Wellman Industries, Inc.

WELLMAN INDUSTRIES 639 Wellman Industries, Inc. and Textile Workers Union of America, AFL-CIO, CLC. Cases I I-CA-5091, 11-CA-5101, and 11-CA-5233 June 17, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On October 15, 1973, Administrative Law Judge Lowell Goerlich issued the attached Decision in the above-entitled matter in which he recommended that the Respondent's defense based on the testimony of Baxley be denied. Additionally, he found that the Respondent had made the unilateral changes alleged in Cases 11-CA-5101 and 11-CA-5233, and con- cluded by stating, "it is recommended that, if an order to bargain is entered in Case 11-CA-5091, an order also be entered in these cases, with an appropriate notice, ordering the employer to cease and desist from making unilateral changes in wages, hours, and working conditions of its unit employees without prior notification to and consultation with the Union." Thereafter, the General Counsel filed exceptions 1 and a supporting brief and simultane- ously filed a motion stating that: "In the event that the Board finds that the Administrative Law Judge did not have to make appropriate findings of fact, conclusions of law and write a remedial order together with an appropriate notice to employees," the Board grant a bargaining order together with appropriate relief in these cases. The Petitioner, herein Charging Party, filed exceptions and a supporting brief and the Respondent filed exceptions and a supporting brief. Subsequently, the Charging Party filed a reply brief to the Respondent's exceptions and the Respondent filed a "Resistance to Motion" that had been filed by the General Counsel. On April 19 and 20, 1972, a secret ballot election was conducted at Respondent's plant under the supervision of the Regional Director for Region 11 of the Board. The Union received a majority of the valid votes cast in that election. On April 25, 1972, Respondent timely filed its Objections and Supple- mental Objections to conduct affecting the results of the election of April 19 and 20, 1972. On June 14, 1972, the Regional Director issued a Second Supple- mental Decision and Certification of Representative I The General Counsel excepted as follows: 1. To the Administrative Law Judge 's failure to make conclusions of law, findings of fact, and to recommend an order in Case 11-CA-5091. 2. To the Administrative Law Judge's failure to make conclusions of law, findings of fact, and to recommend an order in Case 1l-CA-5101. 3. To the Administrative Law Judge's failure to make conclusions of law, findings of fact, and to recommend an order in Case 11 -CA-5233. 4. To the Administrative Law Judge 's failure to recommend a bargaining order in Case 11-CA-5091. in which he overruled Respondent's Objections and Supplemental Objections and formally certified the Union as the exclusive representative of Respon- dent's employees. On July 10, 1972, the Respondent filed with the Board a Request for Review of the Regional Director's Second Supplemental Decision and Certification of Representative. On August 1, 1972, the Board issued an Order Denying Respon- dent's Request for Review. On September 26, 1972, the Union requested that Respondent meet with it for the purpose of conducting bargaining negotia- tions. On October 4, 1972, the Respondent informed the Union that it would refuse to bargain. On October 5 and 13, 1972, the Charging Party filed a charge and an amended charge in Case 11-CA-5091 alleging that Respondent had refused to bargain with it in violation of Section 8(a)(1) and (5) of the Act. After a complaint and notice of hearing issued in that case on October 20, 1972, and Respondent filed its answer thereto on November 3, 1972, counsel for General Counsel on November 9, 1972, filed a Motion to Strike Affirmative Defense, Portions of Answer, and for Summary Judgment. On March 8, 1973, Respondent filed its Motion to Deny General Counsel's Motion for Summary Judgment due to newly discovered evidence. The newly discovered evidence involved three affidavits from one Kenneth Baxley concerning his activities imme- diately prior to the April 1972 election. On May 30, 1973, the Board issued an Order denying General Counsel's Motion for Summary Judgment and Remanding Proceeding to Regional Director for Hearing. It further ordered that "a hearing before a duly designated Administrative Law Judge to be designated by the Chief, Division of Judges, for the purpose of taking evidence limited to the allegation of newly discovered evidence relating to the information contained in the Baxley affida- vits." The Board further ordered that upon conclusion of the hearing which it had directed the Administra- tive Law Judge "shall prepare and serve upon the parties a Decision containing findings of fact, conclusions of Law, and recommendations based upon the evidence received pursuant to the provi- sions of this Order, and that following service of such Decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall be applicable." 5. To the Administrative Law Judge's failure to recommend that Respondent cease and desist from making unilateral changes in terms and conditions of employment of its employees in the bargaining unit without prior consultation and bargaining with the Union in Cases II-CA-5101 and 11-CA-5233. 6. To the Administrative Law Judge's failure to direct that Respondent post a proper Notice to Employees in Cases I l-CA-5091, I I-CA-5101, and 11-CA-5233. 211 NLRB No. 96 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Subsequent to the Board's May 30, 1973, Order, the Acting Regional Director for Region 11 issued his Order Consolidating Cases on June 7, 1973, in which he consolidated Cases 11-CA-5101 and 11-CA-5233 with Case 11-CA-5091 for hearing. Cases 11-CA-5101 and 11-CA-5233 involved allega- tions of unilateral changes in violation of Section 8(a)(5) made by Respondent subsequent to the Union's certification. On August 13 and 14, 1973, a hearing was conducted before Administrative Law Judge Lowell Goerlich on all three cases. Administrative Law Judge Goerlich heard extensive testimony presented by both Respondent and counsel for the General Counsel concerning the Baxley affidavits and the evidence contained therein and the alleged unilateral changes made by Respondent. He did not credit the testimony adduced by Respondent and as noted above, stated, "Accordingly,based upon the evidence- received and an examination of the record as a whole, it is recommended that the Respondent's defense planted on the testimony of Baxley be denied." Additionally, he found that Respondent had made the alleged unilateral changes but as noted above he did not recommend an order in any of the cases involved in the consolidated complaint. On January 31, 1974, the Board found that the Board's Remand Order of May 30, 1973, constituted a total remand of Case 11-CA-5091 and instructed the Administrative Law Judge to issue a decision "containing findings of fact, conclusions of law and recommendations." Accordingly, the cases were remanded to the Administrative Law Judge for further proceedings consistent with the Board Order, including the preparation and issuance of a Supple- mental Decision setting forth findings of fact, conclusions of law, and recommendations in con- formity with the Board's Rules and Regulations. On February 28, 1974, Administrative Law Judge Goerlich issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed a Motion to Reopen Hearing with attached affidavits, exceptions to the Decisions of the Administrative Law Judge, and a supporting brief. The Charging Party filed a letter and attached its exceptions which were filed November 16, 1973, as its exceptions and brief in support of the Supplemental Decision of the Administrative Law Judge. The Respondent filed an answering brief to the exceptions and brief of the Charging Party. The General Counsel filed an Opposition to Respondent's Motion to Reopen Hearing and a Motion to Strike Affidavits attached to Respondent's Motion to Reopen Hearing. The Respondent filed a Motion to Strike Portion of General Counsel's Opposition to Motion. 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 and Supplemental Decision in light of the exceptions, briefs, and motions,2 and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge and to adopt the recommended Order in his Supplemental Deci- sion and, those findings and conclusions set forth in his Supplemental Decision, and further to adopt his conclusions in his initial Decision to the extent that they are not inconsistent with the Board's Order of January 31, 1974. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Supplemen- tal Order of the Administrative Law Judge and hereby orders that Respondent, Wellman Industries, Inc., Johnsonville, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the said Supplemental Order. 2 The Respondent's Motion to Reopen Hearing requests the Board to issue an order remanding this matter to the Administrative Law Judge requiring that the hearings previously held herein be reopened for the purpose of taking testimony with respect to the credibility of witness Baxley. More specifically the motion states, inter alia, "The Respondent believes that it has important evidence with respect to the credibility of the said Baxley as more particularly set forth in the affidavits annexed hereto and incorporated herein ... [tlhat the evidence with respect to said Baxley was not properly in issue before this time, and, therefore constitutes new evidence." General Counsel's Opposition to Motion to Reopen Hearing and Motion to Strike states, at par. 3: On March 15, 1974, after denial of its Motion by the Administrative Law Judge, Respondent filed its Motion to Reopen Hearing with the National Labor Relations Board . This Motion was based on grounds identical to those given in the Motion set forth in (2), above. The Respondent filed a subsequent motion submitting that since the Administrative Law Judge ruled on the motion almost 2 weeks after the Board had ordered the proceeding transferred to itself, the Administrative Law Judge was without power or authority to rule on Respondent 's Motion to Reopen Hearing, and requested the Board to take no notice of the Administrative Law Judge's ruling to deny Respondent's motion. We have considered the Respondent's Motion to Reopen Hearing and General Counsel's opposition thereto de novo. We find no merit in Respondent's Motion to Reopen Hearing and we hereby deny it. We note, inter alia, that the proper occasion for the presentation of evidence bearing on the credibility of Baxley, who was Respondent's chief witness, was at the hearing conducted on August 13 and 14, 1973, before the Administrative Law Judge. We note further that there is nothing in Respondent's motion which would indicate why the alleged evidence bearing on Baxley's credibility was not available to Respondent at the time of the hearing in this matter. DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: On April 10, 1973, the Regional Director issued his Order Consolidating Cases, Consolidated Complaint and Notice of Hearing in Cases 11-CA-5101 and 11-CA-5233. On WELLMAN INDUSTRIES 641 May 30, 1973, the National Labor Relations Board, herein referred to as the Board, in Case 11-CA-5091, issued its Order Denying General Counsel's Motion for Summary Judgment and Remanding Proceeding to Regional Direc- tor for Hearing. On June 7, 1973, the Regional Director issued an order consolidating Case I1-CA-5091 with Cases I1-CA-5101 and I1-CA-5233 for hearing. In the complaint in Case 11-CA-5091, it was charged that Wellman Industries, Inc., the Respondent herein, by letter dated October 4, 1972, refused to bargain with Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, which had been certified as the exclusive bargaining representative on June 14, 1972, because "We seriously question the validity of your Certification by the NLRB as the exclusive bargaining representative of our production and maintenance employees." In the consoli- dated complaint in Cases I1-CA-5101 and 11-CA-5233, it was alleged that the Respondent violated Section 8(a)(5) of the National Labor Relations Act, as amended, herein referred to as the Act, by unilaterally and without prior notification to or consultation with the Union granting wage increases to unit employees on October 2, 1972, laying off unit employees on August 27, 1972, and promulgating new absence and tardiness rules and regula- tions on January 29, 1973. The Respondent filed timely answers denying that it had engaged in or was engaging in the unfair labor practices alleged. On November 10, 1972, the General Counsel in Case I I-CA-5091 had filed his Motion to Strike Affirmative Defenses, Portion of Answer, and for Summary Judgment .with the Board. Thereafter, the Respondent filed a Motion to Deny General Counsel's Motion for Summary Judg- ment due to newly discovered evidence, attaching thereto an affidavit of Kenneth Baxley. The Board denied the General Counsel's Motion for Summary Judgment and held that "factual matters relating to the activities and prior statements of Baxley are now in dispute which can best be resolved by a hearing." It was ordered that "a hearing be held before a duly designated Administrative Law Judge . . . for the purpose of taking evidence limited to the allegation of newly discovered evidence relating to the information contained in the Baxley affidavits." 1 A Baxley affidavit indicates that during the election campaign in April 1972 Baxley misrepresented the shooting of his dog and that during the same campaign he affixed a threatening note to his own door while, in fact, he had misrepresented that the note had been placed there by another. The Respondent, by answer, admitted that at all times material herein it was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the Union was a labor organization within the meaning of Section 2(5) of the Act. Pursuant to the Board's Order in Case 11-CA-5091, Case 11-CA-5091 and consolidated Cases 11-CA-5101 and 11-CA-5233 came on for trial on August 13 and 14, 1973, at Florence, South Carolina. Each party was afforded a full opportunity to be heard, to call, examine and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,2 CONCLUSIONS, AND REASONS THEREFOR 1. CASE 1L-CA-5091 A. Pertinent Facts George Kenneth Baxley, age 24, was employed by the Respondee'1t part time while he was in high school. He commenced full-time work in 1967. Thereafter, he worked during several separate tenures, quitting in March 1973 because he objected to Sunday assignments. Prior to the election campaign which culminated in an election on April 19 and 20, 1972, Baxley did not favor the Union and spoke against it. About 45 days before the election, Union Representative Estes Vernon Riffe converted Baxley to the union cause during a 2-hour discussion. Prior to this time, Baxley had been "strongly against the union." After his conversion to the union cause, Baxley solicited for the Union, contacting between 50 and 100 employees. He became a member of the in-plant union organizing committee .3 About a week before the election, Baxley disseminated information that his dog had been shot4 and that a note was affixed to his door reading "Stay the hell away from the Union hall." He delivered the note to the Union.5 Baxley discussed the contents of the note and the dog incident with fellow employees. He testified that he "tried to make it look like that the company could gain by doing this. "6 The employees to whom Baxley related the dog and note incidents were located in his immediate work area.? David Brown was one of them. I The Board's Order Denying General Counsel's Motion for Summary Judgment and Remanding Proceeding to Regional Director for Hearing further provided: ". . . upon conclusion of the hearing, the Administrative Law Judge shall prepare and serve upon the parties a Decision containing findings of fact, conclusions of law, and recommendations based upon the evidence received pursuant to the provisions of this order .... . % The facts found herein are based on the record as a whole and the observations of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N.L.R.B. v. Walton Manufacturing Company & Loganville Pants Co., 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it is in and of itself incredulous and unworthy of belief. 3 On April 5, by telegram, and on April 6, by letter, the Respondent was advised that Baxley was a member of the Union and serving as a member of the Union In-Plant Voluntary Organizing Committee. 4 One witness described the dog: "It looked like a mixed breed, mostly collie ... light tan, with a black nose." 5 The note which was received in evidence contained printed words as follows: STAY THE HELL AWAY FROM UNION HALL CURIOUS 6 Baxley also testified, "I told them that I found the note on my door and I just left lit) up to their imaginations from there." 7 Baxley testified that he had also lied to his wife about the incidents. 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the day before the election, April 18, 1973, at about 12:30 a.m.,8 as Respondent's then department superintend- ent of fiber finishing, Wayne Farrell Lindley, was walking through the production area, Baxley stopped him and asked if he could talk to him for a moment . Baxley said that "he had some questions that he would like to ask [Lindley] concerning the union and the election." Several employees were present while Lindley responded to Baxley's questions. Later during the shift, Shift Supervisor Ronald Brock informed Lindley that Baxley desired to speak with him again . Brock and Baxley met with Lindley at which time Baxley informed Lindley that "he had changed his mind about supporting the union ; that he would like to tell the people that he had talked with that he had changed his mind and he didn't know how to get in touch." Baxley asked for permission to use the bulletin board for such purpose. Lindley responded that he "felt sure that he could not do that." The possibility of using the radio station was then discussed. A list of employees (about 100) who had signed union cards was turned over to Lindley by Baxley. Near the end of the conversation, Baxley mentioned that "somebody had put a note on his door and that his dog had been killed." Baxley said that "this was one of the reasons he wanted out of the whole thing-the support of the union." He left Lindley with the "impression" that "he thought the company had done it or that' somebody connected with the company had done it "lo Lindley informed his boss, Holden , of Baxley's conversa- tion. Holden told Lindley to call Douglas Harold Mat- thews,tt the personnel director . Lindley discussed the matter with Matthews. According to Baxley, he left work at 8 o'clock on the morning of April 18, 1973. Upon arriving home, he received a phone call from Matthews' secretary bidding him to return to the plant . Baxley went to Matthews ' office where Matthews asked him , "Can I help you?" Baxley explained that he had changed his mind and asked Matthews for "suggestions in a way that it could be a The findings of fact in this paragraph are drawn from the testimony of Wayne Farrell Lindley, now manufacturing manager of the knitting division, which is credited. a Union Representative Riffe testified that Baxley indicated to him on April 19 that he had changed his mind about the Union "because of the threats that he got from the foreman and the supervisors and the company about his union activities." In this respect, "the note and the dog incident" were mentioned. Shortly after the election, Baxley gave the Union a handwritten statement stating that the reason for informing Lindley of his change of heart was because of the shooting of his dog and the threatening note on his door. 10 Baxley's version of the foregoing facts differed substantially from the testimony related by Lindley. Baxley first testified that he informed Lindley one morning that he was abandoning his support of the Union, but he did not recall what he said on the subject of changing his mind . Continuing his testimony, he described the incident in more detail . Baxley said that Lindley ..was going around to different places that morning and talking to different people" and approached a group of six or seven employees including Baxley. "Pros and cons" about the Union were discussed. Baxley asked Lindley questions in respect to wages and fringe benefits . These questions were prounion orientated and were somewhat critical of the Company. After the discussion ended, Baxley followed Lindley "off on the side" and told him he was "dropping [his I support of the union" Baxley could not remember Lindley's response. "Very soon" thereafter, Brock informed Baxley that Lindley wanted to see him in his office . Both Brock and Baxley appeared in Lindley's office where Baxley informed Lindley that he had changed his mind and was sorry for what he had done. He turned over to Lindley a list of union card signers "to show that [he] had changed [his] straightened out that close to the election ." Matthews suggested the radio station ,12 Hemmingway, WKYB. Baxley then went to the radio station with the idea of making a public service announcement of his defection. He was advised that such an announcement was illegal and that his announcement would require payment . Baxley discussed this matter with Lindley. Lindley said, "I wouldn't be surprised if someone were to come up-to come out to your house with the money." Thereafter, employee David Brown collected $ 114.75 which was given to Baxley. On April 19, 1973, in the morning, Union Representative Phillip Pope appeared at Baxley's home . Apparently Pope had heard of Baxley's apostasy, but he was unable to reconvert him. Some time later, during the same morning, employee Brown and Baxley arrived at the radio station where they met Union Representatives Pope and Riffe. In a private talk with Riffe, Baxley was again converted to the Union's cause.13 Baxley left the radio station in the company of the union representatives who, together with Baxley, composed and sent a telegram to the Respondent and distributed a leaflet with the same verbiage at the plant gates prior to the commencement of the election.34 A copy of the leaflet follows: Mr. Jack Wellman, President Wellman Industries, Inc. Johnsonville, South Carolina 29555 This telegram will officially advise you and all of my fellow workers regardless of the rumors they may have heard that as of today, April 19, 1972 at Noon that my position remains the same in support of the Union, as contained in the previous telegram which I recently sent you. I am now continuing to support the Textile Workers Union of America, AFL-CIO 100% and I intend to urge each and every friend of mine at Wellman mind." Baxley's testimony on cross-examination in respect to the above events was punctuated with many failures to recall. At one point, he said that he was "starting to remember." Nevertheless, the content of his answers, his evasive responses, and his demeanor gave the impression that he was not revealing the whole truth; in fact, it is concluded that he lied specifically in regard to his claims that Lindley talked to the employees as described; that he took Lindley aside and told him he changed his mind about the Union; and that Lindley called him into his office. Although Lindley heard Baxley's testimony, he denied these assertions of Baxley. Lindley is credited; demeanor has been considered. Moreover, it is highly unlikely that a ,company supervisor would lie to the disadvantage of the Company when to have corroborated Baxley would have enhanced Baxley's credibility. 11 In the record, Matthews is referred to as "Matthess." 17 Baxley testified that this was the first time that the radio station had been mentioned, and that it had not been mentioned in Lindley's office. Lindley's testimony was otherwise. 13 Baxley explained, "He asked me how long did I think I would last within the plant on the job if I were to air that message. How secure my job (would be and he put it like that I couldn't help but agree with him ...." Baxley testified that the Union did not promise him a job "at that time." Elaborating, Baxley said that Pope sometime previously had "[j lust mentioned the salary that union people make and how I might stand a good chance of getting a position with them. How much-that I might stand a good chance of being president and unionizing the plant." i4 The same verbiage was submitted to the employees through an automatic telephonic device whereby an employee could dial a union number and receive the message. WELLMAN INDUSTRIES 643 Industries to vote yes for the Union today and tomorrow. This will also officially advise you that I wish to be excused from my job on April 20th through April 21th in order that I may serve as an official observer for the Union. During the past few weeks numerous threats and pressure have been brought against me because of me supporting the Union. Several acts of volience [sic] have taken place at my home in Johnsonville, where my collie dog was shot within the past ten days. In addition, several threats have been made against me and my wife in writing and left attached to the door of my home, during the period when my wife and I both were absent visiting her seriously ill Brother who has been hospitalized in Florence, South Carolina. Mr. Wellman, I call upon you in the name of human decency and justice to see to it that my rights are protected to support the Union as provided by Federal Law. I am sending a copy of this telegram to The National Labor Relations Board for my legal protection and to prove Company knowledge of my support for the Union. I am having reproduced a memograph [sic ] copy of the above information for all of my fellow workers to see and I am incouraging [sic] every worker at Wellman to Vote Yes. Sincerely yours, Kenneth Baxley Copy To: All Employees of Wellman Industries Riffe suggested the telegram as "legal protection" against possible company reprisals upon learning of Baxley's reconversion.15 According to Baxley, on September 29, 1972, he experienced a religious conversion. At the same time, he recanted his reconversion to the union cause of April 19, 1972. Said he, "When I was converted into a Christian -when I got changed, the Bible teaches against .. . unions as best as I could interpret it, to me. I felt it was wrong that I should go letting what I had done in the past stand when I could so very easy straighten it out and save a lot of hard feelings and maybe keep someone from getting hurt because of what I did." 16 Approximately 5 months later, around the first part of March 1973, Baxley decided. to quit his job because of Sunday assignments. On the day of his quitting, he told 15 In this respect, Riffe testified credibly: As I said, Mr. Pope, Mr. Baxley and myself, prepared the telegram. To the best of my recollection, Mr. Pope did the actual writing of the telegram. During the course of drafting the telegram and discussing the language that was to go into the telegram , Mr. Baxley said he was concerned with what people was going to say or think about him changing his position and the reasons for it and how it would make him look in other people's eyes. In other words, in his fellow workers eyes in the plant. He said he felt that if he made some reference to what happened about this note being on the door and about the dog people would have, I guess a counter-attitude or would look on him at least with more understanding attitude about what he had almost renounced the union because of the pressure and strain he was under because of those incidents. Matthews about "the situation." The following week Baxley returned for his check, at which time Matthews asked him if he "wanted to talk about it then because [he] was no longer an employee of the company." Baxley voluntarily agreed to "make a document." Prior to his resignation, Baxley had discussed the subject of the Union with his minister, but had not discussed the alleged falsity of the dog-shooting incident and the note story with him. Matthews was the first person connected with the Respondent to whom Baxley revealed the alleged falsity.17 The alleged falsity concerned the subject matter of the telegram, the leaflet, and the telephonic communication. Baxley claimed that no threats had been made against him for supporting the Union, that the dog, although dead, had not been shot, and the note appended to the door had been composed and hung there by himself. B. Conclusions and Reasons Therefor In the Respondent's Motion to Deny General Counsel's Motion for Summary Judgment, the Respondent requested that "the Board should overturn the second election held on April 19 and 20, 1972, and revoke the Certification of Representative in Case No. 11-RC-3365, or in the alternative order a hearing on Respondent's objections to the second election, or in the alternative deny the General Counsel's Motion for Summary Judgment and order a hearing in Case No. I1-CA-5091 in which Respondent would be permitted to present evidence that the Textile Workers Union of America, AFL-CIO, CLC, was not properly certified as the bargaining representative for Respondent's employees." When the Board denied the General Counsel's Motion for Summary Judgment, it ordered that an Administrative Law Judge take evidence "limited to the allegation of newly discovered evidence relating to information con- tained in the Baxley affidavits" which the Board concluded is "now in dispute which can be best resolved by a hearing." It is this dispute which the Administrative Law Judge is directed to resolve which means that a finding must be made after a full hearing as to the validity of the allegations in the Baxley affidavits. Pertinent evidence offered in such hearing is set out above. The question first to be resolved is whether the evidence adduced, measured by credibility considerations, is as presently claimed by the Respondent, that is, in the light of the record as a whole does Baxley's testimony establish that the telegram, leaflet, During the same conversation we talking in terms of also reproducing the telegram in his statement in support of the union, and he [sicl terms of a leaflet to give out . The whole discussion took place about the same time. le Baxley further testified: I felt condemned about it. Last September we had a revival at our church. I was saved. I was converted to a Christian . They condemned me and I had to come out with it. The purpose of the whole thing to begin with, to sum it all up, was my own personal greed, what I could gain in this world, who I could run over and get to (the I top any way I could, no matter what it took. That is what it was all about-to get what another man has got. 17 Baxley testified that he had mentioned the alleged falsity to John S. Evans, a Wellman employee and a member of his church. 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and telephonic message of April 19, 1972, contain the misrepresentations alleged in his affidavits.18 In this respect, it is concluded that Baxley was an unreliable witness and that his testimony above-reviewed does not support a finding that the telegram, leaflet, and telephonic message contained the misrepresentations claimed by the Respondent. The following factors have been taken into consideration in reaching this conclusion. First: It has been found that Baxley lied about certain, critical events which occurred at the time he disclosed his union defection to Lindley on April 18, 1972. Having lied under oath about events which normally would be fixed in one's mind, his remaining uncorroborated testimony is highly suspect. Second. If the information contained in the telegram were false, there appears no logical reason for Baxley's relying on the threats therein suggested as a basis for justifying his defection to Lindley. To defect as he did, at the time that he did, supports the inference that he was motivated by genuine fear. Third: While Baxley claimed a conversion in September 1972, and a realization that he was condemned by his prior alleged misconduct, he took no steps to reveal the lying nature of his misconduct or to rectify its impact until March 1973. Moreover, while he discussed the Biblical reprobation as it related to unions with his minister, he refrained from revealing the alleged lies which he now claims brought harm to his fellow employees. If his conversion were genuine and the dog- shooting and note incidents were untrue, it would seem to follow that these alleged falsities would have been the first order of business. His alleged concealment of this sin ("Thou shalt not bear false witness against thy neighbor." Exodus 20: 16.)19 after an alleged genuine conversion indicates that there was no concealment at all but that his present peccavi is fabricated.20 Rather it would appear that his antipathy toward the Union now has outweighed the purgatorial effect of his conversion and that he has now chosen to lie in order to gratify that antipathy. Fourth: Baxley now declares that he lied to his wife. These lies must have caused his wife apprehension and distress. Thus, it seems implausible (had not the dog-shooting and note incidents been true) that Baxley, even though lacking a conversion, would have been so inhumane and callous as to have subjected his wife needlessly to such grief through his lies. Fifth: Baxley's history as a whiffler does not contribute to his credibility. Finally: Baxley's demeanor, his failure to recall important matters, hiE supererogatory remarks, and evasiveness are convincing proof that his testimony, as it relates to his recantation, was untruthful.21 Accordingly, based upon the evidence received and an examination of the record as a whole, it is recommended that the Respondent's defense planted on the testimony of Baxley be denied. II. CASES i1-CA-5101 AND 11-CA-5233 In Cases 11-CA-5101 and 11-CA-5233, the General Counsel offered evidence that the Respondent unilaterally and without prior notification to, or consultation with, the Union granted a wage increase to unit employees on October 2, 1972, laid off unit employees on August 27, 1972, and promulgated new absence and tardiness rules and regulations on January 29, 1973. Personnel Director whole. Matthews admitted that attendance rules were changed to reflect the points attached to the number of absences, instances of tardiness, excused absences, and unexcused absences. Matthews also admitted the changes in work schedules and the laying off of employees on August 25, 1972. These changes were unilateral without notification to or consultation with the Union. Accordingly, it is recommended that, if an order to bargain is entered in Case 11-CA-5091, an order also be entered in these cases, with an appropriate notice, ordering the employer to cease and desist from making unilateral changes in wages, hours, and working conditions of its unit employees without prior notification to and consultation with the Union. 18 The General Counsel claims that the testimony of Baxley is "inherently incredible " 19 "Ye shall neither deal falsely, neither lie one to another" Leviticus 19 11. 20 Phillip Pope credibly testified that it was not uncommon for a dog to be shot in the neighborhood in which Baxley lived' Your Honor, really I live down there, too Really, it is not all that uncommon I am not trying to refer to what the other witness has said, but if you were there and you lived in that neighborhood , you would see dogs being shot. Honestly, you would For example, a dog out on the road got mange or a dog comes and turns over your trash can, I have known people to [have ] shot dogs for that 21 In this connection, I have not been helped by any proof (such as a handwriting expert), except Baxlev's testimony as it relates to the record as a whole, as to whether he actually printed the note affixed to his door I have, nevertheless, compared the printed note with Baxley's handwriting appearing in General Counsel's rejected Exh 4 and I am unable to determine that both were executed by the same person SUPPLEMENTAL DECISION STATEMENT OF THE CASE LowELL GEORLICH, Administrative Law Judge: On October 15, 1973, the Administrative Law Judge's Decision was issued in this matter. Thereafter, on January 31, 1974, the Board remanded the cases to the Administrative Law Judge and ordered: "It is hereby ordered that these above- entitled cases be, and they hereby are, remanded to the Administrative Law Judge for further proceedings consist- ent with this Order, including the preparation and issuance of a Supplemental Decision setting forth findings of fact, conclusions of law and recommendations in conformity with the Board's Rules and Regulations." FINDINGS OF FACT,1 CONCLUSIONS AND REASONS THEREFOR Case 11-CA-5091 The Respondent's Defenses The complaint in Case 11-CA-5091 charges that after the certification of the Textile Workers Union of America, AFL-CIO, CLC (herein referred to as the Union), as exclusive bargaining representative on June 14, 1972, the Respondent refused to bargain with said Union by a letter dated October 4, 1972, to wit: "We seriously question the 1 The findings of fact are based upon the admissions and the record as a WELLMAN INDUSTRIES validity of your certification by the NLRB as the exclusive bargaining representative of our productive employees." The Respondent answered denying that the Union was the exclusive bargaining representative by virtue of Section -9(a) of the National Labor- Relations Act, as amended (herein referred to as the Act), and that it had violated Section 8(a)(1) and (5) of the Act. The Respondent admitted all other allegations. As affirmative defenses the Respondent plead: 3. On June 14, 1972, the Regional Director of the 11th Region of the Board issued his second supplemen- tal decision and certification of representative in which he, inter alia, formally certified the Union as the exclusive representative for the purpose of collective bargaining of the employees in the appropriate unit as described in paragraph 7 of the complaint. 4. By letter dated September 26, 1972, the Union requested that the respondent meet with it for the purpose of conducting collective bargaining negotia- tions with respect to the employees in the Unit described in paragraph 7 of the complaint. 5. The Union, by the acts described in paragraphs 3 and 4 above and by each of said acts, did engage in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act and has thereby waived any right to relief thereunder. 6. The Union, by the acts described in paragraphs 3 and 4 above and by each of said acts, did engage in and is engaging in unfair labor practices within the meaning of Section 8(b)(3) of the Act and has thereby waived any right to relief thereunder. Nothing is alleged in these defenses which requires a hearing or constitutes a defense to the allegations of the violation of Section 8(a)(1) and (5) of the Act. In this regard it is the Respondent's contention that a union which fails to fulfill its bargaining obligation "by not seeking collective bargaining for almost 15 weeks after it was certified by the Regional Director" has violated Section 8(b)(3) of the Act and has also restrained and coerced Respondent's employees within the meaning of Section 8(b)(1)(A) of the Act. It was not unreasonable, nor did the Union by such delay disclose an abandonment of or a failure to fulfill its bargaining obligations when it waited to commence bargaining until after the Board issued its Order denying Respondent's Request for Review of Second Supplemental Decision and Certification of Representative on August 1, 1972. Moreover, the Respondent's obligation to bargain commenced not later than the date of the certification, June 14, 1972 (see Section 5(a) of the Act), after which the Union was entitled to the normal presumption of majority status for a period of 1 year. Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954). Indeed, had the Union made an earlier request for bargaining it would have been a futile gesture since the Respondent, by its insistence on an appeal to the Board and by its letter of October 4, 1972, questioning the validity of the certifica- tion, disclosed an adamant disposition not to assume its bargaining obligations. Thus the Respondent ought not to be relieved of its obligation to bargain when its claim for such relief is grounded on its own refusal to bargain. 645 These affirmative defenses are not well taken and are not sustained. A further defense was advanced by the Respondent at the hearing in these cases which was held on August 14 and 15, 1973. This hearing was pursuant to the Board's Order that "a hearing be held before a duly designated Adminis- trative Law Judge to be designated by the Chief, Division of Judges, for the purpose of taking evidence limited to the allegation of newly discovered evidence relating to the information contained in the Baxley affidavits." The Baxley affidavits related to the Respondent's claims that there had been unlawful interference with the second election held on April 19 and 20, 1972, and that by reason thereof the Respondent was relieved of the binding effect of the Certification of Representative in Case 1 I-RC-3365. In the Decision issued in this case on October 15, 1973, it was found that "Baxley was an unreliable witness" and his testimony did "not support a finding that a telegram, leaflet, and telephonic message [disseminated during the second election campaign] contained the misrepresenta- tions claimed by the Respondent. . . . based upon the evidence received and an examination of the record as a whole, it [was] recommended that the Respondent's defense planted on the testimony of Baxley be denied." Thus any alleged defense of the Respondent derived from a claim of newly discovered evidence is not well taken and is not sustained. By denying that the Union was the exclusive bargaining representative by virtue of Section 9(a) of the Act the Respondent in effect attacked the validity of the certifica- tion issued on June 14, 1972. On October 27, 1971, the Regional Director for Region 11 of the Board issued a Decision and Direction of Election in Case II-RC-3365 in which he found "All production and maintenance employees including labora- tory technicians, plant clerical employees, scheduler and followup man, process control technicians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchman, guards and supervisors as defined in the Act" to be an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. On November 17 and 18, 1971, a secret ballot election in the unit set forth above was conducted under the supervision of the Regional Director for Region 11 of the Board. On November 26, 1971, the Union filed timely Objec- tions to Conduct Affecting the Results of the Election on November 17 and 18, 1971. On February 10, 1972, the Regional Director of Region 11 of the Board issued his Supplemental Decision, Order, and Direction of Second Election in which he, inter alia, directed that the election of November 17 and 18, 1971, be set aside and that a new election be conducted. On March 9, 1972, the Respondent filed its Request for Review of Supplemental Decision, Order, and Direction of Second Election with the Board. On or about March 23, 1972, the Board issued its Order 646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD denying the Respondent's Request for Review of Supple- mental Decision, Order, and Direction of Second Election. On April 19 and 20, 1972, a majority of the employees in the unit described above, by a secret ballot election conducted under the supervision of the Regional Director of Region 1l of the Board, designated and selected the Union as their representative for the purpose of collective bargaining with Respondent, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment. On April 25, 1972, Respondent filed its Objections and Supplemental Objections to Conduct Affecting the Results of the Election of April 19 and 20, 1972. On June 14, 1972, the Regional Director of Region 11 of the Board issued his Second Supplemental Decision and Certification of Repre- sentative in which he , inter alia, overruled Respondent's Objections and Supplemental Objections to Conduct Affecting the Results of the Election of April 19 and 20, 1972, and formally certified the Union as the exclusive representative for the purpose of collective bargaining of the employees in the appropriate unit described above. On or about July 10, 1972, the Respondent filed with the Board its Request for Review of Second Supplemental Decision and Certification of Representative . On or about July 17, 1972, the Respondent filed with the Regional Director of Region 11 of the Board its Motion to Reconsider Second Supplemental Decision and Certifica- tion of Representative . On July 21, 1972, the Regional Director of Region II of the Board issued his Order Denying Motion for Reconsideration of his Second Supplemental Decision and Certification of Representa- tive. On August 1, 1972, the Board issued its Order denying Respondent's Request for Review of Second Supplemental Decision and Certification of Representative. Thus, the Board affirmed the certification issued on June 14, 1972, and the Respondent , by attacking the legal effect or validity of the Certification of Representative, is attempting to relitigate the same issues which it raised and litigated in the prior representation proceeding, Case I1-RC-3365. "It is well settled that in the absence of newly discovered or previously unavailable evidence or special circum- stances a respondent in a proceeding alleging a violation of Section 8(a)(5) is not entitled to relitigate issues which were or could have been litigated in a prior representation proceeding."2 All the remaining issues raised by the Respondent in the proceeding have been litigated in the prior representation proceeding and all alleged newly discovered evidence has been considered. There are no special circumstances at this time requiring a reexamination of the representation case. Thus the Respondent has not raised any issue which is properly litigable in this unfair labor practice proceeding. 1. THE BUSINESS OF THE RESPONDENT owns and operates a plant at Johnsonville, South Carolina, which is the only plant involved in this proceeding. Respondent, during the past 12 months, which period is representative of all times material herein , manufactured, sold, and directly shipped from its Johnsonville, South Carolina, plant goods of a value in excess of $50,000 to points and places outside the State of South Carolina. During the same period of time, Respondent caused to be shipped directly to its Johnsonville, South Carolina, plant, goods and raw materials of a value in excess of $50,000 from points and places outside the State of South Carolina. Respondent is now, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Representation Proceeding 1. The unit The following employees of the Respondent constitute a unit appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees includ- ing laboratory technicians, plant clerical employees, scheduler and followup man, process control techni- cians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employ- ees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and supervisors as defined in the Act. 2. The certification On April 19 and 20, 1972, a majority of the employees in the appropriate unit, by a secret ballot election conducted under the supervision of the Regional Director of Region 11 of the Board, designated and selected the Union as their representative for the purpose of collective bargaining with Respondent, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment; and on June 14, 1972, the Regional Director certified the Union as the exclusive collective-bargaining representative of the employees in the said unit. At all times since April 20, 1972, and continuing to date, the Union has been the representative for the purpose of collective bargaining of the employees in the unit described above, by virtue of Section 9(a) of the Act. Respondent is now, and has been at all times material herein, a Delaware corporation engaged in the manufac- ture of wool and synthetic fiber products. Respondent B. Respondent 's Refusal to Bargain Commencing on April 20, 1972, and at all times 2 Kalvar Corporation, 207 NLRB No. 115. WELLMAN INDUSTRIES thereafter, the Respondent has been obligated to bargain collectively with the Union as the exclusive bargaining representative of all the employees in the above -described unit. The Respondent has failed and refused to assume such responsibility in violation of Section 8(a)(5) of the Act. Cases 10-CA-5101 and 11-CA-5233 In the prior decision in these cases , after trial on August 13 and 14, 1973, it was found: In Cases 11-CA-5101 and 11-CA-5233, the General Counsel offeged evidence that the Respondent unilater- ally and without prior notification to, or consultation with, the Union granted a wage increase to unit employees on October 2, 1972, laid off unit employees on August 27, 1972, and promulgated new absence and tardiness rules and regulations on January 29, 1973. Personnel Director Matthews admitted that attendance rules were changed to reflect the points attached to the number of absences, instances of tardiness, excused absences, and unexcused absences. Matthews also admitted the changes in work schedules and the laying off of employees on August 25, 1972. These changes were unilateral without notification to or consultation with the Union. Thus the General Counsel's consolidated complaint is sustained .3 Conclusions of Law 1. Wellman Industries, Inc., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act for jurisdiction to be exercised herein. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees includ- ing laboratory technicians, plant clerical employees, scheduler and followup man, process control technicians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. Since April 20, 1972, the above-mentioned labor organization has been and now is the exclusive representa- tive for the purposes of collective bargaining in the aforesaid appropriate unit within the meaning of Section 9(a) of the Act. 5. By unilaterally granting a wage increase to unit employees on October 2, 1972, laying off unit employees on August 27, 1972, and promulgating new absence and 9 The Respondent's first, second, and third affirmative defenses in these cases, which are similar to the defenses raised in Case I I-CA-5901, are not sustained for the same reasons. 4 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, 647 tardiness rules and regulations on January 29, 1973, the Respondent violated Section 8(a)(5) of the Act. 6. By refusing to bargain on October 2, 1972, August 27, 1972, September 26, 1972, and January 29, 1973, and at all times thereafter, with the above-named labor organiza- tion as the exclusive bargaining representative of all employees of the Respondent in the appropriate unit, Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) of the Act. 7. By the aforesaid refusals to bargain , Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED REMEDY Having found that the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, it is recommended that it be ordered to cease and desist therefrom and bargain collectively with the Union as exclusive representative of all employees in the appropriate unit and, if an under- standing is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargaining agent for the period provided by law, the initial period of certification shall begin on the date Respondent commences to bargain in good faith with the Union as the recognized bargaining representative in the appropriate unit. See Mar Jac Poultry Company, Inc., 136 NLRB 785; Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229, enfd. 328 F.2d 600 (C.A. 5), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). Accordingly, upon the basis of the foregoing findings of fact, conclusions of law, and the entire record in this proceeding, and pursuant to Section 10(c) of the Act, it is recommended that the Board issue the following: ORDER4 Respondent Wellman Industries, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with Textile Workers Union of America, AFL-CIO, CLC, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees includ- ing laboratory technicians, plant clerical employees, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD scheduler and followup man, process control techni- cians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employ- ees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watchmen, guards and supervisors as defined in the Act. (b) Unilaterally changing working conditions of its employees. (c) In any like or related manner interferring with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Johnsonville, South Carolina, plant, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable 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 11, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 5 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government ing rates of pay, wages, hours, and other terms and conditions of employment with Textile Workers Union of America, AFL-CIO, CLC, in the bargaining unit described below. WE WILL NOT unilaterally change the working conditions of our employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL bargain with the above-named Union as the exclusive bargaining representative of employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including laboratory technicians, plant clerical employees, scheduler and followup man, process control technicians, maintenance technician and quality control technicians employed at the Employer's Johnsonville, South Carolina, plant, excluding office clerical employees, professional employees, sales personnel, seasonal employees, messenger and mail clerk, fabric designer, watch- men, guards and supervisors as defined in the Act. WELLMAN INDUSTRIES, 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 compliance with its provisions may be directed to the Board's Office, Wachovia Building, 301 North Main Street, Winston- Salem, North Carolina 27101, Telephone 191-723-2300, Ext. 360. WE WILL NOT refuse to bargain collectively concern-