Kaydee Metal Products Corp.

KAYDEE METAL PRODUCTS CORP. 687 Kaydee Metal Products Corporation and Aluminum Workers International Union, AFL-CIO. Cases 26- CA-3912 and 26-CA-3925 -March 2, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS AND KENNEDY On November 10, 1971 , Trial Examiner Ivar H. Pet- erson issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed an answer- ing brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exception and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions - and to adopt his recom- mended Order. ORDER principally on the allegation that the Regional Office inter- viewed one Donald Fiske, in connection with the investiga- tion of the case, outside the presence of and without notifica- tion to counsel for the Respondent, and then alleged that Fiske, as an agent of the Respondent, engaged in conduct violative of the Act. Counsel for the Respondent, in urging that his motion be granted, claimed that the failure to notify counsel of the interrogation of Fiske was inconsistent with the General Counsel memorandum 1967-32. 1 denied the mo- tion. The case involves three principal issues: (a) whether an employee petition to oust the Union at the end of the certifica- tion year was a valid expression of employee opinion not inspired or facilitated by the Respondent; (b) whether the Respondent was legally obliged to negotiate a new agreement with the Union after the expiration of the first agreement at the end of the certification year; and (c) whether the suspen- sion of employee Kermit Harp for 2 days was for just cause or for discriminatory reasons. There are, of course, numerous questions of credibility affecting each of the foregoing issues. For the reasons hereafter stated, Y resolve all issued in favor of the Respondent and, accordingly, recommend that the complaint be dismissed. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the able briefs filed on September 23 by Counsel for the General Counsel and the Company, I make the following: FINDINGS OF FACT 1. JURISDICTION Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be, and it hereby is, dismissed in its entirety. ' The General Counsel has excepted to certain credibility findings made by the Trial Examiner, It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolu- tions were incorrect Standard Dry WallProducts, Inc., 91 NLRB 544, enfd. 188 I^.2d 362 (C A. 3). We have carefully examined the record and find no basis for reversing his findings. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried at Tupelo, Mississippi, on July 20, 21, 22, and 23,1971. The original charge in Case 26--CA-3912 was filed February 5, and in Case 26-CA-3925 on February 22; both charges were amended on March 23, and an order consolidating the cases accompanied" by a consolidated complaint was issued on the same date. Thereafter, the Respondent filed a motion for a bill of particulars, which Counsel for the General Counsel op- posed, and also a motion to dismiss the complaint. Trial Examiner Arthur Leff issued an Order denying Respondent's motion for a bill of particulars under date of April 19, and an order denying the motion to dismiss under date of April 26. The Respondent requested special permission to appeal from the Trial Examiner's orders denying the motion to dis- miss and the motion for a bill of particulars, both of which were opposed by the General Counsel. By telegraphic order, received May 25, the Board denied the request for special permission to appeal. At the opening of the hearing, the Respondent renewed its motion to dismiss, which was based 195 NLRB No, 125 The Respondent, a corporation with its principal office and operations located at Belmont, Mississippi, is engaged in the manufacture of metal furniture, principally chairs. During the 12 months preceding issuance of the complaint, the Re- spondent received at its Belmont location goods and materi- als valued in excess of $50,000 directly from points outside the State of Mississippi and, during the same period, sold and shipped from its Belmont plant goods and materials valued in excess of $50,000 directly to points located outside the State of Mississippi. The Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent further admits and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR, PRACTICES A. Background The Union was certified as the exclusive representative of the Respondent's employees in an appropriate unit on December 8, 1969, following a Board election in which 17 employees voted for the Union and 13 employees voted against the Union. On January 6, 1970,1he Union requested that bargaining negotiations be commenced and in the bal- ance of the year the parties met in some 16 bargaining ses- sions. On August 3, the 'Union went on strike, which was terminated on October 1, prior to any contract having been reached. During the course of the strike, there were a substan- tial number of incidents of picket line harassment and dam- age to property and other misconduct. The Respondent con- tinued to operate during the course of the strike with some ' The motion of counsel for the General Counsel to correct the transcript in various respects is hereby granted, except as proposed to be further altered by counsel for the Respondent. The latter's motion to make add,- tional corrections is granted, except to the extent that the' reply and opposi- tion filed by counsel for the General Counsel is granted. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 23 employees who did not strike, some strike replacements, and some strikers who elected to return to work before the termination of the strike. In July 1970, the Union filed a charge alleging that the Respondent had unlawfully refused to bargain. This charge was dismissed by the Regional Director. In September the Union appealed to the General Counsel who, under date of November 24, denied the appeal. Among other things, the General Counsel's letter denying the appeal stated that "since the strike beginning August 3 could not be shown to have been an unfair labor practice strike, and since virtually all of the present employees are strike replacements, the Com- pany's conditioning of its September 22 offer on a contract term running only to the end of the certification year could not be shown to have been based on any considerations other than its reasonable belief that the Union had lost the support of the employees," citing Star Expansion Industries, 164 NLRB 563, 587. The Union's telegram of October 1 calling off the strike and offering to return the employees to work further stated that the Union "would also wish to continue to negotiate if in the Company's, opinion there is any chance of reaching an agree- ment." The following day, counsel for, the Respondent tele- graphed the Union stating that the Union had previously indicated that "serveral strikers did not desire to return to work," and that in order for the Respondent to ascertain the names and addresses of all employees who did desire to return and process their reinstatement, requested that all employees who desired reinstatement and who had not previously re- ported to the plant should do so by October 7. By telegram dated November 23, the International representative for the Union, C. B. Hatton, informed the Respondent that the Union accepted the Respondent's last offer on contract lan- guage and wages and suggested a meeting that week to sign the agreement. On December 4, the parties signed an agree- ment which by its terms stated that it was to "become effec- tive on December 4, 1970 and shall remain in full force and effect until 11:59 p.m., December 8, 1970" and that it "shall not automatically renew unless a new agreement is negotiat- ied prior to 11.59 p.m., December 8, 1970." This agreement contained no improvements in the existing employee benefits. Under date of December 7, W. S. Rutledge, regional direc- tor of the Union, wrote to the Respondent requesting a 60- day extension of the contract and meetings for the purpose of negotiating a new agreement. On or about December 10, the Union issued a leaflet to employees listing "the benefits which the Union negotiated and signed in a contract for the employees," stating that the Union had asked the Company to extend the contract until a new one could be negotiated, and that "if the Union can get this much when most of you were not members, think of what could be gained if most of you belonged." On December 14, the Union wrote to the Respondent renewing its request for bargaining and suggest- ing dates on which negotiations could begin. The Respondent replied on December 17, noting that the Union did not make any claims in these letters that "a majority of our employees desire or authorize your Union to negotiate for them" and that the Union was "aware of the circumstances which caused the Company to believe that most of the employees do not want your Union to represent them." It further indicated its willingness to settle the representation issue by "an im- mediate secret-ballot election." On January, 4, 1971, the Union renewed its request for negotiations. Not hearing fur- ther from the Respondent, the Union wrote on February 4 stating as follows: We wish to make' our position clear to you without, any further wasted time. A-MAJORITY OF THE BAR- GAINING UNIT EMPLOYEES OF KAYDEE MET- ALS AT THE BELMONT PLANT ARE MEMBERS, OF THIS UNION. When we say "members" we mean that they have actually joined the union and have signed up on membership cards, not just so-called "representa- tion cards" of the type which we turned in to the NLRB at the time we petitioned for an election before. When we say "a majority of the employees" we mean all of the employees who work at the plant including those you hired as strike-breakers. We are prepared to prove the above by a card-check in the event that you have any good-faith doubts on the matter. Once again, we request that you meet with us at a mutu- ally agreeable date and time for the purpose of negotiat- ing a new labor agreement. Please contact International Representative C. B. Hatton of this office and inform him of dates on which you will be available for this, as he will represent the Union in this matter. Counsel for the Respondent replied on February 11 stat- ing: This is to advise you that my client has a good faith doubt that you represent a majority of these employees. You are further advised that my client prefers to have any questions involving the representation of its em- ployees, for the purpose of collective bargaining, and any question involving the appropriateness of any unit deter- mined by the National Labor Relations Board. On February 22, the Respondent filed a representation petition (Case no. 26-RM-280), with the Regional Office. B. The Petition to Oust the Union On September 15, 1970, Plant Superintendent Fiske was presented with an employee petition by John Caveness, an employee. The petition was signed by 65 employees and the heading of it read as follows: To Kaydee Metal Products Belmont, Miss. The following employees would like to have an elec- tion as soon as possible to get rid of a union that has threatened (sic) & bothered us- It is the theory of the counsel for the General Counsel that the Respondent, primarily through Fiske, instigated the peti- tion and caused it to be circulated on company time and property. The Respondent,'on the other hand, contends that it had no part in the initiation or circulation of the petition. As is to be expected, the testimony with respect to this matter is conflicting. The government relies primarily upon the tes- timony of Fiske, who was discharged on January 29, 1971. The Respondent, in its brief, states that "Fiske's testimony is demonstrably false." Fiske came to work for the Respondent as plant superin- tendent on December 1, 1969, the same date that the Board conducted an election which resulted in a vote of 17 to 13 for the Union. Following the election, Saul Rubin, president of the Respondent, so Fiske testified, desired that a list be made showing who voted for the Union and who voted against it. One Andy Frodge, at the time a part owner of the Respond- ent, made out such a list which, according to Fiske, was checked by Rubin and two leadmen, Kelly Bolton and James Glasgow. The day after the list was made, Rubin told Fiske that he wished to eliminate the men on the list who were shown as having voted for the Union, and specifically men- tioned Floyd Robinson, Carlos Creekmore, and Gordon Oaks. According to Fiske, while there were some deficiencies in the work of these employees he would not have fired them but for the fact that Rubin desired that he do so. The Union filed charges after the December 1969 election concerning the termination of some employees in July as well as Robinson, KAYDEE METAL PRODUCTS CORP 689 Oaks, and Creekmore . It is the testimony of Fiske that about 3 or 4 months after the election Rubin told Fiske that he had changed his mind and did not wish to discriminate against his employees . However, so Fiske testified, Rubin stated that he did not want any people hired from Red Bay and Dennis, Mississippi, because those two places were "union hotspots." Rubin further told Fiske to screen any new hires with Jack Pennington, a foreman, who was acquainted with the people in that section of the country. Fiske took part in approximately 16 negotiation meetings held during the course of the certification year . He testified that Rubin told him on numerous occasions that he did not wish to sign a contract . After the Union ended the strike and offered to return the employees who were still on strike, Rubin told Fiske that the Respondent would call back the strikers one at a time and would isolate them in their work so that they would not "contaminate the rest of the plant." He further told Fiske to place the former strikers on the swedging machine or the saw cutoff machine , which were the hardest physical jobs in the plant . Moreover, in November 1970, Rubin told Foreman Dock Robinson that he desired to get rid of those employees who were returning to work fol- lowing the strike and he wanted to find something wrong with their work or drive them until they either quit or were fired. Rubin did not deny any of the specific conversations related by Fiske nor did he deny the conversation testified to by Robinson. Fiske testified that on Friday, September 11, he spoke to President Rubin and informed him that he thought some employees were considering drawing up a petition to oust the Union . He related that thereupon Rubin telephoned the Re- spondent's attorney , Mr. Hudson, in Memphis and that he (Fiske) listened in on an extension phone. Following the con- versation with Attorney Hudson , Rubin and Fiske, so the latter related, discussed the matter of a petition and Fiske stated that he thought Foreman Pennington would be a good one to consult and that the latter would probably have em- ployee Caveness solicit signatures . On Monday morning, Sep- tember 14, Rubin asked Fiske, according to the latter, whether he had the petition and Fiske replied that he did not. Apparently Rubin , according to Fiske, was somewhat upset and stated that he needed the petition for the negotiating session that was to take place the following day. Fiske then went to Pennington and told the latter that the petition was needed and that Pennington should "get busy" on it. Pen- nington stated that Caveness was working on the matter but was not sure of the heading and they wished to consult with Fiske about it. They did so and Fiske told Pennington that the wording was satisfactory . Later that day, Caveness brought the petition to Fiske in the latter 's office and stated that all in the plant had signed up except one Rupert West and such employees as were absent . It is Fiske's testimony that while Caveness was in his office West came in to discuss something concerning the paint line, where he worked. Fiske related that he told West , "You are just the fellow we are looking for. Do you or don 't you want to sign the petition?" West stated that he did and thereupon signed it . Then Fiske told Caveness to keep the petition overnight in case some of the absentees came in the next day. On Tuesday, September 15, Caveness brought the petition to Fiske and told him that there were no more signatures on it and left it with Fiske .Fiske thereupon took the petition to Rubin and stated that about 95 percent of the plant had signed . Rubin was somewhat upset and stated that he would rather have 100 percent of the plant subscribing to the peti- tion as he felt that would be much more effective . Fiske than took the petition to Attorney Hudson before the negotiating session which was to start at noon. The version given by Rubin is somewhat different. He stated that he first discussed the petition with Fiske on Sep- tember 14, and that Fiske told him that Pennington had stated that there might be a petition circulated in the plant to oust the Union and that Caveness might circulate it. Rubin then testified that he and Fiske called Attorney Hudson, who advised them that this was an inopportune time for the peti- tion and that a factor complicating the matter was pending unfair labor practice charges. Rubin related that Hudson advised him to keep himself clean and that he could not stop the movement for a petition or assist in it . The next day Fiske brought the petition and President Rubin merely commented, "Well, we have got it . You are going to Memphis , give it to Fletcher Hudson." Pennington's account is that Caveness asked him how they could get rid of the Union and he advised Caveness that it would have to be voted out but that he (Pennington) could not have anything to do with it . Pennington testified that he then went to see Fiske and stated that he believed Caveness was going to circulate a petition and that the two of them then informed Rubin . Shortly before the normal 3:30 quitting time, Pennington told Caveness to work overtime on Septem- ber 14 and Caveness did so until 5 o'clock. Caveness testified that about 2 p.m. on September 14 he went to the punch press department , about 50 yards from the shipping department where he regularly worked, and spoke with employee Howard Sparks about getting a petition started. Caveness then returned to his department where he wrote out the heading on the petition during his working time. Prior to quitting time that day, Caveness, so he recited, took the petition to Sparks who later returned it to him around 4 p.m. while Caveness was still working overtime. Concerning the advice he had been given by Pennington, Caveness stated that Pennington said the only way to proceed was to vote out the Union but that he could not have anything to do with it . Caveness testified that on the evening of Septem- ber 14, after Sparks had brought the petition back to him, he obtained the signatures of two employees, whom he identified as Danny Wilson and David Wilson , who signed up while at their car. Caveness further related that the following morning (September 15) Sparks got the petition from him once again and told Caveness that he had two or three more employees who wished to sign. After Sparks returned the petition to Caveness, Caveness and Sparks went to Fiske's office with the petition. While there, employee West came in and signed the petition. Employee West testified that Sparks spoke to him on the paint line and asked him to sign the petition , but that he (West) felt he should not in view of the fact that the was a leadman . Later Caveness brought the petition back to him and asked him to sign and told him that it was for a reelection on the Union. West signed it. He stated that he was not in Superintendent Fiske's office on the day he signed the peti- tion. A number of employees testified that Sparks came to them and solicited their signatures to the petition , telling them that they would obtain improved benefits as a result. During the month of September the parties met in bargain- ing sessions four times (September 4, 15, 22 , and 28). At one of these meetings Attorney Hudson asked International rep- resentative Hatton whether the Union contended that it represented a majority of the employees at that time. Hatton replied that the Union was the bargaining agent for all the employees in the plant . Attorney Hudson then said to Hatton that what he meant to ask was whether the Union contended that a majority of the people in the plant then belonged to the Union or wished to be represented by it. Hatton replied that he did not know if the Union had a majority in the plant at 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that time because he did not have information as to the number of new employees that had been hired. However, he did say that the Union had an overall majority, counting the people on strike and those in the plant. Concerning this ex- change, Attorney Hudson testified that he "was trying to argue with him (Hatton) to convince him to agree to an election." At the meeting in September the termination date of a contract was discussed, and Attorney Hudson suggested that the contract terminate at the end of the Union's certifica- tion year, or that in the alternative the parties agree that the contract would not serve as a bar to an election or that it could be reopened on December 10. At a subsequent bargain- ing session, still in September, Attorney Hudson accused Hatton of having admitted that the Union did not represent the employees. Hudson testified that he told Hatton " .. , you have admitted that you don't represent the employees, the employees don't want you to represent them." Hatton took issue with this remark and, according to Hudson, stated, "I don't know whether we do or not" C. The Withdrawal of Recognition and Refusal To Bargain According to Fiske, he was summoned by Attorney Hud- son to "an emergency -meeting" on December 4. At that meeting, the Union agreed to the last five or six items on which there had been disagreement and, as a result, Attorney Hudson telephoned President Rubin and told him that he had to sign a contract immediately. As previously related, the contract was effective from December 4 until 11:59 p.m. December 8. As stated in section III, A, supra, the Union requested an extension of the agreement and negotiations for a new agreement, which the Respondent rejected, asserting that it had a good-faith doubt that the Union represented a majority. On February 16, W. S. Rutledge, regional director of the Union, and' International Representative Hatton jointly had a telephone conversation with Respondent's attor- ney, Albert Coles. They had asked for Attorney Hudson, but were informed that he was in Honolulu. Rutledge told Coles that if the Respondent had any good-faith doubt concerning the Union's majority status, he was prepared to show Coles the employees' membership cards. Coles declined the Union's suggestion and stated that the Respondent would consent to an immediate election. About a week later Attorney Hudson telephone Hatton and, in response to Hatton's statement that the Union had a majority signed up on a membership cards, said he thought that a number of employees who had signed membership cards did not in fact want the Union to represent them anymore. Thereafter, on February 22, the Union filed the second of its charges (Case 26-CA-3925) alleging that the Respondent had unlawfully refused to bargain. On the same date the Respondent filed its representation petition. Counsel for the Respondent makes a detailed and vigorous attack upon the credibility of ex-plant superintendent Fiske. He asserts that Fiske's "untruthful testimony concerning the purported telephone call of Friday, September 11, 1970, is the keystone to all of his remaining testimony concerning the origination of the petition." The Respondent produced tele- phone records of long distance calls covering all of the month of September. These show that on Friday, September 11, the day that Fiske testified he and Rubin talked with Attorney Hudson in Memphis, two calls were placed to Memphis, one to St. Joe Paper and Supply and the other to the Memphis Dinette. The called numbers are not the same as the tele- phone number of Attorney Hudson. Therefore, the Respond- ent contends, no telephone conversation occurred between Rubin'and Fiske on the one hand and Attorney Hudson on the other on September 11. Accordingly, the Respondent agrues "it equally follows that no discussion occurred be- tween Fiske and Rubin immediately after the non-existent telephone call as to who would be best to handle the petition." Moreover, it should be observed that if Attorney Hudson's testimony is,credited regarding the advice he gave Rubin with respect to the efficacy-of a petition in conjunction with the contract negotiations, namely, that it was an inopportune time for such a document to be initiated and circulated, it seems odd indeed that Rubin and Fiske immediately made plans for instituting the petition, as Fiske testified. With respect to Fiske's testimony that on Monday morn- ing, September 14, President Rubin asked him if he had the petition and became upset when Fiske replied that he did not, President Rubin categorically denied that any such event occurred. Thus, counsel for the Respondent states that Fis- ke's testimony "to the effect that when Mr. Rubin came into the office on Monday morning, September 1'4, 1970, he asked where the petition was and became upset because it had not already been circulated, it palpably untrue." Both Pennington and Caveness denied that'any conversa- tion occurred between them and Fiske on September 14 to the effect that Caveness should "get going" on the petition be- cause he (Fiske) needed the petition the following day. It should be observed that while Fiske testified that he in- structed Caveness to "hurry up" with the petition, at the same time, somewhat inconsistently, he testified that Cave- ness should not circulate the petition on company time. It will be recalled that Fiske testified that in the afternoon of Sep- tember 14 Caveness brought the petition to his office just after 3:30 p.m. with the signatures of all the employees on it except for West and such employees as were absent. It will also be recalled that Fiske testified that while Caveness was in his office with the petition West came in and signed the document at the solicitation of Fiske, and that he then told Caveness to keep the petition overnight in the event that some of the absent employees would come in the following day. However, according to Fiske, Caveness returned the petition to him the following morning without having obtained anymore signa- tures. Counsel for the Respondent states that this testimony "cannot be true" because it "is utterly irreconcilable with the order of signatures on the employee petition itself and the overwhelming weight of the testimony of witnesses presented both by the General Counsel and Respondent." In the Respondent's view, Caveness gave Sparks the peti- tion at approximately quitting time on September 14 (3:30 p.m.), and at that time the document was blank except for the heading. Sparks took the petition outside the building and began to, ask employees to sign it as they came out of the building after work. The petition shows that the first three signatures are those of Stanley Rogers, Jesse Sparks, and Kellis Pardue, in that order. Jesse Sparks testified that he was 4 or 5 feet outside the plant door when his brother, Howard, asked him if he wished to sign the petition. Jesse Sparks stated that he saw Stanley Rogers, whom he described as a red- headed boy, sign the petition' They signed, according to credited testimony, outside the plant building after the 3:30 quitting time. Epps recalled that an employee named W. C. Nunley, whose name appears immediately after Epps', was behind her as she left the plant. It therefore appears certain that Epps, whose signature is 9th, Coleman Robinson,in 11th position, and Brown signed the petition outside the plant building shortly after the 3:30 p.m. quitting time on Septem- ber 14. The name of Larry Hall, in 13th position, and the name of William Holland, in 14th position, according to z Rogers did not testify inasmuch as he was in the Armed Forces. Counsel for the Respondent requested a continuance of the hearing in order to attempt to search out' Rogers and serve a subpena upon him I denied the motion. KAYDEE METAL PRODUCTS CORP. 691 Holland, were placed on the petition shortly after the latter got off work, and, so he testified, a "whole bunch" of other employees were present. A number of other employees as well as Howard Sparks (whose name is 45th) testified credibly that they signed after quitting time. Caveness took the petition home with him the night of September 14 and testified that he was the last person to sign it that day. His signature is 54th. He left the plant at 5 p.m., having worked overtime. In the light of the foregoing testimony, it is plain that Fiske's testimony that all the signatures were obtained on the petition on September 14 and that it was turned over to him by Caveness just after 3:30 p.m. in its final form, except for the signature of Rupert West, is erroneous. Moreover, there is credible testimony that several employees signed the peti- tion on the morning of September 15. It is customary for employees to come to the plant before the 7 a.m. starting time, to clock in and then wait for the buzzer to sound, signalling that it is time to begin work. Caveness brought the petition to the plant the morning of September 15 and took it back to the shipping department, where he works. It is his testimony that at least one employee came to him and said that he wished to sign the petition. Luther Martin testified that he had seen the petition the previous afternoon outside the plant and that "a bunch" of employees were signing it. Martin, however, did not know what the petition was about and did not sign it. The following morning, so he testified, Sparks came to him about 6:50 and told him that Caveness had the petition and that Martin should go back there and sign it so that they could get more money after the union was ousted. Martin did so. His name is 56th on the petition. As Martin was signing the petition, Howard Sparks came to Caveness and said that he had two or three more who wanted to sign. Sparks took the petition to the other end of the building and the names of five employees appear immediately after Martin's name . Employee Robert Frederick signed the petition in front of the coke machine before work time. Em- ployee Billy Southward testified that he signed the petition before the buzzer sounded on the morning of September 15. His brother's name David appears in the 62nd position and the name of Lawrence Bennett is 63rd. Billy Southward's name is in next to last position, 64th. The timecard of Law- rence Bennett establishes that he was not at work on Monday, September 14, and, therefore, must have signed the petition the following morning. Rupert West's name is last. Although Fiske testified that West signed in his office the afternoon of September 14, the fact is that West first heard of the petition the following morning. Howard Sparks asked him to sign and West testified that, when he replied that he did not feel that he could do so since he had been put in charge of a night crew as leadman, Sparks asked West whether he punched a time- card and West replied that he did. Between 6:45 and 7 a.m. Caveness brought the petition back to West and asked him to sign. He did so. West was positive that Fiske never asked him to sign the petition and never said anything to him about signing.' D. Conclusions as to the Petition and the Refusal To Bargain As is readily apparent from the foregoing discussion, coun- sel for the General Counsel relies primarily upon the tes- timony of former Plant Superintendent Fiske to support the allegation that the Respondent sponsored or participated in ' I have not overlooked the testimony of Caveness to the effect that West came in to Fiske's office after Caveness had submitted the petition to Fiske the morning of September 15 1 think on the whole that Caveness' recollec- tion in this respect is faulty the initation and circulation of the employee petition to oust the Union as the collective-bargaining representative. On the other hand, there is ample testimony, consistent and mutually corroborative, from both witnesses called by the General Counsel and the Respondent, to the contrary. I am per- suaded, and accordingly find, that the testimony of Fiske must be rejected. His testimony, it seems plain, was intended to injure his former employer who had discharged him. Although Fiske testified that he left the Respondent's employ under very amiable terms, his own testimony belies the accuracy of this assertion. Fiske believed that when he was first employed he had been told that he would receive an increase, but he never did. In consequence, he felt badly about this. He testified that he felt he had done a good job during the entire year, but he further testified that when he was terminated he felt that the Company had been unfair to him and had charged him with responsiblity for production and quality problems over which he had no control. Additionally, in practically the same breath he stated that he did not think President Rubin's opinion of his work was unfair and then that he did not think it was fair. At Christmas Fiske received a smaller bonus than other supervisory personnel including certain foremen. At first he claimed that he did not know that other supervisors had received higher bonuses but then conceded that he did know this fact and that he was upset. Shortly before his termina- tion, Fiske was relieved of his duties in the plant and was moved to the office and his salary was reduced. Although he stated that he believed that this change in his duties and pay occurred simply so that "his position could be taken over by the son of the president of the Company," he stated that he was not upset with the Company or any officer. Additionally, Fiske was evasive at times and he attempted to create the false impression that he had discharged three employees for dis- criminatory reasons at President Rubin's instruction. How- ever, after close examination Fiske, somewhat reluctantly, admitted that the Respondent's labor policy had changed after it had acquired new labor counsel and that Mr. Rubin had told him of his change in attitude and that he did not want to discriminate against the employees about whom he had previously spoken to Fiske. Finally, the Board has stated that it will not base an unfair labor practice upon the uncor- roborated and contradicted testimony of a witness who has been shown to be unrealiable in other matters. Raymond Buick, Inc., 173 NLRB 1292. Documentary evidence refutes the testimony of Fiske specifically in regard to the telephone conversation with Attorney Hudson and his testimony that all the signatures were obtained on the petition on September 14. In such circumstances, the Board has held that it will reject that testimony even if the witness had been credited by the Trial Examiner. Southern Tours, Inc., 167 NLRB 363; Bourne Co., 144 NLRB 805. See also N.L.R.B. v. Pacific Intermountain Express Co., 228 F.2d 170; Hot Point Co., Division of General Electric Co., 120 NLRB 1768. In short, I am satisfied that the clear preponderance of the evidence refutes Fiske's testimony and, accordingly, I discredit him and reject his testimony. Valley Steel Products Co., 111 NLRB 1338; Cf. N.L.R.B. v. Northern Metal Company, 440 F.2d 881 (C.A. 3). Inasmuch as I have discredited the testimony of former Plant Superintendent Fiske, the record contains no evidence to support the contention that the Respondent initiated or in any respect was instrumental in the preparation or circulation of the employee petition. This, therefore, leads to the conclu- sion, which I make, that the petition is objective evidence that 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the majority of the employees no longer wished to be repre- sented by the Union.' - I have not overlooked the fact that a number of employees testified that they were told by Sparks, who was principally responsible for soliciting signatures on the petition, that the purpose of the petition was to obtain wage increases and other benefits; however, there is no substantial evidence that any foreman or other official of the Respondent made such repre- sentations or induced Sparks to express such opinions. I con- clude, therefore, that the allegations of the complaint to the effect that the initation, preparation, and circulation of the employee petitiion was violative of Section 8(a)(1) of the Act must be dismissed. As previously noted, the Union was certified on December 9, 1969, and thereafter the parties engaged in some 16 negotiation sessions. On December 4, 1970, they signed a collective-bargaining agreement which was to be effective un- til 11:59 p.m., December 8. It will also be recalled that on August 3, the Union called a strike which continued until October 1. The Respondent continued to operate with a'work force composed of some 23 employees who did not go on strike, additional employees who'were hired during the strike, and some strikers who returned prior to the termination of the strike. At the end of the negotiation session on September 22, all issues- had been resolved except for the length of the agreement and the demand of the Union that the strikers who had been replaced be immediately reinstated. The spokesman for the Union proposed that if the strikers were all reinstated before December 1, he would agree to the proposal of the Respondent that the contract term would permit the holding of an election after the end of the certification year. The final bargaining session was held on September 28. It was at this meeting that the Respondent advised the Union that it would negotiate for a longer term agreement, extending beyond the certification year, if the Unionwould state that it did in fact represent a majority of the employees. However, no such claim was made at the September 28 meeting or thereafter. It was made, for the first time, on February 4., The office of the General Counsel, in a letter dated November 24, advised the parties that the Union's appeal from the dismissal of its 8(a)(1), and (5) charge was denied. In that letter, General Counsel stated: Since virtually all of the present employees are strike replacements, the Company's conditioning of its Sep- tember 22 offer on a contract term running only to the end of the certification year' could not be shown to have been based on any consideration other than its reasona- ble belief that the Union had lost the support of the employees. Shortly after the receipt of this letter, the Union telegraphed the Respondent that it accepted the Respondent's latest offer, and made no request for a longer contract. The agreement executed on December 4 provided for no increased benefits over those that were in effect immediately prior to the execu- tion of the contract. On December 10, the Respondent re- ceived from the Union a request that the contract be "ex- tended"' pending the negotiation of a new agreement. The Union in its letter made no claim of majority support. On the same day that the request from the Union was received, the ' I am, of course, aware that there is testimony that the Respondent believed that a petition to oust the Union was likely to be initiated, but the fact is that the Respondent did not interfere with its circulation The only activity that may have occurred on company time was that Caveness wrote the heading on the petition while he was on the clock All other employee witnesses testified that they signed the petition on their own time, either before or after work. See Hamburg Shirt Corporation, 175 NLRB No 148, Stewart & Stevenson Services, Inc., 164 NLRB 741 Union distributed a leaflet to the employees which contained the following statement: If the Union can get,this much when most of you were not members, think of what could be gained it,most of you belonged. On December 14, the Union renewed its request for a 60-day extension of the contract and further negotiations,' but again omitted to make a claim that it had a majority support. On December 17, Respondent replied, noting that the. Union-had failed to claim majority support and expressing doubt that it did have a majority. The Respondent stated it was-prepared to agree to an "immediate secret ballot election to determine the issue." It ,was not until February 4, when the -Union again re- quested negotiations, that it stated in boldface type that a majority of the employees in the unit were members of the Union. Later, in a telephone conversation on February 16 with Attorney Coles, the Union offered to present the cards to him for -inspection and repeated this offer subsequently. International Representative Hatton conceded that some of the cards had been obtained prior to the strike and 'in reply counsel for the Respondent expressed the belief that some of the employees who had at one time signed membership cards no longer desired representation ,by the `Union. Counsel offered to cooperate with the Union in every way possible if it would agree to an immediate election. When this offer was refused, the Respondent filed its petition on February 22. Counsel for the Respondent correctly points out that an employer may withdraw recognition despite a prior certifica- tion if the presumption of majority- arising from the certifica- tion is rebutted by competent evidence relating to the fact of the Union's majority status, or the withdrawal is predicated upon a good-faith and reasonably grounded doubt of the Union's 'continuing majority status. It argues that the, evi- dence in this case does not support the conclusion that the Union was in fact the majority representative and, secondly, that even if the'Union had been the majority representative the Respondent had a reasonably grounded doubt of its status which was raised in good faith. It is hornbook law that the certification presumption is -designed to promote, stability in collective-bargaining relationships without, however,' mpar- ing the free choice of employees. It has' been held'that when agreements are not "effective to create or perpetuate a collec- tive bargaining relationship" because of their temporary na- ture, they do not, upon their expiration, operate to' create a presumption of continuing majority', status. Bender Ship Re- pair Company, Inc., 188 NLRB No. 86; see also Hill Plumb- ing Company, 190 NLRB No. 45. 'The' Respondent also argues that the contract in this case is analogous top rehire agreements which would be unlawful except for Section 8 of the Act, and that the Board will not permit, a rebuttable presumption to arise from such agreements. Davenport Insu- lations, Inc., 184 NLRB No. 114. ' Moreover, the Respondent argues that even if a presump- tion arose in this case, it was rebutted by evidence of the Union's lack of majority. Thus, it points out that when the agreement expired on December 8, the unit was composed of 34 replacements for strikers, 16 strikers who'had returned to work, 23 employees who did not participate in the strike, and a small group of strikers who had not as of then been rein- stated. In addition, there is evidence that 18 of the 23 non- strikers personally advised Fiske oil Rubin or both that they were opposed to the Union. While the Board has in some cases held that abandonment of a strike does not necessarily warrant the conclusion that the striker has abandoned the Union, in the present situation 14 of the strikers not only abandoned the strike but expressed their opposition' to the Union as their bargaining agent to' officials`of the Respond- KAYDEE METAL PRODUCTS CORP 693 exit.' President Rubin testified that he believed that the re- placements hired during the strike were not in favor of the Union. The Respondent's Counsel suggests that such a belief "is reasonable from the mere fact that these employees were hired to permanently replace Union members and had job interests that were in direct conflict with interests of strikers to whom the Union owed its primary loyality." See Stoner Rubber Company, 123 NLRB 1440; Jackson Manufacturing Company, 129 NLRB 460, 473, 478; and Pioneer Flour Mill, 174 NLRB No. 174. - Counsel for the Respondent summarizes the basis for the Respondent's good-faith doubt of continuing majority status by listing the following factors: 1. The certification election margin of four (4) votes meant that a shift of only a few employees' loyalties would effect the Union's majority. Corvair Div., 169 NLRB No. 26. 2. The Union lost support for its strike. 3. Practically all of the non-strikers and the employees who abandoned the strike advised Respondent they were opposed to the Union. 4. Thirty-four (34) "non-union" replacements were hired. 5. The Union expressed doubts they could win an elec- tion even if strikers were permitted to vote. 6. The Union agreed to a two (2) [sic] day labor agree- ment despite Respondent's offer to negotiate for a longer agreement if the Union would claim majority support. 7. The Union admitted in a handbill that a majority of the employees were not members of the Union. 8. The Union failed to claim majority status in its de- mands even though challenged to do so, but later, after conducting a two month drive to obtain membership cards, claimed a majority. 9. When the Union finally claimed majority it admitted that it was based in part upon Union cards which had been signed before the strike during which many em- ployees abandoned the Union as their bargaining agent. In summary, I find that the Respondent's assertion of a doubt as to the Union's continued majority status had been "raised in a context free of unfair labor practices ... "South- ern Wipers, Inc., 192 NLRB No. 134 and, additionally, that it had been raised in good faith. Accordingly, I shall dismiss the allegation that the Respondent unlawfully refused to bar- gain with the Union.' E. The Suspension of Kermit Harp Harp begain working for the Respondent on May 5, 1969, as a setup man for welders. He was laid off in September of that year but returned in October when he was assigned to the buffing department, but later returned to the setup job. He injured his back on October 21 and was off until June 16, 1970. He worked until the strike begain under Foreman Al- fred Robinson. He returned the latter part of September and was assigned to his former job as setup man. He testified that he was given no instructions by Robinson regarding the chrome legs of the chairs that he worked on. In December, so he testified, he noticed that some legs were rusty and he thereupon asked Robinson what to do with them. He was told to seperate them. According to Harp, he inquired of Robin- Including, as I find, Kermit Harp. I have considered the argument of Counsel for the General Counsel that the statements made by returning employees regarding their disillusionment with the Union were too remote from the time the Respondent withdrew recognition to warrant being relied upon, and constituted hearsay. Counsel in his brief renewed his motion to strike this testimony of Fiske and Rubin. The motion is again denied. son what to do with legs that did not match (i.e., some were shiny and others were dull) and he testified he was told to run them as they were.' Harp served as an observer in the Board election in Sep- tember 1969 and while he was on strike picketed everyday. Harp was suspended for 2 days on February 2 by Foreman Vernon Bolton. Previously, the foreman of the welding de- partment had been Alfred Robinson, but he quit on January 29. Bolton, before becoming foreman of the welding depart- ment, had been foreman of the punch press department. Ac- cording to Bolton, President Rubin told him the first day he was foreman that seconds were coming back from the weld- ing department and that he should straighten out the matter, and was told to watch for "mixed" chrome. Bolton testified that he, in the afternoon after speaking with Rubin, went into the welding department and told the men not to mix bright and dull chrome. He specifically testified that he spoke to Harp about this matter. He further related that it was a "standing instruction" to the welding department employees not to mix shiny and dull chrome legs. According to Harp, the first day after Bolton was foreman he said that he did not know a "damn thing" about welding operations and gave no instructions. The second day Bolton complained to Harp about mixing bright and dull legs and Harp replied that the legs had always been run that way. The following day, so Bolton testified, in the morning he discov- ered that Harp was setting up the legs improperly and told Harp not to mix the bright and dull legs. In the afternoon Bolton stated that he again talked to Harp and told him that he was still mixing the legs. He testified that the other em- ployees were not doing so. Thereupon he took Harp to the office and stated that he would have to lay off for 2 days because of the rejects. Former Foreman Robinson testified that in October, November, and December, 1970 Rubin told him that Harp was not working properly and that he wanted Robinson to fire him. Robinson testified that he told Rubin that Harp was doing as well as the others. According to Robinson, during the latter part of November Rubin stated that he wanted those coming back from the strike to be fired and that he thought Harp was one of the organizers and still working for the Union. Robinson further testified that he talked to Harp several times about the chrome legs and told him to check with him (Robinson) if he was in doubt. In December and January Rubin told Robinson of customers' complaints be- cause of mixed shiny and dull legs. About 10 or 15 minutes after Harp was laid off, Foreman Bolton reprimanded employee Vester Alexander for mixing dull and shiny legs and placed a warning slip in Alexander's personnel file. Counsel for the General Counsel argues that Harp was given disparate treatment in comparison with Alexander, and that this was because of Harp's prounion feelings and activi- ties which were well known to the Respondent and undoubtly accounted for the statement made by Rubin to ex-foreman Robinson in November that he thought Harp was on of the union organizers and was still working for the Union. While the case is not free from doubt, I am persuaded that the evidence does not support the theory of counsel for the General Counsel. I think it quite unlikely that employees would regard a 2-day suspension of Harp as "an object lesson to show... what could happen to a well known Union sup- porter." As I view the facts, Harp had been previously warned not to mix legs but continued to do so. This was not true of other employees. In sum, I find that the 2-day suspen- ' The chrome plating of the legs was performed by an independent con- cern which is not owned or otherwise associated with Respondent. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sion of Harp was not violative of Section 8(a)(3) of the Act. Accordingly, I will dismiss the complaint in this regard. Upon the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Kaydee Metal Products Corporation is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Aluminum Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. General Counsel has failed to establish by preponder- ance of the evidence that the Respondent engaged in, the unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER The complaint herein is dismissed in its entirety.