Peerless of America, Inc.

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Peerless of America, Incorporated and International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America (UAW). Case 14-CA-6043 August 18, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On August 6, 1971, Trial Examiner William J. Brown issued the attached Decision in this proceed- ing. Thereafter, the General Counsel and Respon- dent filed exceptions and supporting briefs. Respon- dent also filed an answering brief .' The Charging Party filed a brief in opposition to exceptions of Respondent. 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 briefs, and finds merit in certain of the exceptions. Accordingly, the Board adopts the findings, conclu- sions, and recommendations of the Trial Examiner only to the extent consistent herewith. 1. We find, in agreement with the Trial Examiner, that Respondent violated Section 8(a)(1) by Plant Manager Kritzer's poll of employee union sympa- thies through inquiries of supervisors (in employee Vicki Steele's presence), creating the impression of surveillance and coercing employee Steele by telling a supervisor, in Steele's presence, that Benny Kessler was a union instigator and should be separated from the other employees (allegations B, C, and D of the complaint); 2 by unlawful interrogation of employee Layton about attendance at a union meeting (F and H of the complaint); by Supervisor Embry's interro- gation of, and threats of job loss to, employees Shope (V and W)3 and Ferchow (UU and VV); by Superintendent Becton's interrogation of employees Broeringmeyer and Davidson about their union 1 Respondent's request for oral argument is hereby denied as the record, the exceptions, and briefs adequately present the issues and positions of the parties 2 We refer hereinafter to the complaint allegations as they appear in the subparagraphs of complaint par 5 3 In adopting the Trial Examiner's findings that Supervisor Embry unlawfully interrogated employee Shope (W), we find that this incident occurred as part of the same conversation in which Embry threatened Shope (V). 4 American Manufacturing Company, Inc, 196 NLRB No. 41 5 In addition, the Trial Examiner dismissed a number of other complaint allegations at the hearing and in his Decision, finding no violation (K, L, 0, LL, and NN were dismissed at the hearing , and U, Z, KK, and QQ were dismissed in the Decision ) The parties have not excepted to such dismissals We adopt them, pro forma, in the absence of exceptions syngpathies (CC); by Becton's interrogation of McCormick about a job applicant's union sympa- thies (EE); by Becton's interrogation of employee Ricketts (HH); by Becton's repeated solicitation of employee Jack Stevenson to get employees to change their mind about the Union (PP); 4 by Superintend- ent Stigers' interrogation of employee Ferchow (T); and by Stigers' interrogation and threat of worsened working conditions to employee Dorothy Stevenson (II and JJ). 2. We also find, contrary to the Trial Examiner, that Supervisor Embry unlawfully promised employ- ee Dorothy Stevenson improved benefits and work- ing conditions to discourage union activity (5I). When Embry's conduct is measured in light of his threats to employees Shope and Ferchow to close the plant, we conclude that Embry's telling Stevenson that the Union wouldn't do her any good but, if given time, the Company's president would change things, interfered with the employee's organizational rights. 3. We further find, in agreement with the Trial Examiner, that Respondent did not violate the Act by the conduct alleged in the following complaint subparagraphs: 5 A, E, G, M, N, P, Q, S, X, Y,6 AA, BB, DD, FF, GG,7 00, and RR. We treat with more particularity the incidents described below which we find, contrary to the Trial Examiner, did not violate the Act (J,R). We also find no violations as to allegations SS and TT, concerning which the Trial Examiner did not make findings. 4. The Trial Examiner found that Supervisor Hardiek violated Section 8(a)(1) by threatening employee Wallace with discharge in order to discour- age union activity. Respondent contends that Embry made no unlawful threat. The credited testimony of Wallace and other employees bears out this conten- tion. Wallace testified that while he was procuring parts, Hardiek told him to get busy and that he answered that he was busy, whereupon Hardiek replied that he could get letters to have Wallace dismissed and the Union couldn't do anything about it. Later in the day, according to Wallace, Hardiek apologized, The Trial Examiner made no findings respecting allegation MM No exceptions were filed to his failure to find We therefore dismiss MM. 6 In adopting the Trial Examiner's findings that President O'Connor did not unlawfully interrogate or promise benefits to employees (X and Y), we have examined O'Connor's conversations with all of the employees and not only those mentioned by the Trial Examiner, which are representative of the others. We have considered not only O'Connor's credited testimony that he told each employee that he could make no promises but also whether O'Connor's other statements to employees implied a promise of benefits. 7 The Trial Examiner properly dismissed complaint allegation FF, finding no unlawful interrogation of, or promises of benefit by Supervisor Becton to, employee Parks. He omitted reference to paragraph GG of the complaint which alleged the unlawful promises . As the Trial Examiner properly found that the evidence failed to establish any violation in the Becton-Parks conversation , we dismiss both FF and GG in the complaint. 198 NLRB No. 138 PEERLESS OF AMERICA, INC. 983 saying that he was sorry for what happened. Wallace never received such letters. Employee Ferchow, who was present, and whom the Trial Examiner credited, testified that Wallace was talking while getting parts for employee Wanda Murray, and that Hardiek may have seen him dust talking. Employee Murray testified that Wallace was talking to her when Hardiek made his remarks. She said that "both of us probably were just goofing off a little bit."8 The facts thus show that Hardiek's remark to Wallace was a reprimand for apparent inattention to his work duties. The reference to the Union did not convert the lawful disciplinary admonition into a coercive threat, particularly when Supervisor Har- diek apologized to Wallace soon after the two had exchanged words. We therefore dismiss complaint allegation J. 5. The Trial Examiner found that Supervisors Embry and Hardiek did not engage in surveillance of union meetings but created the impression of it. He therefore sustained the allegation that Respondent gave such impression (R) but dismissed the allega- tion on actual surveillance (S). Respondent and General Counsel each except to these findings. We find merit in Respondent's exception. The supervisors were alleged to have unlawfully placed under surveillance an open space in the shipping department. Employees met there, near employee Brockett's workbench, during the after- noon workbreak. After union organization began, employees congregated in larger numbers than previously. Shipping Department Supervisor Har- diek, who was responsible for the department's security, advised Plant Manager Kritzer of the large gatherings. The two agreed that, because of past problems of pilferage, fire, and employee horseplay, Hardiek or Supervisor Embry should remain in the shipping area during the meetings. As found by the Trial Examiner, the supervisors told employees Wallace and Brockett that they would do that, and that Kritzer wanted to know what was going on at the meetings. Both employees expressed indifference, saying that they did not care which one of the supervisors was present. Thereafter, during the break meetings one of the supervisors remained in the shipping department at his usual place of work, a cage enclosure some 80 feet distant from the others. Neither tried to see nor hear what was going on among employees at breaktime. In accord with the Trial Examiner we find no surveillance. Contrary to the Trial Examiner, we find no impression of it. The gatherings were not secret. They were held in an open work place, a place that could be observed by anyone who passed by. Supervisors, as well as employees, who worked in the shipping department had a right to be there. We hold that the Trial Examiner erroneously inferred that the supervisors gave an impression of unlawful surveil- lance. We therefore dismiss subparagraph R of the complaint. 6. The Trial Examiner made no findings respect- ing the complaint allegations that Supervisor Becton promised employee Luchtefeld improved benefits and working conditions to discourage union activity and told her that employees could not obtain such benefits because of the Union. The General Counsel contends that the record supports the allegations and also shows unlawful interrogation.9 Employee Luchtefeld testified that Becton asked her whether she thought the employees should give President O'Connor another chance; that all O'Con- nor was asking for was 6 months; that, if he had 6 months, he could make things right, but he couldn't do anything on account of the Union. She said he had not promised benefits or told her that she had lost any because of the Union. Luchtefeld also testified that Becton had asked her "which way are you going to go," and that she had declined to tell him. Luchtefeld acknowledged that she had worn a "UAW" sign on her back for a brief period in the plant. Her testimony also revealed that she had not mentioned to Respondent's attorney in a pretrial interview that Becton had asked her about her union feelings. The record further shows that, in a prehear- ing statement made to a Board agent, Luchtefeld said "no company supervisor ever asked me if I was for the Union." Beckton's testimony was that he told Luchtefeld that O'Connor had been fair, that he deserved a chance, and that we didn't need outsiders. He also said that he could not promise anything, but O'Connor should be given a chance. He said that, when he asked Luchtefeld if she had any problems, she answered in the negative, replying that she was going to vote the way she wanted to. Becton denied asking Luchtefeld how she was going to go or how she felt about the Union. We are unable to resolve the issue on unlawful interrogation inasmuch as the Trial Examiner failed to resolve the credibility problem. In view of Luchtefeld's affidavits contradicting her oral testimo- ny on Becton's asking her union sympathies, together with the fact that the Trial Examiner credited Becton in resolving credibility issues on other allegations, we 8 Contrary to the Trial Examiner, who failed to discuss Murray's 9 The parties erroneously assume in their briefs that the Trial Examiner testimony in detail and characterized it as not probative because dismissed allegations SS and TT at the hearing for lack of evidence The "discursive," we find Murray's account of the Hardiek-Wallace incident Trial Examiner at first granted Respondent 's motion to dismiss but later directly to the point in issue reserved his ruling He failed to deal with the issues in his Decision. 984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot say that a preponderance of the evidence points to unlawful interrogation. Becton's remaining remarks about giving the Company a chance are in line with those made by O'Connor to employees, which the Trial Examiner found were lawful persuasion (X, Y, AA, BB).10 Luchtefeld characterized them as "more or less begging," a characterization that belies coercion. We therefore dismiss subparagraphs SS and TT of the complaint. 7. The Trial Examiner found that when the Union sought recognition on October 2, 1970, in a unit of 39 employees, it had at least 29 signed authorization cards. He therefore directed Respon- dent, because of the numerous serious unfair labor practices which he found, to bargain with the Union. Respondent excepts on the ground that the Union did not possess a majority on January 14, the date the election was scheduled, that the card authoriza- tions were invalid because of improper solicitation, and that, in any event, a bargaining order is not justified under the United States Supreme Court's decision in N. L. R. B. v. Gissel Packing Co., Inc., 395 U.S. 575, rehearing denied 396 U.S. 869. Contrary to Respondent's contention, the critical Gissel date for determining majority status where no election has been held is the date the union seeks recognition. We have examined the evidence relating to the solicitation of cards and agree with the Trial Examiner that the Union represented a valid majori- ty when it requested recognition. The card is unambiguous.ii It states on its face that the card will be used to secure recognition and for collective- bargaining purposes. The solicitors did not tell card signers either literally or in substance that the cards would be used for no purpose other than to help get an election.12 Of 39 unit employees the Union had 24 clearly valid cards. We find it unnecessary to determine the validity of the remainder of the cards. We therefore find, in agreement with the Trial Examiner, that the Union represented a majority of 10 Cf National Can Corporation, 159 NLRB 647, 660 ii The authorization card reads This card will be used to secure recognition and collective bargaining for the purpose of negotiating wages, hours , and working conditions You have the right under Federal law to organize and join a union By Joining the UAW you have the support of one of the world' s largest unions. 12 Levi Strauss & Co., 172 NLRB No. 57, fn 7, enfd. 441 F.2d 1027 (C.A D.C), cited with approval, N LR B v Gissel Packing Co, 395 U S 575 13 Respondent contends that the Board's recent decision in Motown Record Corporation, 197 NLRB No 176, in which a bargaining order was denied, requires the same conclusion in the instant case. Member Penello, who participated in that decision , finds the instant situation readily distinguishable The antiunion activities of Respondent in the instant case were flagrant , extensive, and far-reaching ; covered a much longer period of time, and included direct threats of discharge and plant closing, as well as promises of benefits . Motown, in contrast, involved one statement which the employees when it sought recognition on October 2, 1970. 8. An issue is raised as to whether the facts justify a finding of an 8(a)(5) violation and a remedial bargaining order o : the basis of the Union's card majority. The facts show that, as soon as the Union began to organize, Respondent began to undermine the Union. Thus Respondent systematically polled union sentiment, created the impression of union surveillance and directed a supervisor in the presence of an employee to segregate a union supporter, repeatedly interrogated employees about their own and others' union sympathies and about attendance at a union meeting, made'repeated efforts to have an employee persuade others to give up their support of the Union, promised a change for the better in working conditions, threatened worsened working conditions, and threatened a plant shutdown and layoff-all in discouragement of union support. These unfair labor practices were directed at under- mining union strength and impeding the election process. Applying the standards of N.L.R.B. v. Gissel Packing Co., supra, we consider whether there is still a possibility of ensuring a fair election. We believe that possibility is slight because of the lingering coercive effect of the unfair labor practices.13 We therefore hold that the employees' majority designa- tion 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. AMENDED CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union, United Automobile, Ae- rospace and Agricultural Implement Workers of America (UAW), is a labor organization within the meaning of Section 2(5) of the Act. 3. By seeking, in the presence of employees, to employees interpreted as meaning possible discharge if they engaged in concerted activities (i.e., not a direct threat by any interpretation), interrogation of two employees unaccompanied by any threats or promises of benefits, and a suggestion to one employee that a wage increase was connected with union activity but not couched in coercive terms, and the Board concluded there that these were neither extensive nor of such a nature as to have lingering effect that could not be erased by the Board's traditional remedies. Under these circumstances, the fact that the direct threat of discharge in the instant case and the possible suggestion of termination in Motown both occurred 4 months before the election dates (no election was held herein) does not require a different result , as timing is only one factor to be considered and is not controlling Members Fanning and Jenkins, neither of whom participated in the Motown decision, agree with Member Penello that the instant case is factually distinguishable from Motown However, their agreement in this respect does not necessarily mean that they agree with their colleagues' refusal to adopt the Trial Examiner's recommendation that a bargaining order be issued in the Motown case PEERLESS OF AMERICA, INC. determine from supervisors the union sentiments of employees; by creating in the presence of employees the impression of company surveillance of employee union activity; by stating in the presence of employ- ees that a union supporter should be segregated; by interrogating employees concerning attendance at union meetings; by interrogating employees concern- ing their own and others' union sympathies; by promising beneficial employment changes if the Union were not selected; by threatening employees with unpleasant changes in work conditions in the event of union selection; by soliciting an employee repeatedly to dissuade other employees from support of the Union; and by threatening to close the plant as a consequence of union representation, Respon- dent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7, thereby engaging in unfair labor practices in violation of Section 8(a)(1) of the Act. 4. All production and maintenance employees employed by Respondent at its Effingham, Illinois, facility, excluding office clerical employees, profes- sional employees, guards and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 5. The Union at all times since October 2, 1970, has been and now is the exclusive representative of all the employees in the above-described unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. , 6. By refusing on October 7, 1970, and at all times since, to recognize and bargain collectively with the Union as the exclusive representative of its employ- ees in the appropriate unit, Respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Peerless of America, Incorporated, Effingham, Illi- nois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees concerning their union membership, sympathies, or activities, or those of other employees or prospective employees. 14 In the event that this 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 985 (b) !Creating the impression of surveillance and otherwise coercing employees by seeking, in the presence of employees, to determine from supervi- sors the union sentiments of employees or directing reprisals against union supporters. (c) Coercively soliciting employees to use their influence to dissuade employees from joining or supporting the Union, or any other labor organiza- tion. (d) Promising better working conditions if a union were not selected. (e) Threatening unpleasant working conditions or plant shutdown if the employees selected a union to represent them. (f) Refusing to bargain collectively with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the following unit: All production and maintenance employees em- ployed by Respondent at its Effingham, Illinois, facility, excluding office clerical employees, pro- fessional employees, guards and supervisors as defined in the Act. (g) In any other manner interfering with, restrain- ing, or coercing their employees in the exercise of their right to self-organization, to form, join, or assist International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. 2. Take the following affirmative action which the Board finds is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the appropriate unit described above with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understand- ing in a signed agreement. (b) Post at its office and plant in Effingham, Illinois, copies of the attached notice marked "Appendix." 14 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by Respondent for 60 consecutive days thereafter, in Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conspicuous places, including all places where notices to employees are customarily posted . Reason- able steps shall be taken by Respondent to insure that said notices are not altered , defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the 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 PEERLESS OF AMERICA, INCORPORATED (Employer) Dated WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard before the Trial Examiner at Effingham, Illinois, on April 26 through April 30, and on May 3 and 4, 1971. The original charge of unfair labor practices had been filed on January 12, 1971, by the above-indicated (Charging Party, hereinafter sometimes referred to as the ""Union," and the complaint herein was issued March 22, 1971. It alleged, and the duly filed answer of the above- ^indicated Respondent, hereinafter sometimes referred to as the "Company," denied' the commission of unfair labor practices defined in Section 8(a)(1) and (5) of the Act. At the hearing, the parties appeared and participated as ,noted above with full opportunity to present evidence and 'argument on the issues. Subsequent to the close of the hearing all parties filed written briefs I which have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 210 N. 12th Boulevard, Room 448, St. Louis, Missouri 63101 , Telephone 314-622-4167. TRIAL EXAMINER'S DECISION WE WILL NOT coercively interrogate employees concerning their union membership, sympathies, or activities, or those of other employees or prospective employees. WE WILL NOT create the impression of surveil- lance and otherwise coerce employees by seeking, in the presence of employees , to determine from supervisors the union sentiments of employees or direct reprisals against union supporters. WE WILL NOT coercively solicit employees to use their influence to dissuade employees from joining or supporting the Union, or any other labor organization. WE WILL NOT promise better working condi- tions if a union were not selected. WE WILL NOT threaten unpleasant working conditions or plant shutdown if employees select a union to represent them. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their organizational rights under the National Labor Relations Act. WE WILL bargain collectively on request with International Union, United Automobile, Aero- space and Agricultural Implement Workers of America (UAW), as the exclusive representative of the employees in the appropriate unit described below with respect to wages, hours of employ- ment, and other terms and conditions of employ- ment and, if an understanding is reached, we will embody such understanding in a signed agree- ment. The appropriate unit is: All production and maintenance employees employed by us at our Effingham, Illinois, facility, excluding office clerical employees, professional employees , guards and supervi- sors as defined in the Act. FINDINGS OF FACT By (Representative) (Title) 1. THE BUSINESS OF THE COMPANY The pleadings and evidence establish and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Illinois with its principal office at Chicago, Illinois, and a plant at Effingham, Illinois, where it is engaged in the manufacture, sale, and distribution of heating and refrigerating products and components. During the calendar year 1970,2 a representative period, the Company manufactured at its Effingham plant products valued in excess of $50,000 and shipped directly from the Effingham plant to points outside the State of Illinois. I find, as the Company concedes, that it is an employer engaged in commerce within the purview of Section 2(6) and (7) of the Act. I Briefs were filed on June 28. 2 Dates hereinafter, unless otherwise noted, relate to the calendar year 1970 PEERLESS OF AMERICA, INC. 987 II THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish that the Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction and Summary of Events Sometime about August 15, the Union commenced an organizational campaign among the production and maintenance employees of the" Company. On October 2, the Union demanded recognition in the concededly appropriate unit, vis all production and maintenance employees of the Effingham plant excluding office clerical employees, professional employees, guards, and supervi- sors as defined in the Act. On October 6, the Union filed a representation petition and on December 14 an election was scheduled for January 17, 1971; the election was deferred indefinitely upon the filing of the charges herein. By letter dated October 7, the Company declined the Union's request for recognition on the basis that (1) it doubted the union claim of majority status and (2) another labor organization was engaged in organizational efforts among company employees in the umt embraced by the union demand . The complaint alleges that the Company engaged in numerous unfair labor practices embraced within the scope of Section 8(a)(1) of the Act in the period from August to December, and engaged in an unlawful refusal to bargain with the Union from and after October 2. The answer denies the aforementioned allegations of the complaint. It also denies the allegations of the complaint to the effect that William Embry and Kenneth Hardiek, allegedly company agents in the commission of unfair labor practices, are supervisory employees. B. Supervisory Status of Embry and Hardiek In the hearing on the representation petition, the Union took the position that Hardiek and Embry were supervisors and excludable from the unit; the Company contended that they were nonsupervisory employees. The Regional Director found that they were supervisory employees and excluded from the umt. In reaching this conclusion the Regional Director relied on evidence establishing that, unlike rank-and-file workers, Embry and Hardiek receive biweekly salaries and pay for illness absences, do not punch timeclocks, and are not paid for overtime. They attend management meetings, have authority to move employees to different jobs and, for substantial periods of the workday, are in sole charge of their respective departments. The evidence taken in the instant complaint case confirms the conclusion that Embry and Hardiek were at material times supervisors within the meaning of the Act, Thus, conclusion is buttressed by the fact that on learning of the inception of the union campaign, Plant Manager Richard Kritzer convened a meeting of supervi- sors, including Embry and Hardiek, to plan a management course of action. The evidence indicates that both Embry and Hardiek are regarded by executives and rank and file as supervisors; I conclude that their status as such clearly appears from all the evidence. C. Interference, Restraint, and Coercion 1. Plant Manager Richard Kritzer Plant Manager Kritzer, an admitted supervisor, is alleged to have engaged in various instances and types of interference, restraint, and coercion within the period from August 26 to December 4. The allegations and evidence in this regard are set forth according, as in the complaint, to chronological sequence as to each of the several company agents alleged to be involved. In paragraph 5A of the complaint, Kritzer is alleged to have, on or about August 26, spoken to an employee and given the employee the impression that it would be futile for employees of the Company to obtain union representa- tion . General Counsel asserts that the allegations of the complaint in this regard are established by the testimony of Vicky Steele, employed by the Company as secretary to Kritzer and assigned to occupy the same office as did Kritzer. The Company contends that Steele, as a confiden- tial secretary, could not be an "employee" coerced, restrained, or interfered with within the ambit of Section 8(a)(1) of the Act. But, as the General Counsel points out the only special treatment accorded confidential employees is their exclusion from rank-and-file representation units and there can be no inference that they are not accorded the protection of the Act from unfair labor practices. Steele testified that on or about August 26 Julian Becton, extrusion superintendent and an admitted supervisor, came to the office with a union letter apparently distributed among employees . Kritzer, according to Steele, whose account I credit, telephoned company headquarters in Chicago and then told Steele that there was no way the Union could succeed in organizing the Effingham plant and that the Company had beat the Union in Chicago and could beat it at Effingham. General Counsel's reliance upon the Board's decision in L F. Strassheim, 173 NLRB 846 seems to me to be misplaced . I regard the remarks of Kritzer on the occasion in question as no more than a statement of a company policy to oppose the Union's organizational campaign without indication that unlawful means would be employed in such opposition and recommend dismissal of the allegations of paragraph 5A of the complaint. Kritzer is alleged in paragraph 5B of the complaint to have, in late August or early September and in the presence of employees, sought to determine from supervisors the , union sympathies of employees. General Counsel appar- ently relies on the testimony of Steele to substantiate these allegations. Steele testified that on or about September 11 Kritzer summoned Supervisors Becton, Embry, Stigers, and Hardiek to the office and, inquiring of the four supervisors as to their knowledge of employees' union sympathy, checked their probable sympathy against a list of employees. The General Counsel relies on Cannon Electric Co., 151 NLRB 1465 at 1468 which appears to require the conclusion that such inquiries are unfair labor practices. I credit Steele's testimony in this matter and find that the Company engaged in unfair labor practices by such systematic inquiry and tabulation under circum- stances where the investigation and tabulation were openly apparent to employee Steele. 988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In paragraph 5C of the complaint, Kritzer and Embry are alleged to have created the impression of company surveillance of employee union activity by stating in the presence of an employee, in late August or early Septem- ber, that they thought a certain employee was a union instigator. Steele testified that shortly after the September 11 meeting referred to above, Kntzer and Embry conferred on the question of who among the employees was the prime instigator of the umon movement. They settled on employee Benny Kessler and agreed that he should be segregated and eventually placed on the night shift. This conversation occurred in the presence of Steele and constituted an unfair labor practice under Section 8(a)(1) of the Act as alleged in paragraphs 5C and D of the complaint. It is alleged in paragraph 5E, F, and G of the complaint that Kritzer, on or about September 4, created the impression of surveillance of employee union activity, interrogated an employee concerning his attendance at a union meeting, and asked the employee to report the events occurring at the meeting; Kntzer is also alleged in paragraph 5H of the complaint to have, on Septebmer 8, interrogated the same employee concerning a umon meeting. General Counsel relies on the testimony of Gerald (Tom) Layton. Layton, a union supporter, testified that on or about September 4, Kntzer asked him if he planned to attend a union meeting scheduled for that evening, adding that Layton should take a pencil and pad and take notes. After the meeting, according to Layton, Kritzer asked him how many attended. Although I found Layton the most credible witness on this aspect of the case, I conclude that his testimony substantiates only the allegations of para- graphs 5F and H and not those of paragraphs 5E or G. Kntzer is also alleged, in paragraph 5QQ of the complaint to have engaged in an act of interference, restraint, and coercion by having, on or about December 4, promised an employee improved benefits and wages in order to discourage employee union activity. General Counsel relies on the testimony of employee Wallace, apparently the employee leader of activity on behalf of the Union. Wallace testified that about 9 p.m. on the evening of December 4, Embry telephoned him at home and asked him to meet with him that evening concerning some rumors. Wallace, according to his account, agreed to meet then called Kritzer and reported Embry's telephone call whereupon Kritzer told him to disregard Embry's invita- tion and added that if Embry ever called again he would be discharged. Kritzer then added, according to Wallace, that if everything went O.K. at the plant they could double Wallace's salary and assure him of a bright future. Kritzer's account is that he informed Wallace that Embry had been instructed not to telephone employees and if he violated these orders he would be discharged; Kritzer denied promising the doubling of Wallace's salary and/or assurances of a bright future. I credit Kntzer's account and recommend dismissal of the allegations in this regard. 2. Supervisor William Embry Embry, whose supervisory status is discussed above, is alleged to have engaged in various instances and types of interference, restraint, and coercion during the period beginning October 10 and ending in December. Paragraph 51 of the complaint alleges that Embry, on or about October 10, at the Company's plant, promised an employee improved benefits and working conditions in order to discourage employee union activity. Employee Dorothy Stevenson, an inspector and a union supporter, testified that Embry stated to her that he thought employees did not need a union. When Stevenson disagreed, Embry, according to Stevenson, stated that he thought they could iron problems out among themselves, that they had made mistakes but would try to improve, and that if employees gave O'Connor 6 months he could get things patched up. I am unable to conclude that the expression by Embry of his opinion in this respect and under these circumstances, while it might constitute some type of unfiar labor practice, fails to amount to a promise of improved benefits and working conditions as alleged in the complaint and I find no support in the citations furnished. I recommend dismissal of the allegations of paragraph 51 of the complaint. Paragraph 5R of the complaint alleges that Embry and Hardiek on or about November 12 created, before an employee group, the impression of company surveillance of employee union activity. In this area of the complaint, General Counsel appears to rely on testimony of Wallace, indicating that soon after the commencement of the union campaign and the resultant gathering of employee groups during break periods in the area of the shipping room, Embry and Hardiek informed employees Wallace and Brockett that one or the other of the two supervisors had to be in the shipping area at all times because Kritzer wanted to know what went on at the employee gatherings. I conclude that the allegations of the creation of the impression of surveillance are established by the credited testimony of Wallace, notwithstanding the accounts of Embry and Hardiek that their presence in the area was innocent in purpose. The complaint alleges in paragraph 5S that in the period from November 13 until December 16, Embry and Hardiek engaged in surveillance of employee union activity. The evidence establishes that during the course of the Union's organization campaign, employees gathered, during their break periods, in unprecedentedly large numbers in the area about employee Brockett's bench. This matter was discussed between Kntzer and Hardiek and it was settled that Hardiek should keep an eye on the gatherings in view of past problems of pilferage, fire, and horseplay in the area. The evidence fails to establish that either Kritzer, Hardiek, or Embry ever maneuvered so as to be in a position to hear employee discussions or even to have a panoramic view of the gatherings. I conclude that it fails to indicate by a fair preponderance that the Company engaged in actual surveillance of employee union activity. Embry is alleged in paragraph 5V of the complaint to have, on or about November 16, interrogated an employee concerning the latter's union sympathies. The employee in question, Alonzo Joseph Shope, testified that in mid- November, Embry asked him what he thought about the Union and added that he did not think the plant needed a union. There was apparently a friendly association be- PEERLESS OF AMERICA, INC. 989 tween Embry and Shope and the conversation in question could have occurred away from the Company 's premises. Nevertheless I credit Shope's testimony and find that the question put to him by Embry constituted an unfair labor practice within the scope of Section 8(a)(1) of the Act as alleged in paragraph 5V of the complaint. Embry is also alleged, in paragraph 5W of the complaint, to have in the course of a mid-November talk with Shope threatened the shutdown of the plant and the layoff of employees in order to discourage employee support of the Union. Shope testified that about 3 or 4 days before his December 18 layoff, Embry told him that he did not think the Union was needed and that employees would be laid off and the factory closed. Although Embry denied these comments, I credit Shope's account and find that the Company by them engaged in the unfair labor practices alleged in paragraph 5W of the complaint. Paragraph 5KK of the complaint alleges that Embry, on or about December 1, interrogated an employee at the company plant concerning an employee's union sympa- thies and activities . Wallace, the employee in question, testified that on or about December 1, Embry asked him how he felt about the Union and when Wallace expressed a prounion sympathy, Embry stated a contrary view. Embry conceded talking to Wallace on the occasion in question but denied asking him as to his union sympathy and activities. I credit Embry's denial and recommend dismiss- al of the allegations of paragraph 5KK of the complaint. Embry is alleged in paragraph 5UU of the complaint to have interrogated an employee in the period October- December 1970, concerning the employee's union activity. The employee in question , apparently Ferchow, testified that in the course of two or three talks with Embry in the last 3 months of 1970, Embry asked him what he thought he would gain from a union and whether he thought it was a good idea to attempt to bring a union in at Peerless. Although Embry denied interrogating Ferchow , I fould the latter a thoroughly credible witness and conclude that the allegations of the complaint in this regard are fully supported by his credited testimony. Embry is alleged in paragraph 5W of the complaint to have, sometime in the last 3 months of 1970, threatened an employee, Ferchow, with the statement that the Company would close its Effingham plant rather than permit union representation there . Embry denied stating that the Company would close its Effingham plant as a conse- quence of Union representation but I credit the contrary account of Ferchow and find that the Company engaged in the unfair labor practices alleged in paragraph 5W of the complaint. 3. Supervisor Kenneth Hardiek Hardiek is alleged in paragraph 5J of the complaint to have, on or about October 12, threatened an employee, (Dean Wallace), with discharge in order to discourage employee union activity. Wallace testified that on October 12 he was working procuring parts in the parts area when Hardiek approached him and told him to get busy. He replied that he was busy whereupon, according to Wallace, Hardiek said that he could get two letters that afternoon to get him dismissed and the Union could do nothing about it. According to Wallace, Hardiek later apologized and recanted. Employee Ferchow essentially corroborated Wallace's account, but the testimony of employee Wanda Murray is too discursive to aid in resolving the credibility issue. I credit the accounts of Wallace and Ferchow and find that the reference by Hardiek to the Union's inability to help in the event of discharge converted what might have been a proper rebuke into an instance of interference as alleged in this portion of the complaint. 4. Extrusion Superintendent Julian Becton Becton, whose supervisory status is established by the pleadings, is alleged to have engaged in some 16 distinct instances of interference with employee organizational rights. As in the case of other company representatives alleged to have engaged in acts of interference , restraint, and/or coercion, several of the allegations were withdrawn or dismissed at the conclusion of the General Counsel's case in chief. The allegations remaining with respect to Becton include those of paragraph 5N of the complaint to the effect that in the month of October Becton interrogated an employee concerning the latter's union activity and desires. Jack Stevenson, a tool and die maker, testified that late in October Becton talked to him at his workbench and asked him why the employees wanted a union or why he thought they should have a union. There followed some discussion in the course of which Becton, according to Stevenson, said that he did not think a union would do them a bit of good. Becton's account of the conversation is that he related his experience with a union in his former self-employment and argued against certain union difficulties, stating that he did not think a union would do any good in the plant. The circumstances of the conversation and the tenor of the conversation seem to me to make out a clear case of expression of views without express or implied threat of reprisal and to be protected under Section 8(c) of the Act. I recommend dismissal of the allegations of paragraph 5N of the complaint. In paragraphs P and Q of section 5 of the complaint Becton is alleged to have , on or about November 1, interrogated an employee concerning union activity and implicitly promised improvements in order to discourage union activity. The allegations concern a conversation in the plant between Becton and employee Daryl McCor- mick. McCormick testified about mid-November Becton, McCormick's supervisor, came to him at work and said that he was sure counting on McCormick for his support, adding that Company President O'Connor was a nice man and that they had always been able to work out things without the necessity of a third party. Becton testified that on the occasion in question he asked McCormick if he had seen President O'Connor in the plant talking to employees and also inquired if McCormick had any questions. The conversation terminated with Becton stating that O'Con- nor deserved a chance to operate the plant without outsiders. I conclude that the conversation in question was of the type protected by Section 8(c) of the Act and recommend dismissal of these allegations. In paragraphs 5CC and DD of the complaint Becton is alleged to have, before an assembled group of employees, 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD interrogated employees concerning their union sympathies and created the impression of surveillance of their union activities. The parties agree that the allegations stand or fall on the testimony of employee Casselman and Supervi- sor Becton concerning an episode in the plant on November 21. The conversation in question occurred in late November when Becton came upon employees Casselman, Broenngmeyer, Davidson, and Schmoe, joined the group and said that he knew how Casselman and Schmoe felt about the Union and wanted to know how the other two felt. This evidence fails to substantiate the allegations of the creation of impression of surveillance since it is not incompatible with the inference that knowledge of union activity of Casselman and Schmoe was gained through innocent means. I conclude, however, that the episode in question constitutes interrogation into union sympathy of Broeringmeyer and Davidson and that while the allegations of paragraph CC are substantiated those of paragraph DD are not. Paragraphs 5EE, FF, and HH of the complaint allege, respectively, that Becton, on or about December 1, (a) interrogated an employee about another employee's union sympathies; (b) interrogated an employee to learn the employee's own union sympathies; and (c) interrogated an employee about the employee's own union sympathies. With respect to paragraph EE, General Counsel relies on the testimony of McCormick to the effect that on or about December 3 Becton asked him if he knew an applicant for employment, Ronald Schultz, what kind of a fellow he was and how he would feel about the Union and whether he could be persuaded to swing the Company's way. McCor- mick denied knowledge. I credit McCormick's account. This inquiry relating to the union sympathies of an applicant for employment constituted interference, re- straint, and coercion as alleged in paragraph EE of the complaint. With respect to paragraph 5FF of the complaint, General Counsel points to the evidence supplied by the testimony of employee Dons Jean Parks to the effect that about 2 or 3 weeks before her layoff on December 18, Becton came to her work place and asked her to give President O'Connor a chance to straighten things out. There was no reference by Becton to the Union in this brief exchange and it occurred, apparently, as a result of Parks' complaints about certain working conditions. This evidence fails to establish that Becton interrogated her to ascertain her union sympathies and I recommend dismissal of paragraph 5FF of the complaint. As to paragraph 5HH relating to alleged interrogation by Becton on or about December as to an employee's union sympathies, General Counsel relies on the testimony of employee Charlene Ricketts to the effect that about December 1 Becton asked her what she thought about this whole thing and whether the Company could not solve its problems without the intervention of an outsider. This question was coupled with a reference to the numerous benefits afforded by the Company and terminated with an appeal by Becton to be counted on the Company' s side. Although Becton denied ever interrogating Ricketts con- cerning her sympathies vis-a-vis the Union and the Company, I credit Ricketts' account and find that his questioning of Ricketts amounted to interrogation respect- ing her sentiment with respect to the union campaign and constituted interference within the purview of Section 8(a)(1) of the Act. Becton is alleged, in paragraph 500 of the complaint, to have, on six separate occasions between December 4 and 11, interrogated an employee concerning his union activi- ties . The employee in question, Jack Stevenson, testified that, commencing about December 4 and on seven or eight occasions thereafter, Becton spoke to him, urged him to change his mind about the Union and to prevail upon other employees to change their minds about the Union. There is no evidence of interrogation and I recommend dismissal of the allegations of paragraph 500 of the complaint. Paragraph 5PP of the complaint alleges that, on six separate occasions between December 4 and 11, Becton solicited an employee to discourage other employees' support of the Union. Stevenson testified that, on seven or eight occasions starting about December 4, Becton urged him to change his mind about supporting the Union and to prevail upon other employees to do the same. Becton conceded that he talked to Stevenson about December 4 and said that he hoped Becton had changed hid mind about the Union and that he would tell other employees to change thier minds. According to Becton, he asked Stevenson to talk to other employees and influence them against the Union only once. I credit Stevenson's testimony and find that the allegations of paragraph 5PP are sustained by the credited testimony of Stevenson. The complaint alleges in paragraph 5RR that Becton, on or about December 14, interrogated an employee concern- ing his union sympathies. This relates to the testimony of employee Shope to the effect that some 4 days before his layoff on December 18 Becton, in the washroom, asked him where the Company had failed respecting the Union and who Becton could talk to to get things straightened out. Becton's account of this episode is that he asked Shope if he had any questions about the current talk in the plant and when Shope said he did not, Becton said he wished he knew who to talk to to straighten things out in the plant. I credit Becton's account and conclude that the evidence does not make out an unfair labor practice as alleged in paragraph 5RR of the complaint. 5. Press Department Superintendent Charles Stigers The supervisory status of Stigers is established by the pleadings. He is alleged in paragraph 5T of the complaint to have, on or about November 16, interrogated an employee concerning the latter's union sympathies. Em- ployee Ferchow testified that about November 16 Stigers came to his work area and, after some preliminaries, asked him what his attitude was respecting the Union's coming in to the Company.When Ferchow expressed his union sympathies, Stigers, according to Ferchow's account, related instances in other plants where a union had caused difficulties and expressed the view that the same would happen at Peerless. At some stage during his several talks with Ferchow, Stigers apparently expressed his disinterest in whether Ferchow was for or against the Union . Stigers' PEERLESS OF AMERICA, INC. 991 account is that Ferchow initiated the conversation by stating that they would not have quality problems if they had a union at the plant, to which Stigers replied that unions caused many problems but that Ferchow had a right to support the Union . Stigers denied asking Ferchow as to his union sympathies . I credit Ferchow's account and find that Stigers question as to Ferchow 's views respecting the Union constituted unlawful interrogation as alleged in the complaint. In paragraph 5U of the complaint, Stigers is alleged to have, on or about November 16, told an employee that representation by the Union would be futile. The statement in question was apparently alleged by General Counsel to be part of the interrogation episode mentioned above. Ferchow testified that in the talk of November 16 Stigers said that a union would bring a lot of problems and more trouble than it was worth. Stigers denied stating to Ferchow that the Union would cause more trouble than it was worth. I credit Stigers' account in this respect and recommend dismissal of paragraph 5U of the complaint. Stigers is alleged, in paragraph 511 of the complaint, to have interrogated two employees as to their union sympathies on or about December 1. Employee Dorothy Stevenson testified that she was working in the press room about December 1 when Stigers approached her and asked her how she felt about the Union . This occurred, according to Stevenson, in the presence of Musser, a press room employee. Musser was not interrogated by the General Counsel on this aspect of the case and, when questioned by Respondent, disclaimed recollection of any such incident. I credit Stevenson's testimony on this aspect of the case and find that the allegations of the complaint are supported by her testimony. Stigers is alleged in paragraph 5JJ of the complaint to have, in the course of the December 1 talk with Stevenson, threatened two employees with more unpleasant working conditions in order to discourage employee union activity. Stevenson testified that in the December 1 talk Stigers, in the presence of employee Musser, and after she had expressed, in reply to Stigers' question, her belief in the need for a union at the plant, said that a union would do nothing but take her money and that if the Union does get in they will really crack down on employee . Musser, a union card signer, could not recall ever being present at a conversation between Stevenson and Stigers involving the Union. Notwithstanding Stigers' denial of the incident and Musser's inability to recall , I credit Stevenson's testimony and find that the allegations of paragraph 5JJ of the complaint are established by her testimony. 6. President Joseph O'Connor Company President O'Connor is alleged , in paragraph 5X of the complaint, to have individually interrogated employees about the end of November in order to elicit their union sympathies. Dean Wallace, the employee leader of union activity, testified that in the last days of November, O'Connor asked him at his work place how he felt towards the third party. Employee Hallman testified that early in December O'Connor asked him what he thought of the Union. Employee Waldhoff testified that about the middle of November in the plant , O'Connor asked him what his problem was and when Waldhoff referred to working conditions and pay and overtime variations, O'Connor stated that the problems could be worked out without a third party . O'Connor conceded talking to employees and asking them the nature of their problems ; he denied asking Wallace how he felt towards a third party. Similarly, O'Connor conceded talking to Hallman but denied asking him as to his union sympathies, which, according to O'Connor, were evident both from Hallman's wearing of a union shirt and from Hallman's forthright assertions of his union sympathy. I credit O'Connor's denial of interrogating employees to elicit their sympathies respecting the Union and recommend dismissal of paragraph 5X of the complaint. O'Connor is charged, in paragraph 5Y of the complaint, with having, in late November, spoken individually to employees and implicitly promised them better wages and working conditions in order to discourage employee union activity . Employee Charlene Ricketts testified that in late November O'Connor asked her as to her problems and the need for a third party in the plant to which O'Connor stated that they would straighten out her complaint concerning pay rate inequalities and other problems. Employee Dorothy Stevenson testified that in November O'Connor asked her as to problems and then stated that the plant had a bright future and if employees gave him 6 months he would get everything ironed out. Wallace testified that in late November O'Connor asked him as to his problems and how he felt about a third party. When Wallace referred to pay inequalities, O'Connor, according to Wallace, asked for 6 months to iron the matters out. Employee Doris Parks testified that about the last of November, O'Connor inquired as to her problems and when she referred to a warning letter and pay inequities, O'Connor stated that they did not need a third party to straighten things out. This exchange appears to fall short of interference, restraint, and coercion and I do not rely on this testimony as establishing the unfair labor practices alleged in this respect. O'Connor testified that he made several trips to the plant in November and talked to several employees , asking them if they had any problems . He testified that in these conversations he told employees that he could make no promises. I credit O'Connor's testimony that he informed each employee to whom he spoke that he could make no promises and I recommend dismissal of the allegations of paragraph 5Y of the complaint. In paragraph 5Z of the complaint it is alleged that on or about December 1, O'Connor, at the plant, impliedly promised an employee more favorable treatment in order to discourage union activity. The employee in question, Brockett, testified that he had asked O'Connor, sometime in November, to look into the matter of his alleged demotion and that O'Connor promised to do so and, on the occasion of their December talk in the plant, O'Connor, in reply to Brockett's question, said that he had looked into the matter but that his hands were tied on account of the union campaign . I can find no unfair labor practice of the type alleged in paragraph 5Z and recom- mend dismissal of this allegation of the complaint. Paragraph 5AA of the complaint alleges that O'Connor, 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on or about December 1, interrogated an employee concerning the latter's union sympathies. Employee Hall- man testified that he was introduced to O'Connor about December 1 in the plant and that O'Connor asked him what he thought of the Union . Hallman referred to the fact that he had belonged to the Teamsters Union in Chicago and that he was 100 percent for the Union. O'Connor denied interrogating Hallman as to the latter's union activities and I credit his denial and recommend dismissal of these allegations of the complaint. The complaint alleges in paragraph 5BB, that O'Connor promised an employee improved working conditions in order to discourage employee union activity . General Counsel relies on the testimony of Hallman to the effect that in the course of the early December talk with O'Connor, O'Connor asked him what grievances he had and that Hallman referred to low pay, warning letters for minor absences, and several other unrecollected items. According to Hallman, O'Connor said that the matters could be thrashed out without a third party and referred to expansion of the plant, increased employment, and absence of layoffs. This conversation appears from the testimony of both individuals involved to be a free exchange of ideas without coercive elements and I recommend dismissal of the allegations of paragraph 5BB of the complaint. D. The Refusal To Bargain Under date of October 2, the Union wrote to the Company, claiming to have been designated as exclusive bargaining representative of the Company's production and maintenance employees, offering to prove its majority status by card check through a mutually acceptable neutral party and requesting negotiations on terms and conditions of employment. On October 7, the Company, by its attorneys, replied, expressing doubt as to the union claim of majority status in any appropriate unit and suggesting that the Union petition the Board for an election. The production and maintenance unit in which the Union requested recognition numbered 39 employees on October 2 and there is no question but that on that date the Union was in possession of 29 signed union cards, the cards appearing on their face to be clear and unambiguous authorizations to the Union to secure recognition and collective bargaining . Before and after the Union's demand for recognition, the Company engaged in numerous unfair labor practices of a character inherently capable of affecting the results of any election procedures and requiring in the instant case a bargaining order as the only effective and appropriate remedial relief . I conclude on the basis of the facts herein and on the authority of Gibson Products Company, 185 NLRB No. 74, that the Company's refusal to bargain was unlawful and can only be remedied by an order to bargain. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the business operations of the Employer set forth in section I, above , have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing such commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in certain unfair labor practices affecting commerce, it will be recommended that it be required to cease and desist therefrom and from like or related unfair labor practices and take such affirmative action, including recognition of and bargaining with the Union, as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. By seeking, in the presence of employees, to determine from supervisors the union sentiments of employees ; by creating in the presence of employees the impression of company surveillance of employee union activity ; by stating in the presence of employees that a union supporter should be segregated ; by interrogating employees concerning attendance at union meetings; by threatening an employee with discharge in order to discourage union activity ; by creating the impression of surveillance of union activities ; by interrogating employees concerning their union sympathies ; by threatening closing of the plant and layoff of employees in order to discourage union activity; by interrogating employees concerning the union sympathies of other employees; by threatening employees with unpleasant changes in work conditions to discourage union activity; by soliciting an employee repeatedly to dissuade other employees from support of the Union ; and by threatening closing of the plant as a consequence of union representation , the Company has engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 4. By refusing from and after October 2 to recognize and bargain with the Union as exclusive representative of all production and maintenance employees at its Effing- ham plant, exclusive of office clericals, professional employees, guards, and supervisors, the Company has engaged in unfair labor practices defined in Section 8(a)(5) and (1) of the Act. 5. By refusing to recognize and bargain with the Union as exclusive representative of employees in the appropriate unit, the Company has engaged in unfair labor practices defined in Section 8(a)(5) of the Act. 6. The aforesaid unfiar labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as otherwise specifically found herein, the Company has not engaged in unfair labor practices alleged in the complaint. PEERLESS OF AMERICA, INC. 993 I Upon the foregoing findings of fact , conclusions of law, [Recommended Order omitted from publication.] and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following.