Sewell, Inc.

SEWELL,, INC, 325 Sewell, Inc. and Packinghouse, Leather and Allied Workers District Local Union P-242, affiliated with Amalgamated Meat Cutters and, Butcher Workmen , of North America, AFL-CIO. Cases 26-CA-4572 and 26-.RC--4357 November 14, 1973 "DECISION, ORDER, AND DIRECTION OF SECOND ELECTION BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On July 17, 1973, Administrative Law Judge Ivar H. Peterson issued the- attached"Decision in this proceeding. Thereafter,` Respondent filed exceptions and a supporting brief,` and the General Counsel filed cross-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 attached Decision in light of the exceptions and briefs and has decided - to affirm the rulings,' findings, and conclusions`of-'the Administrative Law Judge and to adopt his recommended Order, as modified herein. 'The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by the threats of various supervisory officials that the plant would or would-probably close if the Union came in;, by supervisory interrogation of employees regarding how they would vote in the election; and by its supervisors' or agents' circulation of an antiunion petition within the week before the election.2 There were, however,-" several other in- stances of 8(a)(1) violations alleged in the complaint as to which the Administrative Law Judge only found that they did -indeed occur. Among these' were allegations that Respondent's supervisors- stated that I Respondent excepted to the Administrative Law Judge's ruling that its Exhs. 5(a) and 7 through 10 were inadmissible. All of the exhibits purported to be texts of speeches provided for Plant Manager William Magruder's use during the election campaign. Exhs. 7 through 10 were photocopies of originals which were not produced. Moreover, Magruder testified that he did not use them other than as guidelines in giving speeches to employees, and that he spoke from his own notes in his own words The Administrative Law Judge excluded these exhibits because they were inadequately identified. We agree with his ruling, and would sustain it, for the additional reason that Exhs. 7 through 10 are useless in determining what Magruder actually said to employees However, Exh. 5(a) appears to be an original copy of a speech which Magruder gave. Magruder , testified that he recognized the copy as the one he used in making speeches, recognized- penned-in changes made on the copy and a specific page which had been retyped with a different type style, and had read the speech verbatim when he had given it to employees. Robert Landers, who at the time of the hearing had succeeded Magruder as plant manager , testified that he had obtained Exh. 5(a) from the Company's election file. We believe the above testimony is adequate to identify the speech as one Magruder actually gave the employees' receipt of a Christmas bonus depend- ed on whether or not the Union came in, and that the Company did not have to negotiate with the Union even if it came in, that employees might lose -their jobs if the Union came, in, and that the Company knew who was trying to get the Union in. The General Counsel excepted to the Administra- tive Law Judge's failure to make specific concluding findings that each of the-just-noted instances of supervisory misconduct, which were found to have occurred, violated Section 8(a)(1) and to his failure, to provide an adequate remedy for Respondent's unfair labor practices. Respondent excepted, ,inter alia, to each of„the Administrative- Law Judge's findings of 8(a)(I) violations. We find merit in the, General Counsels-, exceptions,, except with respect to the Administrative Law Judge's failure -to find that Respondent's supervisors stated that. the Company did not,have to negotiate with the Union if, it came in. As to this matter, we find merit in Respondent's contention that such statements were, not made. -In his Decision the Administrative, Law Judge set forth the credited testimony of a number of -witnesses that would support certain findings the General Counsel contends should have been made. Thus, the Administrative Law Judge cited (a) the testimony of production employee Sandra Spain that Plant Man- ager William Magruder had on two occasions related unionization or its absence to receipt-or nonreceipt of a Christmas bonus by employees; (b) the testimo- ny of Spain and production' employee Diane Culver that Supervisor Keith Williams had done the same; 3 (c) the testimony of Keith Williams that he "might have said" to employees that he knew who was trying to get the Union in; 4 and (d) the testimony of production employee' Martha Holmes' that Relief Supervisor- Eugene King told her the day before the election that "this time tomorrow, we'll all be out of a job if it [the Union] goes in. So you might as well just start looking now." While Magruder, -Williams, and King denied making the' above ' statements, the and therefore we shall admit Exh. 5(a) intoevidence 2 As the Board adopts the Administrative Law Judge's conclusion that King and Strain are supervisors, Chairman Miller finds it unnecessary to determine, as did the Administrative Law Judge, that, in any'event, these individuals acted as agents of Respondent in circulating -the antiunion petition here involved. 3 Spain testified that Williams told employees that they probably would not- receive a bonus if the Union came in, while Culver testified that he had not said that but rather had said that if the Union did not come in employees probably would receive a bonus. The variances in their recollection of Williams' statement are minor, in view of the fact that at the time of the hearing they were attempting to recall an event more than 5 months past. The significant fact is that both recalled that Williams conditioned receipt of a bonus upon unionization 4 In setting forth Williams' testimony, the Administrative Law Judge failed to note that it was given in rebuttal of the testimony of Sandra Spain that Williams had told employees "he didn't want to call any names, but that they all knew some of the people that were trying to get the union in " 207 NLRB No. 36 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Administrative Law Judge found, relying at least in part on his observation of witnesses as they testified, that- "supervisory officials of the Respondent did make the remarks ..: attributed to them by counsel for the General Counsel."5 Accordingly, we find that each of the remarks by supervisory personnel listed above constituted a violation of Section 8(a)(1) of the Act. - Although the Administrative Law Judge also recited testimony of witnesses' which would seem to support a finding that Plant Manager Magruder told employees that Respondent did not have to negotiate with the Union if it were voted in, we find that upon close examination such testimony is unreliable. The only witnesses who testified that Magruder made such statements were Sandra and David Spain. Sandra Spain testified that Magruder said "if the union -did come in . . . he didn't have to make .. . any kind of bargains or negotiations, or concessions to the Union." The witness explained that, to her, bargaining with somebody or negotiating with them meant the same as making concessions to them. David Spain testified that Magruder had said on several occasions that Mr. Sewell, the plant owner, did not have to negotiate with the Union if it was voted in. When asked whether Magruder had said that Sewell did not have to make concessions to the Union, he was initially unable to answer because he did, not understand what the word "'concession" meant. He then said that he did not remember Magruder's using that word, that he was unsure that Magruder's exact words were that Sewell did not have to "negotiate" with the Union, and that all he could recall was that Magruder had said something to that effect. He also admitted that Magruder might have said the Company was obligated to bargain in good faith with the Union and that he, Spain, might simply have'forgotten that Magruder said it. Magruder denied that he had said Respondent did not have to negotiate with the Union if it were voted in and insisted that he had said the opposite. In view of David Spain's admission that Magruder might have said the Company would be obligated to bargain with the Union in such circumstances and Sandra Spain's confusion over the meaning of the terms "bargain," "negotiate," and "make conces- sions," we conclude that there is insufficient evidence on which to base a finding that Magruder made the unlawful statements attributed to him. The Union's objections to the election numbered 1 through 6 relate to the same subject matter as that 5 Respondent excepted to the credibility findings of the Adnumstrative Law Judge with respect to these and other incidents . It is the Board's established policy not to overrule an Administrative Law Judge 's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully considered above. Objections I through 5 allege''that Respondent destroyed the election atmosphere by interrogating its employees concerning their union desires, circulating an antiunion petition, promising benefits if the Union did not come in' and' threatening to withhold them if it did, and threatening to close the plant if the Union came in. Objection 6 relates to the alleged statements that Respondent did not have to negotiate- with the Union. Since we have found that Respondent violated Section 8(a)(I) by engaging in the conduct and making the statements involved in the Union's Objections 1 through 5, we shall sustain those objections. As we have found insuffi- cient evidence to establish that statements regarding refusal to negotiate were made, we shall overrule Objection 6. Having sustained the Union's Objec- tions I through 5, we shall direct that the first election be set aside and that the Regional Director shall hold a second election to determine the question of representation at a time when he deems a fair election can be held. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Sewell, Inc., Collierville, Tennessee, its officers, agents,, succes- sors, and assigns, shall take the action set forth below: 1. Cease and desist from: (a) Questioning employees concerning their union support or activities, threatening employees with plant closure or loss of jobs if they should select,the Union as their, agent for collective bargaining, creating the impression of surveillance of employees' union activity, soliciting employees' signatures on antiunion petitions, and threatening to withhold bonuses from employees because of their union support or activity or promising bonuses if employ- ees do not support a union. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Post at its premises in Collierville,, Tennessee, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be examined the record and find no basis for reversing his findings. 6 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 Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." SEWELL, INC. 327 posted by it immediately upon receipt thereof, and be maintained by it for 60-consecutive days thereaf- ter, in 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. (b) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS ALSO ORDERED that the complaint be dis- missed insofar as it alleges violations of Section 8(a)(1) of the Act not specifically found herein. IT IS FURTHER ORDERED that the Union's objections to the election numbered I through 5 in Case 26-RC-4357 be sustained, that Objection 6 be overruled, that the results of the election be set aside, and that said case be remanded to the Regional Director for Region 26 for the purpose of conducting a new election at such time as he deems appropriate.? {Direction of Second Election and Excelsior foot- note omitted from publication.] 7 In his decision herein the Administrative Law Judge inadvertently failed to recommend that the representation case be remanded to the Regional Director for the purpose of conducting a new election . Ten days after issuance of the decision he issued an "Addendum" to his decision correcting this oversight. Respondent excepted to the issuance of the "Addendum," contending that issuance of the decision effected a transfer of the entire proceeding to the Board and that thereafter the Administrative Law Judge lost power over the case. The General Counsel thereafter filed cross-exceptions to the Administrative Law Judge's failure to include a remand-for-election order in his original decision , and did so for the limited purpose of ensuring that the Board could remedy that oversight in case it found the issuance of the addendum invalid. As we find that issuance of the "Addendum" to correct an inadvertent error in his decision was clearly valid, we need not reach the merits of the General Counsel's cross- exceptions. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportunity to present evidence and state their positions, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT coercively question employees concerning their union support or activities. WE WILL NOT threaten employees with plant closure or loss of jobs if they should 'select the Union as their agent for collective bargaining. WE WILL NOT create the impression that we are spying on employees' union activities. WE WILL NOT ask employees to sign an antiunion petition. WE WILL NOT threaten employees with loss of a Christmas bonus if the Union comes into this plant nor will we promise them such a bonus if it does not come in. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. SEWELL, INC. (Employer) Dated By (Representative) (Title) 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, Clifford Davis Federal Building, Room- 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161. DECISION 'STATEMENT OF THE CASE IvAR H ., PETERSON, Administrative Law Judge: I heard this case in Memphis, Tennessee, on April 3, 4, and 5, 1973, upon the complaint issued by the Regional Director for Region 26 on January 18, based upon charges filed by Packinghouse, Leather and Allied Workers District Local Union P-242, affiliated with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, on December 26, 1972. Briefly stated, the complaint alleged that the Respondent violated Section 8(a)(1) of the Act in various respects, including solicitation of employees' signatures on an antiunion petition, threatening an employee with loss of a job if she did not sign that petition, implying to employees that they would receive a $100 bonus for signing the petition, interrogating an employee about his union membership, activities, and desires, threatening an employee with the loss of his job if the Union came in, and creating the impression of surveillance 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the polling area , during the course of an election. In its duly filed answer,, the Respondent admitted certain jurisdictional allegations, but denied that it had engaged in any unfair labor practices. Upon the entire record' in the case, my observation of the witnesses as they testified, and a careful consideration of the briefs filed by counsel for the Respondent and counsel for the General Counsel, on or about May 15, I make the following: FINDINGS OF FACT I. JURISDICTION The Respondent maintains an office and plant located in Collierville, Tennessee, where it is engaged in the manufac- ture of plastic products. During the 12-month period prior to the issuance of the complaint, the Respondent admitted- ly received goods and materials valued in excess of $50,000 directly from points outside the State of Tennessee and, during the same period, sold and shipped goods and materials valued in excess of $50,000 directly to points outside the State of Tennessee. I find that the Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that the Union is a labor organization -within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES It is admitted that, at all times material, William Magruder was plant manager, and that Keith Williams, Tom Toomey, and Don Hall were shift supervisors. Counsel for the General Counsel alleged that Eugene King and Willard Strain were relief shift supervisors, but this is denied by the Respondent. The activities of the Respondent with which we are here concerned occurred during the months immediately preceding a representation election held at the Respon- dent's plant on November 30, 1972. Of the approximately 81 eligible employees, 78 voted; -22 were for the Union; 52 against the Union, and 4 ballots were challenged. The Union filed timely objections -on December- 5, which the Regional Director found, under date of January 11, raised issues that could best be resolved on the basis of record testimony and, accordingly, recommended that the,repre- sentation case be consolidated with the unfair labor practice case and sent to hearing. Plant Manager Magruder testified that he made approxi; mately 30 speeches to employees during, October and November concerning the Union and the forthcoming election, Other, admitted supervisors also made speeches, including. Williams, Toomey, and Hall; the - alleged supervisors, King and Strain, engaged in the solicitation of signatures to an antiunion petition and in other respects spoke to employees in a manner that would be violative of Section 8(a)(1) of the Act if they are found to be supervisors. As is so frequently the case in matters of this kind, the testimony concerning what was said and done is in sharp conflict, thereby necessitating the making of credibility resolutions . As `I noted during the hearing, in this connection, all of us are "fallible creatures and tend to consciously or unconsciously put-our interpretation upon what we hear, depending upon how we think what is said may affect us.'.' .In his brief, counsel for the Respondent states that "It was clear in some instances that the Union witnesses were exaggerating and embellishing" their accounts of what took place and that , for the most part, "they were merely misinterpreting what they heard to coincide with the Union's challenge to the election results." On the other hand, counsel points out that Respondent's representatives were specifically advised not to engage in activities attributed to them and the bulletins and written speeches which were - introduced , into evidence "clearly support their contentions in that regard." Diane Culver, an inspector on the third shift, testified that she attended three speeches given by- Magruder. The first, to which she was sent by her supervisor , Williams, was given in Magruder's office early in November and several other women attended it. According to, Culver, Magruder stated that "... Mr. Sewell was a fanatic against the Union and if'the Union came in he would just as soon shut the plant down ...." Regarding the second speech, about the middle of November, some seven other employees from the third shift were present. She testified that Magruder said basically the same things that he had stated during his first speech . Joyce Sykes, who worked on the second shift, testified that she attended two different meetings at which Magruder spoke . The first speech was given in the plant lunchroom late in October and was attended by the entire ' second' shift. She testified that Magruder "was talking-about the Union. He said that we didn't need the Union, it might cause the plant to go out on a strike. He said that if it did it might cause the plant to close down. And he said that Charles Sewell didn't want a union, but it really didn't matter because, he said, he had other plants and that was one of the smallest he had." Concerning the second speech attended by Sykes, she testified that it occurred in Magruder's office in November and that approximately 12 other -employees were present. According to her, Magruder discussed strikes and the reasons employees did not need a union , read from newspaper clippings, and stated that if the Union came in it might cause the plant to close down. Dorothy Alridge, who worked on the second shift, testified that she attended the speech given by Magruder in his office in late October or early November . According to her, Magruder stated that they did not want a union in the plant, that Charles , Sewell was a fanatic against unions, that he had other plants and he didn't want unions in them, and that if a union came in he would close the plant. Alridge further testified that she attended a second speech given by Magruder ,in -the lunchroom late in November which was attended by the entire second shift. Alridge remembered that Magruder said that if the Union came in the plant would be closed and that Sewell did not have to negotiate with the Union. Sandra Spain, who worked on the third shift, testified that she attended a speech in Magruder's office about 1 I reserved ruling on the admissibility of Resp . Exh. 5(a). After therefore reject it The same ruling is made with respect to Resp Exhs. 7 consideration, I have determined that it was inadequately identified , and through 10. SEWELL, INC. 329 November 8 and a few other employees from the third shift were present. According to her, Magruder stated that Sewell was a fanatic against the Union and that if it came in he did not have to negotiate with it and that if the Union came in employees probably would not get a bonus of any kind, but if it did not come in the employees would probably get a 40-hour bonus. The next speech attended by Spain was given by Magruder in his office approximately 1 week before the election and only part of the third shift was present. He again stated, according to Spain, that Sewell was a fanatic against. the 'Union and would probably close the plant if the Union came in. He further stated that if the Union came in the employees would probably not receive their bonus and that he could not see Sewell giving the bonus and letting, Collierville be a stepping stone for his other plants which were not organized. 11 David Spain, a relief supervisor on the third shift, testified that he attended three or four speeches given by Magruder during the latter part of October or the first 2 or 3 weeks in November. , Spain related that during these speeches Magruder made the following comments: Q. Can you tell us what you remember? - A. Some of the comments were that union officials were over paid for the work that they did, and that this money was' coming from the workers there in the plant, or either the plants that the union represented and that the people at the plant could be ,assessed money if the union wanted to, assess them for certain obligations that they have, and, that Mr., Magruder said that he couldn't accept money doing the job that the union officials were doing, that his conscience would bother him. And - then he backed up and said well maybe I could accept it, or something to that degree. He stressed the point that Mr. Sewell didn't want the union to come in. That he might close the plant down if it did, or that Mr. Sewell did not have to negotiate with the union if it was voted . in. Mostly the meeting just concerned the -bad points of the union and the good point of the company, without the union in it. Magruder denied threatening employees with plant closure although he admitted that he talked with employ- ees concerning the fact that various other plants had been closed as a result of union activity and that the Collierville plant could,he closed if the Union came in. He denied promising a Christmas, bonus to the employees - if the Union, did not come in. He testified that he discussed Christmas bonuses in response to questions by employees and that he told the employees not to count on a -bonus until they got it, that he knew bonuses had been paid in other plants in the past, but did not know if employees would, receive a bonus ,that year. He denied telling employees, that Sewell did not have to negotiate with the Union and also denied questioning any employees about their union membership and/or activities. Both Culver and Sandra Spain testified that they were present when Supervisor Williams delivered speeches- Spam stated that she attended a speech he gave in the lunchroom, around the middle of November and that several other employees were present. According to Spain, Williams stated that the Union that was attempting to get in was "lousy" and that employees did not need that type of labor organization. Williams further stated that Sewell was a fanatic against unions and that the employees should not vote it in and if it came in employees probably would not receive a $1.00 bonus which was being discussed at that time. Culver testified that he was present when Williams spoke in the breakroom about 3 days before the election. According to Culver, Williams stated that, although it was not guaranteed, if the Union did not come in Sewell probably would , give the employees a week's pay as a bonus. Williams admitted- that 'he told employees about bonuses which workers had received in other plants of the Respondent and stated that he did not= promise or guarantee employees at the Collierville plant that they would receive a bonus. He denied telling employees that the receipt of the bonus hinged on whether or not the Union came in. Asked whether or not he announced to the employees that the Respondent knew who was trying to get the Union, in, Williams testified: "Not the best that I can remember, I can't remember making that. I might have said that we knew that somebody was threatening to get the Union in because it was a big thing, talking about the Union trying to get in the plant." On redirect examination, asked whether he had told the employees that he knew , who was trying to get the, Union in, Williams stated that "I might have said it." Martha Holmes, an employee on the first shift, testified that she attended a speech given by Supervisor Toomey on Sunday, November 26, in the plant lunchroom and that the entire first shift was present. According to Mrs. Holmes, Toomey stated that he had "been in unions all over the United States and he was in the, CIO before it merged...." Toomey turned to Mrs. Holmes and stated, "Martha, we already know that you're a union member and caught Tstraddle the fence, just like I am." She further stated that Toomey asked about the Union's contract at another company and talked- about union problems in other,plants and then stated that if the Union came in Sewell would close up and leave Collierville with an empty building and that it would take years before it was occupied by some other, company. Toomey denied that-he threatened that the plant would be closed, but he admitted that the closure of other ,plants in the community because of union activity was discussed and that he informed the employees that the plant- at Collierville could also be closed. Toomey denied question- ing Mrs. Holmes about her union desires during a speech on November 26, but he admitted that he had asked Holmes what her union dues had been when she had worked at another employer and that it was possible that he had asked her other questions which he did not remember. Mrs. Holmes further testified . that on the day of the election, while she was in the lunchroom on break, King told her, "Well, this time tomorrow, we'll,all be out of a job if it goes in. So you might as well just start looking now." The election was conducted on a split-shift basis, from 3 to 4 p.m. and I 1 p.m. to midnight. The polling area was inside the Respondent's lunchroom which had a front and back door. All the windows in-this room had been covered. Mrs. Holmes and Sandra Spain served as observers during both 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shifts. Both of them testified that they observed King standing outside the door of the polling area during the second shift and that he was talking to employees as they entered the polling area. Willard Strain served as a relief supervisor on the third shift. Sandra Spain and Culver, both employed on the third shift, testified as to Strain's supervisory status. Mrs. Spain stated that she had observed Strain performing his duties and that he was the acting foreman when Williams was absent. In addition , she testified that when Williams was absent Strain told her what jobs to perform and when to relieve other employees so that they could go on break, and assigned her overtime work. Culver stated that, she observed Strain performing his work and that when Williams was absent or fate Strain assigned work to employees and told employees when to relieve other workers so that they could go on break. David Spain stated that when Strain's foreman was absent Strain acted in the same capacity in which Spain acted when his foreman was absent. Both Spain and Culver testified that they were presented with an antiunion petition by Strain, that he asked them if they wished to sign it, and that they declined to do so. Strain was not called as 'a witness. I find that Strain was a supervisor. Hall was the foreman of the second shift during the period in question. Three employees testified that they were questioned by Hall about their union desires. Mrs. McKinney stated that shortly before the election Hall called her into a room and asked her what she knew about the Union and she testified she replied, "I don't know anything about it because I hadn't worked at a plant before, and he asked me how I was going to vote, and I said I don't know. He said, Well, if I was you I would vote no, because you need your money to buy clothes and things, I said well I need it and he said voting time comes if I was you I would vote no, and I said I don't know what I'm gon'a vote" Sara Gatewood testified that Hall, about- a week before the election, approached her at her machine and asked how she was going to vote . Gatewood pretended that she had not heard what Hall had said and he repeated the question. Gatewood =then -replied "uh huh." Joyce Sykes testified that before the election she was called into the quality control room by ,Hall who questioned her about her desires . She testified that Hall "said that Mr. Magruder asked him to talk to everyone to try to keep them from voting for the Union" and that Hall "asked me how I was going to vote, and I didn't answer." Hall admitted that he talked to employees but denied asking them how they intended to vote. As previously stated, the status of King is in dispute; the Government contends that he is a supervisor whereas the Respondent urges that he is not. Linda Bryan, who worked on the first shift, testified Toomey was her regular foreman and that she considered King to be her supervisor when Toomey was absent, which occurred 1 or 2 days a week. According to her, King in Toomey's absence made work assignments, - solved problems for employees, and told employees when it was time for them to take their breaks. She further testified that an individual making work assignments had to have some knowledge about the ability of employees to operate the various machines: Mrs. Holmes, who also worked on the first shift , testified that King was an acting supervisor when Toomey, the regular foreman, was absent. She stated that Toomey normally worked 6 days and was off 2 days and that when Toomey was absent King told the employees what jobs to perform, allowed employees who were sick to go home, told employees to `leave the plant when there was not enough work, selected employees to work overtime and do relief work so that other employees could go on break or to lunch, and gave, employees their paychecks. David Spain, relief supervisor on the second shift, testified that Hall was his regular foreman and Hall informed him in October 1972 that he was to serve as assistant 'supervisor on the second shift. According to Spain, Hall was gone approximately 1 and sometimes 2 days a week and during his absence he assigned work to employees, determined whether it was necessary to send any employees home, or call other employees to work, assigned overtime work, and allowed employees who were sick to go home and,, in addition , reprimanded employees. Spain testified that he took such action without checking with any higher officials. King admitted that he made work assignments based on his knowledge of the abilities of employees, allowed sick employees to go home, told various employees to go 'home when there was not enough work to do, supervised the taking of breaks and, more or less took over from Foreman Toomey when the latter was absent . Toomey testified that he tried to take off 2 days a week and admitted that there were days when machines broke down and King reas- signed employees to other jobs or sent them home. He further admitted that King had asked employees to work overtime and had probably initialed their overtime card. Magruder testified that both Toomey and King punched the timeclock and received approximately the same wage which was higher than that of top production employees. He further testified that King ran the shift for Toomey in the latter's absence . I find that King was a supervisor within the meaning of the Act. Most of the allegations of interference, restraint, and coercion attributed to King involved the circulation of an antiunion petition among employees at the Collierville plant and solicitation of employee signatures on this petition. Counsel for the Respondent, in his opening statement, admitted that King did take the petition around to a number of employees to seek their signatures. King admitted that he did so. Several employees testified that King presented them with the petition . Linda - Bryan testified that when King gave the 'petition to her she asked him if she would lose her job if she did not sign it and King replied that she might and she might not, whereupon she signed the petition. King denied that he threatened anyone with loss of their job if they did not sign the petition. Alridge and one Maxine McKinney testified that a Paul Thompson brought the petition to them but that they refused to sign it. King testified that he had Thompson carry the petition to some of the employees that he did not know very well. - Shortly after Thompson made his solicitation, King discussed the petition with Alridge and McKinney. According to Alridge, King "Asked me why I didn't sign it and I told him I didn't want to sign it, and he SEWELL, INC. 331 said, if you don't sign it, you're not going to get your hundred dollar bonus for Christmas." McKinney testified that after Thompson had presented her with the petition King came over and asked, "Why didn't we sign it." She further testified that King stated, "Why didn't ya'll sign it, you mean to tell me ya'll are gon'a miss that hundred dollar bonus." Mrs. Holmes stated that she signed the petition in order to keep King "off my back because I didn't want to have any more conversations with him." She further stated that when she did sign the petition King told her that no one would ever see it other than "_ . . me and the ones in the office, and our Attorney." Mrs. Holmes testified that King questioned her about her union desires prior to the date on which he presented her with the antiunion petition. According to her, King came to her machine about November 15, and told her that he wished to speak to her about the election. He told Mrs. Holmes that the people in the office had asked him to "talk to the people and find out how they feel about a union coming in." King admitted asking Mrs. Holmes how she felt about the Union, but denied that company officials had instruct- ed him to do so. According to Mrs. Holmes, King spoke to her on the day of the election while she was in the lunchroom on break. She testified that King said: "Well, this time tomorrow, we'll all be out of a job, if it goes in. So you might as well just start looking now." The election was held on November 30 on a split-shift basis, from, 3 to 4 p.m. and 11 p.m. to 12 midnight. The polling area was located inside the Respondent's lunch- room which had a front and back door. All windows in the room had been covered. Holmes and Sandra Spain served as observers during both shifts. Both of them testified that they observed King standing outside the door to the polling area during the second shift and Holmes added that she saw King talking to employees as they entered the polling area. King denied that he stood near the entrance to the polling area, although he testified on cross-examina- tion that he might have been near this area if he had gone to the restroom and that he might have spoken with some employees. Willard Strain served as a relief supervisor on the third shift. Sandra Spain related that she had observed Strain performing his work and that he was the acting foreman when Foreman Williams was not present. Additionally, she testified that when Williams was absent or late in arriving Strain assigned work to employees and told employees when to relieve other workers so that they could go on break. According to Culver, Williams was absent about I day every 2 weeks. Both Spain and Culver testified that they were given an antiunion petition by Strain and that he asked them if they wished to sign it, but they declined to do so. Spain stated that this incident occurred on November 26 and Culver related that she was given the petition a few days before the election. Strain was not called as a witness. Concluding Findings Upon a careful consideration of the testimony and exhibits, as well as the able briefs filed by counsel, I come to the conclusion that supervisory officials of the Respon- dent did make the remarks and engage in the conduct attributed to them by witnesses presented by counsel for the General Counsel . While I recognize that Respondent's representatives denied making any of the threats attributed to them, and that the bulletins and written speeches which were introduced in evidence specifically advised them not to engage in such activities, the record persuades me that the witnesses presented by the Government were credible and were not engaged in giving fabricated accounts. With respect to Magruder, he admitted that he made some 30 speeches during October and November. He related that his speeches had originally been prepared by attorneys for the Respondent but testified that he did not use this material verbatim but made his own outlines from the material that had been prepared and addressed the employees using these outlines as a guide . He could not relate what changes had been ' made in the speeches supplied to him by the attorneys, nor could he state exactly what he said during the talks. He admitted on cross- examination that it was possible that he had made some statements during these speeches which he could not remember. Four witnesses for the Government testified that they heard Magruder ' state during various speeches that the plant would or probably would be shut down if the Union came in . Thus, Culver related that Magruder stated during the first speech she attended that Sewell'was a fanatic against the Union and that he would probably shut the plant if the Union came in. She also related that Magruder made substantially the same ' statements during the second speech which she attended. Sykes testified that on ' two occasions Magruder stated that if the Union came in the Respondent might shut down the plant. Alridge testified that Magruder stated , during two different speeches which she attended that Sewell was a fanatic against the Union, that he had other plants , that he did not want the Union in them, and that if the Union came in he would close the Collierville plant. Sandra Spain stated that during the second speech she attended Magruder said that Sewell was a fanatic against the Union and would probably close down the plant. Although Culver and Spain both worked on the third shift , it seems quite obvious that they attended different speeches. Both testified that Magruder's comments about plant closure were made during speeches given in his office. Culver specifically stated that Spain was not present during any of the speeches that she attended. Sykes and Alridge, both second-shift employees, testified that they ' each attended two speeches during which Magruder discussed plant closure. Each attended one speech in the lunchroom and one in Magruder's office. Sykes testified that the speech she attended in Magruder's office was given around 8 p.m. sometime during November; on the other hand, Alridge stated that the speech she attended in Magruder's office was in late October. Both related that there were a few other girls from the second shift present during their respective speeches, but neither named the other as having been present. According to Sykes, the speech she attended in the lunchroom was given around 3:30 p.m. on a day in late October, while Alridge stated that the lunchroom speech she attended was given in late November at about 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11:30 p.m. It seems plain, therefore, that neither of these two women attended the same speeches. While I recognize that the passage of time has a tendency to erode a witness' memory to some degree, here we have four separate witnesses testifying that they all heard Magruder say essentially the same thing, namely, that if the Union came in the Collierville plant it would close or would probably close. Certainly such a comment by an admitted supervisor is violative of Section 8(a)(1) of the Act, and I so find.2 With respect to the circulation of the antiunion petition, it is clear from the record that Respondent's admitted supervisors were aware that King circulated this petition on company testimony regarding statements violative of the Act made by his time but took no steps to stop it or to disavow any connection with it. Indeed, the plant manager told employees that he approved of their action in having signed the petition. Foreman Williams testified that he saw an antiunion petition circulating in the plant during working time and, in fact, saw it pass through King's hands. However, although Williams admitted that he was in charge when he saw this petition, he did not attempt to stop its circulation or tell employees not to sign it. David Spain, a relief foreman on the second shift, testified that he was asked by King to sign a petition prior to the election. At that time he was in the production area and told King that he did not feel he was eligible to sign the petition. That same evening Spain was again asked by King to sign a petition when he entered the break room. According to Spain, Bob Landers, an admitted supervisor, was seated next to King when King asked him to sign the petition. Spain signed the petition,, explaining that he was afraid he would be labeled as a union sympathizer if he did not. Spain further testified that Hall, the regular second shift foreman, told him prior,to the election that he was aware that the petition was being circulated by King and that it was interfering with work. Neither Landers nor Hall, both of whom testified, disclaimed knowledge of King's action in this regard. - Alridge testified that as she was leaving the speech given by Magruder in his office King approached her and asked if she was ready to sign for her $100 bonus. Abridge took the petition from King and handed it to Magruder and asked him if he was going to sign up for his $100 bonus. According to Magruder, he learned about the circulation of the petition approximately a week before the election and admitted that he knew who was responsible for its circulation. He stated that he did not instruct any of his foremen to stop the circulation of the petition nor did he tell employees not'to sign it. His explanation as to why he did not take such action is obviously transparent. While he admitted that he knew about the petition approximately a week before the election, he stated that everyone had already signed the petition when he saw it. However, King testified that he only circulated the petition from the time his foreman came back from Thanksgiving up until approximately 24 hours before the election. It seems obvious, therefore, that Magruder knew of the petition almost from its inception. I am convinced and find that the action of the Respondent in knowingly allowing the circulation of this petition among employees during worktime, coupled with the failure of the Respondent's admitted supervisors to disavow any connection of the Respondent with the petition, and Magruder's statement to assembled employ- ees that he appreciated their having signed the petition, made the individuals circulating the petitions agents of the Respondent for that purpose. I further find that Strain was a supervisor and, accordingly, his circulation of the antiunion petition constituted a violation of Section 8(a)(1) of the Act. I further find that Hall's interrogation of employees prior to the election, with respect to how they were going to vote, was violative of Section 8(a)(1) of the Act. With respect to the objections to the election, I sustain them for the reasons set out above concerning the unfair labor practices. I recommend that the election be set aside and a new one directed when the Regional Director determines that the effects of the unfair labor practices have been dissipated. CONCLUSIONS OF LAW 1. By coercively interrogating employees and threaten- ing them with closure of the plant in the event the Union came in, the Respondent violated Section 8(a)(1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from any like or related invasions of the employees' Section 7 rights, and to take certain affirmative action. [Recommended Order omitted from publication.] 2 It should also be noted that Spain and Culver were still employed by recognized, the significance of an employee giving or her employer. See the Respondent at the time they testified and, as the Board has long Georgia Rug MtlL 131 NLRB 1304. In. 2 (1961).