Arrow Specialties, Inc.

306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Arrow Specialties, Inc. and District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. Cases 14-CA-4688 and 14-CA-4845 June 30, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On April 15, 1969, Trial Examiner Paul Bisgyer 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 and a brief in support and the General Counsel filed a cross-exception concerning the remedy, and a brief in support. The Board' has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified herein.' For the reasons stated by the Trial Examiner, we find that the Union had been duly designated by a majority of employees in the appropriate unit to act as their representative for purposes of collective bargaining by May 17, 1968, the date Respondent received the Union's renewed demand for bargaining . In essential agreement with the Trial Examiner, we find that Respondent violated Section 8(a)(5) of the Act by refusing to recognize and 'Pursuant to the provisions of Sec. 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 Trial Examiner, following then Board precedent, excluded from the unit employee Schreier who is a Social Security annuitant . Schreier works regularly on a parttime basis He did not sign an authorization card As the Board now applies to employees on Social Security the rule with respect to regular parttime employees generally, we shall include Schreier in the unit See Holiday Inns of America, 176 NLRB No. 124 In addition, we note that employee Hof, whose card the Trial Examiner did not count because it appeared that he signed in reliance upon a representation by the Union that it was intended to secure an election, is a senior university student in business administration and accounting, who works four hours at nights doing "secondary work" on drill presses and milling machines. Hof does not anticipate working for the Respondent after graduation and for that reason apparently delayed signing a card He considered that the advent of a Union would have little effect upon him. We shall exclude Hof from the unit as a student . See Post Houses, Inc, 161 NLRB 1159, fn. I The addition of Schreier and subtraction of Hof leaves the unit total at 20, as found by the Trial Examiner, and the Union's majority on May 17, when the Union's May 16 letter reiterating request for recognition was received , at 12 out of 20 We correct the typographical error in the Trial Examiner's reference to G.C. Exh. 2, the list of employees submitted by the Respondent to the Regional Office in connection with its previously filed representation petition. The date should be June 4 rather than June 14 bargain with the Union on or after May 17, and by thereafter engaging in numerous independent unfair labor practices directed towards undermining the Union' s standing among the employees. Those unfair labor practices, committed in violation of a settlement agreement in which Respondent, inter alia, agreed to refrain from engaging in such conduct, destroyed the conditions necessary to the timely holding of a fair election on the Respondent's representation petition and are so coercive and pervasive that they tend to preclude the likelihood that a present election would be a more reliable indicator of the employees' desires concerning collective bargaining than the card majority achieved before their commission. Accordingly, we conclude that the imposition of a bargaining order is essential to remedy the unfair labor practices and to protect the statutory rights and interests of employees.' 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, with the additions indicated, and hereby orders that the Respondent, Arrow Specialties, Inc., of St. Louis County, Missouri, its officers, agents, successors and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as amended herein. 1. Add the following as section 1(e) of the Recommended Order and reletter the following paragraph 1(f): "(e) Posting notices which modify, alter, or detract from notices posted pursuant to orders of, or agreements with, the National Labor Relations Board." 2. Add as the 12th paragraph of the Appendix the following: WE WILL NOT post any notices which modify, alter, or detract from notices posted pursuant to agreements with the National Labor Relations Board. 'N.L R B v. Gissel Packing Company, 395 U S. 575 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL BISGYER, Trial Examiner: This proceeding with all the parties represented , was heard on November 18 through 21, 1968, at St. Louis, Missouri, on the consolidated complaint of the General Counsel issued on October 3, 1968,' which was subsequently amended, and the amended answer of Arrow Specialties , Inc., herein called the Respondent or Company. Two questions are 'The consolidated complaint is based on separate charges filed in Case 14-CA-4688 on May 21, 1968, and in Case l4-CA-4845 on October 2, 1968. Copies of the charges were duly served on the Respondent by registered mail on the respective dates of filing 177 NLRB No. 92 ARROW SPECIALTIES, INC. 307 presented for decision - one, the validity of the Regional Director's order withdrawing approval of a settlement agreement previously executed by the parties, and the second, whether the Respondent, both before and after the settlement agreement engaged in unfair labor practices in violation of Section 8(a)(l), (2), and (5) of the National Labor Relations Act, as amended.' Although afforded the opportunity, the parties waived oral argument but thereafter the General Counsel and the Respondent filed briefs in support of their respective positions. Upon the entire record,' and from my observation of the demeanor of the witnesses, and with due consideration being given to the arguments advanced by the parties, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Missouri corporation , is engaged in the manufacture, sale, and distribution of screw machine products and related items at its plant and principal place of business in St. Louis County, Missouri. In the course and conduct of its business, the Respondent annually ships finished products valued in excess of $50,000 directly to points outside the State. The Respondent admits for the purpose of this case, and I find, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that the Respondent's operations meet the Board's standards for the assertion of jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, herein called the Union, is admittedly a labor organization within the meaning of Section 2(5) of the Act. 111. THE ALLEGED UNFAIR LABOR PRACTICES A. The Settlement Agreement; Its Revocation; Subsequent Proceedings On March 27, 1968,' the Union initiated its organizational drive at the Respondent's plant by 'Insofar as relevant, Sec. 8(a) makes it an unfair labor practice for an employer (I) to interfere with, restrain , or coerce employees in the exercise of the rights guaranteed in section 7; (2) to dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it . (5) to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section 9(a). Sec. 7 provides, among other things, that Employees shall have the right 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, and . to refrain from any or all of such activities .... Sec. 9(a) provides that Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment , or other conditions of employment distributing handbills with authorization cards attached among the Respondent's employees. Because of the Respondent's alleged conduct to counteract these efforts, the Union on May 21, filed an unfair labor practice charge against the Respondent, alleging violations of Section 8(a)(1), (2), and (5) of the Act (Case 14-CA-4688). Based on this charge a complaint issued on July 3, which was subsequently amended. Without admitting that it had committed any unfair labor practices, the Respondent on August 26 entered into a settlement agreement, approved by the Regional Director the next day, whereby it agreed to post a notice to all employees and to comply with its terms and conditions. The agreement further provided that "(c)ontingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above case." The notice the Respondent was required to post recited the rights guaranteed employees by the Act with the following assurances: WE WILL NOT do anything that interferes with these rights. You are free to join or not to join District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO. WE WILL NOT ask you anything about your or your fellow employees' union activities or feelings. WE WILL NOT threaten to take away any benefit you now have if you choose a union to represent you. WE WILL NOT give any benefits to you in order to influence your feelings about a union. However, we are not required to take away benefits we have already given you. WE WILL NOT tell you to go work elsewhere if you want a union or condition pay raises on your not signing an authorization card or get mad at you because you went to union meetings. WE WILL NOT suggest that you bargain directly with the company rather than through a union or direct or encourage you to form a committee to bargain with us and we will withdraw our recognition of the employee committee. As part of the settlement, the Union, with the Regional Director's approval, withdrew the 8(a)(5) refusal-to-bargain portion of its previously filed charge and the parties entered into a stipulation for certification upon consent election (Case 14-RM-338). This stipulation provided for an election to be held on October 4 in a production and maintenance employee unit. In accordance with the Settlement Agreement, the Respondent posted the Notice To All Employees. However, alongside of this notice, it simultaneously posted the Settlement Agreement, although not required to do so, and its own notice over the name of its president, Paul J. O'Brien, addressed "TO OUR EMPLOYEES" which read, as follows: Almost 4 months ago, we asked the N.L.R.B. to hold an election here. Up until now, the Machinists Union blocked your chance to vote by charges of unfair labor practices it filed against this Company. If those charges had been successful, you would never have had a chance to vote. testimony herein , to which no party has filed objection, is hereby granted in the respects indicated in said motion, except that one of the requested corrections is erroneously designated in the motion as appearing on p 429, 1. 43 instead of 1. 3. 'The General Counsel' s motion to correct the official transcript of 'Unless otherwise indicated, all dates refer to 1968. 308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Because we always felt you have the right to vote and should not be deprived of it, the charges against this Company have been settled. That is the reason for the "notice" posted here on the bulletin board . As you can see, it does nothing more than tell you what your rights are; namely, to decide for yourself whether or not to join the Union. The "notice" was agreed to by this Company only so you can vote. There is no indication that this Company has done anything wrong. The "settlement agreement," which was a part of the "notice," is posted immediately below and you can see what it means for yourself. A secret ballot election will be held here on October 4. No one will know how you vote. Whether you signed a card or not, you will have complete freedom to vote no. If you have not signed a card , there is no reason to do so since there definitely will be an election. If anyone tries to get you to sign a card or to vote for the union by threats of losing your job or other "punishment," which threats we know have been made to some of you, don't believe such statements. They are unlawful and should be reported to the N.L.R.B. As you know , we can't answer any questions you may have about the union . We do intend to let you know how we feel about it in the next few weeks and particularly why we feel you don't need a union here. (The indicated underlining appeared in the side notice.) Both notices and the Settlement Agreement remained posted for the 30-day period the official settlement notice was required to be posted. On October 1, the Regional Director indefinitely postponed the scheduled election. The next day, the Union filed a charge in Case 14-CA-4845, in which it revived its previous unlawful refusal to bargain allegations against the Respondent and charged other acts of interference, restraint, and coercion of employees. On October 3, the Regional Director issued an order, withdrawing his approval of, and vacating , the settlement agreement on the ground that he had received evidence that the Respondent "had committed acts constituting noncompliance with the terms of the settlement agreement and had breached the settlement agreement." On the same day the consolidated complaint in this proceeding issued, alleging presettlement unfair labor practices. The consolidated complaint was thereafter amended to include further 8(a)(1) allegations. The Respondent challenges the Regional Director's action in setting aside the settlement agreement and the litigability of its presettlement conduct. It argues that it had fully complied with the terms and conditions of the settlement agreement and denies that it engaged in any unfair labor practices subsequent to its execution or otherwise violated its provisions. The General Counsel, on the other hand, supports the Regional Director 's action, urging that the above quoted side notice which the Respondent had posted next to the Board notice , as well as the Respondent's subsequent unfair labor practices, justified the revocation of the Settlement Agreement and the issuance of the consolidated complaint herein. There is no question that a Regional Director may not set aside a settlement agreement and issue a formal complaint unless the charged party has failed to comply with its terms or committed further unfair labor practices. Specifically, the Board has found noncompliance where the charged party posted alongside of the settlement notice his own notice which tended to detract from the effectiveness of the settlement notice, thereby defeating its very purpose to assure employees that their statutory rights would be respected.' In the present case, the Respondent's private notice emphasized to employees that the Union's unfair labor practice charges had blocked their chance to vote and that, had those charges been "successful," the employees "would never have had a chance to vote." Obviously, this latter statement is not a true exposition of the law or employee rights. Moreover, the Respondent's notice advised the employees that it had settled the charges only because it did not want to see them deprived of their right to vote and in order to enable them to exercise this right . Thus, the Respondent unfairly cast the Union in the role of a culprit whose efforts to foist itself on the employees as their bargaining representative, without an election , was frustrated by the Respondent's agreement to settle the case. Finally, instead of assuring employees that it intended to abide by its commitments in the settlement notice, the Respondent asserted that there was no "indication [in the notice] that this Company has done anything wrong," and thus implied that the conduct he had agreed not to engage in was permissible. All things being considered, I find that the Respondent's notice was the type of notice that, tends "to minimize the effect of the Board's notice . [and] suggests to employees that the Board's notice is being posted as a mere formality and that Respondent's true sentiments are to be found in its own notice, not the Board's."` Clearly, such a notice defeats the very intent and purpose of the settlement agreement to assure employees that the Respondent would not intrude upon their self-organizational rights . Accordingly, I find that the Regional Director was fully warranted in vacating the settlement agreement and in proceeding to litigate the alleged unfair labor practices. In any event, as will be later discussed, the Respondent actually engaged in unfair labor practices subsequent to the execution of the settlement agreement and in breach of its terms. This constituted a justifiable ground for invalidating the settlement agreement.' We now turn to the evidence relating to the Respondent's alleged unfair labor practices. B. Presettlement Conduct 1. General Manager Paul P. O'Brien's response to the Union's appearance at the plant As indicated above, the Union initiated its organizational campaign on March 27 . Paul P . O'Brien, the Respondent's general manager, known to the employees and referred to herein as O'Brien , Sr.,' first became aware of it on April 19 when the Union resumed the distribution of handbills with authorization cards attached among the employees outside the plant. Manifestly, O'Brien, Sr., was not too happy over the prospect that the plant might be unionized . On or about April 20, Foreman Hogan' informed employee Ray N. 'Bangor Plastics, Inc., 156 NLRB 1165, 1166-67, enforcement denied 392 F.2d 772 (C. A. 6); The Paymaster Corporation, 162 NLRB 123, 125-128; Montgomery Ward & Co., 162 NLRB 369, 376-377, 380. Although the employer's notice in Bangor Plastics is factually distinguishable from the one in the present case, the Trial Examiner is, in any event, bound by Board precedent. `Bangor Plastics, Inc., supra. 1167. 'Wallace Corporation v. N.L.R.B., 323 U.S. 248, 253-255. 'Paul P . O'Brien, is the father of Paul J . O'Brien, the Respondent's president, who is known to the employees as O'Brien, Jr., and will also be referred to herein by that designation. 'Hogan's status as a supervisor will be later discussed. ARROW SPECIALTIES, INC. Dahlquist that O'Brien, Sr., wanted to speak to him concerning his attitude toward the Union. Dahlquist thereupon went to O'Brien, Sr.'s, office and informed him that the Union "stinks" and that he did not want it. O'Brien responded that he felt the same way and inquired whether Dahlquist knew who brought the Union in. Dahlquist replied that he did not know. On or about the same day, according to employee Isaac W. Perryman, he walked past O'Brien, Sr., and Hogan, who were engaged in conversation in front of the welding room, and overheard O'Brien, Sr., telling Hogan that if the Union came in, "we might lose some of our facilities." Perryman also testified that his hearing was impaired, that he was approximately 8 feet from O'Brien, Sr., when he heard the remarks in question, and that another employee, Claus Coke, was at least 12 to 14 feet away operating a machine. O'Brien, Sr., denied making the statements imputed to him. In view of Perryman' s hearing difficulties and the area and circumstances where the statements were purportedly made, I find his testimony in this regard not sufficiently reliable to be credited. On or about April 21, employee John W. Childers told Hogan that he felt left out because O'Brien, Sr., spoke to the other employees concerning the Union but not to him, and suggested that Hogan convey this message to O'Brien, Sr. Thereafter, O'Brien, Sr., approached Childers at the turret lathe he was operating and opened the conversation with a comment that he guessed that Childers was aware that the Union was "handbilling the place." O'Brien, Sr., then explained that the reason he had not spoken to him before was that he knew pretty well how Childers felt about the Union because Childers had supported the Union's prior organizational efforts. Childers agreed that he had previously favored the Union. O'Brien, Sr., then remarked that he personally would not favor the Union but would consider the kind of treatment he had received from the Company. After alluding to raises and other benefits the Respondent had given Childers, O'Brien, Sr., added that "if there were any employees out there who wanted a union shop so much, why didn't they just quit and go work in a union shop." O'Brien, Sr., then questioned Childers regarding complaints and problems he and other employees had. In reply, Childers suggested that O'Brien "go around and ask" the employees himself." On or about April 22, O'Brien, Sr., summoned employee Claus Coke to his office. There O'Brien, Sr., commenting that Coke was always free to come to his office with his "gripes" any time he desired, asked how "this thing" got started. When Coke answered that he did not know, O'Brien, Sr., expressed incredulity and inquired who comprised "the committee out there," apparently alluding to the employee committee mentioned in a union handbill." Coke denied knowledge of the existence of any employee committee. This elicited O'Brien, Sr.'s, retort that there had to be a committee "to get this thing started" but Coke persisted in his denial. O'Brien, Sr., stated that he could not understand "what was bugging the people" to want a union . When Coke answered that "The foregoing findings regarding O'Brien , Sr.'s, conversation with Childers are based on the latter's testimony which I find worthy of belief O'Brien, Sr., did not contradict Childers in specific respects but admitted that he asked Childers "if he wasn't satisfied in everything"; that he pointed out how Ch,lders' j ob had "improved since he [O' Brien , Sr.] had been with" the Company; that he inquired of Childers why the employees wanted a union , and that when Childers answered that he "heard a few gripes around there," O'Brien, Sr, interjected "[w[hy don't somebody come and talk to me about it." 309 he did not know, O'Brien, Sr., inquired how he should talk to employees. Coke replied that he did not think O'Brien, Sr., should call them in one at a time and suggested that he assemble the employees in a group and in that way find out what was wrong. This suggestion did not satisfy O'Brien, Sr., who asserted a preference to talk to the employees individually because "people don't seem to speak feelings in a group." The conversation ended with Coke's remark that it was up to O'Brien, Sr., to do as he wished." On April 22 or so, Foreman Hogan told employee Jerry Williams to shut down his machines and to see O'Brien, Sr. in his office. Upon his arrival, O'Brien, Sr., questioned Williams concerning employee complaints and why they needed a union . O'Brien, Sr., also inquired whether he knew who had started the union and, when Williams denied having such knowledge, O'Brien, Sr., commented that he had seen him "talking to the other employees more than usual" and thought that perhaps he was the one who had started it. Williams denied the accusation and, despite O'Brien, Sr.'s, repeated interrogation along this line, Williams adhered to his denial. Reminding Williams of the pay raises and benefits he and other employees had received, O'Brien, Sr., again asked why the employees needed a union. O'Brien, Sr., also declared that, if the union got into the plant, the Company would probably have to cut out all overtime in order "to pay what it would cost to get the union to come in. . .they couldn't afford both" the union and the overtime. " Probably on May 2,'° employee Virgil Burkett told O'Brien, Sr., that he needed a raise. O'Brien, Sr., voiced doubt that Burkett was entitled to one, observing that Burkett was "getting pretty old." Burkett replied that he was fully aware of it but that he was also doing a satisfactory job. The conversation ended with the remark that "we will see." About a week later, Foreman Hogan sent Burkett to O'Brien, Sr.'s, office. Referring to his earlier request for a wage increase, O'Brien, Sr., told Burkett that he wanted a truthful answer to one question before acting on the request. After Burkett assured O'Brien, Sr., that he would be truthful, O'Brien, Sr., inquired whether he had sent in "one of those union cards." When Burkett responded in the negative, O'Brien, Sr., stated he would give him a dime raise, adding that he would also give the same raise to Perryman, another elderly employee. During this conversation, Hogan entered the office and was advised by O'Brien, Sr., of his intention to give Burkett and "A handbill distributed by the Union on April 19 among the employees stated that "[w]hen employees in a plant wish to be organized into a GOOD STRONG UNION, they contact the Union Organizers. Your committee has contacted District No. 9, I.A.M A.W. Organizers." However, there is no evidence that a committee of employees was actually formed for such a purpose, although the record shows that several employees were interested in being organized and that one of them at least had communicated with the Union. "The above account reflects the sum and substance of Coke's testimony. O'Brien, Sr., could not recall having had the conversation in question. Coke impressed me as a candid and trustworthy witness not likely to fabricate testimony against his employer. I accordingly credit his account. "The foregoing testimony, which I credit, was given by Williams and was uncontradicted O'Brien, Sr., simply testified that he "might have" had a conversation with Williams on or about April 22 in which he asked him how he felt about the Union. "Although Burkett and O'Brien, Sr., testified that their conversation occurred on or about April 25, it appears from Burkett's other testimony, that it occurred after the conclusion of the second employee meeting called by O'Brien, Sr., which I later find was held on or about May 2 310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perryman a dime raise, if Hogan had no objections. Hogan stated that it was "all right" with him. Thereafter, the two employees received the promised raise." In the course of a conversation that O'Brien, Sr., had with employee Coke on April 29 concerning the postponement of a meeting with an employee committee, whose formation will be discussed below, O'Brien, Sr., asked Coke whether he knew if anybody had signed union authorization cards. Upon receiving Coke's negative reply, O'Brien, Sr., requested Coke to look and ask around to ascertain how many had been sent in to the Union. Coke, however, declined to do so for the asserted reason that he had no right to pry into other people' s business. About April 30, O'Brien, Sr., approached Doyle D. Stevenson, who was then employed on the second shift, and inquired how the Union was able to come to the plant to organize it. Stevenson replied that apparently an employee sought union representation. When Stevenson informed O'Brien, Sr., that he was a union member, the conversation terminated." On May 8, after working hours, Coke attended a union meeting at the VFW hall." The next day, O' Brien, Sr., called Coke to his office and, according to Coke's testimony, the following occurred: Prefacing his remarks with the statement that it was none of his business what Coke did on his own time, O'Brien, Sr., told Coke that "it did kind of burn... [him] up" that Coke went to that union meeting. Coke promptly reacted with agreement that it was none of O'Brien, Sr.'s, business what he did on his own time and accused O'Brien, Sr., of using spies to report his attendance, specifically naming Oliver Liptai, an estimator in the Company's employ." O'Brien, Sr., denied the accusation and, in the ensuing conversation, asserted that the Union "would actually hurt the company if. . .[it] came in"; that the employees "would stand to lose an awful lot of overtime"; and that, in particular, Coke and his wife, Leola, who was also in the Respondent's employ, would lose approximately $200 a month in overtime. O'Brien, Sr., admitted having had the above conversation in which Coke accused him of using Liptai to spy at the union meeting . However, O'Brien, Sr., testified that the subject came about because Coke "kept telling . . . [him] all the time" that neither he, nor his wife, nor his brother-in-law, Billy Roberts, another employee, was in favor of the Union." O'Brien, Sr., further testified that he told Coke that Coke's protestation didn't "make sense" to him because he knew that Coke had "attended those meetings"; that at this point Coke accused him of using Liptai as a spy; and that he (O'Brien, Sr.), denied the accusation, stating that it was "by accident" that he found "The foregoing account is based on Burkett 's testimony Except with regard to his inquiry into the union authorization card , O'Brien, Sr.'s, version does not in significant respects conflict with Burkett's. When questioned by the Respondent's attorney whether he had asked Burkett if he had signed one of those union cards at the same time he (O'Brien, Sr ), gave Burkett the raise, O'Brien, Sr., testified, "I don' t think so, I don't even remember that but it' s possible I might have asked him that." I find Burkett an honest witness whose recollection of the conversation in question is creditable "These findings are based on Stevenson 's undisputed testimony, which i credit However, I do not accept Stevenson's additional testimony concerning O'Brien, Sr's, other purported remarks relating to employees losing overtime which were not mentioned in the pretrial affidavit he had given to a Board Agent. "This meeting was announced in a handbill the Union had circulated at the plant on May 6 "As will later be discussed , Liptai's placement in the bargaining unit is in issue out.20 In addition to the foregoing, O'Brien, Sr., gave the following answers to questions put to him by the Respondent's attorney: Q. At this time, did you say anything to Mr. Coke about if the union would come in, the employees would start to lose a lot of overtime? A. I might have told them that in order to compete competitively, we would have to put more people on the night shift or we would have to figure higher prices and take a lower amount of business which would naturally lower our hours. Q. This is if the union came in and a union contract was signed? A. That's right. Coke impressed me as a forthright witness whose recollection of his conversation was more accurate than O'Brien, Sr.'s. I find Coke's version plausible and reveals conduct consistent with O'Brien, Sr.'s, other efforts to undermine the union drive in the plant. I therefore credit Coke's testimony. 2. O'Brien, Sr.'s, first meeting with employees; formation of the Committee On April 20, about 11:30 in the morning, O'Brien, Sr., assembled the employees in the toolroom which also served as the employees' lunchroom.31 He began his address with the declaration that he was burned up by a union handbill which stated that the employees were being cheated by the Company. Expressing the view that the accusation was an insult to the employees' intelligence, O'Brien, Sr., asserted that he had treated them fairly, paid them above union rates, and furnished them with 9 hours of work a day with overtime for work performed in excess of 40 hours. He pointed out that the employees "didn't need a third party in there," that the Company and employees "had been getting along all right," and that, if any employee thought he was being cheated, he should get a job in a union shop because the Company did not want employees making trouble. O'Brien, Sr., then stated that he heard that some employees had complaints and "gripes" and proposed that the employees select a committee which would receive their complaints and discuss them with him. Thereupon, O'Brien, Sr., Liptai, and Hogan, who were also present, left the meeting.22 "Under cross-examination Coke, who had signed a union authorization card on April 19, testified that he never told O'Brien, Sr , that he had no affiliation with the Union, although he did tell him "at one time at the very beginning" that he was not particularly interested in the Union but that, if a majority wanted it, he would be for it too When pressed to fix a date when he made those statements, Coke "guessed" it would be in June or July after he had signed the card. "According to O'Brien, Sr , he learned of Coke's attendance at the union meeting from his secretary, Kay Foster, who assertedly was in the vicinity of the VFW hall to pick up her children at her babysitter's home at the time of the scheduled union meeting O'Brien , Sr , testified that Foster told him that she saw employee Huntsman , who was then out sick, entering the hall with other "fellows" "to have a beer" and that he (O'Brien, Sr.), just "grinned at her and laughed and said he wasn't going in to have a beer, just forget about it" Apart from the fact that O'Brien, Sr.'s, testimony does not indicate that he explained the source of his knowledge to Coke in the course of their conversation, it also does not show that Foster identified Coke as one of the "fellows" who was with Huntsman Moreover, although Foster appeared as a witness, she was not questioned with respect to the above incident "O'Brien, Sr, testified that he did so at Foreman Hogan's suggestion and because of the handbills the Union had distributed. "The foregoing findings represent a composite of the testimony of employees Claus Coke, Dahlquist, Childers, Huntsman, Williams, and Leola Coke, and General Manager O'Brien, Sr., which I find credible ARROW SPECIALTIES, INC. A committee was then formed on which employees Coke, Childers, and Dahlquist volunteered to serve. During the lunch period that followed the meeting, employees submitted to the Committee their grievances and complaints which Coke and his wife subsequently reduced to typewritten form. Several days later the typewritten list of grievances was submitted to O'Brien, Sr. 3. The Respondent's attempt to legitimatize the Committee; the Committee's demise On April 29, O'Brien, Sr., was supposed to meet with the Committee to consider the employees' grievances. However, O'Brien, Sr., informed Coke of his inability to do so on that day because he was too busy with other matters. The next day, April 30, O'Brien, Sr., again advised Coke that their meeting would have to be postponed for the reason that he had a doctor's appointment after which he had to see someone to find out whether he could meet with the Committee because he thought he "broke the law when. . .[he] got this committee together because that would be something like a company union." On May 1, O'Brien, Sr., arranged with Coke to meet with the Committee for 5 minutes or so to explain something to them. Thereafter, Coke, Childers and Dahlquist, as members of the Committee, met with O'Brien, Sr., in the company president's office. O'Brien, Sr., informed the Committee that he had just come from his attorney's office and was advised that the Company could not meet with the Committee on company time and could not pay the Committee for time spent in attending such meetings. He then showed the committeemen a document drafted by the attorney entitled "Memorandum of Understanding" which he stated they had to sign before a meeting could be held. This memorandum, dated May 1968, read: Arrow Specialties, Inc., hereby agrees to discuss with a Committee of Employees , any matters they wish to discuss concerning conditions of employment at the Company, provided that the following rules are observed and agreed to: 1. The formation of the Committee of Employees was at the sole suggestion of one or more employees and was in no way suggested, fostered , or nurtured by the Company. 2. The Committee of Employees will decide for itself, its own composition , members, spokesmen and the like and the Company shall have no part in, shall not be consulted about and shall have no control whatsoever over who the Committee members are and/or how they were selected. 3. The Committee of Employees and the Company shall meet whenever mutually agreeable but in no event shall the meeting take place on Company time and the members of the Committee shall not be paid for the time they participate in said meetings. 4. The Committee of Employees agrees not to use any Company equipment or materials when they are acting in the capacity of a member of the Committee of Employees. Because of lack of corroboration , I do not adopt Leola Coke's additional testimony that on this occasion O'Brien , Sr , threatened to cut out overtime and send employees home when work ran out should the Union get into the plant. 311 The memorandum provided space for the signatures of the Respondent and each committeeman. The committeemen refused to sign the memorandum until they first talked it over among themselves. Probably at this juncture in the conversation, O'Brien, Sr., mentioned that the Company had been receiving letters from the city of St. Louis requesting information concerning employees subject to the city earnings tax.23 He told them that if he complied with such requests, which he did not particularly want to do, he would have to open up his books to the city and thereby disclose the identity of employees owing city taxes. Coke and Childers were among the employees who were delinquent in the payment of these taxes. In the course of their conversation, O'Brien, Sr., also observed that after the Committee signed the paper he and the Committee could meet outside the plant at lunch or he could send his secretary out for lunch the following day and they could `meet in the office. O'Brien, Sr., also referred to the list of grievances the Committee had previously submitted to him and indicated that he was inclined to grant at least 80 percent of the demands. Before leaving, the Committee told O'Brien, Sr., that they would let him know whether they would sign the memorandum." The following morning, May 2, O'Brien, Sr., came to Coke's machine, assured him that there was "no harm in signing this paper" because it was drafted to protect the Committee, as well as himself, and offered to arrange for Coke to speak to the Company's lawyer. Coke rejected the offer, saying that "since there are laws being broken and lawyers being called in," he did not want to have any part of it and that they would just disband the Committee and forget the whole thing. O'Brien proposed that the committeemen come to his office individually to read the memorandum again and decide for themselves whether or not to sign it. Coke agreed. Later in the day, Coke went to O'Brien, Sr.'s, office and read over the first numbered paragraph 1, quoted above, which exonerated the Company from responsibility for the Committee's formation. After doing so, Coke asked O'Brien, Sr., whether, if he signed that paper and 75 or 90 percent of the employees wanted a union, his action would give O'Brien, Sr., the right to tell the union organizers to leave because the Committee represented the employees. Although O'Brien, Sr., answered in the negative, Coke disagreed and refused to sign . 25 The same "The city of St. Louis has an earnings tax of one percent of gross income which is apphcable to city residents, regardless of their place of employment. Employers located in the city are required to make deductions from the pay of employees working there However, an employer, such as the Respondent who is located outside the city, is not required to make any deductions for city tax purposes. 'The above account is denved from Coke's testimony, which was corroborated in various respects by employees Childers and Dahlquist, and which I find is more reliable and complete than the versions given by other witnesses. O'Bnen, Sr., admitted requesting the Committee to sign the memorandum , stating that it was a necessary condition for meeting with them, and that the Committee refused to sign However , he denied that he mentioned anything about the city earnings tax on this occasion, although he had previously posted on the bulletin board letters received from the city of St Louis dealing with the subject, and that, in answer to a few employee inquiries, he assured them that he would not report them or permit the City to see his books unless he was forced to do so . Childers and Dahlquist, on the other hand, support Coke's testimony that the subject of the city earnings tax was brought up at the time the memorandum was presented for signature . I accordingly credit Coke's testimony, as related in the text above "The findings concerning Coke's conversations with O' Brien, Sr., are 312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD day, Dahlquist also went to O'Brien , Sr.'s, office to read the memorandum more carefully. While reading it, O'Brien, Sr., told him that paragraph 1, which indicated that he (O'Brien, Sr.) did not suggest forming the Committee, was not quite true but that everything else was true. O'Brien , Sr., further stated that, if Dahlquist had any questions, he could call O'Brien , Sr.'s, attorney." Following Coke's and Dahlquist's individual conversations with O'Brien , Sr., the Committee discussed the matter among themselves the same day and decided not to sign the memorandum . Thereupon, Dahlquist communicated this decision to O'Brien , Sr. As a result of the Committee's refusal to sign the document, the Respondent never met with the Committee to discuss the previously submitted grievances and the Committee ceased functioning. 4. The May 2 employee meeting; changes in terms and conditions of employment ; withdrawal of benefits As indicated above, the Committee had presented to O'Brien, Sr., a list of employee grievances and demands to improve their terms and conditions of employment. Since the Committee refused to sign the Memorandum of Understanding, O'Brien, Sr., called a meeting of employees on May 2 about 4 p.m. after the close of the day shift to announce his decision respecting their demands. Using the list as a guide, O'Brien, Sr., discussed each demand separately. He agreed to do the following: (1) grant employees a 3-week vacation after 10 years of service instead of 7 years, as requested;" (2) supply additional shop towels, although he thought the employees were wasting those already being furnished to them; (3) procure more and better safety goggles and call in a safety inspector to improve the Company's safety program; (4) provide better lighting facilities by cleaning and replacing lights and installing additional ones; and (5) institute for the first time a sick leave policy which granted employees one half day sick leave per month which could not be accumulated beyond one year, although employees requested a 3-year accumulation period. On the other hand, O'Brien, Sr., rejected the employees' demands for overtime pay for work in excess of 8 hours per day; an improved system of wage increases; Blue Shield coverage at Company expense, although he stated that he would reconsider this matter at some future time; and an increase in premium pay for night-shift work. After O'Brien, Sr., finished his talk, O'Brien, Jr., made some comments of his own. Expressing surprise at the small number of grievances that had been presented, he stated that he saw no reason for bringing "a third party into the act" since "this was something ... [the Company and the employees] could resolve between" themselves. He also said that "the door was open at any time, and . . .[the Company] would be willing to discuss with them salary increases, or any other complaints they had . . . [and] that the Company . welcome[s] . . . [its] employees calling to . [its] attention things . . . [it doesn't] recognize ... in the plant."" According to O'Brien, Sr., the only action subsequently taken by him with respect to the employee complaints was to furnish the employees with more towels; to install a number of lights, leaving a few more still to be installed; and to procure new safety glasses. In June, employee Dahlquist had a conversation with O'Brien, Sr., in which he asked O' Brien, Sr., whether he was entitled to sick leave for the time he took off from work the day before to take his wife to the hospital. Dahlquist testified that O'Brien, Sr., answered, "Oh, no, anything discussed at the last meeting [apparently referring to the May 2 meeting] is now null and void since you turned your back on us." r9 Denying making the quoted remark, O'Brien, Sr., testified that what he did say to Dahlquist was that his sick leave proposal was applicable to the employees only and not where their wives were involved and that, in any event, the proposal was not put into effect because he had not heard from the employees regarding it and unfair labor practice charges had been subsequently filed against the Company. A difficult credibility problem is obviously presented by this conflict in testimony. Considering O'Brien, Sr.'s, inclination to engage in conduct to undermine the Union's organizational efforts and the fact that Dahlquist appeared to me to be a person with a better memory of the event than O' Brien, Sr., and not one who would contrive a story, I credit Dahlquist's testimony. In so doing, I am mindful of the fact that there is nothing in the record to indicate that the sick leave policy was intended to apply to Dahlquist's situation. On the other hand, whatever the sick leave policy, there is also no evidence that its effectiveness or the granting of the employees' other demands at the May 2 meeting was made contingent upon the employees' acceptance. 5. The Union' s requests for recognition On May 13, union business representatives, Kermit Burrows and James Bagwell, appeared at the Respondent's plant where they met General Manager O'Brien, Sr. After introducing themselves, Burrows stated that the Union represented a majority of the Respondent's employees in a production and maintenance unit and requested recognition as the employees' exclusive bargaining agent. O'Brien, Sr., was then handed a standard form Letter of Recognition, which described the unit in detail, for him to sign. After reading it, O'Brien, Sr., stated that he was the wrong person to contact since his son, O'Brien, Jr., and a Mr. Reynolds owned the business and both were out of town but would return on May 15. Burrows then replied that he and Bagwell would return on that date. In the course of the conversation, O'Brien, Sr., mentioned that there were approximately 20 to 23 employees in the Company's employ. Before leaving, based on the former's credited testimony. According to O'Brien, Sr., the only conversation he had with Coke concerning the memorandum was at his meeting with the Committee . He also testified that he did not make the statements imputed to him by Coke, as indicated above, although he "might have said something like" there was no harm in signing the document, which was intended to protect Coke, as well as himself. 'The above findings are based on Dahlquist's credited testimony. "No employee, however, was then eligible for the 3-week vacation for the reason that the Company was then in existence only 8 years It is also noted that no testimony was presented concerning the other employee vacation proposals, except with respect to employee Pamela Moore'a absence due to pregnancy, which will be later discussed. 'The above embodies quotations from O'Brien, Jr.'s, testimony I find it unnecessary to determine , as Coke testified, whether O'Brien, Jr., also made certain antiunion remarks in view of the fact that such statements do not appear to be coercive or more than a prediction of economic consequences that follow from union organization "It is not contended that the sick leave offered by O'Brien, Sr., actually applied to Dahlquist's situation On cross-examination by the Respondent's counsel, Dahlquist testified that he signed a union authorization card on July 29, 1968, for the reason that O'Brien, Sr., had gone back on his word when he said everything was null and void, although he (Dahlquist) was previously opposed to the Union ARROW SPECIALTIES, INC. the Union's representatives apprised O'Brien, Sr., that they were fully aware of the Company's attempts to bargain with the employees, to form a committee, and to induce the committeemen to sign a statement exonerating the Company from responsibility for forming the Committee. O'Brien, Sr., however, insisted that the employees "came to" the Company on their own volition. On May 15, Burrows and Bagwell returned to the plant where they conferred with the Respondent's president, O'Brien, Jr., in O' Brien, Sr.'s, presence. Burrows repeated the Union's majority claim and requested O'Brien, Jr., to sign the form Letter of Recognition, which was handed to him. O'Brien, Jr., read this document and returned it, questioning the Union's asserted majority. Burrows, thereupon, offered to submit the signed authorization cards, which the Union had received from employees, to a neutral third party to substantiate the Union's majority claim. O'Brien, Jr., however, rejected this offer; stated that, if the Union believed it had a majority, it should submit to a Board-conducted election; and declared that he would not be coerced into recognizing the Union without an election. Burrows disavowed any intention to coerce him and assured him that this was strictly a business matter and that personal feelings were extraneous since they might have to bargain with each other at some future date. He also declined to pursue Board election procedures and declared that he knew that the Company had already bargained with employees in the unit and that it was trying to dissipate the Union's majority status. On this note, the meeting ended. The next day, Bagwell sent the Respondent a letter which was received on May 17, confirming the Union's May 15 oral request for recognition, repeating its offer to submit to a card check by a neutral third party, and asserting its readiness to institute negotiations. On the same day (May 16), O'Brien, Jr., sent the Union a letter in which he reiterated his previously expressed doubt of the Union's majority status and justified his refusal to recognize the Union on the all too familiar ground that cards were unreliable proof of employees' true desires for union representation. In addition, he wrote that he declined recognition because he had serious questions concerning "the proper scope and composition of the appropriate bargaining unit . Concluding, O'Brien, Jr., declared his willingness to bargain with the Union if it won certification after a Board election. On May 16, the Respondent also filed a representation petition for an election in a production and maintenance unit (Case l4-RM-338). The Union, in turn, filed an unfair labor practice charge against the Respondent, alleging, among other violations, an unlawful refusal to bargain (Case 14-CA-4688). 6. The contemplated promotion of employee Coke Coke was subpened by the General Counsel to appear as a witness in Case 14-CA-4688 on August 27. A day or so before Coke was to appear at the hearing, Foreman Hogan came to Coke's machine and asked him to join him in a cup of coffee, stating that he had something to discuss with him. Coke agreed and, in the ensuing conversation, Hogan told him that the workload was too much for him (Hogan) to carry; that he needed an assistant; that, after eliminating a number of named employees for various reasons, he concluded that Coke was his preference; that he had spoken to O'Brien, Sr., about making Coke his assistant;10 that O'Brien, Sr., was agreeable to the idea; and that the promotion would 313 probably mean a wage increase. In answer to Hogan's inquiry, Coke indicated that he was interested in that job. Hogan then stated that, "when this mess . [was] all over," he would get Coke as his assistant and suggested that he talk to O'Brien, Sr., about this matter. According to Hogan, prior to speaking to Coke, he had actually discussed the matter with O'Brien, Sr., and Liptai. Because the complaint case was settled, as previously noted, no hearing was held. It also appears that nothing further was said or done with respect to Coke's promotion until the September 30 episode related below. C. Postsettlement Conduct 1. The September 30 conversation About September 27, Coke went to O'Brien, Sr.'s, office to discuss the condition of several machines which were badly in need of repairs. Both O' Brien, Sr., and Jr., were present. In the course of their discussion, O'Brien, Jr., made it clear that the Company was in no financial position to buy new machinery and that he and Mr. Reynolds, owners of the Company, had exhausted their funds to construct their new building." Because of O'Brien, Jr.'s, statements concerning the Respondent's financial problems, Coke returned to O'Brien, Sr.'s, office on September 30. Coke informed O'Brien, Sr., that he came there "in the interest of the company" and suggested that, instead of writing campaign letters to the employees, which the Company was doing, it would be "better off" if O'Brien, Sr., would talk to the employees and "just level" with, and inform, them of the Company's financial situation, as O'Brien, Jr., had done in their September 27 conversation. Thereafter, O'Brien, Sr., after exacting a promise from Coke that nothing said between them would leave the office or be communicated to the Union, raised the subject of the election and asked Coke how he thought the election would go. When Coke replied that he had no idea, O'Brien, Sr., remarked that he had written the names of employees on a piece of paper and concluded that the election outcome would be a "toss up," adding that he did not mind saying that at one time he thought Coke, his wife, and Billy Roberts (Coke's brother-in-law) would vote for the Union. O'Brien, Sr., then informed Coke that he was thinking of making him .,an assistant foreman" and, just as Hogan had previously done, reviewed the reasons for eliminating other employee prospects. Coke then alluded to the embarrassing position in which he found himself, pointing out that, not only was he receiving various papers in the pending Board proceedings," but, if he should go to O'Brien, Sr.'s, office "It is not particularly important to determine whether Hogan characterized the new job as assistant foreman, as Coke testified, or simply as Hogan's assistant, as Hogan testified "O'Brien , Jr , was obviously in error in placing this conversation "in the end of April" According to O'Brien, Sr., Coke on this occasion also expressed regrets for getting involved with the union. In what appears to me to be in an exaggerated vein, O'Bnen, Jr., testified, as follows: . we had been getting the impression from Claus Coke all along that he didn' t want any part of the union, he kept hammering at us with that, that he wasn' t interested in the union , he wished he had not gotten involved. We were fearful to discuss anything with him, I mean we had been on pins and needles with anything we said because we would be hit with an unfair labor practice charge. . Coke, on the other hand, testified that only once "at the very beginning," which he "guessed" was in June or July, he told O'Brien , Sr., that he was not particularly interested in the Union, but that if a majority of the employees wanted it, he would be for it, too. Considering the record in the case, I credit Coke's testimony "On behalf of the Committee, Coke was served with pleadings and other 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to speak to him , the men would think he was selling them out, and if he should speak to the men , O'Brien, Sr., would think Coke was selling him out. O'Brien, Sr., then proposed to have Coke substitute for Hogan as his assistant when Hogan went on vacation the Monday after the election scheduled to be held on October 4, and thus replace Liptai who customarily substituted for Hogan in his absence . In this manner, O'Brien, Sr., told Coke, he would be eased into the assistant foreman job. O'Brien, Sr., also advised Coke that the promotion would provide for a pay raise of approximately 20 cents. However, O'Brien, Sr., added that, if the election went "the other way, then ... you have had your chance and you screwed yourself." At this point Coke left the office." 2. The October 2 or 3 episode About October 2 or 3, Coke was summoned to O'Brien, Sr.'s, office where O'Brien , Sr., chided him for revealing to employee Huntsman their discussion on September 30 concerning the source of O'Brien , Sr.'s, knowledge of Huntsman 's and Coke's attendance at the May 8 union meeting . O'Brien, Sr., observed that this disclosure was contrary to Coke's promise that no part of their conversation would leave the office. While Coke was explaining his position, O'Brien, Jr., entered the office and O'Brien, Sr., told his son that they were discussing how he (O'Brien, Sr.) learned about Coke' s attendance at the union meeting. This caused O'Brien , Jr., to remark that "this union deal has got me going crazy." Throwing a letter on his desk, O'Brien, Jr., continued, "They've even got me charged with breaking the law . . . and I haven't said anything to anybody."3' He then commented that, although he knew one way they could "get rid of this mess," he was not permitted to say it to Coke. However, after being told by O'Brien, Sr., to proceed anyway, O'Brien, Jr., stated that "if the persons who had signed union authorization cards would go down to the Labor Board and get their cards and tear them up, then the union wouldn't have [a] majority."" 3. The cancellation of the election On October 3, a day before the scheduled election, O'Brien, Sr., approached Coke and Hogan in the plant and stated that he had just received a telegram that the papers in this case. In the same capacity , he signed the Settlement Agreement and noted his appearance at the hearing before the Trial Examiner "The foregoing narration of the September 30 conversation is based on Coke's testimony which I find more convincing and accurate than O'Brien, Sr 's, version. ,.It appears that at about this time , the Respondent was served with a copy of the charge in Case 14-CA4845. "The foregoing account is derived from Coke 's testimony. O'Brien, Sr., denied that he had any conversation with Coke in his office after their September 30 conversation O'Brien, Jr., however, testified that on October 2 or 3 he walked into his father's office while his father and Coke were engaged in a conversation, that Coke declared that he was discontented with the Union and wished he had never gotten involved in it; that he (O'Brien, Jr.) responded that, "if you're so disenchanted with the Union, why don't you tell them so and tell them you're no longer interested in being a member of the union; and that Coke made no reply O'Brien, Jr, categorically denied that he told Coke to go to the Labor Board or the Union to get his card and tear it up. As I have indicated before , Coke impressed me as a persuasive and honest witness whose recollection of the events in question is more reliable than that of the O'Brien's. I, accordingly, credit his version. election was called off. In reply to Coke's question, O'Brien, Sr., said that he did not know why. At this point, Hogan walked away and O'Brien , Sr., remarked to Coke that "[t]hat kind of ties . [the Company's] hands," that he would "like to give out raises to the people" about which "they're all griping," but that he couldn't "give out raises because of this union deal." After stating that probably he could "go down to the union representative and the Labor Board " to see if they would let him give out raises, he added that he knew "what would end this once and for all, if the fellows who signed union authorization cards would go down to the Labor Board and get these cards and tear them up, then they wouldn't have nothing to go on." Coke thereupon returned to his machine.1' On the following Monday , October 7, Hogan left on vacation and Liptai substituted for him, as he usually did. The record shows that Coke was never appointed Hogan's assistant. On October 25, the employees went out on strike. D. Concluding Findings 1. With respect to interference, restraint, and coercion There can be no doubt that an employer is privileged to oppose a union's drive to organize his employees and to become their bargaining agent provided he does not resort to measures prohibited by the Act." I find that the Respondent, principally through its General Manager, O'Brien, Sr.," in an overzealous effort to prevent the Union from establishing itself in the plant, engaged in a course of conduct which exceeded permissible limits and infringed upon its employees' self-organizational rights. Without repeating the details , the Respondent, as found above, extensively questioned employees concerning their union membership, sympathies and activities, the identity of employees responsible for bringing the Union into the plant, the reasons prompting the union movement and the anticipated outcome of the scheduled Board representation election . Clearly, such interrogation, occurring as it did, "in an atmosphere of active opposition to the union, Bourne v . N.L.R.B., 332 F.2d 47, 48 (2d Cir. 1964), without explanation to the employees of the purpose of the questioning and under circumstances indicating that it had no legitimate purpose, Edward Fields, Inc. v. N.L.R.B., 325 F.2d 754, 758-759 (2d Cir. 1963), and was unaccompanied by any assurance against reprisals, see N.L.R.B. v. Lorben Corporation, 345 F.2d 346, 348 (2d Cir. 1965)," amounted to a coercive and unwarranted invasion of the employees' statutory right to organize.19 Also having an inhibiting effect on the employees' freedom to choose a bargaining representative are those "These findings are based on Coke's credible testimony O'Brien, Sr., only admitted that, upon receiving a telegram over the telephone , notifying him that the election was called off, he informed Coke of this development but denied the rest of Coke' s testimony. "Sec 8(c) recognizes this right in these terms- The expressing of any views , argument, or opinion, or the dissemination thereof, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. "As shown above, there are instances when President O'Brien , Jr , also participated in this conduct. "Bryant Chucking Grinder Company v. N.L.R.B, 389 F 2d 565, 567 (C A. 2), enfg. 160 NLRB 1526, cert. denied 392 U.S. 908; Strucksnes Construction Co, Inc., 165 NLRB No 102. ARROW SPECIALTIES, INC. 315 instances when the Respondent, with the evident purpose of discouraging union support and demonstrating the lack of need for union representation, solicited employee complaints involving their terms and conditions of employment; satisfied some of them; announced its readiness to discuss wage increases and other "gripes" the employees had; granted a wage increase to an employee as a reward for not signing a union authorization card; and advised another employee of his contemplated promotion at a higher wage rate, if the Union lost the election. In addition, in a further effort to pressure employees to repudiate the Union, the Respondent warned them to quit their jobs if they wanted a union; threatened them with loss of overtime if the plant were unionized;'" conveyed the impression to an employee that his attendance at a union meeting was under surveillance and reprimanded him for attending the meeting; impressed upon another employee that his union activities were being watched; accused an employee of initiating the union movement; requested an employee to ascertain for the Respondent the number of employees who had signed union authorization cards; impliedly threatened employees to make available to the City of St. Louis information relating to their earnings affecting their city tax liability in order to induce them to sign a document exonerating the Company from responsibility for illegally sponsoring the formation of the employee Committee; informed an employee that previously promised benefits were withdrawn because the employees turned their backs on the Respondent; solicited employee withdrawal of union cards for the stated reason to undermine the Union's majority status and thereby to eliminate the Union from the plant and enable the Respondent to grant employees wage raises; and placed the blame on the Union for the Respondent's inability to increase wages. By reason of the foregoing conduct, whether viewed in its totality or singly, I conclude that the Respondent interfered with, restrained and coerced its employees in violation of Section 8(a)(1) of the Act. 2. With respect to the formation of the Committee As previously discussed, shortly after General Manager O'Brien, Sr., learned of the Union's organizational drive, he called a meeting of employees , advised them that they had no need for a union and proposed that they form a committee to handle their complaints and grievances. After O'Brien, Sr., Foreman Hogan and Estimator Liptai left the meeting, such a committee was established composed of three employee volunteers. The Committee promptly solicited grievances , which were thereupon reduced to typewritten form and submitted to O'Brien, Sr. Except for this grievance activity, the Committee never functioned and, for all practical purposes , subsequently disbanded because of the committeemen's refusal to sign a statement exonerating the Respondent of any connection with its formation. I find, in disagreement with the Respondent's contention , that the Committee was in nowise related to the organizing committee mentioned in one of the Union's handbills, nor was it an outgrowth of that body. On the contrary, I find that it was the Respondent who initiated "in so finding, I rely on O' Brien, Sr's, statements to employee Claus Coke which were made in the context of reprisal action to be taken by the Respondent but not on O'Brien, Sr.'s, remarks to employee Williams which were couched in terms of a prediction of the economic consequences of unionization. and inspired the formation of the Committee , undeniably a labor organization as defined in Section 2(5) of the Act," and who then unsuccessfully sought to perpetuate its existence. In these circumstances, I find that the Respondent interfered with the formation of the Committee and contributed support to it and thereby violated Section 8(a)(2) and (1) of the Act. 3. With respect to the refusal to bargain a. The appropriate unit The parties are in agreement that the following described unit is appropriate for collective-bargaining purposes: All production and maintenance employees at the Respondent's plant at 155 Hanley Industrial Court, St. Louis County, Missouri, excluding office clerical and professional employees, guards and supervisors as defined in the Act. They also agree that 20 employees named in a list of 23 employees which the Respondent had submitted to the Regional Office on June 14 in connection with its previously filed representation petition (Case 14-RM-338) belong in the bargaining unit. In dispute, however, is the placement of Paul Hogan, Leonard Schreier, Pamela Moore, whose names also appear on the list, and Oliver Liptai, whose name was omitted from the list. It is the position of the General Counsel and the Union that only Moore should be included, whereas the Respondent would exclude Moore but include the other three individuals. Alternatively, the Respondent argues that if Hogan is excluded as a supervisory employee, Doyle Stevenson should be excluded for the same reason. We turn to a consideration of these questions. Hogan The Respondent operates a contract machine shop under the overall supervision of General Manager O'Brien, Sr., whose responsibilities encompass not only production, but also purchasing, shipping and other nonselling functions. Directly under him in the shop is Hogan who oversees the work of some 16 employees on the day shift. On the basis of a work sheet received from O'Brien, Sr., it is Hogan's responsibility to process, schedule and assign jobs to be worked on the various machines, furnishing the operators with the tools, cams and other items needed to run the jobs. When the occasion arises, Hogan is "a trouble shooter" who repairs equipment and makes tools. He devotes more time supervising the automatic screw machine operations than the secondary operations" where additional work is performed on the parts fabricated by the screw machines. Although primarily assigned to the day shift, his duties carry him over "quite a bit" to the night shift on which about four employees are employed. As he does on the day shift, Hogan lines up the jobs to be performed on the night shift and selects the particular tools and cams to be used on the different machines. Like the rank-and-file "Sec. 2(5) of the Act includes within its definition of labor organization any "employee representation committee or plan , in which employees participate and which exists for the purpose , in whole or in part, of deahng with employers concerning grievances, labor disputes , wages, rates of pay, hours of employment, or conditions of work." "Hogan testified that there is a "sort of leadman " who assists him in the secondary department. 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees, Hogan wears work clothes and is paid an hourly rate and overtime. However, he is not required to punch a timecard which rank-and-file employees must do, but at the end of the day notes the total number of hours he had worked." In addition to his production duties, Hogan interviews applicants for employment and reports to O'Brien, Sr., whether or not they are acceptable. O'Brien, Sr., in turn, does the actual hiring and determines the wage rate to be paid the new employees. Hogan may either grant an employee's request for time off or may tell him to ask O'Brien, Sr. Oliver Liptai, whose status will later be considered, testified that he thought that it would be Hogan who "more or less" would get into "the area" of making effective recommendations with respect to the hiring, firing and promotion of employees, wage increases and time off. Moreover, the record shows that on one occasion O'Brien, Sr., informed employee Burkett that he would grant him a wage raise only if Hogan recommended it and then gave him the increase upon Hogan's recommendation. The record further discloses that Hogan also advised employee Coke that he was considering him for promotion as his assistant after eliminating other prospects. Finally, it is significant that, when O'Brien, Sr., proposed at the April 20 meeting that the employees select a Committee to handle their grievances, O'Brien, Sr., accompanied by Hogan and Liptai, left the room so that the employees could act on the proposal. In view of the foregoing, I find, contrary to the Respondent's contention, that Hogan possesses the authority both to make effective recommendations with respect to the status of employees and responsibility to direct employees in a manner requiring the exercise of independent judgment and discretion to constitute him a supervisor within the meaning of Section 2(11) of the Act." Accordingly, Hogan is excluded from the unit. Stevenson As indicated above, the Respondent's alternative position is that Stevenson should be excluded as a supervisory employee if Hogan was. Stevenson appears to be the most experienced worker on the night shift which employs between three and five employees. °' Although characterized as a leadman, the employee list which the Respondent had submitted in the representation case, classified him as "apprentice set up man." When Stevenson reports for work, he customarily receives from Hogan the daily assignment of work that he and the other second-shift employees are to perform on their machines. Hogan also selects the tools and cams required for the particular jobs, which Stevenson furnishes the operators. Stevenson, himself, spends approximately 60 to 70 percent of his time operating machines and the balance of his time helping other employees do their work and solve their problems. He also makes needed repairs to machines. If Stevenson encounters difficulties with which he could not "It appears that management and the employees have the same Blue Cross hospitalization coverage. 'Sec 2( l 1) provides The term "supervisor" means any individual having authority in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment cope, he calls Hogan. Stevenson has a key to the premises and at the end of the shift sees that the windows are closed, the lights are turned off, and the doors to the shop are locked. Like other employees, he punches a timeclock and is paid an hourly rate which is equal to, or lower than, that paid to several employees on the day shift. There is no evidence that he enjoys any of the attributes of a supervisor as defined in the Act or that his status is comparable with Hogan's. As I find that Stevenson has the same interest in the terms and conditions of employment as the other employees, I include him in the bargaining unit. Liptai Liptai is an estimator who shares an office with General Manager O' Brien, Sr., in a part of the building not visible from the shop. His principal duty is to prepare bids for jobs. This involves determining the quantity and cost of materials needed, the time factor in running the job, and the type and quantity of tooling required. Between 70 and 75 percent of his time is devoted to figuring bids, which are then reviewed by O'Brien, Sr., and, if approved, are submitted to the customers. When the Respondent is awarded a job, Liptai orders the tooling and materials. The cost of the tooling amounts to approximately $2,000 to $2,500 a year. During the processing phase of a job, Liptai checks the progress of the work in the shop and whether the produced parts meet specifications; instructs operators on how to perform the particular job; assists in ironing out difficulties; supervises the inspection of parts; returns to the supplier the tools and cams which require reworking; and occasionally sets up a secondary machine for an operator. According to Liptai, he spends about 25 to 30 percent of his time in the shop. On occasion he may leave the shop to discuss complaints with customers or to bring tools to a supplier to be reworked. Sometimes he also oversees the shipping of completed parts. Unlike shop employees, Liptai wears street clothes while at work, does not punch a timeclock, and receives a fixed salary which exceeds the wages paid shop employees. His working hours are also different from those of the shop employees. During Foreman Hogan's absence, Liptai substitutes for him. When questioned at the hearing whether he had the authority to make effective recommendations with respect to the hiring and firing of employees, raising wages, granting employees timeoff or promoting employees, Liptai gave this ambiguous answer: Well, I think so. I think in a way I could. It never has come up, but I think Mr. Hogan would be more or less in that, but I don't get into that area. As indicated above, Liptai's name was omitted from the list of unit employees which the Respondent had previously submitted in the representation case and, with O'Brien, Sr., and Hogan, withdrew from the April 20 meeting when the employees considered O'Brien, Sr.'s, committee proposal. "The description of Stevenson's duties are confined to the times relevant to the issues in this case According to Stevenson ' s uncontradicted testimony, in September 1968, which was subsequent to the critical dates, O'Brien, Sr, told him that he was in charge of the second shift and that, instead of doing setup work , he was to supervise employees and inspect their work . Previously, he had been appointed leadman and did no inspection work. In September, Stevenson was also given a wage increase. Notwithstanding the change in duties, Stevenson continued to operate machines ARROW SPECIALTIES, INC. On the basis of the foregoing , I find that whether or not Liptai possesses the authority to constitute him a supervisor within the meaning of the Act, he does not share a sufficient community of interest with the shop employees to warrant his inclusion in the unit. Accordingly, Liptai is excluded. Schreier Schreier reached his 70th birthday in August 1968. He had previously retired at the age of 65 when he began receiving social security benefits. About a year or so later, Schreier decided to return to work on a part-time basis and obtained employment with the Respondent with the understanding that his hours would be limited so that his gross earnings would not exceed the maximum amount allowed Social Security annuitants . For 1968, the amount was $1,800 . Accordingly, Schreier has been working 5 days in Bach 2-week period ,'6 except that where there is a fifth week in any 2-month period he does not work that week at all. Unlike unit employees, he receives no paid holidays or vacations and limits his workday to 8 hours. The Board has traditionally excluded from bargaining units Social Security annuitants who limit their earnings to the maximum amount allowed recipients of social security . 07 While the Respondent makes a cogent argument for Schreier's inclusion in the unit based on the Court's decision in Indianapolis Glove Co. v. N.L.R.B.," which held that Social Security annuitants share a sufficient community of interest with full-time employees in terms and conditions of employment, the Trial Examiner is bound by Board precedent until the Board decides to change it . Accordingly, I reluctantly exclude Schreier from the unit. Moore Pamela Moore left her job on May 9, before the Union's first demand for recognition, because of her pregnancy. Although she gave birth on September 25, she never advised the Respondent that she wanted to return to work." The General Counsel contends that Moore was on maternity leave and therefore should be included in the unit. The Respondent, on the other hand, insists that she had quit her employment on May 9 and that therefore she should be excluded from the unit. The record discloses that about 3 weeks before Moore's departure, O'Brien, Sr., discussed with Moore her present and future job intentions. According to Moore, O'Brien, Sr., asked her whether she intended to quit or take a leave of absence or "what" and that she replied that she preferred a leave of absence . Moore further testified that O'Brien, Sr., suggested that she change her hospitalization insurance and make arrangements for the payment of the premiums because the Company was not going to "In September 1968 the number of days worked in a 2-week period was reduced to four. "Taunton Supply Corp ., 137 NLRB 221-223 ; The Kostel Corporation, 172 NLRB No. 167; John P. Krystymak, d/b/a Red & White Super Markets, 172 NLRB No. 210. 400 F.2d 363 (C.A. 6), decided September 13, 1968. "Moore testified that in the middle of November she received permission from her doctor to return to work but that she was "just in no hurry" to do so and "decided to wait a couple of weeks ." It is noted , however, that the strike at the Respondent's plant, which began on October 25, was still in progress in November. The Respondent states in its brief that, after the hearing, Moore sent word to the Company through the Union that she was not interested in returning to work. 317 continue her insurance while she was "on leave." Moore further testified that a day before she left , O'Brien, Sr., asked her about her health , and when she planned on returning; that she answered that since she expected to give birth on October 25, she would probably return the first or second week in November ; and that O'Brien, Sr., stated, "O.K., adding, however, that her return would depend on whether "the union gets in or not whether we will need you or take you back." Under cross-examination, she testified that her testimony that she was on leave of absence was in her own words. O'Brien, Sr., admitted talking to Moore about her pregnancy and leaving her job and that she told him that she wanted to return after her baby was born . He also testified that he informed her that she was a good worker; that he had no objection to her returning, if work were available; and that he suggested that she call him when she was ready to return. According to the undisputed testimony of Kay Foster, O'Brien, Sr.'s, secretary, which I credit, Moore asked her about a week before she left to find out from O 'Brien, Sr., whether he would advise the unemployment insurance agency that she was fired so that she could qualify for unemployment benefits . Moore also told Foster that she was informed by that agency that she would not be eligible for benefits if she quit her job but would be if she were discharged. Foster, thereupon, conveyed this message to O'Brien, Sr., but refused Moore' s request. Foster transmitted this reply to Moore. O'Brien, Sr., testified that he, too, later advised Moore that he would not comply with her requests" It is clear that since the Company's inception it had no maternity leave policy . Indeed, it appears that Moore's situation was the first time that the question had arisen. In addition, it appears that, following her departure, Moore's name was not retained on the Company's payroll records as an employee. From a careful analysis of all the relevant evidence," I am persuaded that O'Brien, Sr.'s, testimony regarding his conversation with Moore is more reliable than Moore's and reveals that O'Brien, Sr., had no intention of continuing Moore as an employee during her absence. At most, it appears that O'Brien, Sr., expressed a favorable inclination to reemploy her should she decide to return to work after the birth of her baby , provided work was available and circumstances permitted him to do so. Substantiating O'Brien , Sr.'s, testimony that Moore had resigned is Foster's uncontradicted and credible testimony that Moore requested her to ask O'Brien , Sr., to inform the unemployment insurance agency that Moore was fired because if she had quit she would not be entitled to unemployment benefits. As Moore lost her employee status before the Union demanded recognition from the Respondent, she is excluded from the unit. "Moore testified that she did not remember discussing the subject of unemployment insurance with O'Brien , Sr. I find O'Brien, Sr.'s, testimony credible in this respect "This includes the testimony of President O'Brien , Jr., and employee Coke regarding O'Brien, Sr.'s, remarks at the May 2 meeting concerning Moore's leaving the Company. I have also taken into consideration the fact that Moore's name appears on the list of employees which the Respondent had submitted to the Regional Office in connection with its representation petition. 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD b. Majority status; refusal to bargain It follows from my findings respecting the composition of the appropriate unit that at all critical times during the weekly payroll period ending May 17, there were 20 employees in that unit. The General Counsel claims that at such times the Union enjoyed majority status evidenced by authorization cards signed by the Respondent's unit employees." As discussed earlier in this decision, the Union made its initial request for recognition on May 13 when Union Representatives Burrows and Bagwell conferred with General Manager O'Brien, Sr. However, on that date the Union had 10 authorization cards51 which manifestly fell short of a majority entitling it to recognition. Nor did the Union have a card majority on May 15 when it returned to the plant to discuss recognition with President O'Brien, Jr. The record is too equivocal to support the General Counsel' s contention that on May 15 the Union had received two additional cards from employees Burkett and Prettyman. Thus, although Burkett's card was dated May 15, 1968, he could not recall when he signed it" and he, as well as the Union's representatives and other witnesses for the General Counsel who had anything to do with the card, denied dating the card. However, it is undisputed that Burkett and Prettyman received blank cards from employee Huntsman on the same day shortly before their shift ended, which they promptly signed and returned to Huntsman. Significantly, Prettyman's card was dated May 16, 1968, and he testified that he had signed it on that date." Huntsman, however, could not recall the date he gave the cards to Prettyman and Burkett. "These cards read, as follows YES, I WANT THE IAM I. the undersigned employee of (Name of Company) authorize District 9. International Association of Machinists and Aerospace Workers (IAM) to act as my collective bargaining agent for wages , hours and working conditions I agree that this card may be used either to support a demand for recognition or an NLRB election, at the discretion of the union NAME DATE HOME ADDRESS PHONE CITY STATE ZIP JOB TITLE DEPT SHIFT SIGN HERE NOTE This authorization to be SIGNED and DATED in Employee's own handwriting YOUR RIGHT TO SIGN THIS CARD IS PROTECTED BY FEDERAL LAW. RECEIVED BY ( Intial). "Since I have excluded Moore from the unit , her card, which was signed on April 19, is not counted. On the other hand, the 10 cards includes one signed on April 22 by employee Stevenson who, I have found, belongs in the unit. Employee Coke testified that about May 15, some 10 minutes after he got off from work at 4:30 p.m., Huntsman delivered Prettyman's and Burkett's cards to him; that thereafter outside the shop he met International Representative Bagwell who informed him that the Respondent had "just" rejected the Union's request for recognition; and that he (Coke) thereupon handed Bagwell the two cards in question . According to Bagwell, he received these cards from Coke on May 15 at the time and place indicated by Coke about an hour or hour and a half after O'Brien, Jr., declined to recognize the Union. However, in an affidavit which he gave a Board Agent, Bagwell stated it was on May 17 when Coke delivered Perryman's and Burkett's cards to him." In view of the foregoing, I find that the General Counsel failed to prove that the Union had a card majority at the time it requested recognition on May 15. On the other hand, I find, in accordance with Prettyman's credible testimony, that he and Burkett did sign authorization cards on May 16, which they then delivered to employee Huntsman, who was acting on behalf of the Union. These cards thus gave the Union a card majority of 12 out of 20 employees in the appropriate unit. I therefore find that the next day when the Respondent received the Union's May 16 letter in which the Union reiterated its recognition request and offered to submit proof of its majority status to a neutral party, the Union was actually the duly designated bargaining representative of the Respondent's employees," whom the Respondent was obligated to recognize, unless it had a good-faith doubt of the Union's majority status. "Although Burkett testified that he was unable to recall when he signed the card, he stated that he believed it was May 25. However, in view of the other evidence discussed above, I find that this date is definitely a poor guess "Prettyman also testified that about 3 weeks earlier he had signed another authorization card which he had deposited in a letter box but which "never did show up " It is noted that the back of the card contained the Union's name and address and provided for prepaid postage. "The affidavit reads 27) On May 17, 1968, Bert Townsend organiser [sic], and 1, went to Arrow and met with Klaus [sic] Coke, Huntsman, Jerry Williams, and Leora [sic] Coke I told them, out in the street again , that the Company had filed a petition and that we were going to file charges with the NLRB At that time Klaus Coke gave me two more cards, signed by Isaac Perryman and Virgil Burkett . r s s s r 29) All the cards from Arrow employees, were either received by us in the mail, or given to me by Coke on May 17, 1968 Townsend was not produced as a witness and, although Huntsman, Williams and Leona Coke testified, they did not cover this episode. Bagwell also produced an appointment book purporting to contain an entry showing the delivery of two cards on May 15 In light of all the evidence, this entry does not convince me that Bagwell received the two cards in question on that date "The Respondent does not challenge in its brief the validity of the Union's authorization cards, although it raised objections to the receipt in evidence of the cards of employees Bell, Childers, Terrance Hall, Brelsford, Burkett, and Prettyman . I overruled these objections and now adhere to my rulings. I find that Bell's card was properly authenticated by Moore. McEwen Manufacturing Company and Washington Industries, Inc, 172 NLRB No . 99. With respect to the cards of the other named employees, I find, on the basis of all the circumstances surrounding their execution, including the Union 's handbills and leaflets, and the language of the cards, that these employees did not sign the cards in reliance on any representation by a union solicitor that the sole purpose of the cards was to secure a Board election. On the contrary, I find that these signers clearly intended by their act to designate the Union as their bargaining agent. Accordingly, I find that these cards are valid to establish the Union's majority status Levi Strauss & Co , 172 NLRB No. 57 In addition to the above-mentioned 12 cards, the card of employee Hof ARROW SPECIALTIES, INC. The Respondent maintains that it acted in good faith in questioning the Union's majority and insisting on a Board election to determine the Union's right to represent the Company's employees. I find otherwise. It is settled law that a Board-conducted election is not the only method whereby a union may establish that it has been designated by a majority of employees in an appropriate unit to represent them in collective bargaining with their employer. SB It has also been held that "where a union has obtained valid authorization cards from a majority of the employees in an appropriate unit, the employer is vulnerable to a Section 8(a)(5) violation if, absent a good-faith doubt as to its majority status, he refuses to recognize and bargain with the Union."" I find it difficult to accept the Respondent's protestations of good faith. Certainly, its aggressive campaign, described earlier in this Decision, to prevent the Union from organizing its employees does not reflect well on its asserted reason for refusing to recognize the Union. Indeed, its aborted attempts to establish a committee to handle employee complaints and grievances as a substitute for union representation betrays a predisposition not to deal with the duly designated representative of its employees . It is true that the Respondent expressed a willingness to bargain with the Union if it won a Board election. However, when, as part of the settlement of the unfair labor practice charge against the Respondent in Case 14-CA-4688, the Union willingly withdrew the 8(a)(5) allegations of its charge and agreed to submit its representation claim to the test of a ballot, the Respondent made the holding of a fair election impossible. Not only did it post a side notice which defeated the intent and purpose of the settlement agreement, but engaged in other unfair labor practices in breach of the terms and conditions of that agreement. As a result, the Regional Director properly vacated the settlement agreement and indefinitely postponed the scheduled representation election . Further manifesting a determination not to deal with the Union is the Respondent's solicitation shortly before the scheduled election of employee withdrawal of their authorization cards to destroy the Union's majority. In sum , I find that the Respondent's refusal to recognize and bargain with the Union was prompted, not by any honest belief that the Union did not enjoy majority support, but by its complete rejection of the collective-bargaining concept and its desire for additional time to dissipate the Union's majority. Clearly, such an attitude cannot be reconciled with the bargaining obligation imposed on employers by the Act. The Respondent, nevertheless, argues that, despite the Union's majority status, it should not be found guilty of an unlawful refusal to bargain because the Union itself demanded recognition in bad faith initially when it did not represent a majority of the employees and subsequently when it lacked knowledge whether or not it actually did. Assuming this would be a valid ground for exonerating was received in evidence over the Respondent's objection. This card was signed and mailed to the Union on May 16. Although I adhere to my ruling receiving the card in evidence, I will not count it in determining the Union's majority status for the reason that it appears that Hof had signed the card in reliance on International Representative Bragwell's representation that the Respondent had rejected the Union's bargaining request and that the card was needed to secure an election. "United Mine Workers of America v. Arkansas Oak Flooring Company, 351 U.S. 62, 72, In 8; N.L.R B v. Arkansas Grain Corporation, 390 F.2d 824, 828 (C.A 8). "N L R.B v Arkansas Grain Corporation, supra, 828 319 the Respondent, I find no factual support for its contention. On the contrary, I find that the Union made its earlier recognition requests in the honest belief that it represented a majority of the employees in an appropriate unit. The record shows that on May 13 and 15, the Union had 11 cards and acted only after it had verified from employee Claus Coke's count of the number of timecards in the rack at the timeclock and Union Representative Bagwell's count of employees entering and leaving the plant during the shift change that there were about 20 or 21 employees who belonged in the unit. Although I have excluded one card signed by Moore because she had left the Respondent's employ before the Union's first request, there is nothing in the record to impugn the Union's belief, although erroneous, that Moore was on maternity leave and therefore retained her employee status for the purpose of determining the Union's majority. Moreover, simply misjudging the size of a unit is no justification for depriving employees of their right to representation where, as here, the Union actually represented a majority of the employees at the time the Respondent received its last demand for recognition.60 Accordingly, I find that the Respondent, in disregard of its statutory obligation, refused to recognize and bargain with the Union on and after May 17, as the exclusive representative of the Company's employees in an appropriate unit and thereby violated Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and its free flow. V. THE REMEDY Pursuant to Section 10(c) of the Act, as amended, I recommend that the Respondent be directed to cease and desist from engaging in the unfair labor practices found and to take certain affirmative action designed to effectuate the policies of the Act. To remedy the Respondent's unlawful refusal to fulfill its statutory obligation, I recommend that it be directed to bargain, on request, with the Union as the exclusive representative of the Company's employees in the unit found appropriate herein. Even were I to find that the Respondent did not violate Section 8(a)(5) of the Act, I would still recommend a bargaining order in view of the serious and pervasive nature of the Respondent's unfair labor practices which manifestly destroyed the laboratory conditions necessary for the holding of a free and fair election in which the Union's strength could be reliably tested." "N L R B v Arkansas Grain Corporation, supra, relied upon by the Respondent, is clearly distinguishable There, unlike here, the union first achieved a majority several days after the employer received the union's last demand for recognition Moreover, in the cited case, the court found that the union did not act in the "honest but mistaken" belief that it represented a majority of the employees at the critical times. In the present case, I have found otherwise. "N L R B v. Delight Bakery, Inc, 353 F 2d 344, 346-347 (C.A. 6), enfg 145 NLRB 893, 908-909. 320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the Committee became defunct shortly after its formation, the customary disestablishment order is not recommended. On the other hand, the nature and extent of the Respondent's unfair labor practices reveal a potential danger that the Respondent might commit other unfair labor practices proscribed by the Act. Accordingly, I recommend that the Respondent be ordered to cease and desist from in any other manner infringing upon the rights guaranteed employees in Section 7 of the Act." The posting of an appropriate notice to employees is also recommended. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at the Respondent's plant at 155 Hanley Industrial Court, St. Louis County, Missouri, excluding office clerical and professional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all material times herein since May 16, 1968, the Union has been the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By refusing on and after May 17, 1968, to recognize and bargain collectively with the Union as the exclusive representative of the employees in the above -described appropriate unit, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By promoting, supporting and otherwise interfering with the formation of the Committee , a labor organization as defined in Section 2(5) of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(2) of the Act. 7. By reason of the foregoing conduct and its antiunion activities set forth in section III, D, 1, the Respondent has interfered with , restrained and coerced employees in the exercise of their statutory rights within the meaning of Section 8(a)(1) of the Act. 8. The Respondent has not engaged in other alleged conduct in violation of Section 8(a)(1) of the Act, except as found above. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is ordered that the Respondent, Arrow Specialties, Inc., St. Louis County, Missouri, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with District No. 9, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment: All production and maintenance employees at the Respondent's plant at 155 Hanley Industrial Court, St. Louis County, Missouri, excluding office clerical and professional employees, guards and supervisors as defined in the Act. (b) Sponsoring, supporting or otherwise interfering with the formation of an employee committee or other labor organization as defined in the Act. (c) Coercively interrogating employees concerning their union membership, sympathies, and activities, the identify of employees responsible for bringing the Union into the plant, the reasons which prompted the union movement, and the anticipated outcome of any Board-conducted election. (d) Requesting any employee to ascertain for the Company the number of employees who signed union authorization cards; accusing any employee of responsibility for initiating the union movement ; warning union supporters to secure other employment; threatening employees with loss of overtime in reprisal for organizing; threatening employees in any manner in order to induce them to sign a document absolving the Company from responsibility for illegally sponsoring the formation of an employee committee to handle their complaints and grievances; reprimanding employees for attending a union meeting or giving them the impression that the Company was keeping union meetings and their activities under surveillance; granting, promising or offering to discuss with employees wage increases, improvements in terms and conditions of employment or promotions for the purpose of discouraging them from supporting the Union; warning employees that it would rescind previously granted or promised benefits because they supported the Union; soliciting employees to withdraw their union authorization cards in order to destroy the Union's majority in return for a wage increase; and blaming the Union for the Respondent' s withholding of wage increases to employees for the purpose of inducing employees to repudiate the Union. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives 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 and all 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)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the unit described above concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in St. Louis County, Missouri, copies of the attached notice marked "Appendix."" Copies of the said notice, on forms provided by the Regional Director for Region 14, shall, after being duly signed by an authorized representative of the Respondent, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days "N.L R.B. v. Express Publishing Company, 312 U.S. 426, 433. "In the event that this Recommended Order is adopted by the Board, ARROW SPECIALTIES, INC. thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered , defaced or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith." IT IS FURTHER ORDERED that the consolidated complaint, as amended , be and it hereby is, dismissed insofar as it alleges other acts of interference, restraint, and coercion not found herein to be in violation of Section 8(a)(1) of the Act. 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 and 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 14, in writing, within 10 days from the date of this Order, what steps the 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: The Act gives all employees the following rights: To organize themselves To form, join or support unions To bargain as a group through a representative they choose To act together for collective bargaining or other mutual aid or protection WE WILL bargain collectively, on request, with District No. 9 International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of all our employees in the unit described below with respect to rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement . The bargaining unit is: All production and maintenance employees at the Respondent's plant at 155 Hanley Industrial Court, St. Louis County, Missouri, excluding office clerical and professional employees, guards and supervisors as defined in the Act. WE WILL NOT sponsor, support, instigate, or otherwise interfere with the formation of any employee committee or other labor organization to handle employee complaints or grievances or in any other manner to represent employees with respect to their terms and conditions of employment. WE WILL NOT threaten employees in any way in order to induce them to sign a document absolving the Company from responsibility for illegally sponsoring the formation of an employee committee to handle their complaints or grievances or otherwise to represent them concerning their terms and conditions of employment. 321 WE WILL NOT coercively interrogate our employees concerning their union membership , sympathies, and activities, the identity of employees responsible for bringing the Union into the plant , the reasons which prompted the union movement , or the expected outcome of any Board-conducted election. WE WILL NOT request any employee to ascertain for the Company the number of employees who signed union authorization cards. WE WILL NOT accuse any employee that he was responsible for bringing a union into the plant. E WILL NOT warn union supporters to secure other employment or warn employees that they stand to lose overtime if the plant is unionized. WE WILL NOT grant any employee a wage increase as a reward for not signing a union authorization card or grant, promise or offer to discuss wage increases, improvements in terms and conditions of employment or promotions for the purpose of discouraging them from supporting the Union. WE WILL NOT reprimand employees for attending a union meeting or give them the impression that the Company was keeping their union meetings or activities under surveillance. WE WILL NOT withhold or threaten to withhold previously granted benefits because the employees favored a union. WE WILL NOT solicit employees to withdraw their union authorization cards in order to destroy the Union's majority status in return for a wage increase or blame the Union for the Respondent's withholding of wage increases for the purpose of inducing employees to reject that organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their right to self organization , to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing , to engage in concerted activity for the , purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all 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)(3) of the Act. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union, 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)(3) of the Act. Dated By ARROW SPECIALTIES, INC. (Employer) (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, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 622-4167.