked if Mercer had signed a card. Mercer replied that he had. Swicord stated that he did not think the Union would do any good because the Company would not increase wages, and when Mercer said that wage increases was the purpose of getting the Union in, Swicord 8 Based on the credited testimony of Donald Corley and the admission of Johnson According to Johnson, he was informed of the union meeting by Production Superintendent Smith 9 Based on the credited testimony of Nichols and the admissions of Johnson 10 Based on the credited testimony of Harris and Neal, and the admissions of Whidden Harris and Neal also testified that in this conversation Whidden further stated that if the Union came in the granulation plant, where Harris and Neal were employed, it would be closed down Whidden denied that he made such a statement I find it unnecessary to resolve that conflict ii Based on the credited testimony of Mercer and the admissions of Swicord The latter denied telling Mercer that the plant would close if the replied that in his opinion the Union would not help, and that if the Union was voted in he believed the plant would close because of the bad economic condition of the Company and its inability to grant wage increases." Employee Harry C. Bryant attended the union meeting the evening of October 24, and during his work shift the following day, was approached by Supervisor Swicord who stated "I hear you all have a Union man." Bryant admitted this was true. In the course of further discussion about the Union, Swicord stated that if the Union came in the laxity with respect to employees going to the coca-cola machine, and standing about talking when they were not busy, would have to cease and everyone would do their job. During his 3-1/2 years of employment with Respondent no supervisor had theretofore spoken to Bryant about laxity in the plant. 12 Lucius Clemmons also attended the union meeting on October 24, and signed a union card there. On his next work shift following the signing of the card, Clemmons was asked by Supervisor Swicord what he (Clemmons) thought about the Union, and Clemmons replied that in his opinion the employees needed a union.13 On October 25, pursuant to information furnished him by Plant Manager Montee, that the Union was engaging in organizational activity, Neil Whitaker, then vice president in charge of production for the division, came to Bainbridge from his station in Savannah, and remained for several hours discussing with Plant Manager Montee the problems raised by the appearance of the Union, and the steps to be taken by Respondent in view of the Union's campaign. The parties stipulated that late in the afternoon of October 25, the Union sent and Plant Manager Montee received a telegram reading: THIS IS TO ADVISE THAT THE MAJORITY OF YOUR PRODUCTION AND MAINTENANCE EMPLOYEES WITH YOUR BAINBRIDGE, GEORGIA, PLANT, EXCLUDING OFFICE AND SUPERVISORY EMPLOYEES HAVE DESIGNATED AND AUTHORIZED INTERNATIONAL BROTHERHOOD OF FIREMEN AND OILERS, AFL-CIO AS THEIR COLLECTIVE-BARGAINING AGENT. WE HEREBY REQUEST THAT YOU MEET WITH US FOR THE PURPOSE OF NEGOTIATING AND CONCLUDING A LABOR AGREEMENT. 2. The October 27-November 12 period On October 27, the Union filed a representation petition with the Board's Regional Office. By letter dated October 28, Montee declined to grant the Union's request for recognition, stating in pertinent part: We do not believe that your organization represents a Union came in, but admitted telling Mercer that if the Union came in it was his opinion that there was a possibility the plant would close i2 Based on the credited testimony of Bryant . Swicord admitted that he spoke with Bryant on this occasion but denied that he made any statement concerning tightening up on laxity in the plant I do not credit this denial is Based on the credited testimony of Clemmons Clemmons was plainly confused as to the dates of various union meetings, and the date of his conversation with Swicord I credit his definite testimony that the conversation took place the day after he signed the union card, which is dated October 24 Swicord, though testifying to other conversation with employees, did not deny Clemmons' testimony with respect to this conversation 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD majority of our employees in any group appropriate for collective bargaining It is our understanding that the National Labor Relations Board is the proper agency to determine these matters, and we assume that the proceeding which you have already started is the correct one 14 In the week following the October 24 union meeting, employee Corley was approached at his work station in the granulation plant by Production Superintendent Smith Smith asked Corley whether the latter had any problems and when Corley replied in the negative, Smith stated that some other men did The conversation then veered to the subject of the Union with Smith stating that bargaining with the Union concerning employee benefits would start at zero and that employees would receive by way of benefits only those that were agreed upon in the negotiations Smith also told Corley that other benefits such as swapping shifts which had therefore been permitted, would be discontin- ued Smith additionally told Corley that if the Union came in the granulation plant would have to be shut down, and that some of the employees would be out of work 15 Corley also testified without contradiction that it was normal experience for the granulation plant to shut down, usually once a year, for maintenance or repair, but that in such instances employees who normally work in that plant were assigned to other duties during the period of the closedown Between November 1 and 10, Corley had still another conversation concerning the Union, this time with Supervi- sors Johnson and Smith According to Corley, Smith and Johnson approached him while at work in the granulation plant, and in the course of discussion concerning the Union told Corley that the granulation plant would shut down if the Union came in, that Respondent in that event, was prepared to take a strike and run the plant with supervisors, and that employee benefits would go to zero with bargaining with the Union to start from there Also in this conversation, Johnson told Corley that the practice of swapping shifts would no longer be permitted and that he would have to be strict about it since the union matter came up 16 Employee Gary Nichols, while at work in the acid plant, had a conversation with Supervisor Smith during the last 3 days of October Smith asked Nichols if he had any complaint, and when Nichols replied that he thought 14 Montee s reference to the proceeding already started was to the Union s filing of the representation petition 15 Based on the credited testimony of Corley Smith admitted he had a conversation with Corley and that the Union was discussed While Smith denied telling Corley that if the Union came in the granulation plant would close he admitted telling employees with whom he spoke that if the Union came in and asked for too much money the granulation plant would or might be closed To the extent that the testimony of Corley and Smith may be regarded as in conflict I credit Corley 16 Based on the credited testimony of Corley Corley explained that in the past employees frequently exchanged shifts after obtaining the approval of all supervisors involved Johnson admitted that he told Corley that the way a union worked he would be assigned to a specific shift and swapping of shifts would not be permitted Smith testified that while it had been the practice some time back for employees to swap shifts he had ordered the practice stopped but that without his knowledge or consent the practice gradually resumed To the extent that there is any conflict I credit Corley is Based on the credited testimony of Nichols As in the case of Corley Smith admitted that he had a conversation with Nichols concerning the Union His version of the conversation is set forth in fn 15 supra To the extent that there is a conflict I credit Nichols Nichols also testified employees should have sick leave and better pay, Smith asked if he (Nichols) thought the Union would get in When Nichols replied in the affirmative , Smith stated that if it did, and the employees struck, the granulation plant would be shut down 17 Employee Harry Bryant had heard that Company Vice President Whitaker had conferred with Plant Manager Montee over the weekend following the union meeting of October 24 Several days later Bryant asked Supervisor Swicord what had been decided Swicord told Bryant that the Company was prepared to shut down the granulation plant if the Union came in and asked for a raise 18 Several days later Bryant asked Production Superintendent Smith if what he had been told by Swicord was correct Smith affirmed that Respondent was prepared to close the granulation plant if the Union came in and asked for a raise 19 On or about November 1, Supervisor Johnson called employee Charles Cooper to his office Although Cooper had then been employed by Respondent for over a year this was the first time he had been called to his supervisor's office In Johnson's office the latter asked Cooper how he felt about the Union, and then reminded Cooper of what Respondent had done for him Johnson told Cooper that if the Union came in Respondent would have to bargain with it, but that such bargaining would start from zero with Respondent agreeing to increases up to what employees were then earning, but would not give anything else Johnson then referred to a retirement plan which the Company provided for its employees,20 and stated that Cooper, who is under 30, would lose what the Company had deposited for him if the Union came in Johnson also stated that in the past when the granulation plant closed for maintenance, the employees thereof were given other work, but now they would be laid off At this point Cooper referred to the fact that he had a National Guard meeting coming up and asked if he would be permitted to meet that commitment by swapping shifts with other employees Johnson stated that the practice would no longer be permitted, and also stated that if the Union came in the employees would no longer be permitted to record their hours of work on a timesheet, but would be required to punch a timeclock 21 On or about November 1, Production Superintendent concerning a conversation he had with Plant Manager Montee immediately following his conversation with Smith but as he attributed no statement to Montee which would constitute a violation of Section 8(axl) of the Act I have not set it forth 11 Based on the credited testimony of Bryant Swicord denied that he made any statement of the nature attributed to him by Bryant I credit Bryant in view of the fact that other supervisors made statements of that nature and in view of Bryant s subsequent conversation with Smith 19 Based on the testimony of Bryant For Smith s version of what was said see fn 15 supra To the extent that there is a conflict I credit Bryant 20 Under the plan only the Company makes contributions so long as the employee is under 30 years of age but such contributions accumulate for the benefit of the employee 21 Based on the credited testimony of Cooper Johnson admitted that he called Cooper to his office and there discussed the Union with him According to Johnson he did this to find out if Cooper had all the facts and when Cooper replied in the negative he proceeded to give Cooper the facts Johnson admitted that he told at least one employee (Wilson) that he thought the Company would require the Union to start bargaining from the bottom and work up but claimed he had no recollection whether he made that statement to Cooper Johnson denied that the retirement plan KAISER AGRICULTURAL CHEMICALS 665 Smith engaged employee Raymond Wilson in conversation concerning the Union, while the latter was at work in the plant. Smith told Wilson that the Company was "in a financial bind," and that if the Union came in and asked for a raise, this would so affect Respondent's financial condition as to require closing of the granulation plant. Prior to this conversation no supervisor had mentioned to Wilson the possible closing of the granulation plant.22 Three or four days later Wilson, while at work, was engaged in conversation concerning the Union by Supervi- sor Johnson, who told Wilson that, if the Union came in, contract negotiations would have to start from zero-from the ground level up-and "that whatever we got it would not be above anything we had." 23 On or about October 31, employee Poitivent sought out Production Superintendent Smith for the purpose of explaining that he and his father were not responsible for the union organization in the plant. In this discussion Poitivent asked Smith if he (Poitivent) could see Plant Manager Montee. Smith made the necessary arrangements, and that afternoon Poitivent met with Montee in the latter's office. After repeating to Montee that he and his father were not the ones responsible for the union campaign, Montee asked Poitivent what the employees wanted, and what did they think the Union could get for them that they did not already have. Poitivent replied that the employees were discussing increased wages, more holidays, and annual leave. Montee replied that Respondent would not go along with that and if the Union asked for any benefits above what the employees then had, Respondent was prepared to take a strike.24 During the week following the Union's April 24 meeting, Production Superintendent Phillips called employee James Gause to his office. In the discussion which followed, Phillips told Gause that if the Union came into the plant , existing benefits would be lost and that negotiations with the Union would start from zero.25 Gause also testified that in this conversation Phillips stated that if the Union came in it would close the plant before it would give employees a raise. Phillips admitted that Gause asked about a wage increase and that he stated there was no money available for that purpose, that the Bainbridge plant was losing money, and if it continued to do so, the plant would have to close. Phillips denied that his statement was in the context of the Union. I find it unnecessary to resolve the conflict. After some further discussion, Phillips told Gause that Vice President Whitak- er was in Montee's office, and asked if Gause would like to discuss the matter with them. Phillips made the necessary arrangements and Gause went to the office where he talked with Whitaker and Montee. Gause testified that he was told by Montee that the latter had instructions from Respondent's home office to close the plant if the Union came in and asked for a raise. Both Montee and Whitaker denied that such a statement was made. For reasons hereafter stated I find it unnecessary to resolve the conflict . Montee admitted that in the conversa- tion referred to he told Gause that Respondent did not want a union, that because it was in financial difficulty a general moratorium on wage increases had been decreed by the home office, that he was fighting to save the plant and his own job, but "If the Union was successful in organizing our plant and demanded a pay increase and went out on strike to get this pay increase , [he, Montee ] had been authorized to take the strike." 26 The Alleged 8(a)(5) Violation B. The Refusal To Bargain 1. The unit contentions As heretofore stated, on October 25 the Union made telegraphic demand on Respondent for recognition in a unit of "all production and maintenance employees with your Bainbridge, Georgia plant, excluding office and supervisory employees." Both the representation petition filed on October 27, and the Decision and Direction of Election issued December 5, as well as the complaint herein, described the unit in substantially the same language. The only difference is that both the Decision and Direction of Election and the Complaint are more specific in the classification of employees that are in the unit, as well as those excluded.27 The specific reference to "temporary" employees in the Decision and Direction of Election, as footnote 5 thereof makes clear, was made because of the contention advanced by Respondent during the hearing in the representation case that the "temporary" employees should not be included in the unit. The Director rejected this contention and held the "temporary" employees in the unit. Not only was the issue fully litigated before and decided by the Director but review of his Decision was not sought by Respondent. Hence under familiar principles the Regional Director's Decision on that issue became the law of the case and cannot be litigated in this unfair labor proceeding.28 Accordingly, I find and conclude that the "temporary" employees must be considered in determining the numerical composition of the unit on October 25, the was discussed during his conversation with Cooper To the extent that Johnson's testimony conflicts with that of Cooper, I credit the latter 22 Based on the credited testimony of Wilson For Smith's version of this conversation see fn 15, supra To the extent that there is a conflict, I credit Wilson 23 Based on the credited testimony of Wilson As stated in fn 21, supra, Johnson admitted that he made a statement to this effect to Wilson 24 Based on the credited and uncontradicted testimony of Poitivent Montee gave no testimony regarding this conversation, but as hereafter set forth, he admitted making a similar statement to employee Gause 25 Based on the credited testimony of Gause Phillips admitted that Gause asked whether existing benefits would be lost if the Union came in, and that he replied that "Normally the negotiations start at zero " To the extent that there is a conflict, I credit Gause 26 Based on the admission of Montee and Whitaker 27 Thus, the Decision and Direction of Election and the Complaint describe the unit as "All production and maintenance employees of the Employer's Bainbridge, Georgia plant, including the 'temporary' employees, the store room clerk, the laboratory employee, the Janitor, the lead laborers, but excluding all office clerical employees , the plant engineer and all other professional employees, guards and supervisors as defined in the Act 26 Section 102 67(f) of the Board's Rules and Regulations provides Failure to request review [of a Regional Director's Decision in a representation case I shall preclude such parties from relitigating in any related subsequent unfair labor practice proceeding, any issue which was, or could have been raised in the representation proceeding 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date Respondent admittedly received the Union' s demand for recognition. 2. The Union's majority status By stipulation, there was received in evidence a list of employees on the payroll as of October 25. Respondent conceded that the list contained the name of all employees in the unit on the date mentioned, reserving the issue whether the "temporary" employees should be counted in determining the number of employees in the unit. Including the "temporary" employees, the list contains 70 names. Of these, 53 signed union authorization cards; 27 cards being dated October 24, 19 cards are dated October 25, 1 card is dated October 26, and the 6 remaining cards are dated October 27. The authenticity of each card was clearly proved either by the testimony of the signer or by one who witnessed the signature.29 No testimony was adduced to establish nor does Respondent contend in its brief, that the authorization cards were, or were intended to be anything other than what appears on the face of the cards, namely an unconditional authorization of the Union to act as the collective-bargaining representative of the card signor. I therefore find and conclude that on October 25, the day Respondent received the Union's recognition demand, the Union had valid authorization cards from 46 of the 70 employees in an appropriate unit, and hence was the duly designated collective-bargaining representative of the employees in that unit.30 C. Contentions and Conclusions 1. Section 8(a)(1) findings Upon the facts herein found, as above set forth, I find and conclude that Respondent violated Section 8(a)(1) of the Act by the following conduct: 1. Surveillance of the Union's meeting of October 24, by Supervisor Whidden admittedly "for the purpose of determining the number and identity of employees attending said meeting. That such conduct violates Section 8(a)(1) is too well settled to require the citation of authority. The fact that the evidence fails to disclose that the employees were aware of Whidden's activity in that regard is immaterial. Wallace Press, 146 NLRB 1236, 1239 fn. 5. 2. The statements by Supervisor Johnson to employees Corley and Nichols that he knew about the scheduled union meeting of October 24, thus giving the impression that the union activities of the employees were under surveillance by Respondent. Opp Textiles, Inc., et al, 168 NLRB No. 33 (TXD). 3. Supervisor Whidden's statement to employees Harris and Neal that if the Union came in and asked for a wage increase, a strike would result, as well as Whidden's inquiry of Neal as to how he would make payments on his home, and of Harris how he would make payments on his car, if they were out of work for several months because they were participating in a strike. This was clearly interference with the Section 7 rights of those employees. 4. The statement by Supervisor Swicord to employee Mercer as well as the statement of Supervisor Smith to employee Nichols, to the effect that if the Union came in the granulation plant would close because economic conditions would not permit Respondent to grant wage increases. A threat of plant closure in the event the employees organize has uniformly been held by the Board to be coercive and hence violative of Section 8(a)(1) of the Act. Thompson Transport Co., 165 NLRB 746, 750. 5. Supervisor Swicord's interrogation of employee Mercer as to whether the latter had attended the union meeting and if he had signed a union card, as well as his interrogation of employee Clemmons as to what the latter thought about the Union. In the circumstances of this case the interrogation did not have as its purpose obtaining information as to how Respondent should respond to the Union's request for recognition, nor was the interrogation in an atmosphere free of employee unfair labor practices. 6. Supervisor Swicord's statement to employee Bryant that if the Union came in Respondent would curtail the prior practice of employees, engaged in with Respondent's approval, of going to the Coca-Cola machine, or of talking when not busy, as well as the statements of Supervisors Smith and Johnson to employee Corley that if the Union came in the past- practice of swapping shifts would no longer be permitted. These was threats of reprisal if employees exercised their Section 7 rights. 7. The statements by Supervisor Smith to employee Corley, by Supervisor Phillips to employee Gause, by Supervisor Johnson to employees Wilson and Cooper, as well as by Plant Manager Montee to employee Poitivent, to the effect that in negotiating with the Union, it became the representative of the employees, employees would lose their existing benefits, that negotiations would start from zero, or from "scratch," and that thereafter employees would enjoy only those benefits that were agreed upon in the contract negotiations which might be more, the same, or less than what employees then enjoyed. That such statements violate Section 8(a)(1) of the Act has been established. Hills Department Stores, 155 NLRB 1163, 1177; Suprenant Manufacturing Company v. N. L. R. B., 341 F.2d 756, 761 and the cases there cited. 8. Supervisor Johnson's statement to employee Cooper that the latter would lose the contributions made by Respondent to the retirement fund for his benefit, if the employees selected a union to represent them. 9. The statement by Plant Manager Montee to employ- ee Gause that if the Union succeeded in organizing the plant and demanded a wage increase in support of which it struck, Respondent would "take the strike." In the context of the other substantial unfair labor practices committed by Respondent, as herein found, the statement was not only a threat that employees would have to strike to obtain any improvement in wages , but "was also intended to make the employees realize the futility of electing a union; [and] was za In the case of the card signed by Marion Butler, the facts were on the stipulated payroll, 19 are designated as "temporary " Of these only 6 stipulated had signed authorization cards, 5 dated October 25, and I dated October 30 It may be pointed out that even were I to agree with Respondent's 27 Excluding the "temporary" employees, the total unit would number 51, contention that the "temporary" employees are not a part of the unit , such and of these the Union had 41 cards signed on or before October 25; a conclusion would not affect the Union 's majority status Of the 70 names likewise a clear majority KAISER AGRICULTURAL CHEMICALS 667 thus coercive." (Aerovox Corporation, etc., 172 NLRB No. 97. To the same effect see K D. Manufacturing Company, 169 NLRB No. 10, and compare Yazzo Valley Electric Power Assn., 163 NLRB 777, 788-789, order enforced on this aspect of the case, 405 F.2d 479 (C.A. 5),.31 2. The refusal to bargain Although, as I have found, the Union was the duly designated majority representative of Respondent's em- ployees in an appropriate unit when it demanded and Respondent refused recognition, it does not necessarily follow that such refusal violated Section 8(a)(5) of the Act. For an employer enjoys the qualified right to refuse to recognize and bargain with a union until such time as the latter establishes its majority status in some manner other than the bald assertion in its demand letter. Such right, however, is not absolute, and will be regarded as forfeited if it is established that the employer acted in a manner calculated to undermine the union's majority. Tower Enterprises, Inc., 182 NLRB No. 56. Accordingly, applica- tion of the aforementioned principles makes it necessary to determine whether Respondent's refusal to bargain in the instant case took place in the context of lawful conduct, or in a context of unlawful conduct calculated to undermine and destroy the Union's claimed majority. If, as the Supreme Court held in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, Respondent's conduct falls in the latter category, and is of a character that the effect thereof is not likely to be eradicated so as to insure a fair rerun election, the prior card designations may on balance be regarded as a more reliable indicator of the wishes of the employees than their votes in an election, and a bargaining order may issue as an appropriate remedy. N.L.R.B. v. Gissel Packing Co., supra at 610-614. Applying the foregoing principles of Gissel Packing Co., to the facts of the instant case it appears that promptly upon becoming aware that the Union was organizing, Respondent engaged in a campaign which was designed to thwart that organization and to destroy any majority the Union may have succeeded in obtaining. Thus, as herein found, Respondent willfully and intentionally engaged in surveillance of the Union's activities; made statements to employees from which the latter might reasonably infer that their union activities were under Respondent's surveillance; coercively interrogated employees with respect to their union activities and desires; threatened to revoke employee privileges; threatened to close a portion of its plant if the 31 That the employer's conduct in Yazzo Valley, supra, took the form of written material distributed to employees. as distinguished from the oral statements employed in the instant case , is a distinction without a difference 32 An employer who unlawfully dissipates a union's majority, as I have found Respondent did in the instant case , cannot be heard to complain that the Union no longer represents a majority Great Southern Trucking Company v N L.R B, 139 F.2d 984, 985 and the cases there cited Cf N L R B v Warren Co, inc, 350 U S 107 It is for this reason that I reject the stipulation referred to in fn 3, supra 33 J A Conley Company, 181 NLRB No. 20, Seymour Transfer, Inc, 179 NLRB No 5, Central Soya of Canton, Inc, 180 NLRB No 86, Blade- Tribune Publishing Company, 180 NLRB No 56, and Alcoa Corporation, 180 NLRB No. 5, relied upon by Respondent, I find to be inapposite. In J A. Conley, the Board found "that the few instances of misconduct in violation of Section 8(a)(I) were not sufficiently flagrant to prevent the Union demanded a wage increase ; told employees that if the Union became their representative , existing employee benefits would be lost; that bargaining would begin from "zero"; and finally Plant Manager Montee made it clear that only a strike could have any possible effect on its predetermined position not to grant a wage increase. This conduct, I find and conclude, was not only coercive, but so pervasive in character, as to make it unlikely that its coercive effects would be neutralized by the remedies normally employed to produce a fair election. I find unconvincing Respondent's argument that the practice of a cease-and-desist order posted for the normal 60-day period, which the Board has at times utilized in the past, will neutralize and fully eradicate the effects of the Section 8(a)(1) violations herein found, so that an election after such posting period will be held in an atmosphere free of restraint and coercion. The argument assumes-an assumption I am unable to accept-that restraint and coercion as extensive and pervasive as that present in the instant case, can be fully eradicated by the mere issuance of a cease-and-desist order and a 60-day posting period. The rescheduling of an election in such a posture can only serve to recall to the employees Respondent's prior coercive conduct. Respondent's contention that because the Section 8(a)(1) violations herein found ceased no later than November 12, that the employees' rejection of the Union in the election conducted the following January 6 and 7, must have been for reasons other than Respondent's restraint and coercion which ceased some 55 days prior to the election, is a non sequitur. I find it an equally permissible inference that the employees' rejection of the Union in the election resulted from the fact that Respondent's restraint and coercion had a lingering effect which was still manifesting itself at the time of the election.32 For reasons stated, I find and conclude that by refusing to bargain with the Union and engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act, Respondent violated Section 8(a)(5) and (1) of the Act; that under the circumstances of this case the employees' sentiment as expressed through the authorization cards, is a more reliable measure of their desires on the issue of representation than the election held January 6 and 7; and that to effectuate the policies of the Act a bargaining order is both necessary and appropriate to remedy Respondent's refusal to bargain as well as its other unfair labor practices.33 holding of a fair election in Seymour Transfer, supra, the Board concluded that the single violation of Section 8(aXI) there involved did not preclude a free and fair election . In Central Soya, supra, the unfair labor practices were relatively minor in nature and limited in extent in terms of their effect on the election processes : that some of those were voluntarily corrected by Respondent with no likelihood of their recurrence in these circumstances the Board concluded that a bargaining order was not necessary to protect employee rights In Blade-Tribune Publishing. supra, the Board found the employer's violations of Section 8(a)(1) to be of a "minor or less extensive [character ] which, because of their minimal impact on the election machinery . will not sustain a bargaining order." In Alcoa Corporation, supra, the Board concluded that neither the single incident of polling employees with respect to their union desires, nor the granting of a wage increase was sufficient to establish a violation of Section 8(a)(5) or the necessity for a bargaining order. In the instant case the violations of Section 8(axi) were substantially more extensive in scope . more pervasive (Continued) 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, and the entire record in the case, I make the following. CONCLUSIONS OF LAW 1. 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. By the conduct set forth in section C, 1, hereof, Respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and thereby engaged in, and is engaging in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By refusing, upon request, to recognize and bargain with the Union as the duly designated representative of its employees in an appropriate unit, Respondent engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(5) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent interfered with, re- strained, and coerced employees in violation of Section 8(a)(1) of the Act, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed and found necessary to effectuate the policies of the Act. Having also found that Respondent unlawfully refused to bargain with the Union as the representative of its employees in an appropriate unit, it will be recommended that Respondent be required, upon request, to bargain collectively with the Union as such representative, and if an understanding is reached embody the same into a signed written agreement. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that the National Labor Relations Board Order Kaiser Agricultural Chemi- cals, a Division of Kaiser Aluminum and Chemical Corporation, its officers, agents, successors and assigns to: 1. Cease and desist from: (a) Refusing, upon request, to bargain collectively with international brotherhood of firemen & oilers, AFL-CIO, in character, and were engaged, as I have found, with the intent and purpose of undermining the Union's claimed majority In these circumstances I deem it more appropriate to follow cases like Tower Enterprises, Inc, 182 NLRB No 56, Gissel Packing Co, Inc, 180 NLRB No 7, Clay City Beverages, Inc, 180 NLRB No 178, Heck's, Inc, 181 NLRB No 129, 2520 Madison Corporation d/b/a Lilian Abrahamson Nursing Home, 181 NLRB No 148, Arbie Mineral Feed Co, 182 NLRB No 24, Juniata Packing Company, 182 NLRB No 140 34 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 as the exclusive collective-bargaining representative of its employees in an appropriate unit. The unit is: All production and maintenance employees at its Bainbridge, Georgia, plant, including temporary em- ployees, the storeroom clerk , the laboratory employee, the janitor, and lead laborers, but excluding all office clerical employees, the plant engineer and all other professional employees, guards and supervisors as defined in the Act. (b) Engaging in surveillance of the union activities of its employees, or in any conduct from which such employees may reasonably infer that their union activities are under its surveillance. (c) Interrogating employees with respect to their attend- ance at union meetings ; as to whether or not they had signed union cards; or whether they were in favor of a union. (d) Threatening to curtail or eliminate plant operations if the employees select a union as their bargaining representa- tive. (e) Reducing or eliminating privileges enjoyed by employees, if they selected a union as their bargaining representative. (f) Telling employees that if a union becomes their bargaining representative and requests increased wages, the employees would have to strike to obtain such increase. (g) Threatening employees that if they select union representation, existing employee benefits would be reduced to zero, and that bargaining would start from "scratch." (h) Threatening employees with loss of employer contributions to a retirement fund for their benefit , if they select a union to represent them. (i) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights to self- organization, to form, join or assist labor organizations, 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. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the National Labor Relations Act, as amended: (a) Upon request, bargain collectively with international brotherhood of firemen & oilers, AFL-CIO as the exclusive representative of its employees in an appropriate unit, above set forth, and if an understanding is reached, embody the same into a written and signed agreement. (b) Post at its Bainbridge, Georgia, plant copies of the notice attached hereto and marked "Appendix." 34 Copies of said notice on forms to be furnished by the Regional Director for Region 10 (Atlanta, Georgia), shall, after being signed by an authorized representative, be posted immedi- 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 or 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." KAISER AGRICULTURAL CHEMICALS 669 ately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the aforesaid Regional Director in writing, within 20 days from the date of receipt of this Decision, what steps Respondent has taken to comply herewith.35 Report on Objections Affecting the Results of the Election Having found that by the conduct set forth in section C, 1, hereof, Respondent violated Section 8(a)(1) of the Act, and having further found that the incidents referred to in paragraph 4 through 10 of said section occurred subsequent to the filing of the representation petition herein, and prior to the date of the election,36 it follows that the election held on January 6 and 7, 1970, must be set aside, and I so recommend. Dal-Tex Optical Company, Inc., 137 NLRB 1782; Leas & McVitty, Incorporated, 155 NLRB 389; L B. Foster Company, 168 NLRB No. 15, enforced 418 F.2d I (C.A. 9), cert. denied 73 LRRM 263, March 23, 1970. Having recommended that the Board order Respondent to bargain with the Union, no purpose would be served by conducting a new election. Accordingly, IT IS FURTHER RECOMMENDED that the Board dismiss the petition in Case 10-RC-8013, and vacate all prior proceedings it had in connection therewith. 35 In the event this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the aforesaid Regional Director in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith " 36 The Board regards this as the critical period in assessing whether alleged objectionable conduct had an impact on the election Ideal Electric Company, 134 NLRB 1275, 1278 As heretofore indicated, the petition was filed on October 27, and the election was held the following January 6 and 7 The conduct above referred to occurred between October 27 and November 12 To act together for collective bargaining or other mutual aid or protection To refuse to do any or all of these things. WE WILL NOT do anything to interfere with you in the exercise of these rights. WE WILL NOT engage in surveillance of your union activities, or in any conduct from which you might reasonably infer that your union activities are under surveillance by us. WE WILL NOT question you regarding your attend- ance at union meetings, whether you have signed a union card, or whether you are for or against a union. WE WILL NOT threaten to reduce or eliminate any privilege our employees now enjoy, if they select a union to represent them. WE WILL NOT threaten employees that if they select a union to represent them all existing employee benefits will be reduced to zero, and that bargaining with the Union will start from scratch. WE WILL NOT threaten employees that if they select a union to represent them, employees would have to strike to obtain increased benefits. WE WILL NOT threaten you with loss of contributions we made on your behalf to a retirement fund, if you select a union to represent you. WE WILL, upon request, recognize and bargain collectively with the Firemen & Oilers Union as the exclusive representative of our employees in an appropriate unit, and if an understanding is reached, put such understanding into a written signed agree- ment. The unit is: All production and maintenance employees at our Bainbridge, Georgia, plant, including temporary employees, the storeroom clerk, the laboratory employee, the janitor, and lead laborers, but excluding all office clerical employees, the plant engineer, and all other professional employees, guards and supervisors as defined in the Act. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a full trial in which all sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Kaiser Agricultural Chemicals, violated the National Labor Relations Act, and ordered us to post this notice. We intend to carry out the order of the Board, thejudgement of the court, and abide by the following: The Act gives all employees these rights To organize themselves To form, join or help continue unions KAISER AGRICULTURAL CHEMICANS, A DIVISION OF KAISER ALUMINUM & CHEMICAL CORPORATION (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, Peachtree Building, Room 701, 730 Peachtree Street, N. E., Atlanta, Georgia 30308, Telephone 404-526-5760.