Orlando Paper Co., Inc.

380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Orlando Paper Co., Inc. and Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America. Case 12-CA-5361 June 9, 1972 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On March 29, 1972, Trial Examiner Arthur Leff issued the attached Decision in this proceeding. Thereafter, Respondent' filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and brief and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order. of the Trial Examiner and hereby orders that Respondent, Orlando Paper Co., Inc., Orlando, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ARTHUR LEFF, Trial Examiner: Upon a charge filed by the above-named Union on October 26, 1971, and amended on November 23, 1971, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 12 of the National Labor Relations Board, issued a complaint, dated November 30, 1971, against Orlando Paper Co., Inc., herein called the Respon- dent, alleging that the Respondent had engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (5) and 2(6) and (7) of the National Labor Relations Act, as amended. The Respondent filed an answer denying the commission of the alleged unfair labor practices. A hearing was held at Orlando, Florida, on January 10, 11, and 12, 1 The complaint alleges and the Respondent's answer admits that [A ]II production employees, including truckdnvers and working foremen, employed by Respondent at its Orlando, Florida, facility, but excluding guards, professional employees, salesmen, technical employ- 1972. On February 18, 1972, the General Counsel and Respondent filed briefs. Upon the entire record in the case and from my observation' of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Respondent, a Florida corporation with its principal place of business in Orlando, Florida, where it is engaged in the sale and distribution at wholesale of paper and allied products, annually purchases and receives products valued in excess of $50,000 directly from points located outside the State of Florida. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Issues As noted above, this case is concerned with alleged 8(a)(1) and (5) violations by the Respondent. The General Counsel asserts in substance that beginning about October 6, 1971, after the Union had been designated by a majority of the Respondent's employees in an appropriate unit' as their bargaining agent, the Respondent not only refused to recognize the Union but embarked upon a course of unfair labor practices of such an extensive, substantial, and pervasive nature-26 separate counts of alleged 8(a)(1) violations are pleaded in the complaint-as to preclude the holding of a fair election and require a bargaining order as the appropriate remedy. The Respondent concedes that a majority of its employ- ees in the appropriate unit signed union designation cards and that it refused to recognize the Union on the basis of such cards. But it alleges that the Union's card majority was "tainted" by the participation in the Union's organiza- tional effort of one Freeman Harper, who, contrary to the position of the General Counsel, it contends was a supervisor within the meaning of Section 2(11) of the Act. The Respondent denies that it committed any of the 26 alleged independent 8(a)(1) violations attributed to it in the complaint. But, aside from its defense of a "tainted" majority, it asserts that even if the alleged 8(a)(1) violations are found to have been proved, they would not justify a remedial bargaining order. B. The Respondent's Work Force; The Supervisory Status of Freeman Harper The Respondent operates its business of distributing paper goods in Orlando, Florida, out of a warehouse ees, office clerical employees , and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 197 NLRB No. 72 ORLANDO PAPER CO., INC. 381 containing approximately 50,000 square feet. Damel Franklin, the Respondent's general manager and vice president, is in overall charge of the Respondent's Orlando operations. His office is situated in a glass-partitioned corner of the warehouse where the Respondent's general office facilities are also to be found. By rising from his desk and going to the glass partition, he can view the physical warehouse operations. Also situated in the office area facing the warehouse is O. R. Cooper, the office manager, described by Franklin as his "right hand." Cooper, who earns approximately $210 a week, serves as the Respon- dent's head bookkeeper. He also supervises the work of the Respondent's office force, consisting of two bookkeepers, four telephone salesgirls, a secretary, and an inventory clerk. He has no significant part, however, in directing the physical operations of the warehouse itself, except that he holds himself available to the warehouse foreman for consultation about any special problem that may come up when Franklin is away. Apart from the employees mentioned above, the Respon- dent's work force is composed of warehousemen and truckdrivers, herein referred to as the warehouse employ- ees, who alone are directly involved in this proceeding. During most of the period material herein-in late September and October 1971-the Respondent employed nine warehouse employees-Freeman Harper, James Fitzgerald, Arthur Eastman, Tom Adams, William Jones, Samuel Edwards, Michael Homer, James Green, and J. D. Powell. The first four worked primarily as warehousemen. The others-except possibly for Powell whose precise job is not disclosed by this record-worked primarily as truckdriv- ers operating the four trucks which the Respondent uses on regularly assigned runs in making deliveries of the paper products it sells.2 All of the warehouse employees referred to above were hourly-rated, except Fitzgerald and Harper. Fitzgerald, whose work in the warehouse was primarily that of a receiving clerk, was paid a straight salary of $110 a week.3 Harper-who, on a union designation card he signed, identified his job as that of "working foreman"-was paid, a straight weekly- salary of $125 a week, with no extra compensation for overtime work. Hourly-rated warehousemen receive $2.25 per hour, but with overtime usually earn about $115 a week. The status of Fitzgerald as a rank-and-file employee is not disputed. In issue, however, is the status of Harper, the General Counsel contending that he is at most a leadman or a straw boss and the Respondent contending that he is a supervisor within the meaning of the Act. Harper began working for the Respondent in June 1971 as an hourly-rated warehouseman. At about the end of August 1971, he was assigned to his present salaried position, replacing William Jones who had occupied that position for the previous 3 months or so. Jones at the same 2 Adams left the Respondent's employ on or about November 1, 1971, the others mentioned above were still with the Respondent at the time of the hearing In the latter part of October 1971, the Respondent hired three new warehouse employees, only one of whom, Friedman , was still in its employ at the time of the hearing Normally there is a high rate of employee turnover among the Respondent's warehouse employees It was stipulated that during the 10-month period preceding the hearing , the Respondent hired 22 warehouse employees to maintain its normal 9-man complement and that four different individuals successively occupied the working time was reassigned, at his own request, to his earlier position as a truckdriver. Franklin told Harper when he assigned him to the position Jones was vacating that he was to be in charge of the warehouse with responsibility to see to it that trucks were out in time, that orders were pulled correctly, and that errors were kept to a minimum. According, to Harper's testimony, which I credit, Franklin did not then, or later, say anything to him about his job title or, except as stated above, tell him specifically what his authority over other warehouse employees was to be.4 Harper understood, however, that he was to have the same functions and responsibilities that Jones had had. Jones, as his testimony reflects, understood his title to be that of warehouse foreman. In his present position, Harper spends 90 to 95 percent of his working time performing the same physical functions as those performed by other warehousemen-pulling orders, using the forklift, loading and unloading trucks, etc. In addition, however, he assigns to other warehousemen their specific daily work tasks, telling them, for example, what shipping orders they are to work on and what trucks they are to load. He is also responsible for seeing to it that shipping orders are filled accurately, that shipments are written up properly with all merchandise accounted for, and that the loading of trucks is completed in time for scheduled deliveries. Harper was given keys to the warehouse at the time he was assigned to his present position. On occasions when this has been required in order to meet scheduled delivery times, Harper has opened the warehouse early or kept men late. It has also been necessary for him at times to do catchup work on Saturdays or Sundays with the assistance of hourly-rated employees. In such instances, he has usually selected the employees who are to work the overtime hours. Harper does not normally assign truckdrivers to specific runs as each regular truckdriver has his own established route. But there are times when trucks are sent out with double loads, requiring the use of a helper in addition to the driver. In such situations, Harper makes the selection of the employee who is to ride with the driver. Similarly, when an extra route is to be run or when a driver is absent and the extra or part-time driver is not available, Harper will assign a warehouseman to perform the delivery job. Harper has authority to lease additional trucks when in his opinion they are needed, but he has never actually exercised that authority without first obtaining the approval of either Franklin or Cooper. When warehouse employees desire time off from work they take it up with Harper. If the request is for a period of short duration, say, for an hour or so, and Harper is of the opinion that it will not interfere with warehouse opera- tions, he grants it on his own authority and merely directs the employee to report his leave time to Cooper for foreman position held by Harper at the time of the events material herein. 3 Fitzgerald had transferred to that position from a truckdnver'sjob. He testified that as a truckdnver, his total weekly income, with overtime, had ranged from $115 to $130 a week 4 Franklin's testimony on cross-examination that he specifically told Harper that he was to have authority to hire and fire warehouse employees is not credited. Franklin made no mention of this during his direct examination and his testimony to that effect on cross impressed me as improvised 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD timekeeping record purposes. However, if the request is for a substantial period he refers the request to Franklin or Cooper At no time has an employee been denied time off once Harper has approved his request. On one occasion when there was not enough work to go around, Franklin asked Harper to select two men for temporary layoff, but Harper, as appears from his testimony, refused to do so, telling Franklin that if Franklin wanted to effect a layoff he should select the men himself. Both Harper and Jones credibly testified that they were never expressly told that the position of working foreman carried with it the authority to hire, fire, or take any other action affecting thejobs of employees under them. In point of fact, Harper has never participated in any way in the hiring process. Franklin has done all the interviewing of applicants himself while Harper has served as foreman. The same was true during Jones' tenure as warehouse foreman. However, there is evidence that Jones' predeces- sor as working foreman did participate in the employment process, at least with respect to some individuals. So far as appears, no warehouse employee has been discharged since Harper became warehouse foreman. There were two who were discharged during Jones' tenure in that position. In the case of one of them, Jones recommended the discharge, for drunkenness on the job. In the case of the other, Jones did not recommend the discharge, but Franklin consulted with him concerning the man's ability before effecting that action. As one whose working time is almost entirely devoted to the performance of physical tasks similar to those performed by other warehousemen and whose compensa- tion is not substantially greater, Harper could understand- ably regard himself, and be regarded by his fellow employees, as more closely identified with the rank-and- file warehouse employees than with management. As for Harper's added duties, it is undoubtedly true, as the General Counsel contends, that the work assignments he makes are mainly of a routine nature and that his overseeing of warehouse operations is not basically dissimilar from the work of a checker. And it may well be that some of the other considerations on which the Respondent relies, such as the limited authority Harper exercises to grant time off and his occasional selection of employees for overtime work, are not of such a substantial character, standing alone, as to give him "the feeling of control, power, or superiority that one finds in a supervi- sor."5 The highly significant fact remains, however, that Harper, as warehouse foreman, is the person who has been charged by the Respondent with the immediate responsi- bility for seeing to it that warehouse operations are properly performed and that there is no one over him other than Franklin, who, because of his other management responsibilities, is in no position to direct the warehouse employees in the day-to-day performance of their work. Although the matter may not be free from doubt, I believe, on the evidence considered as a whole, that the authority vested in Harper to direct the work of warehouse employees must be regarded as of sufficiently substantial 5 NLRB v Security Guard Service, Inc, 384 F 2d 143, 150 (C A 5) See also Benson Wholesale Co, 164 NLRB 536, 548; South Florida Liquor Distributors, Inc, 113 NLRB 109, Miami Paper Board Mills, 109 NLRB 167, responsibility to place him in the category of a supervisor within the meaning of Section 2(11) of the Act, rather than that of a straw boss or leadman as contended by the General Counsel.6 I so find. C. Chronology of Events Organizational activities at the Respondent's warehouse began about the middle of September 1971. The initiator and employee leader in such activities was Arthur Eastman, a warehouse employee who had been hired earlier that month. Several days after Eastman was employed, he suggested to employee James Fitzgerald the desirability of union affiliation for the warehouse employ- ees. Fitzgerald expressed an interest in union organization, but warned Eastman that "union" was a "real bad word around Orlando Paper Company" and that Eastman should be careful about whom he spoke to. During the next week or so, Eastman spoke to the other warehouse employees about bunging a union into the plant and received expressions of interest from them. Harper was among those to whom he spoke. Harper indicated his own interest, but took no steps on his own to solicit employee support for union organization. As appears from Fitzger- ald's testimony, Harper was present, however, at one or two informal discussions concerning unionization which took place at a restaurant where some of the warehouse employees were wont to gather for a beer after work. At these gatherings, Eastman did most of the talking in favor of a union. Fitzgerald could not recall Harper expressing himself at these meetings on whether or not he favored a union at the warehouse. On September 27, 1971, Eastman called at the union office, where he met with Herman Witt, the Union's business agent. Witt gave Eastman union designation cards to distribute to the employees. Subsequently, Eastman made arrangements with Witt to have the latter meet with the warehouse employees at the union hall. Eastman invited Harper to come to this meeting. The meeting, held on October 1 at the union hall, was attended by all the warehouse employees but two-Wil- liam Jones and J. D. Powell. Jones, a truckdriver, could not come that night because he was on the road. Powell, it appears, was opposed to union organization. Before the start of the meeting, there was a discussion concerning Harper's eligibility because of his position as working foreman. After discussing the matter with the employees and also with Harper, Witt declared it to be his opinion that Harper occupied the status of a leadman or working foreman rather than that of a supervisor. Harper was then admitted to the meeting. At the October 1 meeting, all seven of the warehouse employees in attendance signed cards designating the Union as their bargaining representative. Harper was the last to sign. He was present, however, when the others signed their cards. The next day, Jones also signed a union authorization card. Eastman, Edwards, and Harper were present with Jones at a restaurant when he signed his card. Jones testified that at the restaurant Eastman and Edwards Plastic Workers Union v. N L R B, 369 F 2d 226 (C A 7) 6 See Sky Wolf Sales, d/b/a Pacific Industries, 189 NLRB No. 135, Grand Forks Grocery Co, 121 NLRB 1271 ORLANDO PAPER CO., INC. did all the talking about the Union and that Harper did not tell him until after he had signed his card that he (Harper) had signed one, too. Harper testified he never personally solicited a union authorization card from any employee. Harper's testimony in that respect is supported by all the employee witnesses who were questioned on that point. Under date of October 4, 1971, the Union addressed a letter to the Respondent, requesting recognition as the bargaining representative the Respondent, requesting recognition as the bargaining representative of the ware- house employees and offering to establish its majority status by written proof.? Franklin first became aware of the Union's recognition demand on the morning of October 6, when he returned from an out-of-town business trip. Later that morning, during the coffeebreak, Franklin assembled the employees then present in the warehouse. In a talk to them, Franklin expressed his disappointment and dismay that they had chosen to go the union route He told them that if they had problems they wanted solved they should form a labor organization of their own, confined to company ware- housemen and bring their problems to him in that manner; he said that if the employees were dissatisfied with their working conditions or if money was the issue, he was sure they could come to a mutually satisfactory arrangement without bringing in an outside party. Franklin suggested that toward that end the employees appoint a spokesman from among their own group to meet with him on Friday of that week to discuss the matter further. On October 7, the Respondent sent the Union a telegram in which it expressed doubt of the Union's majority, questioned the appropriateness of the unit defined in the Union's demand, declared its unwillingness to recognize the Union on the basis of a card check, and suggested that the question concerning representation be resolved through the Board's processes. On the same day, the Union filed with the Board's Regional Office a representation petition, Case 12-RC-3956, seeking certification as bargaining represent- ative for the Respondent's warehouse employees. On October 13, Franklin called a meeting of all the warehouse employees and read to them a speech that had been written for him. Franklin began by explaining the election procedures that would be followed and what the legal consequences of union certification would be. He then spoke of the disruption in harmonious employer- employee relations that was likely to ensue from a union victory and particularly stressed that the Union was really not concerned with employee interests, but only with the furtherance of its own selfish ends. Referring to employee and employer rights, he mentioned that he would not tolerate anyone in the Company discriminating against employees either way because of their membership or r The unit defined in the Union's demand is identical to the one alleged in the complaint, and admitted in the answer, as appropriate for purposes of collective bargaining. See fn I, above 8 Under the Respondent's profit-sharing plan, a portion of the Company's profits is set aside each year, allocated to individual employees in proportion to their W-2 earnings and held in trust for them, the amount held for each employee being evidenced by a certificate given to him The employees obtain no vested right to the money held for them unless they remain in the Company's employ for about 10 years At that time, they can 383 nonmembership in the Union, regardless of the outcome of the election. If the Union was certified, he said, the Respondent would bargain with the Union as the law required it to do. But he made clear that this did not mean that the Respondent had to agree to union terms and he also dwelt at some length on the economic losses and other consequences employees might expect to suffer in the event of a strike. Franklin also stressed that the wage-price freeze would preclude the Respondent for an indefinite time from making wage adjustments even if the Union was selected. In the course of his remarks, he also referred to the Company's "generous profit sharing arrangement,"8 and stated, "I know of no union shop where employees are able to enjoy the benefits of a profit sharing program." The General Counsel does not contend that Franklin's speech was unlawfully coercive. Its overall tenor was such, however, as to leave the employees in no doubt of the Respondent's opposition to union organization. Franklin at the end of the speech invited questions from the employees. There were no questions, but Eastman, speaking for the employee group, arose and read a statement. There is a conflict in the testimony as to precisely what statement he read. According to Franklin, supported in this respect by one employee witness, the statement was in the form of a response to Franklin's suggestion made at his meeting with employees on October 6 that the employees select from among them a spokesman to deal with him on the group's behalf.9 According to Eastman and other employee witnesses, the statement read by Eastman was in the form of a document bearing the signatures of warehouse employees who had signed union designation cards,iO declaring "their individual and com- bined desires as an organized body to affiliate themselves with the Union." The above-mentioned conflict in testimo- ny is unimportant, however, and need not be resolved. For it is undisputed that within a day or so after the meeting, Eastman, at Franklin's request, showed Franklin both statements and allowed Franklin to make copies of them. During the next several days, the unit employees were individually called into Franklin's private office and interrogated by him concerning matters relating to the Union. Harper had a number of such meetings with Franklin. At one of them, Franklin commended Harper for the fine job he was doing, offered him a $10 raise (which Harper refused to accept because of the wage freeze), and asked him to commit himself to the Company and to try to persuade the warehouse employees not to vote for the Union. At another, Franklin told Harper that Eastman had been planted at the warehouse by the Union for organiza- tional purposes and specifically requested Harper to set up Eastman for discharge so that he could get rid of him.ii Jones was called at his home on the Saturday following either withdraw the money or have it applied toward a pension 9 The statement identified by Franklin as the one that was read declared in substance that the employees had met in response to his earlier suggestion that they form a company organization and had "definitely and firmly" decided to affiliate as a group with the Union and had selected Eastman as their union steward. to Eastman's name headed the list of signatures, Harper's was last 11 These findings are based on credited testimony of Harper Franklin denied telling Harper to set up Eastman for discharge According to his (Continued) 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Franklin's speech and asked to come to Franklin's office. Franklin questioned Jones on how he felt about the Union and how he intended to vote in the forthcoming represen - tation election. When Jones stated he did not know how he would vote, Franklin urged Jones to commit himself to the Company and to talk the Union down among the men. Franklin said that he would feel, if the Union lost the election, that Jones had helped bring about that result, and he would then see to it that Jones was taken care of. "I'm not promising you raises or anything else," Franklin said, "but I'm dust going to take care of you." Franklin then referred to the Respondent's profit-sharing arrangement. Producing a company record showing that Jones already had $400 standing to his credit under that arrangement, Franklin told Jones, "That's dust going to go down the drain if this union comes in." Franklin then added that the loss of profit-sharing credits should also be a matter of considerable concern to the other truckdrivers as they had been with the Company longest and had "a lot more to lose." Subsequently, Franklin inquired of Jones about Harper's involvement in the Union.12 Eastman was called to Franklin's office on October 15. It was at this meeting that Franklin requested to see, and was shown, the statement signed by eight of the warehouse employees declaring their "individual and combined desires" to affiliate with the Union. Franklin expressed his amazement that Eastman, a new employee, was able to organize the warehouse employees in so short a time. He told Eastman that he had unusual leadership qualities that could become an asset to management at a later time and urged him to use his leadership ability now to swing the employees' votes to the Company's side in the forthcoming election, thereby implying, it is found, that if Eastman cooperated with Franklin as requested, he might anticipate eventual advancement to a management position. Franklin also told Eastman that if what he was seeking was a wage increase, all he had to do was to ask Franklin for one. During the course of the meeting, Franklin also questioned Eastman at some length about his prior affiliation with the Union,13 where the employee organizational meetings were held, who had attended them, and what was said at them.'' Fitzgerald testified that, at his private talk with Franklin in the latter's office, Franklin referred to Eastman as a union organizer who was only interested in feathering his version, he simply told Harper that Eastman was not doing his job properly and that Harper should do whatever he could to correct the situation. Franklin's testimony in that respect, however, impressed me when given as lacking in conviction 12 The above findings are based on Jones' credited testimony. Franklin admitted summoning Jones to his office, asking Jones to vote against the Union and to urge other employees to do the same , and talking to Jones about his accumulated interest under the profit -sharing plan However, he denied asking Jones specifically how he intended to vote, stated he could not "recall" promising to take care of Jones if the Union lost, and testified that his profit-sharing references were cast in terms of what might happen as a result of negotiations if the Union won Jones impressed me, as Franklin did not, as a particularly forthright and careful witness, and I view his testimony as more reliable than that of Franklin 13 Eastman told Franklin , and also testified at the hearing , that he had never before been a member of any labor organization. 14 The findings in the above paragraph are based on testimony of Eastman that I find credible Franklin's testimony is not substantially at variance with these findings , except perhaps for the portion relating to Franklin's implied promise to advance Eastman in time to a management position if he helped defeat the Union According to Franklin, he simply own nest, inquired how he (Fitzgerald) intended to vote, where the union meetings had been held, and who attended them; pointed out to him that Harper would not be there forever and that Fitzgerald was next in line for Harper's job, thereby implying, without expressly promis- ing, that Fitzgerald might eventually expect promotion to Harper's job; urged Fitzgerald to persuade other employ- ees to vote against the Union; and stated, without referring to contract negotiations, that if the Union were voted in, employees would probably lose some of their existing benefits, specifically profit sharing. Fitzgerald's testimony to the foregoing effect, though partially denied by Franklin, is credited.is Samuel Edwards was summoned by Franklin to the latter's office for a private talk concerning the Union on or about October 18. Franklin discussed the Company's profit-sharing plan and implied that under a union contract the employees would lose that benefit.is Empha- sizing that he did not want an outsider running the Company, Franklin reiterated the suggestion he had earlier made that the employees get together as a group to deal with him. If the employees' interest in unionization was due to the employees' dissatisfaction with their wages, added Franklin, he was confident that an arrangement might be made to work out that problem without a union.'? Michael Homer testified that at his meeting with Franklin at the latter's office, Franklin asked him what he though of the Union and how he intended to vote. Homer was noncommittal. Franklin then told Homer that he was going to get a 25-cent wage increase after he was there 90 days. Homer had started working for the Respondent on July 15, roughly 90 days before. As appears from Homer's testimony, it was usual for employees at the warehouse to be given such an increase after they were there 90 days. Franklin denied asking Homer how he intended to vote, but did admit asking him what he thought of the Union and telling him he hoped he would "pull for the Company side," while discussing with him the forthcoming raise. James 'Green, the employee longest in service at the warehouse, was called into Franklin's office several days after Franklin delivered his speech to the employees. Franklin questioned Green about union activities and referred to Eastman as a union plant who was acting in his told Eastman that Eastman with his leadership talents might someday find himself in the position of a foreman where he would have to deal with the Union himself To the extent that their respective versions are in conflict on this point, Eastman's appears to me to be more plausible 15 Although Franklin denied asking Fitzgerald about union meetings and who attended them, I think it entirely likely that he did since, as other evidence reflects, the Respondent during this period was seeking to discover the extent of Harper's participation in union organizational activities. Fitzgerald's testimony about profit sharing, which Franklin also disputed, is in effect corroborated by other witnesses Between the two, Fitzgerald impressed me by his overall testimony and demeanor on the witness stand as the more reliable witness 16 1 credit Edwards' testimony in this respect Franklin's version was that he merely told Edwards that there was "some question" in his mind as to "how the profit sharing pension program would be affected by [negotiation] for a new contract." IT This finding is based on Franklin's testimony Edwards testified, and Franklin denied, that Franklin mentioned specifically a 50-cent hourly wage increase I think it unlikely that Franklin would have singled out Edwards to promise a wage increase in a specific amount. ORLANDO PAPER CO., INC. own selfish interests. Franklin also told Green that if the Union were designated as the employee representative, Green stood to lose the profit-sharing earnings that had been accumulated for his account, stressing that in his case this would be "quite a sum" as it would cover a period of 5- 1 /2 years.18 On October 18, 1971, a second meeting was held at the union hall. All eight warehouse employees (including Harper) who had designated the Union were present along with Witt, the Union's business agent. After a discussion of what had happened since the last meeting, the employees voted, with but one dissenting vote, to go on strike the following day to protest both the Respondent's unfair labor practices and its failure to grant the Union recognition. The strike began as scheduled at 11:30 a.m. on October 19. All the warehouse employees, except Powell, who never joined the Union, and Robert Hastings, a new employee who had started with the Respondent the preceding day, participated in the strike and picketing. Harper was among those who struck and picketed. Franklin admitted that he was aware of the identity of all those participating in the strike. The strike lasted only until about 1 p.m., when, following a meeting of Witt with the attorney for the Respondent, the picketing was discontinued and the striking employees returned to work. As agreed upon by Witt and the Respondent's attorney, the striking employees were paid for the time lost while on strike. At his meeting with the Respondent's attorney, Witt renewed the Union's demand for recognition. Witt testified that he left the meeting with the belief that there was a good possibility the Respondent would now voluntarily recognize the Umon.19 Subsequently, however, the Union received a letter from the Respondent again declining recognition. After the strike, Franklin, so far as appears, refrained from contacting warehouse employees individually in an effort to wean them away from the Union. However, during the latter part of October, while a hearing on the Union's representation petition was pending, the Respondent hired three new employees.20 Franklin admitted that in his prehire interviews of these employees he interrogated them concerning their attitude toward the Union and that his selection of them was influenced in a substantial part by his belief, based upon what they had told him, that they would vote against the Union, in a Board-conducted representation; election. One of these newly-hired employees, Robert Charles Hastings, who began work on October 18, was subpenaed as a witness by the General Counsel. 21 His testimony, as 18 Franklin did not deny Green's testimony to the foregoing effect, except that his version was somewhat different with respect to the profit- sharing part of the discussion According to Franklin, he simply "comment- ed that I [Franklin ] did not know the legal aspects of this thing, but was he [Green] aware that in some way the profit sharing could be affected" Green's version strikes me as more plausible and I accept it. 19 There is nothing in the record , however, to indicate that the Respondent's attorney said or did anything to encourage such a belief. 20 The Respondent's normal complement of warehouse employees, including the warehouse foreman, is nine The addition of the 3 brought the number, at least temporarily, to 12. About November 1, 1971, after the Union filed its charge herein which blocked the representation proceeding, 385 supplemented in part by testimony of Franklin, to the extent credited, shows the following: Hastings had never worked as a warehouseman before and was actually interested in a job as a management trainee. During his prehire interview, Franklin interrogated Hastings concerning his views about union organization, explaining that the Respondent was having a fight on its hands to defeat the Union's organizational efforts. Hast- ings assured Franklin that he did not believe in unions and was strictly a company man. Franklin then told Hastings that because of the union situation he would expect Hastings to work closely with him and furnish him information as to employee activities; that, if Hastings was with him on this, he had the job. Franklin also promised Hastings a bonus if the Union were defeated in the election 22 Although Hastings was actually hired as a management trainee, he was assigned to work in the warehouse. The other warehouse employees were not informed that he was not a regular warehouse employee. After Hastings began work, he met with Franklin privately at a restaurant and also frequently telephoned him at his home to transmit to him information relating, inter alia, to what he had observed about employees' union attitudes and about what employees were planning in the way of union activities. On one occasion, Franklin asked Hastings to contact him when he next observed warehouse employees gathered together in a group discussing the Union as they sometimes did, so that Franklin could come in and catch them in union activities on working time. Hastings tried to carry out that instruction, but failed because by this time the employees distrusted him. During another telephone conversation, Franklin told Hastings that he had hired two new men who could be expected to vote in favor of the Company in the representation election and that he expected one of them to be "a potential candidate for the top warehouse position [Harper]." The Respondent had been notified on October 14, 1971, that a hearing would be held on October 28, 1971, on the petition for certification filed by the Union in Case 12-RC-3956. The Respondent waited until October 26, 2 days before the scheduled hearing, and then filed with the Regional Director a motion to dismiss the Union's representation petition, and a request for an administrative investigation, on the asserted ground that the Union's showing of interest was "tainted by reason of supervisory participation." Later that same day, the Union filed its original charge in this complaint proceeding. As a result, further proceedings in the representation case were suspended. On November 30, 1971, simultaneously with the issuance of the complaint in this proceeding, the one of the warehouse employees who had designated the Union, left the Respondent's employ and, during that same month, one of the newly-hired employees, Hastings, also did. Subsequently another of the newly-hired employees also left, but the record does not showjust when. At the time of the hearing herein, the total complement of warehouse employees was again down to rune. 2i As Hastings was obviously a reluctant and hostile witness, the General Counsel was permitted to cross-examine him under sec. 43(b) of the Federal Rules of Civil Procedure. 22 Franklin, while not substantially disputing Hastings' testimony in most other respects, denied that he promised Hastings a bonus. Franklin's denial is not credited. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Board's Regional Director notified the parties in the representation proceeding that, because of the complaint's allegation of a refusal to bargain, the Union's representa- tion petition was being dismissed. D. Concluding Findings as to Interference, Restraint, and Coercion The foregoing factual findings clearly establish that from the time the Respondent was first informed on October 6, 1971, that a majority of its warehouse employees had designated the Union as their representative, and extend- ing at least until the time the Union filed its charge in this proceeding, the Respondent, through General Manager and Vice President Franklin, its highest management official stationed at its Orlando facility, engaged in a deliberate and coercive campaign to undermine the Union and to induce the unit employees to reject the Union as their collective-bargaining representative. More specifical- ly, I find that the Respondent , through Franklin, tres- passed upon employee statutory rights in violation of Section 8(a)(1) in the following respects: (a) By suggesting to warehouse employees at the coffeebreak meeting held on October 6, 1971, that they abandon the Union and form their own employee organization with a spokesman selected from their own group to deal with the Respondent concerning wages and working conditions, and by impliedly promising the employees an increase in their wages and an improvement in their working conditions if they followed that suggested course. See American Cable Systems, Inc., 414 F .2d 661, 664 (C.A. 5); Waycross Sportswear, Inc., 160 NLRB 11, 17, 21; N.L.R.B. v. Exchange Parts, 375 U.S. 40. (b) By making a like suggestion to employee Edwards, accompanied by a like implied promise of benefit , during Franklin's private talk with Edwards on or about October 18. (c) By instructing Harper to find a pretext to discharge Eastman because of Franklin's resentment of Eastman's leadership in the Union's organizational campaign. See, N.L R.B. v. Tidelands Marine Service, 338 F.2d-44, 46 (C.A. 5); Daniel Construction Co. v. N. L.R.B., 341 F.2d 805, 812 (C.A. 4); Elder-Beerman Stores Corp., 173 NLRB 566.23 (d) By interrogating employees individually24 how they felt about the Union or how they intended to vote and also by interrogating employees individually25 about the union activities of others. The foregoing interrogation, I find, was clearly coercive, particularly as it was engaged in by the Respondent's highest management official in the privacy of his office, in a setting of unconcealed employer opposition to the Union and , in most instances, in context with other conduct constituting unlawful intereference, restraint, and coercion of employees. (e) By threatening employees,26 expressly or by clear 23 Harper, though found to be a supervisor, was a member of the employee group that had expressed a desire for umon affiliation (known to be such by the Respondent at least after October 15) It is thus reasonable to infer that the instruction given Harper would likely come to the notice of warehouse employees 24 Employees Jones, Fitzgerald, Homer 25 Employees Eastman, Fitzgerald, Green 26 Employees Jones, Fitzgerald, Edwards, Green. 27 Employees Jones (to take care of him); Eastman (a wage increase), implication, with the loss of accumulated credits under the Respondent's profit-sharing plan, as well as with the discontinuance of that plan, if the Union was selected as bargaining representative. Contrary to the Respondent's contention, Franklin' s references to the employees' loss or probable loss of profit sharing if the Union were voted in, occurring in conjunction with unlawful employee interro- gation and, in some instances , with other conduct found herein to be violative of Section 8(a)(1), can scarcely be viewed as privileged predictions or expression of opinion. See, Motorola, Inc., 163 NLRB 385, fn. 2; Winn Dixie Stores, 166 NLRB 227, 235. (f) By promising or holding out to employees the prospect of economic rewards if the Union were rejected by employees.27 N L R.B. v. Exchange Parts, 375 U.S. 405. (g) By soliciting employees, 28 in a context of unlawful interrogation, threats, or promises of benefit, to use their influence to dissuade other employees from supporting or voting for the Union. Bisso Towboat Co., 192 NLRB No. 116. (h) By interrogating applicants for employment concern- ing their attitude toward unions or union organization and by giving substantial weight, in hiring employees while the Union's representation petition was pending, to the likelihood that those selected for hire would vote against the Union. (i) By conditioning Hastings' employment on his agreement to act as an informer for the Respondent with respect to employee union activities, and by promising Edwards a bonus if the Union were defeated in the election. (j) By interrogating Edwards and soliciting reports from him concerning employees' union attitudes and what they were planning in the way of union activities. E. Concluding Findings as to the Respondent's Refusal to Bargain 1. As to the appropriate unit The Respondent's answer expressly admits that the unit defined in the complaint-as spelled out in footnote 1, above-is a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act and, with the modification stated in the marginal note, it is so found.29 2. As to the Union's majority status It is not disputed that the Union, when it made its initial bargaining demand on October 6, 1971, held eight duly executed designation cards from among the nine ware- house employees, including Harper. Deleting Harper's card, as he has been found to be a supervisor and therefore Fitzgerald (promotion to the warehouse foreman's job) 28 Jones, Eastman , Fitzgerald 29 The unit admitted to be appropriate includes the job category of "working foremen." At the time of the hearing, so far as appears, there was only one "working foreman" position at the warehouse, that occupied by Harper whom I have found to be a supervisor To avoid any possible confusion or misunderstanding, I shall delete the words "working foremen," from the definition of the unit I find appropriate herein ORLANDO PAPER CO., INC. not in the appropriate unit, it follows that the Union was then the designated bargaining agent of seven of the eight employees in the appropriate unit, a clear majority.30 An issue relating to the Union's majority arises, however, from the Respondent's contention that the Union's majority was "tainted," and therefore not cognizable by the Board, because of Harper's asserted participation as a supervisor in the Union's organizational efforts. For the reasons stated below, I find that contention to be without merit. The Board has never held that any participation by a supervisor in a union organizing campaign, regardless of how marginal his supervisory status or how slight his participation in the campaign may be, is sufficient per se to invalidate the authorization cards of all employees having knowledge of his interest in the union. Board precedents reflect that the Board will not invalidate designation cards for supervisory taint unless it is affirmatively established as a minimum, either that the participation of the supervisory personnel in the organizational campaign was of such a kind as to have implied to the employees signing the cards that their employer favored the union, or that there is a reasonable basis for believing that the employees whose cards are sought to be invalidated were coercively induced to designate the Union through fear of supervisory retaliation.31 Applying that broad standard, I do not believe a finding of supervisory taint is reasonably justified on the record in this case It should be observed, to begin with, that although all the warehouse employees who signed cards appeared as witnesses and were subject to cross-examination by the Respondent, there is not the slightest suggestion in the testimony of any of them that his designation of the Union was influenced by anything Harper said or did. As the record shows, Arthur Eastman, a rank-and-file employee, was almost single-handedly responsible for organizing the warehouse employees. It was he who first broached the idea of union organization to employees, obtained their expressions of interest, contacted the Union, obtained and distributed authorization cards, and arranged the meeting at the union hall where most of the cards were signed. Harper's participation in the organizational campaign was relatively minimal and essentially that of a follower rather than a leader. Accepting the evidence most favorable to the Respon- dent, Harper's participation in the Union's organizing effort was restricted to the following: (1) his presence on several occasions prior to the first formal union meeting at employee after-work restaurant gatherings at which union organization was one of the topics of conversation; (2) his attendance at the October 1 union meeting at which all but one of the designation cards were signed; and (3) his presence on the following day, along with Eastman and 30 On October 19, 1971, at the time of the strike, when the Union repeated its bargaining demand, the Union held seven unrevoked designations in a unit of nine, assuming that Hastings (actually hired as a management trainee) is deemed included in the unit. 31 See the following cases in which, notwithstanding supervisory participation in an organizing campaign , the Board found the evidence insufficient to support a finding of supervisory taint Clay City Beverages, Inc, 176 NLRB 681, Juanita Packing Co, 182 NLRB 934, WKRG, 190 NLRB No. 34, Aero Corp v. N. L.R B, 149 NLRB 1283, enfd 363 F 2d 702 387 Edwards, at the restaurant meeting with Jones when Jones signed his designation card. There is no evidence, however, that at any of these meetings, or at any other time, Harper personally solicited any employee to join the Union; such evidence as appears on that point is all to the contrary.32 There can be little doubt, of course, that Harper's very presence at the October 1 meeting and at the meeting with Jones was in itself a manifestation of his support of the Union, even though, as the evidence shows, he did not orally express himself to that effect before the cards were signed. And it may be assumed, even though there is no affirmative evidence to that effect, that Harper, who had earlier expressed to Eastman his interest in the Union, did not conceal that interest in the conversations concerning the Union that had earlier occurred at the restaurant gatherings. Yet, in the circumstances of this case, I think it would be a wooden application of law to rule on a per se basis that, simply because Harper in this Decision has been determined to be a supervisor, his manifestation of support for the Union must be viewed as also a manifestation of management support. Harper, as a working foreman, was a low level supervisor and, as my findings above reflect, a marginal one at that, whose status as a supervisor under the Act was not clear to him, to other employees, or to the Union at the time. As the greatest part of his working time was devoted to work tasks identical to those of other warehousemen, he could understandably consider himself, and be considered by his fellow employees, as more closely aligned in interest with the warehouse employees than with management. It is evident from the record that in participating in the restaurant discussions and in attending the meetings referred to above, Harper viewed his relationship to other warehouse employees as that of employee to employee rather than that of supervisor to employee. And it would be most unreasonable to suppose that the warehouse employees would have viewed the situation differently, so as to regard Harper's show of support of the Union as reflecting a management rather than a personal stance. The events following the Union's bargaining demand serve to confirm that the warehouse employees could not have been misled to join the Union by a belief that this is what management wanted. After the demand, the Respon- dent made it plain that it was strongly opposed to the Union by embarking upon a vigorous campaign to undermine and defeat the Union. Notwithstanding the Respondent's manifested opposition to the Union, which made it obvious to the employees that, in matters affecting the Union, Harper in no way spoke for management, the employees who had designated the Union reaffirmed their desire for union representation by voting on October 18 to strike for recognition, and by doing so the following day. Nor does this record fairly allow an inference that the (C A.D.C ). And see, also, Stevenson Equipment Co, 174 NLRB 865, 866; Turner's Equipment Co, 189 NLRB No 23 32 On evidence of supervisory participation by a minor supervisor strikingly similar to that outlined above, the Board in Clay City Beverages, Inc, supra, found that there was not enough to support a conclusion of supervisory taint And see also, WKRG-TV, supra, where, on evidence showing that supervisors not only signed cards and attended union meetings but also made proumon remarks, the Board found no sufficient basis for invalidating designation cards on the ground of supervisory inducement 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees' designation of the Union and their subsequent reaffirmation of union allegiance may have been influ- enced by a fear of future retaliation at the hands of Harper. Harper's show of interest in the Union was hardly so marked as to lead employees to fear possible retribution at his hands if they did not go along. Not so much as a hint of any such fear is disclosed in the testimony of those who designated the Union, all of whom appeared as witnesses. Further, Harper was a minor supervisor with limited authority or opportunity to affect the job interests of employees. The employees had the assurance of Franklin, given to them in his speech, that they would be protected from any reprisal because of their nonsupport of the Union. Having that assurance and knowing they could report to Franklin any maltreatment or discrimination by Harper with the expectation of sympathetic response because of Franklin's own strong opposition to the Union, the employees were scarcely likely to harbor any fear of retaliation by Harper if they did not share his union views.33 In the reasons stated, and in light of the precedents cited in footnote 31, above, I conclude, and find, that the Respondent's defense of supervisory taint is unsupported. I further conclude and find, as alleged in the complaint, that at all times since October 1, 1971, the Union was the validly designated representative of a majority of the employees in the appropriate unit. 3. As to the refusal to bargain and the need for a remedial bargaining order There is no dispute that the Respondent refused to honor the Union's bargaining requests. The question remains, however, whether in the circumstances of this case, considering particularly the Respondent's other unfair labor practices, a finding of an 8(a)(5) violation and a remedial bargaining order are warranted under the principles declared in N.L.R B. v. Gissel Packing Co., 395 U.S. 575. I find for reasons stated below that they are. As shown by the findings earlier made, the Respondent immediately upon learning of the Union's bargaining demand embarked upon a deliberate and coercive cam- paign to undermine the Union's majority support. The multifarious unfair labor practices in which the Respon- dent engaged are summarized in section III, D, above. As is evident therefrom, the Respondent's unfair practices were designed, not only to coerce the defection of employees who had already designated the Union, but also to dilute union strength in any forthcoming representation election through use of unlawful hiring practices. It is at least worthy of note, though not of controlling significance, that this case does not present a situation where a union's strategy from the beginning was to seek bargaining rights without an election. The Union did petition for a representation election shortly after securing its majority. And it was led to file its unfair labor practice charges, blocking an election, only after the Respondent had engaged in numerous acts of unlawful conduct tending to destroy the laboratory conditions for a fair election, and 33 See, WKRG-TV, Inc, supra, Stevenson Equipment Co, supra, at p 866. had then, shortly before the scheduled "R" case hearing, filed a motion to dismiss the representation petition for alleged supervisory taint in the Union's showing of interest. Against the background of the Respondent's unfair labor practices, the Union could reasonably interpret the filing of the motion as evidencing a disposition on the Respon- dent's part to stall an election as long as possible to allow more time for its coercive campaign to have an eroding effect on the Union's majority. The Respondent is scarcely in a position to claim that its motion to dismiss the representation petition was designed to protect the employ- ees in their freedom of choice when it was then itself engaged in unlawful practices tending to pollute the atmosphere required for a fair election. The Respondent's unfair labor practices were substan- tial, pervasive, and extensive. In one form or another, they directly reached virtually every employee in the unit at the time of the Union's bargaining demand, plus those whom the Respondent later hired with an object of diluting the Union's majority. Considered in combination, these unfair labor practices are sufficiently egregious, in my opinion, to place them within the Gissel first category of unfair labor practices, i.e., those that are so serious, pervasive, and extensive as to make a bargaining order the only available and effective remedy therefor. But even if not so viewed, it is clear that, at the very least, they fall within the Gissel middle category of "less pervasive practices which none- theless still have a tendency to undermine union strength and impede the election process." As unfair labor practices within that category, they would justify under Gissel a bargaining order based upon the Union's majority card showing and the Respondent's rejection of the Union's bargaining demand if-as I believe to be true in this case-other relevant considerations confirm "that the possibility of ensuring a fair election by the use of traditional remedies, though present, is slight, and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining order." In no event, can the Respondent's extensive unfair labor practices reasonably be regarded as falling within the third Gissel category of "minor" misconduct having only a "minimal impact on the election machinery." There can be no doubt that if the Union had proceeded to an election and lost and had then filed objections to the election based upon the Respondent's conduct that has been found unlawful in this case,34 the Board, applying well-settled standards, would have found such conduct clearly suffi- cient to constitute interference with the holding of a fair election and would have set aside the election on that ground. The Respondent argues, nevertheless, that a remedial order is inappropriate in this case because, following most of the Respondent's unfair labor practices, every employee who had signed a union authorization card struck, thereby disclosing, the Respondent asserts, that the unfair labor practices produced little or no impact on the employees' allegiance to the Union. I find that argument unpersuasive. The test which the Board applies in matters of this kind, and which Gissel recognizes to be proper, is not whether 34 Most of the Respondent's 8(a)(1) violations occurred after the filing of the Union's representation petition ORLANDO PAPER CO., INC. 389 the unfair labor practices involved have actually succeeded in intimidating employees, but whether, in the words of Gissel, they have "the tendency to undermine majority strength and impede the election processes." (Emphasis supplied.) Clearly, the Respondent's unfair labor practices did have that tendency. Moreover, it is not to be presumed, simply because the union employees still maintained their solidarity on the day of the strike, that the Respondent's unfair labor practices could not thereafter have had their intended impact. The coercive pressures generated by the Respondent survived the strike and might still have led the employees, or some of them, to the view that discretion was the better part of valor and that, rather than risk the loss of existing benefits the Respondent had threatened or forfeit the rewards it had promised, it would be more prudent for them to abandon the Union. If the employees' October 18 strike for recognition has any meaningful place in assessing the appropriateness of a bargaining order in this case, I think it weighs on the side of the scale favoring such an order. One of the basic questions in a Gissel-type case-i.e., one in which inde- pendent unfair labor practices are present-is whether a majority card count provides, on balance, a more reliable test of employee representation desires than would the normally preferred method of an election. The employees' strike and picketing activity, unmistakably demonstrating majority support of the Union, quite clearly adds to the reliability of the majority card showing as an accurate barometer of the employees' true desires.35 Other considerations declared relevant in Gissel also point to the appropriateness of a bargaining order in this case. Thus, Franklin, who on behalf of the Respondent committed the unfair labor practices, is still the manager of the Respondent's Orlando operation. His demonstrated propensity to disregard employee rights safeguarded by the Act heightens the possibility that statutory violations may recur. Further, I do not believe that the use of traditional remedies would completely erase the continuing effects of the Respondent's past violations, or definitely ensure that a fair election can be held that would serve to effectuate statutory policy. Thus, to give but one example, it seems to me that, notwithstanding a cease-and-desist order, Frank- lin's threat to eliminate the Respondent's profit-sharing plan and the employees accumulated credits under that plan would continue to retain their coercive force. For, even if such threats were not repeated, the employees could not easily forget that the threats had been made and would know that the Respondent was in a position to carry out such threats if only through the guise of professed good- faith bargaining. Apart from the potential lingering effects of the Respondent's coercive conduct, there is in this case a more serious impediment to the holding of a fair election that would satisfy statutory policy. I refer specifically to the unlawful hiring practices which the Respondent adopted and implemented for the purpose of diluting union strength. Although only one of the three new antiunion employees whom the Respondent had theretofore hired in that manner was still in the Respondent's employ at the time of the hearing, the record shows that the Respondent normally has an unusually high employee turnover rate. There is no indication in the record that the Respondent has abandoned its unlawful hiring practices. Nor is there any basis for belief that it will do so before a final enforceable cease-and-desist order, which may be some time off, is entered in this case. By that time, the Respondent, aided by turnover and its unlawful hiring practices, will be in an even stronger position to succeed in accomplishing the very purpose-defeat of the Union in an election-that its unfair labor practices were designed to achieve. To deny a bargaining order as a remedy for the Respondent's unfair labor practices would thus allow the Respondent to profit from its own unfair labor practices. In sum, I am of the opinion, and find, that the Respondent's unfair labor practices are of such a nature as to require a bargaining order to undo their unlawful effects in a manner sufficient to effectuate the policies of the Act. In addition, I am of the opinion, and find, that the possibility ,of erasing the coercive effects of these unfair labor practices through traditional remedies, even if present, is so slight as to lead to the conclusion that, on balance, the employees' majority designation of the Union as expressed in their authorization cards provides in this case a more reliable measure of the employees' true desires than would be provided by an election. Accordingly, I find that the Respondent, by failing and refusing, since October 6, 1971, to recognize the Union as the majority representa- tive of its employees in the appropriate unit found above, violated Section 8(a)(5) and (1) of the Act and that to effectuate the policies of the Act, a bargaining order is necessary, not only to remedy that violation, but also to remedy the Respondent's independent 8(a)(1) violations. CONCLUSIONS OF LAW 1. All production employees, including truckdrivers, employed by the Respondent at its Orlando, Florida, facility, but excluding guards, professional employees, salesmen, technical employees, office clerical employees, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. The Union at all times since October 1, 1971, has been, and now is, the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By refusing on October 7, 1971, and at all times since, to recognize and bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By the aforesaid refusal to bargain, and by engaging in the conduct summarized in section III, D, above, the Respondent has engaged in, and is engaging in, unfair 35 This is not to suggest, however, that, absent independent unfair labor ' current Board policy, be enough to support a bargaining order See, Linden practices making a fair election unlikely, a majority card showing coupled Lumber Division, Summer & Co, 190 NLRB No 116 with a recognition strike and picketing by the card signers would, under 390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices within the meaning of Section 8 (a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that the Respondent be ordered to cease and desist from them, and from like and related unfair labor practices, and that it take the affirmative action provided for in the recommend- ed Order, below, which I find necessary to effectuate the policies of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 36 ORDER The Respondent, Orlando Paper Co., Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Directly or indirectly threatening employees with the loss of profit sharing or other existing benefits or with any other economic reprisals, because of the employees' selection of the Umon, or any other labor organization, as their bargaining representative. (b) Directly or indirectly promising employees benefits or other rewards for the purpose of dissuading them from joining, remaining members of, or supporting the Umon, or any other labor organization. (c) Suggesting to or encouraging employees in a coercive context to form an employee committee or other labor organization limited to employees of the Respondent to deal with the Respondent concerning wages and working conditions. (d) Coercively interrogating employees concerning their union membership, sympathies, or activities, or those of other employees. (e) Coercively soliciting employees to use their influence to dissuade other employees from joining or supporting the Union, or any other labor organization. (f) Instructing any supervisor to find a pretextual reason for discharging any employee, ostensibly for cause, but actually because of his union activities. (g) Interrogating applicants for employment concerning their union sympathies or attitudes relating to unions or union organization. (h) Conditioning the hire of any employee upon his willingness to act as an informer for the Respondent concerning the union activities of employees, or soliciting any employee to act as such an informer. (i) Refusing to bargain collectively with the Union, Teamsters, Chauffeurs, Warehousemen and Helpers Local Union No. 385, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining represent- ative of the employees in the following unit: All production employees, including truckdrivers, employed by the Respondent at its Orlando, Florida, facility, but excluding guards, professional employees, salesmen, technical employees, office clerical employ- ees, and supervisors as defined in the Act. (j) 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 the Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain with the Union named above as the exclusive representative of the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its facility in Orlando, Florida, copies of the attached notice marked "Appendix." 37 Copies of said notice, on forms provided by the Regional Director for Region 12, after being duly signed by the Respondent's authorized representative, shall be posted by the Respon- dent 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 the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.38 ss In the event no exceptions are filed as provided by Sec. 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 37 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 38 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read- "Notify the Regional Director for Region 12, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial, in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we, Orlando Paper Co., Inc., violated the law and has ordered us to post this notice. WE WILL NOT threaten you with the loss of profit sharing or other existing benefits, or with any other economic harm, for joining, supporting, or selecting as ORLANDO PAPER CO., INC. a bargaining representative Teamsters , Chauffeurs, Warehousemen and Helpers Local Umon No. 385, affiliated with the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT promise you raises, benefits, or other rewards to keep you from joining or supporting the Union. WE WILL NOT ask you to abandon the Union and, instead, to form a committee or other group of your own for the purpose of dealing with us concerning wages and working conditions. WE WILL NOT question you about your union membership, sympathies, or activities, or about those of other employees. WE WILL NOT ask any of you to use your influence with other employees to keep them from joining or supporting the Union. WE WILL NOT ask any supervisor to find an excuse to fire any employee whom we actually want to get rid of because of his union activities. WE WILL NOT question any applicant for employ- ment as to how he feels about unions or union organization. WE WILL NOT make it a condition to the hire of any employee that he agree to act as a spy for us on matters concerning the union activities of employees , nor will we ask any of our employees to act as such a spy. WE WILL NOT in any other way punish you for supporting or joining the Union , or any other union. WE WILL bargain collectively on request with 391 Teamsters, Chauffeurs, Warehousemen and Helpers Local Umon No. 385, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all our employees in the appropriate unit described below with respect to wages, hours of employment, and other conditions of employment, and if an understand- ing is reached, we will embody such understanding in a signed agreement. The appropriate unit is: All production employees , including truckdnvers, employed by us at our Orlando, Florida, warehouse, but excluding guards, professional employees, sales- men, technical employees, office clerical employees, and supervisors as defined in the Act. Dated By ORLANDO PAPER CO., INC. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days form the date of posting and must not be altered , defaced, or covered by any other material . Any questions concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Tele- phone 813-228-7711, Ext. 227.