Clay City Beverages, Inc.

CLAY CITY BEVERAGES, INC. 681 Clay City Beverages, Inc. and International Molders & Allied Workers Union, AFL-CIO. Cases 8-CA-5100 and 8-CA-5108 June 16, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA returned them to Paxton , who in turn delivered the cards to a representative of the Union . On July 23, 1968, Paxton was discharged, and on the following day the Union unsuccessfully requested recognition and bargaining with the Respondent on the basis of its status as the majority representative of the employees in an appropriate unit. On July 25, 1968, because of the discharge of Paxton and the Respondent's refusal to recognize and bargain with the Union, the employees went out on a strike, which continued until September 23, 1968. On February 10, 1969, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner' s Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner 's Decision and a brief in support. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three- member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision, the exceptions, the brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. The F acts The Respondent operates a small plant in Zanesville, Ohio, where it bottles soft drinks for wholesale distribution throughout the immediate area. The majority of the stock of the Respondent is owned by Okey Johnson , but the actual operation of the plant and the distribution of its products is controlled by his sons, Richard and Bradley Johnson . The Respondent normally employs approximately 12 employees in its production operations, exclusive of supervisors, clerical employees and salesmen.' In the middle of July 1968, following some talk concerning unionization among the Respondent's employees, Lloyd Paxton, a filler operator, obtained authorization cards from a representative of the Union . On the evening of July 19, 1968, 10 of the employees met in a vacant yard, and after some discussion Paxton distributed the authorization cards. All 10 of the employees signed the cards and w th the Trial Examiner's finding that the unit stipulated to by the parties, consisting of all production and maintenance employees employed at the Respondent's plant at Zanesville, Ohio, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act, is a unit appropriate for the purposes of collective bargaining. 176 NLRB No. 91 The 8(a)(1) Conduct We agree with the Trial Examiner's findings that the Respondent violated Section 8(aXl) of the Act by the interrogation of employee Roy Agin, and by the letter it directed to its employees engaged in an unfair labor practice strike threatening them with discharge unless they abandoned their strike and returned to work by August 5, 1968. As to the latter violation, the Trial Examiner inadvertently failed to make a conclusion of law, and we shall, accordingly, modify his Conclusions of Law and Recommended Order to this extent . We similarly find, in agreement with the Trial Examiner, that an additional violation of Section 8(a)(l) ensued from the remarks made by Okey Johnson to Union Organizer Kisner on August 14, 1968, to the effect that the strikers would be reinstated only if the Union abandoned its demand for recognition and bargaining , and that Paxtofl would not be reinstated at all because he was the "instigator" of the Union and the strike. At the time Okey Johnson made these remarks, the Respondent had already threatened the employees with discharge for failure to abandon the strike, and conditioning their right to further employment upon a total renunciation of their union activities and desires for collective bargaining constituted a further act of interference, restraint, and coercion. For the reasons set forth herein, we also adopt the Trial Examiner's finding that the Respondent violated Section 8(axl) by failing to pay to the employees who participated in the strike the $10 bonus it paid to the employees who remained at work . Considering the evidence in the posture most favorable to the Respondent's contention that it had promised the employees a $10 bonus when production reached 4,000 cases a day, and that this production figure was reached on July 24, 1969, we find that the strikers were employed and working on the day the bonus was earned and accrued. Accordingly, the Respondent's payment of the bonus only to those who desisted from strike activity violated the Act. The 8(a)(3) Conduct Contrary to the contention of the Respondent, we find that the record adequately supports the Trial Examiner's findings that the Respondent was fully 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD aware of the union activities of Lloyd Paxton and the extent of his participation in the organizing campaign, and that Paxton's union activities were the motivating and immediate cause for his discharge. During the course of the unlawful interrogation of Roy Agin by the Johnson brothers on the evening of July 22, 1968, Agin identified Paxton as the employee who had the authorization cards, and he also informed the Johnson brothers that all the employees had signed cards. When Paxton appeared at work on the following morning he was immediately called to the office and summarily discharged. At the meeting of August 14, 1968, Union organizer Kisner renewed the Union's request for recognition and bargaining, and he also requested that the Respondent reinstate Paxton. In response to the latter request Okey Johnson replied that the Respondent would never take Paxton back because he was the "instigator" of the Union and the strike, and Paxton was responsible for destroying a valuable piece of property. The Respondent contends that Okey Johnson's reference to the destruction of property supports its contention that Paxton was discharged for unsatisfactory operation of the bottling machine. We agree with the Trial Examiner that there is no merit to this contention. Moreover, assuming that Okey Johnson's refusal to reinstate Paxton was based in part on grounds of his alleged unsatisfactory performance on the bottling machine, this fact would not justify a finding that his discharge was not unlawful where as here the discharge was motivated at least in substantial part by his union activities.' The 8(aX5) Conduct We find, in accord with the Trial Examiner, that when the Union demanded recognition and bargaining on July 24, 1968, it represented an uncoerced majority of the employees in the stipulated appropriate unit, and that the Respondent's rejection of the demand was motivated, not by a good-faith doubt of the Union's majority, but by a rejection of the collective-bargaining principle and a desire to gain time to undermine the Union's majority.' The Respondent contends, nevertheless, that it was not obligated to recognize or bargain with the Union because Richard Sanders, who it contends is a supervisor, participated in the Union's organizing campaign. Contrary to the Trial Examiner, we find that Sanders' change from a salaried to an hourly paid position at or about the time Fred Tahyi was hired in February 1968, did not, without more, deprive him of his supervisory responsibilities and authority. 1N.L.R v. Great Eastern Color Lithographic Corp.. 309 F.2d 352 (C.A. 2), enfg. 133 NLRB 911, cert. denied 373 U.S. 950. 'Joy Sift Mills, Inc. v. N.L.R.B., 185 F.2d 732 (C.A.D.C.), cert. denied 341 U.S. 914. Sanders testified, without contradiction, that his duties and responsibilities after his change to hourly paid status were "about the same", and that he "still had the right to hire and fire and was over the boys." Every other witness who testified at the hearing, including the employees, stated that at all times Sanders had authority both to hire or fire and authority to direct the work of the employees. We find, accordingly, that Sanders was a supervisor at all times material to this case, and we shall exclude him from the bargaining unit. Having found Sanders to be a supervisor, it does not necessarily follow, however, that his signing of an authorization card and limited participation in the organizing campaign is sufficient to taint the authorizations signed by the employees. The organizing campaign was of extremely limited . duration, having begun in mid-July and culminating on July 19, 1968, when 10 employees attended a meeting in a vacant lot. Sanders engaged in some lunch-time conversations with employees about the Union. He attended the July 19 meeting, signed a card, and considering the evidence in the light most favorable to the Respondent's contention, Sanders also answered questions of an unspecified nature while present at the meeting . Nevertheless, Paxton obtained the cards from the Union, and he alone solicited the signatures. The authorization cards were returned to Paxton, and he made them available to the Union. In addition, Sanders was a low-level supervisor, and testimony indicated that the Respondent was in no way chargeable with Sanders participating in the campaign. Under these circumstances, and particularly as the record fails to show the nature of Sanders' statements during the lunch-time conversations and at the July 19 meeting, we find that Sanders' participation in the organizing campaign did not taint the cards of the employees,' and since the invalidation of his card alone does not reduce the number of valid cards below a majority, we shall adopt the Trial Examiner's findings and Recommended Order with respect to the refusal to bargain. AMENDED CONCLUSIONS OF LAW The following is substituted for the Trial Examiner's fourth Conclusion of Law: 4. By interrogating its employees regarding their union membership and activity, by refusing to pay to strikers the same $10 bonus for prestrike production achievement that was paid to nonstrikers, as an economic reprisal for engaging in a strike, and by threatening its employees engaged in an unfair labor practice strike with discharge in a letter dated August 2, 1968, the Respondent has engaged in interference, restraint and coercion in violation of Section 8(axl) of the Act. er T v. N.L.R B.. 149 NLRB 1283, enfd. 363 F.2d 702, cert. denied 385 U.S. 973. CLAY CITY BEVERAGES, INC. 683 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Clay City Beverages, Inc., Zanesville, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Substitute the following for paragraph 1(c) of the Trial Examiner's Recommended Order: "(c) Interrogating its employees with regard to their union membership and activity, threatening them with discharge unless they abandon protected activities, conditioning their reinstatement upon abandonment of protected activities, and refusing to pay a bonus to employees because they engaged in protected activities." 2. Add the following as paragraph 1(d) of the Trial Examiner' s Recommended Order: "(d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act." 3. Insert the following as paragraph 2(b), and reletter the subsequent paragraphs accordingly: "(b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right • to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." 4. Insert the following immediately above the last paragraph of the Recommended Order: "3. All allegations in the complaint not specifically found herein are hereby dismissed." 5. Substitute the following for the fourth indented paragraph of the notice: WE WILL NOT interrogate our employees with regard to their union membership and activity, threaten them with discharge unless they abandon protected activities, condition their reinstatement upon abandonment of protected activities, refuse to pay them a bonus because they engaged in protected activities, or 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 International Molders & Allied Workers Union, AFL-CIO, or any other labor organization , to bargain collectively through a representative of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized by Section 8(aX3) of the Act, as amended. 6. Add the following as the last indented paragraph of the notice: WE WILL notify the above-named employee, if presently serving in the Armed Forces of the United States, of his right to full reinstatement, upon application, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. TRIAL EXAMINER'S DECISION Statement of the Case THOMAS S. WILSON, Trial Examiner : Upon a charge in Case 8-CA-5100 duly filed on July 29, 1968, and a charge in Case 8-CA-5108 duly filed on August 2, 1968, and thereafter amended on August 21, 1968, by International Molders & Allied Workers Union, AFL-CIO, hereinafter called the Union or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter referred to as the General Counsel.' and the Board, respectively, by the Regional Director for Region 8, Cleveland, Ohio, issued its consolidated complaint dated September 20, 1968, against Clay City Beverages, Inc., hereinafter referred to as the Respondent. The complaint alleged that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(aXl), (3), and (5) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, herein referred to as the Act. Respondent duly filed its answer admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice a hearing thereon was held before me in Zanesville, Ohio, on November 13, 1968 . All parties appeared at the hearing, were represented by counsel, and were afforded full opportunity to be heard, to produce and cross-examine witnesses, and to introduce evidence material and pertinent to the issues. At the conclusion of the hearing, oral argument was waived. Briefs were received from Respondent and from General Counsel on December 23, 1968. Upon the entire record in the case and from my observation of'the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The complaint alleged, the answer admitted , and I find that: Clay City Beverages, Inc., is now, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Ohio, engaged in bottling and wholesale distribution of soft drinks- at its Zanesville, Ohio, location . Annually, in the course and conduct of its business , Respondent receives at its place of business in Zanesville, Ohio, goods valued in excess of $50,000 directly from points located outside the State of Ohio. Accordingly, I find that Respondent is now, and has been at all times material herein , an employer engaged in 'This term specifically includes the attorney appearing for the General Counsel at the hearing. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commerce within the meaning of Section 2(6) and (7) of the Act. H. THE UNION INVOLVED International Molders & Allied Workers Union, AFL-CIO, is a labor organization admitting to membership employees of Respondent. III. THE UNFAIR LABOR PRACTICES A. The Facts From the point of view of the employees this case begins about the middle of July 1968. From the point of view of the Respondent the case supposedly begins before Thanksgiving 1967. For some years Respondent's bottling works in Zanesville, Ohio, had been owned and operated by Okey Johnson (Okey) as Chairman of the Board and his sons, Richard Johnson (Richard) as president and general manager, and Bradley Johnson (Brad) as secretary and plant manager . According to the testimony of Richard, Okey held the controlling financial interest in the business of Respondent but had not participated in the management of the business for some years prior to the events here because of a problem with alcohol although he remained as Chairman of the Board of Respondent. Okey was not called as a witness here. Exclusive of the Johnsons, Respondent's plant was operated by 11 production and maintenance employees and 1 transport driver . In accordance with the stipulation of the parties I find that these 11 production and maintenance employees and 1 transport driver constitute the appropriate unit herein. Prior to some indefinite date in May 1968, Respondent's filler or bottling machine had been an old one of German make . As Richard Sanders, one of Respondent's senior employees in point of service and at the time of the hearing either Respondent's assistant plant manager or assistant production manager, , described it, "the old machine was kind of hard to run anyway. It was not the best." Fred Tahyi, temporarily also a production manager, described the machine as "worn out." The infirmities of the machine were those not unknown to numerous bottling companies : partly filled bottles, caps askew, foreign objects in the bottle contents, and not infrequent machine breakdowns. About Thanksgiving time in 1967 Brad Johnson took the problems to the manufacturer of the machine who, not unnaturally, assured Brad that the trouble was with the operator and not the machine. Despite this assurance, however, the manufacturer rebuilt the feeder head of the machine twice thereafter in the year 1967. Finally about February 1968 Respondent decided to replace that machine with a newly rebuilt one. The date the newly rebuilt machine actually replaced the old one was left highly indefinite in this record although the evidence indicates that it must have been sometime during the month of May 1968. Between February 1967 and July 23, 1968, Lloyd Paxton was the bottling machine operator following his promotion from the position of a transport driver. In the latter part of February 1968, one Fred Tahyi sold the beverage business he conducted in Coshocton, mesons and Sanders used both titles indiscriminately to describe both the job Sanders held prior to April 1968 as well as the "new" job he received on July 23, 1968. Ohio, to Respondent and accepted a job thereafter with Respondent which, according to Tahyi and Johnson, was supposed to be that of production manager. Tahyi apparently replaced Richard Sanders as such assistant production manager, a salaried position which Sanders had been filling prior to the hiring of Tahyi. At or about the time of Tahyi's employment Sanders suddenly lost his salaried position and became an hourly paid employee. During this period Sanders was ordered to show Tahyi how to run Respondent's machinery. However about the end of April and before the arrival of the new bottling machine Tahyi left Respondent's employ. Sanders remained a rank-and-file hourly paid employee until he was offered a "new" position of assistant plant manager or assistant production manager on a salary basis on the evening of July 22, 1968. About the middle of July, following some talk of unionization among the employees, Lloyd Paxton secured some union authorization cards from a local union official employed in a nearby plant. After work on Friday, July 19, through notice by word of mouth in the plant, 10 of Respondent's production and maintenance employees, including Richard Sanders, gathered at a vacant lot located at Fifth Street and Howard Avenue in Zanesville, 1-1/2 blocks from Respondent's plant, where Paxton passed out the union authorization cards to the employees and with the help of Richard Sanders explained what they were. All 10 of the employees present signed and witnessed this signing of these unambiguous union authorization cards. Those employees attending and signing such authorization cards were employees Roy Agin, David Bonifield, James Dobbins, Terry Dobbins, Homer Keiffer, Dennis Moorehead, Lloyd Paxton, Richard Sanders, Robert Seenes, and David Vandenbark. The cards so executed were given to Paxton who thereafter delivered the signed cards to his friend, the union official. As employee Roy Agin was about to get into his automobile parked across the street from the plant after work on the evening of Monday, July 22, Richard and Brad Johnson called him back across the street in front of the plant and asked him what he knew about the Union. At first Agin denied knowing anything about the Union. Richard then stated that he knew the employees "were trying to get a union in" and wanted "to know who all were involved in it." He also stated that a union would cause nothing but trouble in the plant. Agin then told the Johnsons that Lloyd Paxton was "the one that had the cards" and that all the employees had signed them. Richard assured Agin that he, Richard, "would not say anything to anybody that he had had that conversation" with Agin and Agin agreed to say nothing about it either. The conversation ended on this note. Later that same evening of Monday, July 22, the Johnsons telephone Richard Sanders at Sanders' home while he was bathing after work and asked him to return to the plant in order that they might talk to Sanders about "moving up a step." When Sanders returned to the plant Richard asked Sanders how Sanders "would like to become . . . Brad's assistant production manager" on a stated salary because they thought Sanders would be "the best" for the job with his knowledge of plant operations due to his long tenure in the plant. Sanders said that he would discuss the salary with his wife and would let the Johnsons know the next morning. During this discussion the Johnsons expressed the opinion that Lloyd Paxton "was not doing the job he should be doing" and that they thought they were going to let Paxton go. With that CLAY CITY BEVERAGES, INC. Sanders left the plant. On July 23 when Paxton appeared for work as usual, Brad took him into the office and told him in front of Richard that "the bottles were going down the line with crowns not on properly; they were not properly cap [Paxton] had been sitting around too much and is] services were no longer needed ." Brad then handed him a check for 45 hours work so that Paxton could look for another job. He has not been reinstated since. On July 24 Union Organizer Clayton E. l isner appeared in Zanesville in response to a telephone call from Paxton notifying him of the signed authorization cards and his own discharge. At noon he and Paxton met the employees at lunch across the street from the plant.' Although the employees talked in favor of immediate strike because of the discharge of Paxton, Kisner requested time for him to tall! to the Johnsons about recognition and reinstatement before any action was taken. Although he was then in the immediate vicinity of the plant, Kisner chose to telephone Richard Johnson. Over the phone Kisner asked for recognition as he had signed union authorization cards for "a majority (10 out of 12) of the twelve employees" in the stipulated appropriate unit. After some talk as to how this majority could be verified, Richard said that he could do nothing because his lawyer was out of town. That evening following this telephone call, Kisner and Paxton again met with eight employees at Putman Hill Park where Kisner reported to them his lack of success with Richard. The employees present decided to strike the plant the next morning.' At 7 a.m. on July 25 employees Agin, Vandenbark, Bonifield, Terry Dobbins, and Jim Dobbins went out on strike and with Paxton began picketing the plant. The other employees returned to work apparently being bothered by the financial loss to them in engaging in such a strike. On July 26, having been unable to reach Richard by telephone, Kisner telephoned Okey Johnson . Again Kisner explained that he represented a majority of the employees and requested recognition by Respondent and reinstatement of Paxton. Okey answered that he and "the boys" (Richard and Brad ) would have a meeting the next Monday and would talk the matter over with Respondent's attorney who was in charge of the matter. That concluded the telephone call. Also on July 26, 1968, Respondent rewarded each of the employees then working in the plant with a $10 bonus. On Monday evening, July 29, Kisner telephoned Richard at his home and asked him if Respondent had come to any decision on recognition and reinstatement. Richard indignantly refused to discuss business from his home, telling Kisner that he would only conduct business in his office, and hung up the telephone. On August 1 Richard saw Agin, Vandenbark, Terry Dobbins, and Bonifield still on the picket line and invited them to return to work. They refused . On Friday, August 2, Respondent wrote each of them the following letter: We are asking you to return to your job Monday, August 5, 1968, at 7:00 A.M.. This is the last date your job will be held for you. 'Sanders was not present at this or any other subsequent meeting of the employees. 'The employees present were Terry Dobbins, Dave Vandenbark, Paxton, James Dobbins, Robert Seenes, Homer • Keiffer, Roy Agin, and David Bonifield. 685 This renews our request of last Friday to return to work. If you fail to report for work on Monday morning, we will consider your employment terminated and all connection with our company ended. None of the four remaining pickets returned to work. Then on August 14 Kisner, through the intervention of one Cecil C. Fulton , a good friend of Okey's and a former retired official of the local union , met with Fulton and Okey in the plant office. Upon being asked for recognition and for the reinstatement of Paxton , Okey stated that Respondent would take the four remaining strikers back to work provided that Kisner forgot the whole thing and went back to his base at Marion , Ohio. Kisner refused that offer. Okey also stated that Respondent would never take Paxton back even if they had to go to the highest court possible on the grounds that he was "the instigator" of the Union and of the strike and was responsible for destroying a very valuable piece of property.. Richard saw Okey driving himself to and from this meeting in his automobile. Both he and Brad knew that ®Okey was meeting with Kisner, the union organizer, in Respondent's office but, as Richard testified, ". . I stayed out of the office especially." There is undenied testimony that Richard and Brad were invited to participate in the meeting but refused. under date of September 18, 1968 , Respondent sent each of the four remaining pickets the following letter: We are asking you to return to your job Monday, September 23, 1968, at 7 :00 A.M.. This offer is unconditional. The company has continued to carry on your insurance program in your absence . You have lost no other benefits which you have acquired during the course of your employment with us. It is our sincere hope that you will accept this offer. In response all four of these employees returned to work . Subsequently two of them voluntarily left Respondent's employ. B. Conclusions 1. Discharge of Paxton From February 1967 to July 23, 1968, Lloyd Paxton operated Respondent's bottling machine following his promotion from his former transport driver position. The Johnsons admit that his services on the filling machine for the first half of that period had been satisfactory. Moreover neither Johnson could recall ever having criticized his work to Paxton during that whole period. Then on July 19, a Friday, by word of mouth Paxton gathered 9 of the other 11 production and maintenance employees in an open field 1-1/2 blocks from the plant, explained the Union and its authorization cards to the assembled employees, and succeeded in having all of them execute unambiguous cards authorizing the Union to bargain on their behalf. Richard Sanders was one of the employees executing such authorization cards at this meeting. On Monday evening, July 22, employee Roy Agin testified that Richard and Brad asked him about the Union and who were involved and that he informed them that Paxton had brought the union cards and had signed up all the employees. Both Agin and Richard agreed that the conversation would be kept secret.' The next morning, 'Both Johnsons subsequently flatly denied that any such conversation occurred. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July 23, Paxton was precipitously discharged allegedly for poor workmanship. Subsequently on August 14, Okey Johnson, Respondent's Chairman of the Board, rather vehemently refused the Union's request for the reinstatement of Paxton on the grounds that he was "the instigator" of the Union and of the strike and the destroyer of valuable property.' With the above evidence General Counsel has proved a strong prima facie case of a typical type of discriminatory discharge. The weak spot in the case, if any, appears to be the question of Respondent 's knowledge of Paxton's union activity prior to his discharge. This, of course, is amply supplied by the Agin-Richard and Bradley conversation on the evening of July 22 to the effect that Paxton was the instigator of the union effort and the strike and by the admission on August 14 that Paxton had been fired because he was such instigator . The trouble, if any, as to these pieces of evidence arises because both Richard and Bradley denied flatly that they had had any conversation on July 22 with Agin and also claimed that Okey was a chronic alcoholic and on August 14 was "completely inebriated." This testimony naturally creates a credibility question as to both the above pieces of evidence. In addition to the credibility problems thus raised, Respondent in its brief argues that the refusal -to-bargain allegation must be dismissed with the following argument: It is submitted, however, that whether or not the company had a good faith doubt as to the Union's majority status, there is no violation of Section 8(a)(5) of the Act for another reason. Due to the active participation and leadership of Richard Sanders in its organization campaign, the Union, on July 24 did not represent a majority of the employees within the bargaining unit. As is stated in ATI Warehouse, 169 NLRB No. 75, 67 LRRM 1256 (1968): It is well settled that cards obtained with the direct and open assistance of a supervisor are invalid for such purposes. (For the purpose of a bargaining request.) However, if this argument be sound , the problem of Respondent's knowledge of Paxton's union activites is likewise solved because , as a supervisor, Sanders' admitted knowledge of Paxton's union activities would be imputed to Respondent as a supervisor's knowlege is that of the employer. Despite the brief' s claim "there is no question as to Richard Sanders' supervisory position," the only trouble with this theory of imputed knowledge is that the above fact so stated by Respondent is incorrect in that for several months prior to receiving his "step up" to assistant plant or assistant production manager on July 23, Sanders had been reduced to the status of an ordinary hourly paid employee without supervisory authority which during his employment by Respondent had passed to Fred Tahyi. In fact it was this reduction to an hourly paid status which caused Sanders to become interested in the Union. As such ordinary rank-and-file employee the Act guaranteed Sanders the right to engage in union activities as of that time. However, Sanders testified that he never told the Johnsons of this union organizational activity because, as he put it, "I wasn't going to tell Richard or Brad because I figured they would find out for themselves and all in due 'This last must have been a reference to Respondent's business because there is no evidence in this record to the effect that Paxton destroyed or injured any machinery. time." Regardless of the fact that Sanders testified that he had never informed the Johnsons of his attendance at the July 19 meeting until the very day Respondent called him as a witness at the hearing, I find no reason to disbelieve Sanders on that point although doubting the last part of his testimony. Sanders' testimony, however, strongly suggests that due to the smallness of the plant with only 12 production and maintenance employees the Johnsons were bound to learn quickly of any and all union activities therein. I must agree. In a plant of this size it is, of course, possible, but highly improbable, that Respondent would not become aware almost immediately of the existence of union activity therein. Miracles do happen-but infrequently. Leaving for the moment this disputed question of knowledge, the Johnsons also contended that for the last half of his tenure on the bottling machine, the complaints of Paxton's work "increased progressively" so that as early as November 1967, Richard and Brad began serious consideration of dismissing Paxton for poor workmanship. According to both the Johnsons, they became convinced that the troubles in bottling were those of Paxton and not those of the old German machine when its manufacturer, without having seen the machine, so informed them. Despite this alleged conviction that the trouble was Paxton's, the facts disclose that thereafter the machine manufacturer rebuilt the feeder head on the machine- not once but indeed twice- and still the trouble continued. Thus the facts justify Tahyi's appraisal that the machine was "worn out" and Sanders' that the machine "was not the best." In fact the Johnsons themselves decided in February a new machine was necessary. This history is quite sufficient proof that the problem Respondent here attempts to blame upon Paxton was that of the machine and not of the operator. The Johnsons' contention that the volume of complaints "increased progressively" right up to the end of Paxton's employment is at odds with the testimony of Respondent's own sales manager, Richard Glaub, who testified that "normal complaints" continued throughout Paxton's employment but that he knew of "no increase" therein. It is noteworthy that Glaub was not asked and therefore did not testify about the sales meeting supposedly held on July 22 where the increase in the complaints, according to the Johnsons, finally caused them to decide to discharge Paxton. If anyone would know of complaints about the merchandise sold, it would be the sales manager. Because of the disparity between the testimony of Glaub and the Johnsons, I have grave doubts that the sales meeting of July 22 ever took place and that the complaints "progressively increased." The Johnsons further testified that they began searching for an experienced operator of bottling machines to replace Paxton as early as November 1967. This search was finally consummated on July 29, 1 week after Paxton had been discharged, when Respondent hired a returned serviceman with absolutely no experience on a bottling machine, although the Johnsons testified that such experience was a necessity. Respondent attempts to explain its delay in hiring a replacement for the allegedly inefficient Paxton on the fortuitous fact that in February 1968, it bought our Tahyi's bottling business in Coshocton and employed Tahyi with alleged plans to make Tahyi assistant production manager replacing Sanders who in turn would replace Paxton. Tahyi, in effect, collaborated this testimony by the Johnsons albeit, in my opinion, with CLAY CITY BEVERAGES, INC. some embarrassment. °' Be that as it may, this so-called plan was never implemented beyond the fact that Sanders was promptly reduced to a rank-and-file hourly employee upon the employment of Tahyi . Paxton continued to be the bottling machine operator without change despite the employment of Tahyi. No one except the Johnsons and, perhaps, Tahyi ever heard of this alleged plan . Its implementation was nil. As a matter of fact neither Johnson could recall an instance where Paxton's work during this whole period had ever been criticized to Paxton himself. Thus it seems that Paxton continued to operate even the newly installed machine without criticism from the Johnsons at least until the evening of July 22. The Johnsons maintained that Respondent had "hired" Patric McDaniel, the returned serviceman , who ultimately replaced Paxton as bottling machine operator , before it discharged Paxton. This contention is contrary to the testimony of McDaniel. McDaniel's testimony proved that sometime early in July he had, by chance, run into Brad in the vicinity of their respective homes and that Brad had suggested that Respondent might have employment for him if he was interested . At that time McDaniel was not interested because he had just been released from service and preferred to "free lance." McDaniel, in fact, continued to vacation until July 26 when he went to an employment agency where he found only two possible jobs listed, one of which was the job with Respondent . On that .same day McDaniel went to the Respondent 's plant, asked Brad for the job, and got it. But Paxton had been discharged at least 3 days before. Thus Respondent's alleged long search for a filling machine operator begun in November 1967 ended . This long "search" has all the appearance of being the figment of someone's imagination. According to Brad , "one of the main things [causing the decision to discharge Paxton] was that a sales meeting is held at the plant every Monday morning . There were so many complaints at that time [July 22 ]" that the Johnsons determined to discharge Paxton . Brad testified that the final decision to discharge Paxton was made between 7:30 and 8 a.m. July 22. On this Richard disagreed testifying that the decision was made, after a day long discussion, during the evening of July 22. The importance of the July 22 sales meeting in the making of the decision is greatly diminished by Brad's other testimony that he had begun looking for a replacement as early as November 1967, by his claim that he had hired McDaniel on July 19, and by Glaub's testimony . The promotion of Sanders during the evening of July 22 tends to confirm Richard's testimony that the decision on Paxton also occurred during that same personnel meeting . Of course, if Richard is correct in this as it seems he was, the decision to discharge Paxton occurred after the Johnsons ' conversation with Agin. In any event it is clear that the decision to discharge Paxton was a precipitous, hurried, and on-the-spur-of-the-moment decision for the reason that it was made without there being a replacement in sight. There seems no question but that the decision was made on the spur of the moment and as a result of some momentous event such as the discovery that Paxton was the instigator of the Union. Richard also maintained that Zanesville suffered a very severe storm on July 22 which caused the loss of three "trees on the theory, apparently , that an outside conversation such as Agin described would be impossible 687 in such weather. Strangely only Richard mentioned this storm. Richard further testified that on July 22 he made two trips to Newark, Ohio, but even the times he gave in regard to these trips would have gotten him back to Zanesville in time to hold the Agin conversation at the time Agin said it happened. In sum, the above has caused me to view the testimony of both Johnsons with skepticism. Accordingly, as Agin gave all appearances of a witness telling the truth, I credit his testimony that the Johnsons asked him about 4-4:30 p.m. on July 22 what he knew about the Union and were told that Paxton had obtained the union authorization cards and gotten all the employees to sign them. I, therefore, discredit the Johnsons' flat denials thereof. In the light of the Johnsons' subsequent treatment of the Union's request for recognition, the Agin conversation was just such an event as would have triggered the sudden discharge of Paxton. Richard and Brad attempted to discredit Okey's admission that Paxton was discharged by Respondent because he was the "instigator" of the Union and of the strike by testimony, no doubt true, that Okey was an admitted alcoholic and that on August 14 was `completely inebriated." If this last were true, then Richard's action in permitting Okey to drive his Cadillac in that known condition away from the plant, at least, verged upon actionable negligence. However the fact remains that even inebriates can and do tell the truth. On this occasion I am convinced that on August 14 Okey was in fact telling the truth. Under all the facts here I am convinced, and therefore find that Respondent discharged Lloyd Paxton because of his known membership in and activities on behalf of the Union in violation of Section 8(axl) and (3) of the Act. 2. Interference, restraint, and coercion There is no question but the action of Okey Johnson on August 14 in conditioning the reinstatement of the employees still engaging in an unfair labor practice strike against Respondent caused by Respondent 's unfair labor practices and in discriminating against Lloyd Paxton because of his union activities upon the agreement of the union representative to return to his base in Marion, Ohio, and "forgetting the whole thing" amounted to interference with, and restraint and coercion of Respondent's employees in violation of Section 8(a)(l) of the Act. I so find Nor can there be any doubt but that Respondent's letter to the strikers dated August 2, 1968, threatening, as it did, the strikers with loss of employment unless they abandoned their unfair labor practice strike by the following Monday also constituted a violation of Section 8(a) (1) of the Act. I so find. It was stipulated that on July 26, 1968, the day after the strike began, Respondent paid each of its employees then working in the plant after having crossed the picket line the sum of $10. Respondent maintained that at some indefinite date in the past Brad had promised the employees a $10 bonus whenever production reached 4 ,000 cases per day and that on July 24 production did in fact reach 4,000 cases for the first and only time in Respondent's history. As Respondent was working shorthanded on July 24 following the discharge of Paxton , it is somewhat hard to believe that this absolutely unique production record was set that day. It is also hard to believe that such a record 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was not memorialized in Respondent' s business records and that such records would not be produced at the hearing to corroborate the oral testimony of the Johnsons. No corroboration of this type was offered . I am inclined to believe that the $10 paid was paid by Respondent as a bonus to those employees who were working behind the picket line. If in fact a record was established by the production of July 24, then by failing to pay that same bonus to employees, then on the picket line but who had participated in the setting of that record , Respondent obviously engaged in economic reprisals against them because of their engaging in the strike . In either event Respondent's action amounted to interference , restraint, and coercion in violation of Section 8(a)(1) of the Act. In order, therefore, to restore the status quo I am going to order Respondent to pay the employees on the picket line on July 25 who had worked in the plant when the alleged production record was set on July 24 the sum of $10 each. 3. The refusal to bargain a. Appropriate unit and majority The parties stipulated that the unit appropriate for the purposes of collective bargaining at Respondent's plant consisted of the following: All production and maintenance employees employed at Respondent's Zanesville, Ohio bottling plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. The parties agreed also that there were 12 production and maintenance employees employed in the above-found appropriate unit.' On July 19, 10 of Respondent's employees in the appropriate unit, at that time including Richard Sanders, voluntarily signed authorization cards reading in full as follows: I hereby authorize the INTERNATIONAL MOLDERS and ALLIED WORKERS UNION, A.F.L.-C. I.O. to represent me and, in my behalf, to negotiate all agreements or contracts in regard to wages, hours and working conditions. Consequently at the time the Union made its request of Respondent for recognition on July 24, the Union represented a large majority of all Respondent's employees in the appropriate unit . The inclusion of employee Fox and the subsequent exclusion of Richard Sanders do not affect the Union's majority status at any time. Consequently on July 19, 1968, and at all times thereafter, the Union was the duly authorized bargaining agent of a majority of the Respondent's employees in the stipulated appropriate unit and entitled to recognition and the right to bargain with Respondent on behalf of the employees in that unit. b. The refusal Respondent's refusal to bargain with the Union is crystal clear . Respondent never intended to bargain and succeeded in not doing so through its own deliberate did disagree as to the inclusion of an employee named Fox in that appropriate unit. Under the facts of this case it is immaterial whether or not Fox was or was not included therein. actions. When first asked to grant recognition, Respondent through Richard stalled on the ground that Respondent's attorney was out of town . Once having used this excuse, it became incumbent upon Respondent to make up its mind and notify the Union of its decision. This Respondent did not do. Respondent stalled again when Okey told Kisner that Respondent was having a meeting the following Monday when it would consult with its attorney and make up its mind . Again it became incumbent upon Respondent to notify the Union of its decision, if any. Again Respondent refused to do so. Then Kisner telephoned Richard at home in the evening to find out what decision, if any, Respondent had reached at that alleged Monday meeting . This time Richard arrogantly refused to discuss Respondent's business at his home. Finally Respondent's Chairman of the Board on August 14 offered to reinstate the remaining strikers conditioned upon the Union's getting out of town and "forgetting the whole thing." These are not the actions of a party willing to engage in collective bargaining with the exclusive representative of a majority of its employees in an appropriate unit. These actions, individually or collectively, amount to a refusal to bargain. As for the instance of August 14 Respondent is estopped to make its usual excuse for the actions of Okey because the facts show that both Richard and Brad knew that its Chairman of the Board was engaged with the Union obviously on matters concerning collective bargaining and yet Richard, at least, "especially" stayed out of the conference, even though invited, thereby deliberately misleading the Union into believing that it was dealing with a responsible official of the Respondent. This is at least as reprehensible as Richard 's permitting a "completely inebriated man," as Richard described him, to drive his automobile from the plant on to the public highways as Richard allowed him to do. Respondent claims "a reasonable doubt" as to the Union's majority status. This contention, like the others, is mere verbiage under the facts here because Respondent was offered a full and fair opportunity to determine through the cards that status and deliberately chose not to avail itself thereof. Self-imposed deception or delusion does not amount to "a reasonable doubt." Respondent had no one but itself to blame for any doubt. Respondent attempts to profit by its own wrongdoing . Respondent had nothing concrete or tangible upon which to base a "reasonable doubt" other than its own deliberate refusal to accept a reasonable means for satisfying itself as to the Union's majority status. Accordingly I must, and hereby do, find that on July 24, 1968, and at all times thereafter, Respondent refused to bargain collectively with the Union as the exclusive representative of Respondent's employees in the above-found appropriate unit in violation of Section 8(a)(l) and (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with 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. CLAY CITY BEVERAGES, INC. 689 V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that Respondent cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent discriminated in regard to the hire and tenure of employment of Lloyd Paxton by discharging him on July 23, 1968, because of his known membership and activities on behalf of the Union, I shall recommend that Respondent offer him immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him a sum of money equal to that which he would have earned from the date of the discrimination against him to the date of his reinstatement, less his net earnings during such period, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent per annum. Having found that $10 paid by Respondent on July 26, allegedly as a bonus for record plant production on July 24, to those employees then working behind the picket line but not paid to those employees then engaging in the strike amounted either to a benefit to those employees then at work for not engaging in the strike or else a detriment to those then striking for engaging in said strike, I will order that Respondent pay each of the employees engaging in the strike who had worked on July 24, the day of the alleged record production , the sum of $10. Having found that Respondent refused to recognize and bargain with the Union in violation of Section 8(aX5) and (1) of the Act, I will recommend that, upon request, Respondent recognize and bargain collectively with the Union as the exclusive representative of all its employees in the appropriate unit below with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an agreement is reached , embody such understanding in a signed agreement. The appropriate unit is: All production and maintenance employees employed at Respondent's Zanesville, Ohio bottling plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. Because of the character and scope of the unfair labor practices found to have been engaged in by Respondent, I will recommend that Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act. Upon the foregoing findings and conclusions of law and upon the entire record, I hereby make the following: CONCLUSIONS OF LAW 1. International Molders & Allied Workers Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of Lloyd Paxton by discharging him on July 23, 1968, because of his membership in and activities on behalf of the Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 3. By refusing on July 25, 1968, and at all times thereafter to bargain collectively with the Union as the exclusive representative of all Respondent' s employees in the appropriate unit below, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX5) and (1) of the Act. The appropriate is: All production and maintenance employees employed at Respondent's Zanesville, Ohio bottling plant, excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. 4. By interrogating its employees regarding their union membership and activity, by paying its employees for working behind the picket line the sum of $10 or refusing to pay strikers the same $ 10 as an economic reprisal for engaging in a strike, Respondent has engaged in interference, restraint, and coercion in violation of Section 8(a)(l) of the Act. 5. The aforesaid unfair labor practices effect commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, I recommend that Clay City Beverages, Inc., Zanesville, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating in regard to the hire or tenure of employment or of any term or condition of employment of its employees because of their membership in or activities on behalf of International Molders & Allied Workers Union, AFL-CIO, or any other labor organization of their choice. (b) Refusing to recognize and bargain with said Union as the exclusive representative of Respondent 's employees in the above-mentioned appropriate unit. (c) In any manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed the employees by the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Lloyd Paxton immediate and unconditional reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, in the manner set forth in the section hereof entitled "The Remedy," with interest thereon at 6 percent per annum. (b) Pay the sum of $10 to each of the employees who went out on strike on July 25, 1968 and who had worked in the plant on July 24 when allegedly the plant production record was set. (c) Upon request, recognize and bargain in good faith with International Molders & Allied Workers Union, AFL-CIO, as the exclusive bargaining representative of all Respondent's employees in the above-found appropriate unit and, if agreement is reached, embody said agreement in a written signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Post at its plant in Zanesville , Ohio, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to the employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.' IT IS FURTHER RECOMMENDED that, unless Respondent notifies said Regional Director within 20 days from the receipt hereof it will take the action here recommended, the Board issue an order directing Respondent to take the action here recommended. 'In the event that this Recommended order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." ,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 8, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in or activities on behalf of International Molders & Allied Workers Union, AFL-CIO, or any other labor organization, by discharging or discriminating in regard to the hire, tenure, or other terms or conditions of employment of any of our employees. WE WILL offer Lloyd Paxton his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges , and we will pay him for any loss of pay he may have suffered because of our discrimination against him together with interest thereon at 6 percent per annum. WE WILL pay to each of the employees on strike on July .26, 1968, who had worked in the plant on July 24, 1968, the sum of $10. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist International Molders & Allied Workers Union, AFL-CIO, or any other labor organization , to bargain collectively through a representative of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(2) of the Act, as amended. All our employees are free to become or remain, or to refrain from becoming or remaining, members of International Molders & Allied Workers Union, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement executing and conforming with Section 8(a)(3) of the Act, CLAY CITY BEVERAGES, INC. (Employer) Dated By (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1695 Federal Office Building, 1240 East Ninth Street, Cleveland, Ohio 44199, Telephone 216-522-3715.