Nu-Southern Dyeing & Finishing, Inc.

NU-SOUTHERN DYEING & FINISHING , INC. 573 Nu-Southern Dyeing & Finishing, Inc., and Henderson Combining Co. and Glass Bottle Blowers Association of the United States and Canada, AFL-CIO. Case 11-CA-3764 successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION November 13, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA On May 6, 1969, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in 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, Respondent filed a statement of exceptions to the Trial Examiner's Decision and the Charging Party filed an answer to that statement. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the answer, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Nu-Southern Dyeing & Finishing Inc., and Henderson Combining Co., Henderson, North Carolina, their officers, agents, in finding, in agreement with the Trial Examiner, that Respondent violated Sec 8(a)(5) of the Act, we apply the standards governing previously established bargaining relationships rather than those relating to initial organization situations (Cf N L R B v Gissel Packing Company, 395 U S 575) The principle has long been established that an employer may not lawfully withdraw recognition from an incumbent union because of an asserted doubt of the Union's continued majority unless his assertion of doubt is raised in a context free of unfair labor practices, and is supported by a showing of objective considerations providing reasonable grounds for a belief that a majority of the employees no longer desire union representation (See, e g , Celanese Corporation of America, 95 NLRB 664, 671-672, Lavstrom Mfg Co. 151 NLRB 1482, 1484 enfd denied on other grounds 359 F 2d 799 (C A 7), Terrell Machine Co , 173 NLRB No 230 N L R B v Gulfmont Hotel Co, 362 F 2d 588 (C A. 5), N L R B v The Little Rock Downtowner, Inc. 414 F 2d 1084 (C A 8) And, Cf United States Gypsum Co. 157 NLRB 652 The burden of proving the existence of such reasonable grounds rests on the employer libid) Applying these standards to the facts of this case, we find that Respondent has not sustained that burden STATEMENT OF THE CASE THOMAS A. Ricci, Trial Examiner A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner on March 18 and 19, 1969, at Henderson, North Carolina, on complaint of the General Counsel against Nu-Southern Dyeing & Finishing, Inc , and Henderson Combining Co , herein together called the Respondent, or the Company. The issue presented is whether the Respondent's refusal to bargain with Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, herein called the Union, violated Section 8(a)(5) of the Act. A brief was filed by the Union Upon the entire record and from my observation of the witnesses, I make the following Findings of Fact I THE BUSINESS OF THE RESPONDENT The Respondent is a North Carolina corporation engaged in the dyeing and finishing of textile products at its Henderson, North Carolina, plant. During the past 12 months, a representative period, the Respondent shipped goods valued in excess of $50,000 from this plant to places directly outside the State of North Carolina During the same period it caused goods valued in excess of $50,000 to be shipped to its plant directly from out-of-state sources. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II THE LABOR ORGANIZATION INVOLVED Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act III. THE UNFAIR LABOR PRACTICES The issue of the case This is literally a refusal to bargain case A majority of the employees voted in favor of the Union in January 1967, the Regional Director issued a certification to that effect in June and in November of that year the parties signed a 1-year collective-bargaining agreement. As the contract year was ending the Union asked the Company to bargain towards a new one and the Respondent refused, on the stated ground that the Union no longer represented a majority of the employees. Established Board law has long been that where the contract of a certified bargaining agent is about to expire there exists a presumption that the majority status upon which the exclusive recognition rests continues to exist' And where, at such a time, an employer attempts to place the Union's majority status in issue, it "must demonstrate by objective considerations that it has some reasonable grounds for believing that the Union has lost its majority status since its certification " United States Gypsum Company, 157 NLRB 652 In the end the question becomes whether the record as a whole proves the complaint allegation that the Respondent raised the question of majority, and for that reason 'Celanese Corporation of America, 95 NLRB 664, Terrell Machine Company. 173 NLRB No 230 179 NLRB No. 96 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refused to bargain, in bad faith, in which event its refusal becomes a violation of Section 8(a)(5) of the Act Evidence in support of the complaint Gary Baldecchi, president of Nu-Southern, one of the two companies which together constitute the single employer to whom the Union was certified, is the man who runs the entire plant, is solely responsible for all labor relations, and made the decision to withdraw recognition from the Union. The contract was due to expire on November 16, 1968, on September 13, Baldecchi served written notice of intent to forestall automatic renewal and to end the contract, and on September 24, the Union responded by requesting negotiations For the Company, on October 8, Baldecchi told the Union he would not bargain Called by the General Counsel as a witness at the start of the hearing 5 months later, he was asked why he had so refused, and he answered one reason was an antiunion petition signed by employees, and "From the very beginning the union never functioned as a union, as far as handling grievances or even maintaining a bulletin board, the simplest things, and just general interest, people never seemed in the plant to even refer to the union or talk about it, or try to use the grievance procedure We had little or no contact with the union; in fact, throughout the contract " Chief among the facts upon which the complaint rests for a finding of bad faith in the Respondent are two incidents. The first is a visit to the plant by Harry Moore, international representative of the Union, who came to talk to Baldecchi before the September notice of termination by the Company He testified that because it had taken 5 months to achieve a contract in 1967 - from the certification in June to November when the contract was signed - he wanted to start talking earlier than the contract provided According to Moore, in response Baldecchi said " . he hoped we would just leave him alone, they were having problems in their operation, there had been a water shortage, they weren't making any money, and he just hoped we would let him alone He didn't want to deal with us, he was small, and he wished that we would leave him alone." When Moore insisted he wanted to negotiate, Baldecchi added " . he had learned a lot since the union had been in there, and that he had treated these people good now, and he didn't see any need for the union." Testifying later, Baldecchi remembered this visit, but said "It was very casual," "Not much of any real importance I really can't recall if he had any complaints - I don't know the purpose of his visit I can't recall the purpose of his visit I don't know why he came, I'll put it that way I can't recall." Reminded by counsel for the Respondent of what Moore, in his testimony, had attributed to the Company president, Baldecchi then opened up as follows I recall saying the fact that I couldn't see how they were - I don't think I said that - I said I didn't see how they were making any money on Nu-Southern employees. I just don't see how they could justify the expense of keeping this Union in the plant or whatever have you, because I just didn't think I said that we were just like a splash in the ocean, or something like that, that we were so small compared to these other operations all over the country As he went on Baldecchi then also remembered that Moore had come in order to start the negotiations, but that his position had been it was "just too early even to discuss the thing " With this Baldecchi's total testimony, and considering the demeanor of the two witnesses, I credit Moore's version of this conversation. The second principal event upon which the General Counsel relies is a talk the Company personnel director, Carlyle Morris, gave the assembled employees on September 24, 1968. He gathered them in separate groups, the first and the second shifts in one, and the third in another and gave essentially the same talk to both. Five employees testified about Morris' remarks concerning the Union, and there is a seeming conflict between their stories and the testimony of several management representatives who were also present All witnesses agreed that Morris devoted much of his speech to matters of safety, accident records, and a severe water shortage of the moment, and that meetings devoted to such problems are regularly held each month. The last part of the talk dealt with continued recognition of the Union and a petition aimed at unseating it Both groups of witnesses, employees and management people, recalled Morris said he had been approached by employees who did not wish to be represented collectively, he had inquired how this could be accomplished, the employees who so desired should sign a petition to that effect, all this should be done neither during working hours nor anywhere on company property, and the employees were free to do as they pleased about it. There is a question whether the personnel director also told them the Company preferred not to deal with the Union and thereby urged them to declare themselves against it Employee witnesses quoted Morris as follows Wilbert Hutcherson "He said the company was now glad that the union would - that they would no longer need the third party, and the company had been run before the union, and he thought now they could run it without the union again." Samuel Rice "We have no intentions of dealing with a third party " William Jordan " he just said a third party wouldn't be no good, wouldn't be any good to us, we didn't need a third party " Earl Parham 11 they could sign a petition, and get the union out, and frankly speaking, he said, for his part he didn't see why we needed a third party in there He said he couldn't see why the employees and the employer couldn't get along without the union, that we had worked and slaved hard for our money, and he didn't see why, he said they hadn't lifted a finger, and he didn't see why they should get any " James Summerville " . he said if they had got along so far without a union, he didn't see why we should have a union, we could do without it, we were just like one big, happy family ... " Baldecchi, the president, said he was present and did not hear Morris say he would be "glad" if the Union were out, but instead told the employees the Company "couldn't show any partiality," and the employees should do as they wished William Granger, a supervisor, who was also present, testified Morris did not indicate "the Company's position " Of greater significance, and largely determinative of whatever question of credibility there may be, is Morris' own testimony. He denied flatly having said "we have no intention of dealing with a third party, or "I don't see why we need a union." Asked to repeat what he did say, he stated it this way Well, I said in regards to that that previously I was a rank and file employee with the Company for 11 1/2 NU-SOUTHERN DYEING & FINISHING , INC. 575 years and I never had to pay a third party, and if I did pay a third party, I would certainly want some representation, and I hadn' t seen any representation in this plant during the contract. In some other context these words might be described as no more than an expression of opinion Coming at the very moment the personnel director was advising the assembled employees of the technique of a petition to remove the Union from the plant, they constituted as much a clear message that it was the Company ' s desire that they circulate such a petition and sign it It was for all practical purpose Morris urging the employees to take this action to reject collective bargaining Understandably the employee witnesses could not recall his words with precision 5 months later , but I must credit their collective testimony that Morris expressed the opinion a "third party" was not necessary , that he, at least , preferred not to have a union , and that it would be better for them to sign the petition he suggested In the circumstances of the moment, regardless of whether any employees had previously told him they were opposed to having a union, his was direct instigation of the petition and therefore, I find, a violation of Section 8(a)(I) of the Act. With this - an unfair labor practice - the genesis of the petition, the Respondent's later reliance upon it as a basis for its refusal to bargain further with the Union emerges as an act taken in bad faith . Evidence of dissatisfaction with a collective-bargaining agent must properly arise in the employees themselves if it is to carry any weight; the "employer cannot vicariously raise the question for them " N L R B v Sanson Hosiery Mills. Inc , 195 F 2d 350 (CA 5) That Morris intended to implant rejection of the Union as a desirable objective in the minds of the employees is a finding made clearer by the attitude expressed a month or so earlier by Baldecchi when union representative Moore invited him to begin negotiations He told Moore "he didn't want to deal with us , he was small , and he wished that we would leave him alone ." It was this desire that Morris later evoked in the employees at his September 24 meetings . And the record as a whole shows clearly the employees take the personnel director ' s words seriously in this plant He told them not to circulate the petition inside the plant For the most part they did not , and on those occasions when Granger, also called Mac, did solicit signatures inside the building , he did it in the bathroom, holding the paper folded inside a piece of cloth in order to conceal it from the supervisors There is no reason to believe the employees would be less sensitive to Morris' suggestion that they move in the direction he wished, he is the personnel director Affirmative defense, asserted loss of majority To say, as does Board law, that there exists a presumption of continued majority when a regular collective-bargaining contract is about to expire, means that absent any reason for concluding otherwise an employer's refusal to continue recognizing the Union as exclusive agent must be found unlawful Stated differently, in such a situation it is the employer who must come forward with a reasonable amount of evidence, proof of some sort, to rebut the presumption, to show there was some objective ground for his stated belief that the employees no longer desired to be union represented It is an affirmative, or positive proposition that his evidence must at least tend to indicate If the Respondent's such "evidence" in this case, argumentative conclusions repeatedly intermixed with factual assertions, be viewed in its totality there appears a defense based upon a negative proposition, rather than a positive, affirmative one The essential contention is that there was no evidence, during the contract year, that the Union in fact did represent a majority The witnesses spoke of there being a void But this is tantamount to refusing to recognize the presumption, which takes the place of affirmative, continuing proof In effect the Respondent either misconceives or rejects the rule of law upon which the complaint initially rests The position is unpersuasive both because as a matter of logic the negative cannot take the place of the positive, and because industrial peace and stability, here advanced as reason to discontinue union recognition, is the very objection towards which the entire principle of collective bargaining is aimed That this was truly the Respondent's reason for questioning majority appears clearly from the statement Baldecchi made at the hearing when he was called in the end as a witness for the Company Now he was asked by Respondent's counsel why he had decided not to bargain any more Well, this is really a long process I would say starting, going back to the original election, in fact, the list that we received was merely a verification of what I had felt and known all along * * * * * I said I either felt or knew several situations that existed because going back to the original election which is a matter of fact or record, the Union barely - it was a very close election, it was a matter of four or five votes either way So from the initial countdown, they weren't very strong, to speak of, based on the election And then, of course, we had a tremendous turnover of people and while these employees weren't involved in the election and did not even know who the Union was, certainly did not know who Mr Moore was - * * * * * Why I said they didn't know Mr. Moore, he hadn't been around, so they couldn't have known him or seen him, shall we say * * * * * the Union was what I would consider to be very dormant during this period * * * * * Then, of course, I mentioned earlier about the bulletin board displays whereby provisions of the contract they were supposed to let us know of any leadership in the Union. We had to have somebody to deal with in the plant, and this was the way to do it, by posting it on the bulletin board. And I think after the initial list it became so multilated and changed - So the leadership list wasn't maintained, in fact, the bulletin board itself after a while wasn't being maintained They weren't even posting membership meeting notices up You can sense in a plant when you have got a Union, because I have had experience Before listing the items which Baldecchi called detailed proof of loss of majority, one more pervasive defense 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument must be considered in its correct light. It was the International Glass Blowers Union that was certified, in the small town of Henderson, in North Carolina, no officer or full-time representative of the International is stationed, nor is there any International office there as such Correspondence received in evidence shows International Union addresses in Anderson, South Carolina, and Philadelphia, Pennsylvania There is a Local 222 in Henderson, and it appears to be also the bargaining agent for employees of another company, Lawrens Glass Co , located in that town After the election among the Respondent's employees the International told them to pay their dues through Local 222, all members of the Union bear this relationship, through a local, to the International. And those employees of the Respondent who went to union meetings attended meetings of Local 222 The Respondent did not file a brief to explicate its theory of law, but it is clear from the record testimony it argues all union activities by its employees in and through Local 222, all attempts by agents or officers of Local 222 to deal with the Respondent with respect to these employees, must be ignored in this case as though they had never happened When Baldecchi said the Union was "dormant," he meant strictly the International. Indeed he admitted telling all managerial personnel to have nothing to do with any person in any way associated with Local 222 "Yes, sir, we made it quite clear to Mr. Matule and Mr Carlyle Morris that our contract, our dealings were strictly with the International Union, and not with the Local, and we would direct our dealings to the International only " It can only be supposed that for this restrictive and novel theory of law the Respondent rests upon decisional precedent holding that an employer is not required to execute a contract with any labor organization other than the certified one, not even the local of a certified international It does not follow from this rule of law that employees may not join a local of their choice, that they may not be represented in grievances by union agents selected from any local's staff, or that any such activities by them are not union activities in every sense of the word I find this aspect of the defense totally without merit The contract gave the Union the right to use bulletin boards in the plant and to designate employee representatives, such as shop stewards or department committeemen, to handle any complaints or grievances that might arise Shortly after the agreement was made the Union posted a notice on the bulletin board listing approximately 15 such stewards and committeemen It remained on the board perhaps 4 or 5 weeks - the record is not clear in this respect - and then disappeared While it was posted some of the names were marked through, in pencil or ink; others appeared, apparently added in handwriting by someone, and some of these also later appear to have been struck off. Testimony about how many names were so "scratched off" the list came principally from Morris The personnel director said he noticed this defacing of the notice because many times he searched for persons among the employees to act as union agents, but could not find any. He started by saying "Some of them [the employees], a great deal of them," asked how their names might be removed from the list. As he talked he vacillated between many and very few. the listgot to the place there was not any names on it that hadn't been scratched out I saw a man's name pencil marked through . Within a couple of days, the biggest percent of the names were unrecognizable . . . With the exception of one or two or three or four " Supervisor William Granger, of the tubing department, who works near the bulletin board, said "at one time or another there had been several names penciled out on the list " The only names he could remember were those of Paul Deake and Erwin Pulley, and two persons in his own tubing department, Charles A Ayscue and Don Woodruff Evidence about how many names were thus penciled through on the posted notice was merged, in the testimony of both Morris and Supervisor Granger, together with their further telling about employees whom they invited to act as union agents and those who turned to them for assistance in avoiding any responsibility to act for the Union It is the merger of these three concepts - names scratched from the list, employees desiring not to be represented by the Union, and management's inability to prevail upon them to act as stewards or committeemen - that the Respondent presents as separate and cumulative elements of proof of loss of majority In fact, apart from a confusion in terms, all this involves is an expression of attitude by a limited number of employees, for the individuals whose names the two witnesses could recall constantly recur and place the same persons in all three aspects of the defense presentation Clyde Tilloston was one of the prime movers in the organizational campaign After the original posted list had disappeared Morris wrote to the Union for a new one, and Local 222 sent him one, while the matter is not absolutely clear on the record, it seems to be substantially a relisting of the original names At the start of his recital Morris said that when he received this, on January 8, 1968, he talked to Tilloston because "I wanted to cooperate with him," and that Tilloston replied "he didn't want any part of it" and how could he "get out of the Union " Much later in his testimony Morris related this conveisation differently "I went to Mr Tilloston, and tried to find out which direction we were going to move in this time " He then also explained that this was one of those occasions when " . . if we had a problem I felt like I wanted the man to receive justice and know he received justice or what-have-you-some days in between " Tilloston did not testify, as indeed not a single rank-and-file worker was called to support the defense, nor any who later became supervisors Tilloston was made supervisor shortly after this incident, according to Morris "2, 3 months" later Charles Ayscue was also named individually by the two witnesses. Morris said this was one of the two men he approached to see if he "would take the responsibility - . Because we did have not what you would call a greivance, but I had a normal routine daily problem with an employee, and I asked Charles if he would sit in on it, and see that the man did get full justice from a company standpoint " Morris then added Ayscue said "he was not interested in being a shop steward," but did "sit in on one " Ayscue was one of the principal actors in soliciting signatures to the antiunion petition in September, and was also promoted to supervisor on November 4 Samuel Rice was also invited by Morris to act, and he "did come in and sit on some of them", "them" meaning "problems" as Morris defined them Morris also recalled a man named Peoples coming to him to say "he was accepting the committee or some kind of chairman of a committee " The only other man mentioned by Morris as an employee expressing antiunion sentiments were Deake and Pulley, of whom supervisor Granger also spoke, and Whalley. As to this last man Morris testified he asked the NU-SOUTHERN DYEING & FINISHING, INC. man " . . . if he would sit in on this meeting , and this wasn't a grievance - this was a problem that we were having in the plant with an employee's production record or with his production and I wanted somebody to sit in to see that justice was done, ...." Finally, there is mention of one Robert Burnell ; Morris once asked for volunteers to act concerning a safety problem, Burnell offered, and "we put him on the safety committee and he toured the plant with me. . As to the remaining facts said to support the defense there is no substantial dispute on the record . Five or six employees became dues paying members of the Union. Only two appeared to have attended union meetings, Tilloston only in the beginning . Two grievances were filed during the life of the contract , one involving Ayscue and another concerning vacation pay for employee Parham; this last was brought to the plant by a Miss Wilkerson, secretary of Local 222. Both appear to have been settled amicably . Morris agreed at the hearing "there was no real cause for grievance to be tried ." Throughout the contract year two notices of union meetings were posted on the bulletin board . There was a turnover in the employee complement, Morris first said " I would estimate it was better than 100 percent ," but later, asked to estimate how many of the original employees remained at the end of the contract, said it would be "hard" to estimate, "well, it would be a rough guess let' s say 10 percent." No records were offered in evidence Conclusion I conclude that the refusal to recognize the Union on October 8, 1968, was not grounded upon a good faith doubt about its majority status and therefore constituted a violation of Section 8(a)(5) of the Act, as alleged in the complaint. The sole element of proof truly falling in the area of what can be called objective considerations relevant to the question of majority, is the testimony that there were some employees who volunteered to management agents their desire not to act as union agents and not to be represented by the Union. There had always been a dissident group, and the number of such persons who of their own accord expressed this view does not appear to have been substantial, so far as credible evidence is concerned. Repeatedly the personnel director kept saying he could find nobody willing to act for the Union, that everybody's name was struck from the original list of selected representatives. These were conclusionary phrases; other testimony, including some of his own, indicates only some names were struck from the list, and all the Respondent's witnesses together could remember but very few individual employee names to support the broad assertion. Clearly Morris exaggerated. Supervisor Granger testified that at the September 24 meeting Morris said he had been approached by "several" employees; Matule's version is that Morris said "many" employees had inquired "what the Company's position was with the Union," but that with respect to those who had expressed a desire to remove the Union, Morris only said "several" had asked. That Morris was doing more than answering questions that day is shown by his further statement to the employees - as also testified by Matule . . he felt that due to the fact we had a lot of new employees in the plant who had been hired during the life of the contract and were not familiar with the activities that led up to the negotiating and signing of a contract, that this subject of the upcoming expiration of the contract was of general interest to all employees. And this 577 was the reason why he brought it up in the general meeting." The petition now called antiunion serves little to prove loss of a majority in fact, if only because it was company inspired and born of the Respondent's unlawful conduct. There is also uncontradicted testimony by several employees that when solicited to sign, or even when they signed, the single sheet of paper presented to them contained no writing of purpose at all, and that in some instances the solicitors were evasive as to whether they sought to remove or retain the Union. The principal solicitors of the petition later given to supervisor Granger appear to have been Lubie Wallace, Sr., whose two sons were then supervisors, John [Mac] Granger, a cousin of supervisor Granger, and Ayscue, promoted to supervisor 2 months later. None of them appeared at the hearing to offset the testimony of the General Counsel's witnesses. In any event, there was also a prounion petition circulated at a later date, and while it is no more probative than that offered by the Respondent, it does tend to offset the latter further A presumption of continuing majority cannot be quantitatively scaled to the measure of majority scored in the election. There is no obligation upon employees to pay dues to the Union of their choice 2 They need not attend union meetings, and if they do not complain about working conditions during the life of a contract, the fact indicates as much satisfaction with and continued adherence to the Union, as indifference, and especially rejection:' There were grievances filed, there were notices of meetings posted, there were employees who functioned as union representatives inside the plant. The Respondent cannot avoid the statutory duty to bargain with the regularly chosen representative of its employees on the grounds that the Union failed, in the opinion of management, to keep on proving affirmatively its right to act as bargaining agent throughout the period of the contract.' Most important of all in this case it must be remembered that union activity means employee activity, not employer activity. For the most part the Respondent points to the refusal of employees to accept the personnel director's requests that they be agents of the Union. It is the Union which selects its spokesmen, not the employer. Everything was satisfactory, the waters were quiet. The truth is Morris went about the plant asking employees .to stand up and be counted. When he asked Tilloston "which direction are we going to move," he was asking the man to declare himself either in support of or in opposition to the Union. Were it alleged in the complaint it could well be this statement was pure interrogation, and possibly an unfair labor practice in itself. Tilloston's answer, as well 'Ni R B v Gulfmont Hotel Company, 362 F.2d 588 (C.A 5) 'United Aircraft Corporation , 168 NLRB No_ 66 'There is no real dispute with respect to the composition of the appropriate unit Accordingly I find, as alleged in the complaint , and as set out in the 1967 contract in evidence, that all production and maintenance employees employed at Respondent's Henderson, North Carolina, plant, excluding office clerical employees, floormen, shift leaders, formula men, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Sec. 9(b) of the Act I also find, on the basis of the conclusions reached above , that Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, was on October 8, 1968, and at all times since has been the representative of the majority of the employees in the above -described bargaining unit, and by virtue of Sec. 9(a) of the Act, has been and now is the exclusive bargaining representative of all the employees in said unit for the purposes of collective bargaining 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as those of the many others the personnel director tried to smoke out, are the weakest of reeds to carry the burden of convincing proof resting upon the Respondent. In the total circumstances revealed by this record, I also credit the testimony of Samuel Rice, denied ' by Baldecchi, that one morning in September of 1968, while the president was driving him to his home to do some personal work, Baldecchi spoke to him about the Union. According to Rice's thus credited testimony, Baldecchi asked "why did I fool around with anything like that, he said, at my age I should think about my security " I find that by that statement Baldecchi gave Rice to understand that continued union activity would endanger his position with the Respondent, and thereby violated Section 8(a)(1) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section 111, above, occurring in connection with its operations as described in section 1, 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 the free flow of commerce Upon the basis of the foregoing findings of fact and upon the entire record, I make the following CONCLUSIONS OF LAW 1. The Respondent is an employer within the meaning of Section 2(2) of the Act. 2 The Union is a labor organization within the meaning of Section 2(5) of the Act. 3 All employees of the Respondent's Henderson, North Carolina, plant in the unit described above constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 The Union was on October 8, 1968, and at all times thereafter has been the exclusive collective-bargaining representative of Respondent's employees in the appropriate unit within the meaning of Section 9(a) of the Act 5. By refusing to bargain with the above-named labor organization in good faith the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act 6 By the aforesaid conduct and by threatening to discriminate against an employee because of his union activities the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Nu-Southern Dyeing & Finishing, Inc , and Henderson Combining Co , Henderson, North Carolina, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain collectively in good faith with Glass Bottle Blowers Association of the United States and Canada, AFL-CIO, as the exclusive representative of all employees in the bargaining unit. (b) Threatening employees with discrimination because of their union activity or in any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist any labor organization, to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities 2 Take the following affirmative action which I find will effectuate the policies of the Act (a) Upon request bargain collectively with the Union as the exclusive bargaining representative of all employees in the appropriate unit described above, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and if an understanding is reached embody such understanding in a signed agreement (b) Post at its place of business in Henderson, North Carolina, copies of the attached notice marked "Appendix "5 Copies of said notice, on forms provided by the Regional Director for Region 11, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days 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 said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith 6 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, 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 WE WILL NOT refuse to bargain collectively with Glass Bottle Blowers Association of the United States and Canada , AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT threaten to discriminate against employees because of their union activities, or in any other manner interfere with, restrain , or coerce our employees in the exercise of their right to self-organization, to form, loin, or assist any labor NU-SOUTHERN DYEING & FINISHING, INC. organization, to bargain collectively through representatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities WE WILL bargain collectively, upon request, with this union as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is All production and maintenance employees in our Henderson plant, excluding office clerical employees, 579 floormen, shift leaders, formula men, guards and supervisors as defined in the Act NU-SOUTHERN DYEING & FINISHING INC, AND HENDERSON COMBINING Co. (Employer) Dated By (Representative) (Title) This notice must remain 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 with the Board's Regional Office, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-9211.