Jackson Sportswear Corp.

JACKSON SPORTSWEAR CORP. 891 Jackson Sportswear Corporation and United Whole- sale and Production Workers Union, Local 586, affiliated with Retail, Wholesale and Department Store Union, AFL-CIO. Case I1-CA-5323 June 24, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing her findings. 3 We find, in agreement with the Administrative Law Judge, that the Respondent violated Sec. 8(a)(1) by conducting an employee poll in order to procure the Union's defeat at a time when it did not possess sufficient objective evidence to have entertained a reasonable doubt of the incumbent Union's continuing majority status. We further find that this conduct constituted a violation of Sec . 8(aX5) under our decision in Montgomery Ward & Co., Incorporates{ 210 NLRB No. 120. Having found Respondent's poll to be unlawful, we find it unnecessary to pass on the Administrative Law Judge's conclusion that the Respondent's poll did not comport either with Board election standards or with the Board's polling criteria set forth in SI,uksnes Construction Co., Inc., 165 NLRB 1062, and thereby also violated Sec. 8(a)(1). On February 27, 1974, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and brief I and has decided to affirm the rulings, findings,2 and conclusions3 of the Administrative Law Judge and to adopt her recommended Order as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, Jackson Sportswear Corporation, North Au- gusta, South Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified herein: 1. Add the following as paragraph 1(b) and reletter the existing paragraphs 1(b) and 1(c) as 1(c) and 1(d), respectively: "(b) Polling or otherwise interrogating its employ- ees to ascertain their union views in the absence of objective considerations warranting a reasonable doubt of the Union's continuing status as the collective-bargaining representative of the majority of its employees." 2. Substitute the attached notice for that recom- mended by the Administrative Law Judge. I Respondent's request for oral argument is hereby denied as the record, exceptions, and brief adequately present the issues and positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportuni- ty to present their evidence, it has been decided that we violated the law and we have been ordered to post this notice. We intend to carry out the Order of the Board and abide by the following: WE WILL, upon request, bargain collectively in good faith with United Wholesale and Production Workers Union, Local 586, affiliated with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining represent- ative of the employees described below. If an agreement is reached, we will on request sign such an agreement. The employees are: All production and maintenance employees at our North Augusta, South Carolina, plant, excluding all office employees, professional employees, guards, and supervisors as de- fined in the Act. WE WILL NOT refuse to recognize or bargain with the Union as the exclusive bargaining representative of these employees. WE WILL NOT poll our employees, or otherwise ask them, about their union views, in a manner constituting interference with, restraint of, or coercion of employees in the exercise of their rights under the law. WE WILL NOT poll our employees, or otherwise ask them, about their union views in the absence of objective considerations warranting a reasona- ble doubt of the Union's continuing status as the collective-bargaining representative of the majori- ty of our employees. Our employees are free to join or not to join any union, including the Union named above. 211 NLRB No. 136 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD JACKSON SPORTSWEAR CORPORATION (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, 1624 Wachovia Building, 301 North Main Street, Winston-Salem, North Carolina 27101, Telephone 919-723-2300. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding, heard at Augusta, Georgia, on August 30-31 and September 6-7, 1973, and at Winston-Salem, North Carolina, on November 30, 1973,' pursuant to a charge filed on May 16, 1973, and a complaint issued on July 20, 1973, presents the questions of whether Respondent (1) violated Section 8(a)(1) of the National Labor Relations Act, as amended (herein called the Act), by polling its employees concerning their support of the Charging Party; and (2) violated Section 8(a)(5) and (1) of the Act by (a) negotiating with the Charging Party between about February 6, 1973, and May 3, 1973, allegedly with no intention of entering into a binding collective-bargaining agreement ; and (b) admittedly refusing, on and after about May 3, 1973, to meet with a local affiliate of the Charging Party for the purpose of collective bargaining. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and counsel for the General Counsel, I make the following: I The November hearing was held to receive the testimony of Jack E. Ruby, who conducted the field investigation of this case but before receiving a subpena ad testificandum issued at Respondent's instance under the circumstances described infra In. 20, voluntarily resigned his job as Board field examiner in order to enter law school. Neither Ruby nor counsel for the General Counsel appealed to the Board my action in denying-on the ground, inter alia, that Ruby's resignation made inapplicable to him the provisions of Section 102.118(a) of the Board's Rules and Regulations forbidding any "employee of the Board" from testifying about certain matters without his superior's consent-their respective motions to quash the subpena . Early in Ruby's cross-examination by counsel for the General Counsel, Norman Holtz (Respondent's counsel) stated, "I'm not planning to establish that the investigation was made in bad faith. The [gravamen] of our claim is that there is a greater responsibility on the part of the General Counsel to disclose information. We have contended that . . . Counsel for the General Counsel is possessed of information that he did not disclose at the hearing ... I have never contended that Mr. Ruby acted in bad faith in the course of the investigation." Further, during the hearing Holtz repeatedly expressed confidence in Ruby's veracity. After Ruby had been FINDINGS OF FACT 1. RESPONDENT'S OPERATIONS Respondent is a Delaware corporation owning and operating a plant in North Augusta, South Carolina, where it manufactures knit shirts. During the 12 months preced- ing the issuance of the complaint, a representative period, Respondent shipped goods valued at more than $50,000 directly to, and received materials valued at more than $50,000 directly from, points outside South Carolina. I find that, as Respondent admits, Respondent is engaged in commerce within the meaning of the Act, and that exercise of jurisdiction over its operations will effectuate the policies of the Act. II. THE CHARGING PARTY'S STATUS AS A LABOR ORGANIZATION Respondent's answer admits that on September 24, 1971, United Wholesale and Production Workers Union, Local 586, affiliated with Retail, Wholesale and Department Store Union, AFL-CIO (the Charging Party herein, hereafter called the Union), was certified by the Board's Regional Director as the exclusive representative for the purpose of collective bargaining of an appropriate unit consisting of Respondent's production and maintenance employees at Respondent's North Augusta plant. On April 15, 1972, Respondent entered into a contract with the Union (on whose behalf at least two of Respondent's employees executed the agreement) which by its terms was to expire on April 15, 1973. The contract contained, inter alia, provisions for a grievance and arbitration procedure and for union stewards. During the effective period of the contract, the Union processed a number of grievances to conclusion. Until March 1973, an employee who was shop chairman and union steward stood at a table which Respondent set up in the hall during 1 payday of every month in order to collect dues. During March and April 1973, representatives of Respondent met with the Union on two occasions to discuss a new contract. During much if not all of this period, the Union held monthly meetings attended by employees of Respondent. Notwithstanding the foregoing facts, all but the last of which must have been known to Respondent, Respondent stated in its answer, and reiterated at the hearing, that it excused, Holtz repeated that he had "never" characterized Ruby's investigation as bad faith, and stated that Respondent had not been "able to prove" that counsel for the General Counsel withheld information. Ruby impressed me as an unreservedly honest witness ; and his credible testimony establishes that in investigating this case, he conscientiously performed his duties as an impartial public servant. In a posthearing letter to me dated December 13, 1973, Holtz stated, inter alia, "After reviewing Mr. Ruby's testimony, it appears quite obvious that the testimony of Mr. Ruby does not indicate and support Respondent's claim that information was improperly withheld." In his January 25, 1974, response to my order to show cause why this letter should not be received into evidence, Holtz stated, inter alia, "While Mr. Ruby's testimony would not appear to support Respondent's claim that General Counsel improperly withheld information , it is nevertheless Respondent's position that it was not able to properly examine Ruby and establish this position since Respondent's subpoena duces tecum was revoked" (see infra fn. 20). Holtz' December 13, 1973, letter to me is hereby received in evidence, over Respondent's objections as to materiality, as Administrative Law Judge's Exhibit 5. JACKSON SPORTSWEAR CORP. 893 did not have sufficient knowledge to be able to answer the complaint allegation that the Union is a labor organization within the meaning of the Act. On the basis of the foregoing evidence , I find that it possesses that status. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background By letter dated February 6, 1973, to Henry Parnelle (then the manager of Respondent's North Augusta plant), with copies to the Federal Mediation and Conciliation Service and .to the then company attorney, James Smith, the union regional director and service representative, Guy Dickin- son, advised Respondent that "in accordance with Article XVIII" of the current bargaining agreement, "the Union is hereby giving notice of its desire to terminate the agreement." 2 During a membership meeting on the evening of February 6, some of the employees told Dickinson that stamped and addressed postcards, asking employees who wanted to get rid of the Union to sign the card and mail it to the addressee appearing thereon, were being circulated in Respondent's plant. One of the employees gave Dickinson what purported to be such a postcard, and some of the employees told him that they thought the handwrit- ing on the postcard was that of a supervisor who lived next door to the addressee, a rank-and-file employee. There is no evidence that these employees' reports either described the card-circulating activities as in fact being carried on by rank-and-file employees, or asserted that any employees were in fact signing such cards.3 Dickinson testified that on the following day, February 7, he went to the plant and told Plant Manager Parnelle that to prepare for the forthcoming negotiations, he wanted to tour the plant to understand all the phases of the work and the operation of the piece rate. According to Dickinson, Parnelle took him through parts of the plant but did not let him see everything he wanted to see. Still according to Dickinson, he told Parnelle that he had received reports that supervisors had been telling employ- ees that "they were being held back from a wage increase, and an extra holiday, and a number of other things," and that "the personnel secretary and supervisors or others [were] going around saying things about the union and trying to knock the union." Dickinson testified that Parnelle initially told Dickinson that he did not know anything about this. Still according to Dickinson, he then told Parnelle the name of the employee who had told Dickinson that she had confronted Parnelle with it, and Parnelle replied, "Well, let me see, I believe I do recall something about that." Dickinson testified that Parnelle did not tell him that Respondent had nothing to do with this. Dickinson further testified that he asked Parnelle about the antiunion postcard, and that Parnelle denied any knowledge of it. Dickinson further testified that he then said, "Now there is an employee that reported to me that they came to you and talked to you about this card," to which Parnelle replied, "Oh, yes, I do recall it but . . . you know how they are about, the employees here are about signing anything. I don't think that you have got anything to worry about." Dickinson testified that he said, "I am not worried about it because I think that if anything was going to develop from it, that it would have already developed ... but I thought that it ought to be brought to your attention." Parnelle did not testify.4 For the reasons set forth infra, part III,F,1, I credit in its entirety Dickinson's testimony summarized in this paragraph. B. The March and April Negotiations On February 26 or 27, Dickinson telephoned Attorney Smith. The parties agreed to meet on March 14 at an Augusta, Georgia, motel, to negotiate a new bargaining agreement. Smith told Dickinson that he would be acting in an advisory capacity and that Respondent had hired an "experienced labor relations man, personnel man" Robert Naftzinger, who would be handling negotiations. These arrangements for a meeting with Naftzinger were con- firmed by a letter to Dickinson dated February 28, 1973, from Attorney Alan L. Rolnick, Smith's law partner. The first bargaining session was held on March 14, 1973. The Union was represented by Dickinson and three employees elected by their fellows to serve on the negotiating committee-Audrey Parry (shop chairman and union steward), Virginia Smith, and JoAnne Henley; Respondent, by Attorney Rolnick And Plant Manager Parnelle. Naftzinger was not present. Dickinson submitted a list of 14 proposed changes in the bargaining agreement.5 The parties discussed each of these proposals. Respon- dent's representatives agreed to the proposal that it undertake not to post the amount of vacation pay to which each employee was entitled, and indicated that they might be able to agree to one or two more. More specifically, Parnelle stated that he wanted to make a survey in connection with the Union's request for a change in the starting and quitting hours but he was quite sure that it could be worked out. The meeting had begun more than 2 hours late because of a delay in Dickinson's flight to Augusta from his Atlanta office. It lasted about an hour and a half, not including a lunch break. The second and last bargaining session was held on April 4, and lasted between 2 and 3 hours. The Union was 2 Article XVIII of that agreement provided: "This Agreement shall continue in full force and effect until the 15th day of April, 1973, and for one (1) year terms thereafter unless written notice of termination shall be mailed by either party to the other at least sixty (60) days prior to the end of the then current term, in which event the Agreement shall terminate at the end of the then current term." 3 My findings in the foregoing paragraph are based on Dickinson's uncontradicted and credited testimony. Laying to one side the evidence set forth infra regarding Plant Manager Parnelle's statements to Dickinson, there is no probative evidence, either that this card-circulating activity in fact occurred during this period, or of the truth of the employees' assertions to Dickinson at the meeting that the card was written by a supervisor, and that supervisors were telling employees that the Union was holding them back from obtaining wage increases and a paid holiday. 4 At the time of the hearing, he was no longer plant manager. His whereabouts were not otherwise explained. 5 These proposed changes included, inter alia, addition of provisions for a guaranteed workweek, time and a half for work exceeding 8 hours a day, furnishing daily production records to the production employees, and a checkoff; deletion of a provision affording Respondent the right to change the workweek and workday schedules; a 5-minute extension of the rest periods; a change in the date relevant to determining vacation rights; undisclosed changes in the insurance provisions ; and a 2-year term. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represented by the same persons as on March 14, except for Henley; Respondent's representatives were Attorney Smith and Plant Manager Parnelle. The Union agreed to withdraw its proposal to shorten the probationary period from 90 to 30 days, and Respondent's representatives agreed to the Union's proposal that employees receive paid holidays after 30 days of employment. The Union and Respondent's representatives also agreed to the Union's proposal for a change in the starting and quitting times, to be effective the first week in June. In connection with the Union's proposal for three additional paid holidays (the day after Thanksgiving, Good Friday, and Martin Luther King's birthday), Respondent's representatives said they were sure the employees would get one additional holiday and asked which holiday they preferred; the Union replied the day after Thanksgiving. The parties also discussed the Union's proposal (not included in its written proposal) regarding extensions in maternity leave. Smith stated that he could not give an answer to the Union's wage proposals because of bills pending in Washington which called for an increase in the minimum wage.6 The Union pointed out that the current contract was to expire by its terms on April 15. The Union and Respondent's representatives agreed to meet again on April 13, by which date, Smith stated, he would have received more information on the minimum wage from an intervening trip to Washington. C. The Alleged Extension of the Agreement On April 11, when Dickinson telephoned Smith, Smith said he had been trying to reach Dickinson to cancel the April 13 meeting because he had learned in Washington that the minimum wage would likely go up more than Respondent had anticipated, and to a point which would cause a re-examination of the entire bonus system for piece workers. Smith suggested that they extend the contract indefinitely with either party having the right to give 10 days' notice of cancellation of the contract, and that they meet again after they found out something more about the minimum wage. Dickinson asked whether Smith would commit Respondent to retroactive pay; Smith replied that there would have to be some consideration of retroactive pay. Dickinson and Smith discussed the possibility of negotiations on more money above the minimum wage, or putting in the rate of the wages ahead of time. Smith said, "Well, we can work out something in one of these three areas." Dickinson replied, "With that understanding, I would agree to an extension." Smith stated that he would give Dickinson a copy of their understanding, and told him to return a signed copy to Smith and keep one for himself. Smith thereafter drafted and signed the following letter, dated April 13, 1973, which was subsequently signed by Dickinson: This will confirm our telephone conversation on Wednesday evening, April 11, 1973, in which we agreed 6 The Union's original proposals included a 35-cent wage increase for hourly workers and an annual increase of 15 percent for piecerate workers. During the initial meeting, in accordance with Rolnick's request for a "more realistic" wage proposal which could form the basis for a company counterproposal, the Union reduced to 10 percent its wage proposal for the latter group. The existing agreement provided, inter alia: ... an operator in order to be considered at one hundred (100%) efficiency must earn the equivalent of $1.68 in production earnings in on an indefinite extension of the present agreement pending further word and Congressional action on the minimum wage bill. The agreement will continue in effect subject to ten (10) days termination notice by either party. Please sign and return a copy of this letter, thereby indicating your concurrence in the above. Respondent's industrial relations director, Naftzinger, admittedly received a copy of this letter about April 16. Respondent's counsel stated on the record that so far as he knew, until May 3, 1973, Respondent "engaged in no conduct which would, or could be considered to be in violation of a collective bargaining agreement." D. The April 26 Poll 1. The reasons advanced by Respondent for conducting the poll The complaint alleges, inter alia, that Respondent violated Section 8(a)(1) of the Act, about April 26, 1973, by polling its employees concerning their support of the Union. Respondent admittedly conducted a poll about this matter on this date. The only specific evidence tendered by Respondent as to its motives for conducting this poll was the testimony of Robert Naftzinger, who is Respondent's director of industrial relations by virtue of his occupying that post with Respondent's sister corporation (American Argo Corporation), which operates several plants, infra, part, III,F,2,c,(1). Naftzinger testified that Respondent constituted the only union operation that "we" had. He further testified that shortly after his affiliation with Respondent in January 1973, he had occasion to examine turnover records for all the operations, and noted that about 30 percent of the employees who had participated in the September 1971 Board election were no longer in Respondent's employ and 41 of Respondent's approxi- mately 120 employees had been hired after September 1971.7 Naftzinger further stated that the September 1971 election had been decided by three or four votes.8 In addition, Naftzinger testified that in early February, Plant Manager Parnelle told him by telephone that there was a "certain amount of unrest in the plant." According to Naftzinger, when he asked Parnelle what he meant by this, Parnelle "indicated . . . that he'd been approached by a party or parties," (without naming them or saying how many there were) "and they inquired as to what might be done to get rid of the Union." Still according to Naftzinger, Parnelle asked what he should do, and Naftzinger replied, "One thing you should not do is be of any assistance to those people in this particular regard because you cannot do that, within the realm of the law." On direct examination, Naftzinger testified that "sometime in March . . . precise dates are unknown," Parnelle told him by telephone that "he'd noticed or observed that the order to be entitled to the bonus. The bonus shall be set at twenty (20%) percent of the operator's piece work earnings when such earnings are equal to $1.68 or more, in line with existing practices. 7 As of April 26, 1973, 83 of Respondent's 124 unit employees had been eligible to vote in the 1971 election and 41 had been hired since . Of these 41, 5 were hired in 1973. 8 In the absence of any contention otherwise , I accept Naftzinger's testimony as proof of what the 1971 tally was. JACKSON SPORTSWEAR CORP. people were not visiting the . . . dues taker . . . at the place established in the vestibule . . . very few people were visiting from the group, and that he felt that this was an indication that many of the members were losing interest and indeed weren't participating in union activity any longer." Still on direct examination, Naftzinger testified that during this same "sometime in March" conversation, Parnelle told him about the visit where Dickinson showed Parnelle the antiunion postcard. Still on direct examina- tion, Naftzinger testified that Parnelle "told me that he had advised Mr. Dickinson that he was not aware of the cards, that, if they were being handed out on company time, or if any visitation was taking place on company time he would certainly see that it was stopped." On cross-examination, Naftzinger testified that this conversation took place on the day Dickinson visited Parnelle (that is, according to Dickinson, on February 7). Still on cross-examination, Naftzinger testified that Parnelle had talked to him about the alleged lack of majority or employee disinterest in the Union, "the first time would have been late January, very early February, and then on several occasions thereafter." Naftzinger further testified that no employee had ever told him personally that the employee did not want the Union, and that he had "no way at all" of knowing the union views of the employees hired at the plant since the Board election. When asked whose idea it was to have the poll, Naftzinger testified that he and Arthur Porter, who is president of American Argo,9 wanted to find a means of determining whether a majority of the employees still wished to have a union; that they approached counsel; that "it was through counsel that this means, this approach, was determined"; but "whether to have it or not was not determined until sometime thereafter" on the basis, at least in part, of information obtained from Parnelle. No dates are attached to this portion of Naftzinger's testimony. Porter did not testify, nor was his absence explained. 2. The conduct of the poll a. Events immediately preceding the balloting On April 26, 1973, Naftzinger came to the plant carrying a number of ballots which had been prepared at his direction in Schuylkill Haven, Pennsylvania, where his office is located. He testified that he brought approximate- ly 140 ballots but did not know exactly how many. The ballots were on relatively opaque, white paper, and read as follows: SECRET BALLOT FOR EMPLOYEES OF JACKSON SPORTSWEAR NO. AUGUSTA, SOUTH CAROLINA Do you or do you not wish to have Local # 586, United Wholesale and Production Workers Union continue to represent you as your collective bargaining agent? 9 1t is unclear from the record whether Porter is president of or holds any corporate office in Respondent. 10 Mrs. Johnson's title and responsibilities are discussed infra, part III,F,2,c,(1). 11 Snead testified that although he ordinarily voted in political elections, he had never observed an election conducted by the Board and was unable 895 YES means you still want a union at this plant. NO means you no longer want a union at this plant. YES NO I 1------1 1------1 This is a secret ballot. Do Not Sign this ballot. Fold and drop in the ballot box. About 11:30 a.m., Naftzinger gave the ballots to Edith Johnson, who worked in Respondent's office,10 and directed her to prepare a list of production and mainte- nance employees. Mrs. Johnson prepared such a list (whose completeness and accuracy do not appear to be disputed by the General Counsel), adding appropriate notations after the names of the employees who were absent or on maternity leave that day. That same morning, Parnelle telephoned a local assistant pastor, Reverend Arthur Snead; identified himself as a representative of Respondent; and asked Snead to observe a poll to determine whether or not a majority of Respondent's employees wished to continued being represented by the Union. Parnelle made no statement to Snead about whether he would be paid for observing the poll. Snead agreed to observe the poll. About 1 p.m., Snead arrived at the plant and met Naftzinger. Naftzinger told Snead that "it was going to be a secret ballot," and that the ballots would be given to the voters outside of the area where the poll was to be taken. Naftzinger further asked Snead to stand in a hallway where he could observe both the ballot box and the room where the employees were to mark their ballots, and to see that no "irregularities" took place. Naftzinger did not explain exactly what an "irregularity" might be.11 Thereafter, Plant Manager Parnelle, through the public address system, instructed the employees to assemble in the lower level of an area in the plant where the floor was on two levels separated by steps. Naftzinger and (inferen- tially) Parnelle, both of whom addressed the employees on this occasion, did so from the top of the steps leading to the upper level.12 Parnelle introduced Naftzinger to the employees as filling in for Respondent's president. Naft- zinger told the employees that he was there on behalf of Respondent's president and introduced Snead as a minis- ter. Naftzinger testified that he then read to the employees the "exact text" of a prepared statement headed "Rough Draft of Speech," and received in evidence as Respon- dent's Exhibit 5. Snead testified that before the meeting Naftzinger showed him a prepared statement and told him that it was to be read to the employees, and that Naftzinger spoke from a written text;13 employees Audrey Parry and Jessie Mae McKie, who impressed me as honest witnesses, to judge "irregularities" according to Board standards. 12 Also present during this speech were Snead , Mrs. Johnson, three office employees, and several other individuals identified infra. The record fails to show whether any of these was on the upper level . It seems likely that at least Snead and Mrs. Johnson were. 13 However, although Respondent had requested Snead to supervise the (Continued) 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Naftzinger had a sheet of paper in front of him as he talked; and no employee positively testified to the contrary. Moreover, several employee witnesses who impressed me as honest witnesses attributed to Naftzinger statements rather similar to those set forth on Respon- dent's Exhibit 5.14 Even allowing for Naftzinger's admis- sion that he made certain extemporaneous remarks in addition to reading his speech, I conclude that the employees who attributed to him the remarks summarized infra (fns. 16 and 18) were honestly mistaken in their testimony. I find that Naftzinger delivered to the employ- ees the speech reproduced on Respondent's Exhibit 5, which reads as follows (fns. added): I have called you together today to discuss the union. As you know, Local 586 of the United Wholesale and Production Workers Union was certified as your collective bargaining representative well over a year ago. It was certified after they won a very close election. I understand that they won by only four (4) votes. Some time after that, the Company negotiated a contract with the union and that contract expired on April 15, 1973.15 The Company and the union have had a few collective bargaining meetings to discuss a new contract. As I see it, nothing very much has been accomplished yet.16 In the meantime a very significant development-a situation of major importance-has occurred. A large number of this plant's employees voluntarily have informed management that they no longer wish to be represented by this union. In other words, they have indicated that they do not want a union here.17 We now have a serious question as to whether or not a majority of our employees here at Jackson Sports- wear still want a union to represent them. Considering the fact that quite a few employees that were at the election last year are no longer with us and that there has been a fair degree of turnover , we are confused as to the majority status of this union. If the union does in fact represent a majority, then we will continue to negotiate with the union over the terms of the new agreement. The law says, however, that if a company has a good election because he was an "impartial observer," and although Snead both heard Naftzinger's speech and read a prepared statement which was presumably the document identified as Resp. Exh. 5, Respondent's counsel did not ask him about the contents of either the speech or the prepared statement. Snead was the first witness called by Respondent, and was excused before Resp . Exh. 5 had been identified. 14 See the testimony of Virginia Smith , Thomasine Morgan, and Patricia Sims. See also the testimony of Bessie Mae English , who attributed such statements to Parnelle. 15 Cf. supra part,lll,C, and infra part IIl,F,2,c(2). 18 Cf. supra part 1Il,B. When asked whether she recalled anything in the speech about negotiations being had , employee Rosa J. Cofer replied, "No, I think not." I believe this testimony represents an honest failure of recollection. 17 Naftzinger conceded at the hearing that no employee had ever told him personally that the employees did not want the Union and that he had "no way at all" of knowing the union views of employees hired after the Board election. No member of Respondent's managerial staff-which included the plant manager at the time of the hearing , five supervisors, and an engineer, all of them in Respondent's employ at the time of the hearing faith doubt about a union's continued majority status, then it is not required to recognize the union. There is only one way, in our opinion, to know where we all stand with this thing. I have prepared a ballot for you to mark if you so desire. We will conduct an informal election right now. Now, I want to emphasize that no one has to vote, it is strictly voluntary. Two, this is a secret ballot. No one will know how you vote. Three, there will be no prejudice to you no matter how you vote. There will be no reprisals taken against you in any way. Your preference will not provoke any response on the part of the Company. The purpose of this ballot is to resolve the question of the union's majority or lack of majority. When you get the ballot, please read it and mark it in the box of your choice. Do not sign the ballot. We will count these ballots after everyone has voted here today. If you vote yes, it means you wish to have the union continue to represent you. If you vote no, it means you do not wish to have the union represent you here at Jackson Sportswear. Thank you very much for your patience.18 At the conclusion of the speech, Naftzinger stated that Mrs. Johnson, whom he described as the "personnel manager" (infra part III,F,2,c(l)), would remain on the scene to pass out ballots and check off the names of the people who picked up ballots, that Snead would remain "to see that everything would go okay" and it was a fair election, and that supervision, members of management, and the office force would leave the building and go to the parking lot. Naftzinger or Parnelle told the employees to get in line to vote. Thereafter, the building was vacated by Naftzinger, Parnelle, Respondent's vice president of manufacturing, its then regional manufacturing director (who was plant superintendent at the time of the hearing), its then engineer (who was assistant manager/engineer at the time of the hearing), the quality control supervisor from Schuylkill Haven, five supervisors, two office employ- ees, and the payroll clerk. All of these individuals had been present at the meeting. and at all material times previously-testified that any employee had ever expressed dissatisfaction with the Union to him. Nor did any employee testify that she had ever made such a statement to any member of management. The only evidence of any kind even suggesting that any such statements were ever made is Naftzinger's hearsay testimony about Parnelle's alleged statements to him, discussed infra part III,F,1. 18 Employee Audrey Parry, who was admittedly somewhat "confused," testified that Naftzinger said that Respondent "had been in lengthy negotiations and that some of the employees had took it upon themselves to make a survey, and that they no longer wished to be represented by the Union." Employee Roxanna Bush testified that Naftzinger said "that they had taken a survey of the plant, and a majority of the girls did not want a union." Employee Reba LaBruyere testified that Naftzinger said that "negotiation had stopped, due to the union's part." Except for the limited support which these witnesses gave each other in the quoted testimony, their testimony stands uncorroborated . While I think that all three of these witnesses were honestly trying to tell the truth as they remembered it, I conclude that they were mistaken in attributing the quoted language to Naftzinger. JACKSON SPORTSWEAR CORP. 897 b. The balloting itself After the foregoing individuals had left the plant, Mrs. Johnson went to a table in the upper area and the employees lined up in front of her. Mrs. Johnson gave a ballot to each in turn and, as she did so, inserted a red check mark before that employee's name on the list which Mrs. Johnson had prepared. Mrs. Johnson asked an employee for her name if, but only if, Mrs. Johnson did not know it.19 One employee received two ballots, but she drew this to Mrs. Johnson's attention and returned one.20 After Mrs. Johnson had handed out ballots to the employees in line, she returned the leftover ballots to Naftzinger. At the hearing, he estimated the number as 20 to 25, but admitted that he did not count them. Mrs. Johnson also turned over to Naftzinger the voting list which she had used in giving out the ballots. At least partly for the purpose of supplying Respondent's counsel with a copy for his records, Respondent Xeroxed the list before adding additional markings, but Naftzinger was unable to recall whether the Xeroxing was done before or after Respondent knew the results of the poll. After receiving their ballots, the employees lined up in the corridor outside the engineer's office, in which office they marked their ballots. The box used as a ballot box (apparently Respondent's suggestion box) was on a table partly in the engineer's office and partly in the corridor. The box had a lid and was unsealed; but before the balloting began, Snead opened it and ascertained that it was empty. As each employee marked her ballot and left the engineer's office, she folded her ballot and dropped it into the box.21 The engineer's room is 12 by 14 feet, and the doorway has no door. Its sole furniture was a desk and a chair. It contained nothing in the nature of a voting booth; the employees marked their ballots on any convenient surface, usually on the desk. During the entire period of the balloting, Snead, in accordance with Naftzinger's instructions, stood at a point in the corridor 19 I so infer from the fact that she asked only some of the employees for their names. 20 Largely because the initial testimony about the return of the ballot was obtained by Respondent's counsel on cross-examining the first witness of counsel for the General Counsel who testified about the receipt of two ballots, Respondent's counsel procured issuance of a subpoena duces tecum directing counsel for the General Counsel to supply Respondent with the investigatory file. A motion to quash this subpena was granted by me on the ground, inter alia, that counsel for the General Counsel had not received permission to supply these documents from General Counsel Peter Nash, as required by Section 102.118(a) of the Board's Rules and Regulations; that no showing of need had been made ; and that Respondent's requests to General Counsel Nash that he permit compliance with the subpena had insufficiently explained to him the basis for Respondent's claim of need. Respondent failed to exercise its right under Section 102.26 of the Board's rules to seek special permission from the Board to directly appeal my action. In addition to the cases cited in my order granting the motion to quash, see the Fourth Circuit's subsequent decision in Wellman Industries, Inc v. N.L.R.B., 85 LRRM 2260. 21 As previously noted, the ballot itself instructed the voter to fold it before putting it into the ballot box. Moreover, because of the size of the ballots, they had to be folded before they could be inserted into the aperture in the box. 22 This practice apparently resulted from the voters ' own sense of propriety. There is no evidence that they were instructed to follow it, although Snead testified that he "had been told that they would be let into the area one at a time." 23 Namely, Bessie Mae English, Cinderella Davis, Rosalind Hickson, where he could observe both the ballot box and the engineer's room. Most of the employees waited until the engineer's room was empty before entering it to mark their ballots, and went in one by one.22 However, toward the end of the balloting, at least seven employees marked their ballots with others in the room.23 There is no evidence that any of them actually saw how any others marked their ballots, but neither does the record exclude the possibility that this happened. Although Snead saw that several voters were present in the engineer's office at the same time, and admittedly regarded this as an "irregularity," he made no effort to stop it. He testified that he saw nothing else during the balloting which he regarded as an "irregularity." Employee Virginia Smith testified that "in a way" she did not "think" she voted secretly, "Because when we had the other election, we had a door to close." The engineer's office and the adjacent corridor are out of sight of both the location where Mrs. Johnson handed out the ballots and of Respondent's front entrance, which consists of two glass doors whose total width is about 6 feet. However, Mrs. Johnson's table was about 25 feet from and in full view of the front entrance 24 Moreover, the most natural (although not the only) route from her table to the engineer's office and its corridor is also in full view of the front door, and it was along this route (whose nearest point to the front entrance was no more than 5 feet therefrom) that the employees formed their line waiting to vote. While the balloting was in progress, Respondent's supervisors stood outside the front door where they could see the employees receiving their ballots and waiting to vote and the employees could see the supervisors.25 After the balloting had been completed, Snead left the ballot box unattended and out of his sight while he walked to the end of the corridor (about 12 feet from the ballot box) to tell an unidentified woman in the lobby that the voting was over and the persons in the parking lot could return to the plant. When Naftzinger reentered the plant, Snead, who was still standing at about the same location, Elizabeth Turner, Elizabeth Holloway, (Julia) Ann Parrott, and Rosa J. Cofer. Thomasme Morgan testified that an eighth employee , whose name was transcribed by the reporter as "Sheme Jean ," went into the voting room with others. Nobody with precisely this name appears on the voting list, which does, however, name a "Sarah Jane Hankinson " and a "Sarah J. Jones." Employee Reba LaBruyere credibly testified that after marking her ballot, she turned around and saw another , unidentified employee standing at the door right behind her 24 My finding as to the distance is based on the scale diagram of the building received into evidence as Resp. Exh. 4 , and on Naftzinger's testimony about where her table was placed with reference to the diagram. In view of this evidence, I reject his estimate of 36 to 45 feet, as well as the estimates of 10 to 15 feet given by other witnesses. 25 This finding is based on the credited testimony of Audrey Parry, Virginia Smith, Reba LaBruyere, Bessie Mae English, Rosa J. Cofer, and Thomasine Morgan. I do not credit Naftzmger's wholly uncorroborated testimony that so far as he knew, the other persons in the parking lot did not look into the plant area at all during this period , that he looked through the doors only once, and that he did so because it was starting to drizzle and he wanted to see how long the voting line was. Audrey Parry, the only other witness who was asked about the weather , testified that rain was not falling nor was it even misty during this period . Moreover, it seems likely that if Naftzinger were truthful in his testimony that it had started to rain, he would have been able to recall (as he could not) whether, when he peered through the doors during this alleged rain, he was protected by a roof extension or awmng over the doors. In view of these circumstances and the witnesses' demeanor, I credit the employees and discredit Naftzinger to the extent indicated 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD told him that the voting was finished and asked whether he should count the ballots. Naftzinger requested him to do so.26 Snead thereupon emptied the ballots onto the table where the ballot box had been placed and counted the ballots. Nobody else was present at the time. The tally was 47 "yes" votes and 63 "no" votes; there were no blank or improperly marked ballots.27 Snead wrote this tally on a sheet of scratch paper, which he brought to Parnelle and Naftzinger with the oral report that the tally showed 47 votes for the Union and 63 votes "for the Company." 28 Naftzinger then gave Snead a document, which Naftzinger had phrased and told Mrs. Johnson to type up while Snead was counting the ballots, reading as follows: APRIL 26, 1973 TO WHOM IT MAY CONCERN: I hereby certify the results of a poll taken at Jackson Sportswear Corp. of North Augusta, South Carolina on this date reflected the following: YES vote for the union NO votes against the union Refused to Indicate Signed Dated At Naftzinger's request, Snead filled in the figures for the "yes" and "no" votes based on his own tabulation; filled in the figure "6" before "Refused to Indicate" based on the assertion of Parnelle or Naftzinger (probably Parnelle); 29 signed and dated the document; and then left the building with a copy. Snead was present in the building from 1 p.m. to shortly after 2 p.m 30 Just as Snead was ready to leave the plant, he was told (apparently by Parnelle) that Respondent would "make a donation to the church because of the time that has been involved in your coming." Snead later received a company check for $25, signed by Parnelle and made out to Snead personally. He gave $5 to the church and kept the rest. c. The announcement of the results Naftzinger testified that when he went to the plant the morning of the poll, "the decision still hadn't been made as to whether we were going to give [the employees] the results of the poll or not." Accordingly, he testified, after receiving the results of the poll, he was not sure whether he was "properly authorized" to give the results to the employees, and discussed with other members of manage- ment then at the plant the question of whether to announce the results of the tally. He went on to testify that he 26 These findings are based on a synthesis of Snead 's and Naftzinger's testimony. Snead testified that he left the ballot box unattended for about 10 seconds, that nobody was in "that suite of offices" at that time, and that he could have seen anyone in there or anyone who came in to tamper with the ballot box. The conversations and events which occurred while Snead was still at the end of the corridor suggest that Snead somewhat underestimated the length of time during which the ballot box remained unattended, and the plan of the building received into evidence suggests that the ballot box was made accessible to other persons than Snead supposed. However, I see no reason to believe that any tampering in fact took place. 21 The ballots themselves were produced at the hearing , although they were not offered into evidence. The General Counsel made no contention that Snead's tally was inaccurate or that the ballots contained any markings telephoned Argo President Porter , gave him the results of the poll, and asked him whether to advise the employees of the result. According to Naftzinger, Porter felt that it should be announced that afternoon but asked him to obtain the opinion of Norman Holtz, Respondent's attorney.31 Still according to Naftzinger, Holtz advised him to announce the result, whereupon Naftzinger gave Parnelle this information and left the plant between 3:30 and 4 p.m., 30 to 60 minutes before the end of the employees' work day. Respondent announced the results of the poll to the employees, and posted the results on the employee bulletin board, on the morning of April 27. Parnelle did not tell the employees about who witnessed the count. E. The Withdrawal of Recognition On April 27, Smith telephoned Dickinson that he was "highly embarrassed." Smith stated that he had reported to Respondent that Dickinson had phoned Smith's office in his absence, evidently about scheduling another bargaining session, and had asked Respondent about the availability of a date. At this point, Smith told Dickinson, Respondent had told him about the poll, whose tally Smith gave to Dickinson. Dickinson told Smith that because Respondent had not released the results of the poll until the next morning notwithstanding Respondent's alleged promise to release the results the same day,32 and "knowing how many people were sympathetic to the union, it was my opinion that the poll was the reverse of what the Company claimed it was, and that was why they delayed any announcement of what they claimed the poll was." Smith went on to say that his conversation with Respondent about a date for another bargaining session was when he found out about the poll, that the poll was taken without his knowledge or approval, and that he "was not going to allow that to happen." Still according to Smith, when he asked Respondent why he had not been told what it was going to do, Respondent replied that it did not want to compromise his position with Dickinson. Smith went on to say that he had asked Respondent the result of the poll and whether Respondent intended to abide by it, to which Respondent replied by giving him the tally and stating, "We don't know. We expect to make a decision in the next few days as to whether we are going to abide by the decision, abide by the results of the poll, just what we are going to do." Smith told Dickinson that when he found out more he would be in touch with Dickinson, tendered his apologies, and asserted that he did not intend to be "undermined in this way" and had been "quite con- which might serve to identify the voters. 28 Naftzinger testified that the words in quotation marks were , as closely as he could remember, Snead's exact words. 29 The voting list used by Mrs. Johnson shows that five employees who were present in the plant on that day did not receive ballots (Ella Green, Lillie Love, David Peak, Barbara Walker, Barney Woodson). 30 This finding is based on the credited testimony of Snead, a disinterested witness whose commitments elsewhere would likely have made him conscious of the time . I believe that the witnesses who specified times inconsistent with this did so out of faulty recollection. 31 Holtz is not associated with the law firm of which Attorneys Smith and Rolnick are members. 32 There is no evidence that Respondent in fact made such a promise. JACKSON SPORTSWEAR CORP. cemed." Smith further told Dickinson that in Dickinson's shoes, he would not believe anything Smith said. Dickinson replied that he took Smith's word for what he said, "that he did not know what the company was doing, and that they did not have his knowledge, that he didn't have knowledge and didn't give consent as to what the company had done."33 Also on April 27 or on an occasion thereafter, Smith told Dickinson that he was "not going to represent people that would do things like that behind his back and not let him know it." About May 3, Smith told Dickinson that he would be receiving Respondent's answer by mail, and that Respon- dent had agreed to send Smith a copy of it at that time. On May 7, Dickinson received a letter signed by Plant Manager Parnelle but prepared at Naftzinger's instruc- tions. The letter was dated May 3, and read as follows: By letter dated April 13, 1973, attorney James F. Smith wrote you concerning extension of the collective bargaining agreement between Local 315 [sic] and Jackson Sportswear Corporation. Without admitting or conceding that Mr. Smith had appropriate authority to enter into an agreement extending the collective bargaining agreement beyond its April 15, 1973 termination date, please consider this letter as the ten (10) day termination notice called for in Mr. Smith's letter. Without admitting or conceding that the agreement is still in effect , notice is hereby given that the contract will be considered terminated upon the expiration of the ten (10) day period. You are advised, as well, that Constangy and Prowell [Smith's law firm] are no longer our representatives in this matter. You are further notified, that this Company has good reason to doubt the union's continued majority status. The Company has substantial information, including the results of a secret ballot, which establish- es that a majority of employees in the appropriate unit no longer wish to be represented for the purposes of collective bargaining by your union. Accordingly, the Company will not engage in further collective bargaining negotiations with the union. A copy of this letter was sent to Smith. By letter to Pamelle dated May 7, Dickinson asserted that the Union represented a majority of Respondent's employees and requested an immediate meeting to resume negotiations, noting that "by [Attorney Smith's ] request on your behalf we entered into an extension of the present agreement pending further word and Congressional action 33 At the hearing, Company Attorney Holtz objected, on the ground of attorney-client privilege, to Dickinson's testimony about Attorney Smith's statements regarding Smith 's conversations with Respondent concerning the poll. Because Attorney Smith's authority extended to making arrangements with the Union for scheduling negotiations, and because his statements about the poll were advanced to the Union in connection with his explanations about why an additional meeting could not then be arranged, I adhere to my action at the hearing in overruling that objection . McCormick on Evidence, Title 10, Ch. 24, Sec. 267, pp. 643-644 (2nd Ed., 1972). In any event, my ultimate conclusions herein would be the same if this evidence had been stricken. 34 The bargaining agreement called for a minimum rate of $1.68 an hour. 35 At the hearing, counsel for the General Counsel specifically disavowed any contention that such conduct constituted an independent 899 on the minimum wage bill." By letter to Dickinson dated May 11, Parnelle stated, inter alia: In my letter of May 3, 1973, among other things, you were advised that because your organization no longer represented a majority of this company's employees for collective bargaining purposes the company would not engage in further collective bargaining with the union. Therefore, I see no useful purpose in meeting with you or the union. The charge herein was filed on May 16, 1973. On May 24, Respondent called all the employees to the front of the building, where they were addressed by Naftzinger in Parnelle's presence. Naftzinger stated that the employees were a "friendly bunch of people." He further stated that Respondent had made surveys of other plants; that beginning July 9 the employees would get a raise; that the minimum wage would go to $1.80; 34 that the existing 20- percent bonus would be discontinued and put into the piecerate, and "there would be ten percent depending on the looseness"; that in 1973 the employees would receive an additional paid holiday, the day after Thanksgiving; and that in 1974 the employees would also receive Good Friday as a paid holiday. The following day, a notice to this effect was posted on the bulletin board.35 F. Analysis and Conclusions 1. Parnelle's representations to Naftzinger relating to the Union's support For reasons set forth infra, the representations made by Parnelle to Naftzinger regarding the Union's support may be material to the result herein. Parnelle did not testify, and the only direct evidence in the record as to what these representations were is the testimony of Naftzinger. Of course, the mere absence of directly contradictory testimo- ny does not require me to accept Naftzinger's testimony in this respect. N.L.R.B. v. Walton Mfg. Co., 369 U.S. 404,408 (1962). For the reasons stated below, I disbelieve it in part and believe it in part.36 Assuming (as I do) that Parnelle told the truth to Naftzinger,37 Dickinson's version of his conversation with Parnelle conflicts with Naftzinger's version of his own conversations with Parnelle. While appearing to be a less intelligent and articulate witness than Naftzinger, Dickin- son impressed me as a more honest witness. This evaluation gains particular support from Dickinson's testimony that his visit to the plant when he conversed with violation of Section 8(aX5). When asked the relevance of the testimony about this action, counsel for the General Counsel stated, "This information is being asked the witness for background information , and Mr. Naftzinger, I believe, had said . . . to the employees that the union negotiations had accomplished nothing and we are showing here that something was accomplished." 36 For the reasons indicated infra fn. 47, and attached text, I would reach the same result here even if I believed in its entirety Naftzinger's recital of his conversations with Parnelle. However, because reviewing authority may disagree, and because of my unique opportunity to observe the witnesses, I deem it appropriate to make credibility findings. 37 I see no reason to suppose otherwise. In any event , see infra, fn. 47, and attached text. w 4 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parnelle about the antiunion postcard occurred on Febru- ary 7 (rather than "sometime in March," as Naftzinger testified) -testimony by Dickinson which I would credit even apart from my views as to his honesty, because I believe him incapable of really devious testimony. Naft- zinger testified that on the same day as this visit, Parnelle reported to him a decrease in the number of dues-payers in the lobby. Accordingly, Dickinson's credited testimony about the February 7 date means that if Naftzinger were telling the truth about the substance of Parnelle's reports, by early February Naftzinger possessed all of the informa- tion about dissatisfaction with the Union (other than any reinforcement arising from Parnelle's alleged subsequent reports to the same effect) which allegedly led to Naftzinger's decision 10 weeks later to conduct a poll. However, Respondent failed to file a representation petition in early February (when such a petition would not have been subject to a contract bar) but, instead, proceeded to discuss a new contract with the Union. Respondent's conduct in this respect is inconsistent with Naftzinger's testimony that Parnelle questioned the Un- ion's majority to him on and before February 7, but corroborates Dickinson's testimony that on that date Parnelle told him that Parnelle did not think Dickinson had any reason to "worry" about the Union's losing its majority.38 Moreover, it seems likely that Argo President Porter (who participated in the decision to conduct the poll) would have either participated in conversations about the Union's support or received reports from Naftzinger about their contents; yet Porter did not testify, nor was his absence explained.39 For the foregoing reasons, I credit all of the testimony of Dickinson summarized in the last paragraph of part III,A; and discredit Naftzinger's testimony (1) that Parnelle told him that Parnelle had been approached with an inquiry about how to get rid of the Union; (2) that Naftzinger told Parnelle in this connection (see infra part III,F,2,b) not to assist the employees in this matter; (3) that Parnelle told him that Parnelle had advised Dickinson that he was not aware of the antiunion postcards and would stop any solicitation for signatures thereon during working hours (Dickinson having credibly testified to an admission by Parnelle that he knew about the postcards); and (4) except to the extent indicated in the next paragraph, that Parnelle had talked to him about the alleged lack of majority or employee disinterest in the Union in late January or early February, and then on several occasions thereafter (Dickinson having credibly testified that Parnelle told him on February 7 that Parnelle 38 See Bally Case and Cooler, Inc., 172 NLRB 1127, 1128, enfd. 416 F.2d 902 (C .A. 6, 1969), cert. denied 399 U.S . 910 (1970); King Radio Corporation, 208 NLRB No. 82. 39 See International Union, United Automobile, Aerospace and Agricultural Implement Workers of America [GyrodyneJ v. N.L.R. B., 459 F.2d 1329, 1335-46 (C.A.D.C., 1972); Golden State Bottling Co., Inc., v. N.L.R. B., 414 U.S. 168 (1973). 40 Brooks v. N.L.R. B., 348 U.S. 96; Terrell Machine Company, 173 NLRB 1480, enfd . 427 F.2d 1088 (C.A. 4, 1970), cert. denied 398 U .S. 929; did not think Dickinson had anything to worry about in connection with the antiunion activity). However, I do believe Naftzinger's testimony that Parnelle reported to him that fewer employees than previously were paying their dues through the steward in the plant lobby. In so finding, I note that steward Audrey Parry, who collected the dues paid in this manner, was the second witness called by counsel for the General Counsel and was present in the hearing room throughout the hearing, but was not asked about whether this report, if made, would have been true. Because of Naftzinger's testimony that he received this report on the same day as Dickinson's visit to the plant, and because of Dickinson's credible testimony that this visit occurred on February 7, I find that Naftzinger received the report on that date. 2. Whether Respondent violated Section 8(a)(5) of the Act a. Introduction and controlling principles, bargaining negotiations prior to the withdrawal of recognition During the first year following certification, a union is entitled to a virtually irrebuttable presumption of majority support and, therefore, an employer must bargain with it whether or not he believes that the union in fact enjoys such support. After the end of the certification year, the presumption of majority support remains but is rebuttable. Where an employer entertains doubts about the union's majority support following the end of the certification year, the better practice is for him to keep bargaining and petition the Board for relief. However, he may lawfully withdraw recognition without filing such a petition where he can prove that the union no longer enjoys majority support or that he reasonably has a good-faith doubt, based upon objective considerations, of such support 40 To be sure, "the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union." Celanese Corpora- tion of America, 95 NLRB 664, 673, cited with approval in Brooks, supra, 348 U.S. at 104, fn. 18. I discuss infra whether the poll constituted such "illegal anti-union activities, or other conduct . . . aimed at causing disaffec- tion." However, it is probable that acceptance of the complaint allegations of bad faith in Respondent's .pre- withdrawal negotiations would in any event preclude N.L.R.B. v. Rish Equipment Company, 407 F.2d 1098, 1100-01 (C.A. 4, 1969); Automated Business Systems, a Division of Litton Business Systems, Inc., 205 NLRB No. 35; and cases cited . Cf. Tungsten Mining Corp. v. District 50, United Mine Workers of America, 242 F.2d 84, 91-93 (C.A. 4), cert. denied 355 U.S. 821; N.L.R.B. v. White Construction & Engineering Co'., 204 F.2d 950, 953 (C.A. 5). Where a union is party to a collective bargaining agreement, its recognition rights before and after the agreement's expiration are quite similar to those of a certified union during and after the 'certification year. Automated Business Systems, supra ; King Radio, supra, 208 NLRB No. 82. JACKSON SPORTSWEAR CORP. 901 Respondent from raising the majority issue as a defense to such withdrawal .41 I do not find that Respondent negotiat- ed in bad faith . Were I satisfied that the issue had been fully litigated, I would regard as highly persuasive of bad- faith motivation, both in negotiations and in withdrawing recognition, Respondent's action in announcing a general wage increase (applicable to piece as well as hourly rates) after terminating the contract extension and withdrawing recognition, notwithstanding Respondent's successful re- quests for postponement of wage discussions with the Union because of the possible effect on piecerates of pending Congressional consideration of increases in the minimum wage. Absent some other explanation of this change of heart, I would ascribe it to Respondent's intervening severance of its relationship with the Union -allegedly on the basis of the ballots cast by the "friendly bunch" of employees whom it was giving a wage increase-and, therefore, would conclude that Respon- dent's earlier failure to make a wage offer was motivated by the fact that the employees were seeking a wage increase through their bargaining representative rather than individually .42 However, in view of the exceedingly limited purpose for which counsel for the General Counsel tendered this evidence (supra, fn. 35), Respondent was not called upon to explain this action . Accordingly, I do not base a finding of bad-faith bargaining on Respondent's conduct with respect to wages. Nor do I agree with counsel for the General Counsel that bad faith in negotiations is established by Naftzinger's testimony that Attorney Smith did not have authority to enter into "any agreements" with the Union. While the extent of the agent's power to bind the employer may be a factor worthy of consideration in determining whether the employer negotiated in good faith, the employer's failure to confer competent authority to permit his agent to enter into binding agreements is not necessarily probative of bad faith. Nor can an employer be faulted for failing to give his agent the authority to make final on-the-spot commitments on contract proposals without an opportunity to consult with his principal . KXTV (Great Western Broadcast Corp.), 139 NLRB 93, 130. In the instant case, Dickinson's testimony that the parties specifically understood that any agreement reached during these negotiations was tentative and subject to reaching agreement on an entire contract, and that this was Dickinson's usual practice, indicates that the Union was able to adapt its bargaining techniques and strategy to the limitations on the authority of Respondent's 41 The complaint alleges bad-faith bargaining beginning February 6, 1973-a date less than 6 months prior to both the filing of the rharge and the issuance of the complaint At the hearing, Respondent's counsel contended that Section 10(b) barred any complaint allegations of unfair labor practices occurring prior to May 3, 1973, the earliest date specified in the charge's refusal-to-bargain allegations I then advised counsel that if he adhered to this Section 10(b) contention, I wished him to discuss Radio Officers' Union v. N L R B, 347 U S 17, 34, in 30, N L R B v Fant Milling Co, 360 U S 301 (1959); and NLRB. v Central Power & Light Co, 425 F.2d 1318, 1320-22 (C.A. 5, 1970) Counsel's brief makes no contention that any part of the complaint is time barred The cited cases call for rejection of any such contention 42 " the automatic wage increase system which was instituted unilaterally was considerably more generous than that which had shortly theretofore been offered to and rejected by the union Such action conclusively manifested bad faith in the negotiations, N L R B v Crompton Highland Mills, 337 U S 217, and so would have violated § 8(a)(5) representatives. Nor did Respondent repudiate any of the agreements reached during the bargaining meetings; its later conduct in questioning Smith's authority to bind it to the extension agreement occurred in connection with Respondent's withdrawal of recognition.43 Accordingly, the evidence fails to suggest that the alleged limitations on Smith's authority impeded the progress made during the two negotiating sessions which actually took place. Further, Naftzinger credibly testified that he and Porter received "immediate reports following each meeting that took place," both from Parnelle and from Respondent's attorneys; and I cannot assume that Respondent would not have been represented by agents with greater authority had the course of subsequent negotiations shown a need therefor. Accordingly, I reject the contention that the alleged limitations on Smith's authority call for a finding that Respondent bargained in bad faith. b. Nonpoll evidence regarding the Union's majority and Respondent's alleged doubt thereof At least where, as here, the Union had previously established its majority status through a Board-conducted certification election, only "strong evidence" of objective grounds is sufficient to form a reasonable basis for believing that the Union has lost its majority status. King Radio, supra, 208 NLRB No. 82. Laying the results of the poll to one side, the only objective considerations which are shown by the credited evidence, and on which Respondent could have based a doubt as to the Union's majority, are the turnover subsequent to the September 1971 certification election, the Union's three or four vote margin of victory, and Parnelle's unrefuted February 7, 1973, statement to Naftzinger that fewer employees than previously were paying dues to the union steward in the plant lobby where management could see them. The only additional credible evidence adverted to by Respondent to overcome the presumption of majority is the evidence that only 15 of Respondent's employees attended the February 6 union meeting. Particularly in view of Plant Manager Parnelle's February 7, 1973, admission to Dickinson that Parnelle either knew or had heard "something about" supervisors' telling employees that the Union was holding them back from a wage increase, an extra holiday, and other things,44 I find that the foregoing evidence is insufficient to rebut the presumption of continued majority support, and that the objective considerations known to though no additional evidence of bad faith appeared even after an impasse is reached [the employer] has no license to grant wage increases greater than any he had ever offered the union at the bargaining table, for such action is necessarily inconsistent with a sincere desire to conclude an agreement with the union." N L R B v. Katz, 369 U S 736, 745 (1962) I note that the Federal minimum wage provisions were not changed between April 11, 1973, when Respondent successfully requested postponement of wage discussions "pending further word and Congressional action on the minimum wage bill," and May 24, 1973, when Respondent announced a wage increase beginning July 9 43 Moreover, it appears that Respondent never took any action inconsistent with the extension agreement until after it had expired because Respondent had exercised its termination rights thereunder 44 Parnelle's status as plant manager renders this admission binding on Respondent McCormick on Evidence, Title 10, Ch 26, Sec. 267, p 641 (2nd Ed, 1972). 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent prior to May 3 were insufficient as a predicate for a reasonable doubt of majority.45 Further, and still laying the result of the poll to one side, I conclude that on May 3 Respondent did not have a good- faith doubt of the Union's majority. Naftzinger testified that he doubted the Union's majority because of, inter alia, Parnelle's alleged reports to him about employee disaffec- tion from the Union. However, as I have previously found, significant portions of these alleged reports were never in fact made. Moreover, Dickinson's credited testimony establishes that Parnelle had reason to believe that Respondent's supervisors had been engaging in an antiun- ion campaign of questionable propriety. Because of Parnelle's plain duty to disclose information of this kind to Respondent's industrial relations manager, and because of Naftzinger's testimony (which, however, he attached to alleged reports by Parnelle which I find were not in fact made) that he warned Parnelle that he could not lawfully help the employees get rid of the Union, I conclude that Parnelle reported his knowledge or suspicions of this antiunion supervisory activity to Naftzinger. Because Naftzinger's testimony thus based his alleged doubt partly on his own untruthful version of Parnelle's reports and partly on a report of employee conduct (failure to pay dues publicly) which logically flowed from actual or suspected supervisory conduct which Naftzinger described as unlaw- ful, because Respondent continued to recognize and bargain with the Union (without filing a Board representa- tion petition) after Naftzinger received Parnelle's February 7 report about such employee conduct, and because of Naftzinger's unpersuasive demeanor when testifying about Respondent's alleged doubts, I conclude that such doubts were not entertained in good faith46 Moreover, I would reach the same result even assuming that Naftzinger was truthfully describing Parnelle's state- ments to him. As is established by Dickinson's credible testimony, Parnelle believed as of February 7 that the Union seemed in no danger of losing its majority status, and that supervisors may have been engaging in antiunion activity of questionable propriety. Accordingly, even assuming that Parnelle concealed all this from Naftzinger and instead made the untruthful statements which Naft- zinger attributed to him, and further assuming that Naftzinger was deceived thereby, I conclude that Parnelle's persuasions were attributable to Respondent for the purpose of determining whether it acted in good faith in withdrawing recognition.47 Plainly, such persuasions are wholly inconsistent with any claim of good-faith doubt of majority. Accordingly, I proceed to the question of whether,under the circumstances, the results of the poll overcome the presumption of majority or, if not, call for a finding of a good-faith doubt of majority based on objective considera- tions. 45 Massey-Ferguson, Inc., 184 NLRB 640, enfd . 78 LRRM 2289 (C.A. 7, 1971); Little Rock Downtowner, Inc., 168 NLRB 107, 108,111-112, enfd. 414 F.2d 1084 (C.A. 8, 1965); N. L. R. B. v. John S. Swift Co., 302 F.2d 342, 345 (C.A. 7, 1962); Ranch-Way, Inc., 203 NLRB No. 118, In. 7. 48 See Walton, supra, 369 U.S. at 408; Stresskin Products, Co., Division of Tool Research and Engineering Corp., 197 NLRB 1175 ; N. L.R.B. v. James Thompson & Co., Inc., 208 F.2d 743, 745-746 (C.A. 2); Bally Case and Cooler, supra at 1128; Shattuck Denn Mining Corp. v. N.L.R.B., 362 F.2d c. The validity of Respondent's reliance on the poll (1) Mrs. Johnson's duties and title It seems convenient to treat at this point the disputed testimony regarding Mrs. Johnson, the alleged materiality of which is discussed infra. Ultimate responsibility for establishing Respondent's labor relations policies is vested in Arthur M. Porter, who is president of American Argo Corporation-a corporation which has seven plants in various parts of the country and which, like Respondent, is the wholly owned subsidiary of Consolidated Apparel, Inc. Naftzinger testified that as Argo's industrial relations director, he is "responsible for policy proposals, working with the President of the company in determining labor relations practices and policies for" Respondent. Naftzing- er's office is in Schuylkill Haven, Pennsylvania, whereas Respondent's plant is in North Augusta, South Carolina; and between the date he assumed his post with Argo (January 1, 1973) and the date of the poll (April 26, 1973) he had visited the plant on three or four occasions of perhaps a day's duration each. Naftzinger testified that Respondent's plant manager, Parnelle, "was in line and I am in staff. He would come to me for functional advice concerning industrial relations, but beyond that, I had no authority over Mr. Parnelle and he had no authority over me." Edith Johnson worked in the office area of Respondent's South Augusta plant. She performed some secretarial duties. She took care of employees' insurance and gave them hospitalization-insurance and other forms. Using the telephone, she relayed the plant manager's questions about interpretation of personnel policies (such as equal employ- ment opportunity requirements) to Naftzinger, and relayed his replies to the plant manager. In addition, she prepared written employee turnover and equal employment oppor- tunity reports. She had no discharge power, which resided only in the plant manager, nor had she power to give wage increases, send people home, or discipline them. Mrs. Johnson was the only individual a prospective employee was required to talk to. She assisted an applicant in filling out his or her own application, if such assistance was necessary; administered manual dexterity tests; and asked-noting the answers on the application-about babysitting arrangements, references, and former employ- ers. During the investigation of this case, Holtz and Naftzinger told field investigator Jack Ruby that Mrs. Johnson "hired people, but that she hired people according to some kind of format given to her, some kind of regulation, some kind of requirements of an employee that were given to her. But that she did, took these employees and hired them." Management further told Ruby that Mrs. Johnson screened employees into a fixed, established pattern that she did not establish, but is established for her; that when the plant manager needed employees, he asked 466, 470 (C.A. 9, 1966). 97 See Terrell Machine, supra at 1481-82; United Electric Co., 199 NLRB No. 110; Massey-Ferguson, supra; Riggs Distler & Co. v. N.L.R.B., 327 F.2d 575, 579-580 (C.A. 4,1963); UnitedAircraft Co. v. N.L.R.B., 440 F.2d 85, 92 (C.A. 2, 1971); N.L.R.B. v. E.D.S. Service Corp., 466 F.2d 157, 158 (C.A. 9); U.S. v. Struck Construction Co., 96 Ct. C1. 186, 221. But see Stresskin Products, supra; Automated Business Systems, supra, 205 NLRB No. 35. JACKSON SPORTSWEAR CORP. her whether she had anybody who had met those qualifications ("I need X number of people that can do this or do that"); and that she then gave the plant manager, for his final approval, the people's names and their folders. When asked whether Mrs. Johnson could recommend hiring, Naftzinger testified: Recommend, in a very loose sense, yes. If, for example, we had ten applicants and two of them obviously weren't qualified, those two would not be recommended, as opposed to the other eight being recommended for, let's say, three openings. So that Mr. Parnelle, or the supervision, would have eight pieces of paper to look at, to determine what three or four of them they might want. So, in a very loose sense of the word, yes, she would recommend. Three employee witnesses called by counsel for the General Counsel48 testified that in advising the employees that Mrs. Johnson would distribute the ballots for the poll, Naftzinger described her as the "personnel manager." Naftzinger testified that he referred to her as the "person- nel clerk." In view of the absence of any testimony directly corroborating Naftzinger,49 and the witnesses' demeanor, I find that he described her as the "personnel manager." Employee Roxanna Bush testified on direct and on cross- examination that in March 1973, when she asked Plant Manager Parnelle about a job for a friend, Parnelle told Mrs. Bush that "Edith Johnson was in charge of all the hiring" and that she was the "personnel manager." Because Mrs. Bush impressed me as a wholly honest witness, and because her undisputed testimony is indirectly corroborat- ed by the uncontradicted evidence regarding Mrs. John- son's duties and the credited testimony regarding her title, I credit Mrs. Bush's testimony in this respect notwithstand- ing her failure to refer to this statement when describing this incident on redirect examination. (2) The alleged extension of the 1972 agreement It also seems convenient to treat at this point the disputed issue, whose alleged materiality is discussed infra, of whether Respondent was bound by the purported extension of the collective-bargaining agreement beyond its April 15, 1972, expiration date. As previously found, a few days before that date, Company Attorney Smith agreed, purportedly on Respondent's behalf, to extend the agreement indefinitely, subject to 10 days' termination notice by either party. Naftzinger testified that Porter told him Smith had no authority to make such an agreement on Respondent's behalf. Neither Porter nor Smith testified. Because Smith did represent Respondent during the 48 Virginia Smith, Reba LaBruyere, and Rosa Cofer. 49 Although Respondent still has in its employ a number of executives and supervisors who were present on this occasion (supra fn. 17), the only other witnesses called by it were Snead and several employees , none of whom was asked about the title Naftzinger attached to Mrs . Johnson on this occasion . I ascribe to faulty recollection the testimony on cross-examination of employee Audrey Parry, called by counsel for the General Counsel, that nobody from the Company had ever told her that Mrs. Johnson was the personnel manager (see supra, fn. 18). On cross-examination, employee Roxanna Bush (called by counsel for the General Counsel) replied "Right" 903 negotiations, because he tendered this agreement in lieu of scheduling additional meetings while the minimum-wage change was still uncertain, because until May 3 Respon- dent never suggested to the Union that Smith's action failed to bind Respondent50 even though Naftzinger on April 16 admittedly received a copy of Smith's letter confirming the April 11 oral extension agreement, and because Respondent admittedly continued to observe the terms of the bargaining agreement until at least May 3, 1973 (but no later than July 8, 1973), 1 conclude that as of April 26, 1973-the date of the poll-Respondent had ratified the extension agreement and was bound thereby, whether or not Smith had actual or apparent authority to bind Respondent thereto in the first instance. N.L.R.B. v. Coletti Color Prints, Inc., 387 F.2d 298 (C.A. 2, 1967); Roadway Express, Inc., 170 NLRB 1146, 1448. (3) The evidentiary value of Respondent's poll The 1947 amendments added, to the provisions in the original 1935 Act for union-requested Board elections, specific provisions for Board elections at the behest of employers and employees. Nevertheless, neither before nor after these additions has the Board held that an employer is obligated to continue honoring a certification with respect to his employees until the certification is rescinded by the Board itself. Rather, as previously noted, the Board permits the employer to withdraw recognition after the end of the certification year where he can prove that the union no longer enjoys majority support or that he reasonably has a good-faith doubt, based upon objective considera- tions, of such support. So far as I am aware, the Board has never set forth a complete and self-contained explication of its reasons for thus permitting an employer to resort to self- help. However, it appears that this Board policy is based partly on the view that the certification should not require the employer to recognize a union as its employees' representative where, but for the certification, such recognition would constitute an unfair labor practice violative of such employees' rights; partly on the seeming incongruity of requiring a Board election to unseat a recognized but uncertified union, whose agreement with the employer is for reasons of industrial stability afforded much the same effect as a certification; and partly on reluctance to impose an unfair labor practice finding on an employer because he made an honest and reasonable mistake as to the fact of the union's support, particularly in view of the limitations imposed, both by his lack of access to union records and meetings and by Section 8(a)(1), on his ability to find out the truth. While for these reasons the Respondent's withdrawal of recognition is not conclusively rendered improper by the fact that the Board has never rescinded the Union's certification, the weight (if any) to to the question, "Right, and that the employees would get a ballot from the personnel clerk, Edith Johnson"; but I do not believe she regarded counsel as purporting to quote Naftzinger's exact words . Employee Bessie Mae English testified that she "wasn't paying too much attention" during the prepoll speeches, and she corroborated neither the other employees' nor Naftzinger's version of the title he attached to Mrs. Johnson. 50 Even then, Respondent merely advised the Union that Respondent was not "admitting or conceding that Mr. Smith had appropriate authority" to extend the agreement. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be given to Respondent's private "election" in determining the legality of such withdrawal is related, at least to some extent, to whether the Board would have rescinded the certification on the basis of a Board election held under comparable circumstances. More specifically, in determin- ing whether the results of Respondent's "election" consti- tute reliable evidence of the employees' desires, the standards used by the Board in evaluating a Board election-which is intended to produce such evidence-are herein relevant, at the very least, to the extent that these standards are intended to assure the employees a free and informed choice.51 Respondent's "election" fell significant- ly short of such standards. Thus, Respondent conducted its "election" without giving the employees or the Union any advance notice whatever. Nonetheless, immediately prior to the "election," Respondent delivered a speech to its assembled employees asserting that a "large number of this plant's employees voluntarily have informed management that they no longer wish to be represented by this union," that Respondent's contract with the Union had expired about 10 days earlier, and that "nothing very much [had] been accomplished" during the negotiations for a new contract. Such state- ments cannot be equated (as Respondent's brief suggests) with "addressing the employees to explain the purpose of the poll." Rather, these allegations were calculated to induce employees to vote against the Union.52 According- ly, they would have invalidated any Board election conducted immediately thereafter, because "the combined circumstances of (1) the use of company time for preelection speeches and (2) the delivery of such speeches on the eve of the election tend to destroy freedom of choice and establish an atmosphere in which a free election cannot be held." Peerless Plywood Company, 107 NLRB 427, 429-430. I can perceive no reason why a private "election" would be less vulnerable to such a speech than a Board election would be. Moreover, Peerless Plywood found such a last-minute address objectionable on the ground that, "Such a speech, because of its timing, tends to create a mass psychology which overrides arguments made through other campaign media and gives an unfair advantage to the party, whether employer or union, who in this manner obtains the last 51 1 discuss infra the relevance vel non of Board election requirements primarily designed to achieve other purposes. 52 Thus, this speech led Snead, who had had no previous contact with Respondent, to characterize "No" votes as votes "for the Company." 53 See also, Michem, Inc., 170 NLRB 362: ... the potential for distraction , last minute electioneering or pressure, and unfair advantage from prolonged conversations between representatives of any party to the election and voters waiting to cast ballots is of sufficient concern to warrant a strict rule against such conduct, without inquiry into the nature of the conversations . The final minutes before an employee casts his vote should be his own, as free from interference as possible . Furthermore, the standard here applied insures that no party gains a last minute advantage over the other 54 National Labor Relations Board Field Manual, Sections 11302.1, 11314. The Board follows this practice because "an employee who has had an effective opportunity to hear the arguments concerning representation is in a better position to make a more fully informed and reasonable choice." Excelsior Underwear, Inc., 156 NLRB 1236, 1240; N.L.R.B. v. Wyman- Gordon Co., 394 U.S. 759, 767 (1969); N.L.R.B. v. Hanes Hosiery Division, 384 F.2d 188, 191 (C.A. 4, 1967) ("An informed electorate is essential if the result of an election is to be accorded its intended significance and most telling word ... noncoercive speeches made prior to the proscribed [24-hour] period will not interfere with a free election, inasmuch as our rule will allow time for their effect to be neutralized by the impact of other media of employee persuasion." 107 NLRB at 429-430.53 Here, however, Respondent's action in scheduling its "election" without notice-contrary to the invariable practice in Board elections-54 aggravated the election prejudice described in Peerless Plywood by wholly forestalling any anticipatory (let alone after-the-fact) union response to Respondent's "election" representations about whether the Union had been able to retain for the employees the protection of a current bargaining agreement and how likely the Union would be able to gain them the benefit of a new agreement in the foreseeable future, which state- ments were plainly material to the desirability of continued Union representation and were, at least arguably, inaccu- rate. Further, Respondent's conduct in delivering antiun- ion arguments in the same speech which announced the poll effectively prevented the employees from preparing themselves for an informed choice by asking the Union or the employee members of the negotiating committee about such matters,55 or about whether in truth many of their fellow employees had told Respondent that they were dissatisfied with the Union.56 For these reasons I regard as beside the point (and, therefore, do not reach) Respon- dent's contention that partly because the truth of such statements was allegedly merely a matter of opinion,57 they would not have invalidated a Board-conducted election-a contention which rests entirely on cases where the Union and the employees had had advance notice of the election and the timing of the statements did not disregard Peerless Plywood Respondent's abrupt scheduling of its "election" forestalled any investigation or discussion of the matter -including any such investigation or discussion which would likely be prompted by mere awareness of a pending election, whether or not Respondent had already raised these issues-and, therefore, "tend[ed] to interfere with that sober and thoughtful choice which a free election is designed to reflect" (Peerless Plywood, supra at 429). For, "It is obvious that where employees cast their ballots upon the basis of a material misrepresentation, such vote cannot reflect their uninhibited desires, and they have not accomplish its aim.") 85 I note that because the Union's last regular monthly meeting prior to the poll was held on April 3, the Union could not have used this meeting to advise employees either of the agreements reached during the second and last bargaining session held on April 4, or of the April I1 extension agreement. 56 Counsel for the General Counsel asserts in his brief that Naftzinger engaged in misrepresentation when stating that a "large number" of employees had made such statements to management . However, the record merely fails to contain any probative evidence that any such employee expressions were made, or that Naftzinger had any reason to believe (either from any conversations of his own with employees , or from reports received from other members of management) that his representations to the assembled employees were true (see supra, fn. 17). Cf. Gyrodyne, supra, 459 F.2d at 1335-46. 57 As found supra part III,F,c(2), Naftzinger was in fact wrong in his statement that the contract had expired . Indeed, some 10 days earlier he himself had received a copy of the extension agreement signed by Respondent's attorney, but (so far as the record shows) Naftzinger had never previously told anyone that he did not regard the agreement as binding. JACKSON SPORTSWEAR CORP. exercised the kind of choice envisaged by the Act." Hollywood Ceramics Co., Inc., 140 NLRB 220, 223.58 Respondent's failure to give any advance notice of the poll meant, in addition, that nine employees on the voting list who could not vote because they had left early, were absent, or were on maternity leave had no opportunity to make arrangements to participate therein (see infra, fn. 60).59 Moreover, the ballots in this case were handed out by Mrs. Johnson (whom Respondent had just described to the employees as its "personnel manager"); Respondent's management watched the employees receive or "refuse" their ballots, and line up to vote, in full view of the employees; Mrs. Johnson made and gave to Naftzinger (admittedly a management representative) a list of the employees who voted, who "refused" ballots, or who for other reasons failed to vote; and some of the employees voted under circumstances where (to their knowledge or not unwarranted belief) other employees could have seen how they voted. In these respects, Respondent's conduct of its "election" failed to meet standards required in Board elections to avoid the exertion of undue influence by any party and-by assuring each employee that his privacy was protected in any choice he may have made (including a decision to acquiesce in the decision of a majority of his fellows rather than himself to vote)-to limit the influence of fear of reprisal, social pressures, and bandwagon psychology.60 In view of the size of the workforce (about 120) and the absence of any claim that any other individual except the plant manager had any contact with applicants, I am inclined to think that Mrs. Johnson's admitted power to recommend against the hire of employees who "obvious- ly weren't qualified," and her duty to comply with the plant manager's requests for the names of applicants who could do particular tasks required for the jobs for which he was selecting employees, called for the exercise of independent judgment in such hiring recommendations and, therefore, rendered her a supervisor within the meaning of Section 2(11) of the Act. In any event, the "personnel manager" title which Respondent publicly attached to her, her visible participation in much or all of those portions of the hiring procedure known to the employees, and the reinforcement lent during the poll to her special status by admitted management's concomitant appearance outside the door, closely identified her with management in the eyes of the employees. Accordingly, I conclude that a Board election would have been set aside if she had merely acted as Respondent's observer.61 More- 58 Cf. N.L.R.B. v. H. P. Wasson and Co., 422 F.2d 558, 560 (C.A. 7), where the employees expressed their choice without any prior expression of views by management ; and Taft Broadcasting, 201 NLRB No. 113, where the employer's announcement of the poll merely "as a whole lack[ed] the neutral tone of the Board 's official notices of the election." Further, in Taft Broadcasting, the employer overstated the length of the 2-year period during which he had had no union agreement rather than , as here, making the more material misstatement that the employees were not currently protected by a bargaining agreement. 59 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where all eligible employees were asked to attend the "important meetings"-although not advised of their purpose-at which the poll was taken. 60 Brooks, supra, 348 U.S. at 99-100; Piggly-Wiggly #011, 168 NLRB 792; Imperial Reed & Rattan Furniture Co., 118 NLRB 911; Performance Measurements, Inc., 149 NLRB 1451, 1453; and cases cited infra, fn. 61. As previously noted, at least 7 employees cast ballots while others were in the 905 over, the undue influence that her mere presence as an observer would have exerted toward an antiunion vote in a Board election was aggravated in Respondent's private "election" by Respondent's failure to accord the Union the opportunity which it would have had in a Board election to select a rank-and-file employee as an observer of its own, and the fact that "personnel manager" Johnson was in sole charge of ascertaining eligibility and handing out the ballots 62 For the foregoing reasons, I conclude that whether standing alone or in conjunction with other circumstances relied on by Respondent, the result of Respondent's poll failed to constitute evidence sufficiently strong and reliable to overcome the presumption of majority created by the Union's certification (based on a Board election with safeguards significantly absent from Respondent's poll) and its active representation of unit employees in the administration of the 1972 contract and its extension and in the negotiations for a new agreement. Because all of the circumstances of the poll were known to Respondent, the same considerations call for the conclusion that the poll did not create objective circumstances on which Respon- dent could base a good-faith doubt of majority support 63 Moreover, for the reasons set forth infra part III,F,3, I find that Respondent's conduct of the poll violated Section 8(a)(1) of the Act, and that Respondent decided on and structured its poll with the intent to procure a union defeat. Accordingly, Respondent could not in any event use that defeat as a basis for urging good-faith doubt. N.L.R.B. v. Sky Wolf Sales, 470 F.2d 827, 830 (C.A. 9).64 This result gains support from Respondent's failure to observe, in conducting its poll, certain Board practices which are intended not so much to enable the employees to mark their ballots (or refrain from voting) freely and informedly, as to assure all affected persons that the announced result accurately reflects what these ballots showed.65 Where the tally shows a union victory, confi- dence in the tally's accuracy fosters a stable and productive bargaining relationship by instilling respect for the union in the employer; self-respect, confidence, and a sense of responsibility in the union; and conviction in the employ- ees that the union has both the right and the duty to make decisions affecting their conditions of employment. More- over, regardless of the results of the tally, all parties' confidence in its accuracy promotes industrial peace by assuring even those dissatisfied with the result that they received their fair chance. To accomplish these ends, the Board's procedures call for the union and the employer to room, and Respondent's list named all 14 nonvoters (5 being specifically named as having "refused" to vote, and 9 as absent during the unheralded poll) and all voters. The plurality shown by the tally was 16. 61 International Stamping Co., Inc., 97 NLRB 921, 922-923; Owens-Parks Lumber Co., 107 NLRB 131, 132; Herbert Men's Shop Corp., 100 NLRB 670, 671; Harry Manaster & Bro., 61 NLRB 1373, 1374. 62 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where the only nonvoters present during the polling were a member of an outside firm of certified public accountants and a Pinkerton guard. 63 Cf. Automated Business Systems, supra, 205 NLRB No. 35. 84 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, fn. 4, where no allegations were made that the safeguards required by the Board for holding private polls were violated. 65 To be sure, a philosopher might argue that an employee cannot be really free in marking his ballot unless he is persuaded that the ballot will be counted and not ignored. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inspect the ballot box, to make sure it is empty, and to watch it being sealed (except for the ballot slot); for nonsupervisory employee observers selected respectively by the employer and the union; for the sealing of the ballot slot immediately after the closing of the polls; for a neutral person (the Board agent) thereafter to retain custody of the ballot box at all times prior to the tally; for the presence of all parties during the unsealing of the ballot box and the counting of the ballots; and for immediate release of the results upon completion of the tally.66 Moreover, a Board agent who conducts an election usually tries to account for all of the ballots printed for the election. However, the procedure followed by Respondent here was likely to create serious question in the minds of the employees and the Union about whether the result eventually announced by Respondent was in fact the real one. Thus, Respondent did not give the result to the employees until the morning after the poll, whose result Respondent had learned early in the preceding afternoon. In view of Respondent's openly expressed desire for a vote against the Union, Respon- dent's delay would naturally tend to (and, at least to Union representative Dickinson, did) render the announcement suspect. Such suspicions would likely be aggravated by the fact that neither a union representative nor any of the employees had seen the ballots counted, their ignorance of who had counted them, their lack of opportunity to assure themselves that the "ballot box" was initially empty, the fact that the "ballot box" was never sealed, and the fact that after being counted the ballots were at all times (as the employees must have suspected) in the custody of Respondent-which had openly urged the employees to vote against the Union, had itself prepared the ballots, and might well have (indeed had in fact) ballots left over with which it could stuff the ballot box or substitute ballots.67 To be sure, Respondent gave Snead a copy of the tally which he had signed, but there is no reason to suppose that the employees knew this 88 Further, Mrs. Johnson's error in giving two ballots to one employee might suggest to the employees that the announced tally could be inaccurate through carelessness-as, indeed, the "Refused to Indi- cate" in fact was .69 Moreover, Respondent did not withdraw recognition from the Union until a week after the es National Labor Relations Board Field Manual, Secs . 11310, 11318.4, 11324, 11340.1, 11340.2, 11340.10. 67 Cf. Taft Broadcasting, supra, 201 NLRB No. 113, where the employees were invited to attend the opening and counting of the poll. 88 As previously found, Respondent did not specifically promise to make any payment for Snead's services until after he had signed the tally showing the result Respondent wanted . Nor is there any evidence that any of the employees had any basis other than Respondent's word for believing that Snead was in fact a minister . Accordingly, while I fully credit Snead's sworn testimony regarding the tally, someone who was dissatisfied with the results might perhaps have questioned his reliability as an in camera counter. 69 As previously found, Mrs. Johnson asked employees for their names only when she did not think she knew who they were. The Board's field manual (Section 11322 . 1) contains and underlines the following instruc- tions : "The voter should give (his name]; it should not be given by an observer, subject to assent by the voter." This requirement is intended to prevent employees from voting more than once , ineligible persons from voting, and eligible employees from being denied ballots . However, under the particular facts of this case, I do not think that the employees may have believed that such improprieties resulted from Mrs. Johnson's failure to follow this Board procedure, or that such improprieties did in fact result. 70 Cf. Brooks, supra, 348 U.S. at 99 ("Since an election is a solemn and costly occasion , conducted under safeguards to voluntary choice, revocation poll, although prior to the balloting Respondent an- nounced, in effect, that Respondent would stop recogniz- ing the Union if it lost. So far as the likely effect of such circumstances on employees is concerned, it is wholly immaterial that the record herein persuades me that the tally was not materially inaccurate. Respondent's employees did not have the benefit of the record evidence, which was adduced more than 4 months after the ballots were cast and counted. To permit Respondent to dishonor (in effect, to revoke) the Union's Board certification on the basis of an "election" whose announced results employees might question for lack of the safeguards observed in the Board's certification election tends to cheapen and degrade a Board certification itself and, therefore, to undermine its social utility; for it is natural for affected parties to equate the reliability of a Board certification election with the reliability of an at least superficially similar procedure if the Board has found it sufficient to reverse the election results.70 Moreover, employers and nonincumbent unions which are dissatisfied with particular Board certifications and feel disadvantaged by quality Board procedures can be expected to seek revocation of such certifications by using the lowest quality informal procedures the Board's unfair labor practice determinations will let them get away with.71 While such considerations have been held insufficient in themselves to require honoring a certification until revoked by the Board (supra, fn. 40), they are entitled to weight in determining whether under all the circumstances such a certification must be honored. (4) Whether Respondent was precluded as a matter of law from relying on the poll The conclusion that Respondent did not reasonably have a good-faith doubt, based on objective considerations, of the Union's continued majority support means that at the time Respondent conducted its own private poll, the Board would not have entertained a petition filed by Respondent seeking a Board-conducted election. United States Gypsum Co., 157 NLRB 652, 654-656. While counsel for the General Counsel does not so contend, I conclude that apart from the deficiencies in the poll itself, this circum- of authority should occur by a procedure no less solemn than that of the initial designation"); L. L. Majure Transport Co., 95 NLRB 311, 312, enfd. 198 F.2d 735 (C.A. 5) ("When employees have expressed their considered opinions by a method [a secret election) which leaves no room for doubt as to their true desires, repudiation of their selection can be established only through the medium of an equally probative technique "); Consolidated Textile Co., Inc., 106 NLRB 580, 586 ("Until the validity of the presumed majority status established by the certification is rescinded or superseded by the same authority which first established it, the Board's certification remains valid, otherwise the challenger is being permitted to usurp the Board's function"); N.LR.B. v. Botany Worsted Mills, 133 F.2d 876, 881-882 (C.A. 3), cert. denied 319 U.S. 751 ; United States Gypsum Co., 90 NLRB 964, 966; Regency Electronics, Inc. v. N.LRB., 84 LRRM 2891, 2893-2894 (C.A. 7). Employee Reba LaBruyere, an intelligent witness, thought that Respondent's poll was carried on under the same auspices as the prior Board election ; and several other intelligent employee witnesses confused the ballots used in Respondent's poll with the ballots used in the prior Board elections. 11 Cf. NLRB. v. Trancoa Chemical Corp., 303 F.2d 456, 462 (C.A. 1) ("... some persons will make misstatements when they are allowed to. If the Board tolerates low standards, that is where they will stop"); 13 Encyclopedia Americana, "Gresham's Law," p. 462 ( 1969). JACKSON SPORTSWEAR CORP. 907 stance precludes Respondent from relying on the results of the poll as a defense to its refusal to bargain .72 The fact that Board policy would have precluded Respondent from obtaining a Board election at this time renders this case analogous to a case where the employer party to a contract (or a settlement or recognition agreement) which would bar a representation petition filed by him has withdrawn recognition from the union. The employer could not defend his action on the ground that a poll conducted by him showed that the union had lost its majority; "[o]ther- wise we should have the anomalous result of an employer being permitted unilaterally to redetermine his employees' bargaining representative at a time when the Board would refuse to make such redetermination because the time is inappropriate for such action." Hexton Furniture Co., 111 NLRB 342, 343-344.73 Moreover, as is cogently shown by the facts of the instant case , to withhold a Board- conducted election while at the same time permitting the employer to withdraw recognition on the strength of his own "election" would deprive the employees of the safeguards and assurances supplied by Board election procedures. While it is true that such a private "election," unlike a Board-conducted election, does not limit the Union's statutory right to obtain a new certification, the Union's rejection in the private "election" and an interven- ing period of nonrecognition coupled with a wage increase would likely encourage the employees to vote against the Union in a subsequent Board election.74 In any event, the employees would at the very least have suffered the irrevocable injury of a period during which they were deprived of the benefits of collective representation. 3. Whether the poll violated Section 8(a)(1) of the Act As discussed in detail supra, Respondent scheduled its poll without affording the employees or the Union any advance notice whatever ; immediately before the election, gave the employees an antiunion speech which at least arguably included misrepresentations about whether the employees were currently protected by a contract and 72 By letter dated October 9, 1973, after the close of the initial hearing, I requested the parties to treat in their briefs the following questions, inter alia: A. Whether, at the time Respondent conducted the poll herein, the Board would have entertained a representation petition filed by Respondent. See United States Gypsum Co., 157 NLRB 652. B. Assuming that the Board would not have entertained such a petition, the relevance (if any) of that circumstance to the instant case. While urging that question "A" should be answered in the affirmative, Respondent's able brief does not appear to treat question "B" at all. The brief filed by counsel for the General Counsel merely urges that Respondent's failure to file such a petition evinces awareness that it could not show reasonable grounds therefor, and that such awareness motivated the poll-contentions discussed infra part III, F,c,3. 73 See also, Sanson Hosiery Mills, 92 NLRB 1102, 1103, enfd. 195 F.2d 350 (C.A. 5), cert . denied 344 U.S. 863; Marcus Trucking Co., Inc., 126 NLRB 1080, 1081, enfd . in pertinent part, 286 F .2d 583, 592-593 (C.A. 2); Shamrock Dairy, Inc., 119 NLRB 998, 1002, 124 NLRB 494, enfd. and affd., 280 F.2d 665 (C.A.D.C., 1960), cert . denied 364 U.S. 892 1960 ; Duralite Co., Inc., 132 NLRB 425, 427, 440; Montgomery Ward & Co., 162 NLRB 294, enfd. 399 F.2d 409 (C.A. 7, 1965); Poole Foundry and Machine Co., 95 NLRB 34, enfd . 192 F.2d 740 (C.A . 4), cert. denied 342 U.S . 954; W. B. Johnston Grain Co., 154 NLRB 1115, enfd. 365 F .2d 582 (C.A. 10, 1966). While U.S. Gypsum would not appear to affect petitions by employees or rival unions, no election request proceeded from any such source here; and, about the progress of pending negotiations ; arranged for ballots to be distributed by a woman whom it described as its personnel manager, in full view of admitted members of management ; and to the employees' knowledge prepared a list of the names of employees who "refused" ballots and who, therefore, might be held individually to blame if the voters failed to produce the result which Respondent wanted. Respondent's conduct thereby tended to deprive the employees of the opportunity of exercising a sober, thoughtful, and informed choice ; to give Respondent's antiunion arguments an unfair advantage through Respon- dent's use of mass psychology unneutralized by the passage of time for reflection and through management's adminis- tration of and visible presence during the poll; to put the employees in fear should they decline to participate in the poll; to establish an atmosphere in which a free election could not be held; and thus to destroy the employees' freedom of choice. Furthermore, Respondent conducted its private "election" in the absence of a good-faith doubt of majority and of objective considerations sufficient to warrant a reasonable and good-faith doubt and, therefore, at a time when, for reasons of industrial stability, the Board would have dismissed an election petition filed by Respondent. Moreover, the Union's failure to prevail in Respondent's private "election" (conducted in such a manner as to be confused with the Board's certification election in the minds of the employees), and Respondent's withdrawal of recognition on that ground, hindered any subsequent effort by the Union to prevail in a Board- conducted election. Accordingly, Respondent's conduct in connection with the poll, taken as a whole, tended to deter employees from resort to the Board's processes ; to limit the effectiveness of such Board processes if invoked; and to create and perpetuate a labor relations situation controlled, as a practical matter, by a private "election" which, if conducted as a part of the Board's processes, would have been rejected as constituting, inter alia, insufficiently reliable evidence of the employees' choice and unnecessari- ly disruptive of industrial stability. In short, Respondent has thereby limited its employees' right to the protection of Board standards in effectuating their freedom of choice in any event, neither is the contract-bar doctrine uniformly applicable to a representation petition regardless of source . Absorbent Cotton Co., 137 NLRB 908; Zia Co., 108 NLRB 1134, 1135 , In. 1. Indeed, in Duralite, supra, the Board applied Hexton, supra, and Marcus, supra where the contract would not have barred a rival petition and the contracting union was uncertified (132 NLRB at 427, 438). In support of that conclusion, the Board quoted the following language from Brooks, supra, 348 U.S. at 103: If an employer has doubts about his duty to continue bargaining, it is his responsibility to petition the Board for relief , while continuing to bargain in good faith at least until the Board has given some indication that his claim has merit . . . . Although the Board may, if the facts warrant, revoke the certification or agree not to pursue a charge of unfair labor practice, these are matters for the Board ; they do not justify employer self-help or judicial intervention. 74 Franks Brothers Co. v. N.L.R.B., 321 U.S. 702, 704; N. L.R.B. v. Savair Mfg. Co., 94 S. Ct. 495, 499 (a cardsigner's "outward manifestation of support must often serve as a useful campaign tool in the Union's hands to convince other employees to vote for the Union, if only because many employees respect their co-workers' views on the Union issue"); N.L.R.B. v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261 , 267; International Ladies' Garment Workers' Union v. N.L.R.B. [Bernhard-Altmann], 366 U.S. 731, 736 (1961). The results of Respondent's poll would likely be particularly impressive to the employees here, in view of the evidence that they confused the poll with the Board elections which had preceded the Union's certification. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and jeopardized the industrial stability which the statute seeks to promote. I conclude that Respondent thereby interfered with, restrained, and coerced its employees in the exercise of their Section 7 rights, in violation of Section 8(a)(1) of the Act.75 I reach this result wholly apart from Respondent's motivation for this conduct. Proof of antiunion motivation in conduct which interferes with protected employee rights is necessary only if the employer has come forward with evidence of legitimate and substantial business justifica- tions for such conduct; 76 and I can perceive no such justifications (nor has Respondent suggested any) for bypassing Board election processes and seeking to substi- tute therefor the results of an "election" which significantly failed to meet Board election standards. In any event, I infer that Respondent conducted its poll with a purpose of procuring the Union's defeat. Respondent decided to conduct the poll even though it did not entertain a good- faith doubt of the incumbent certified Union's majority. Moreover, by using its own private "election" instead of resorting to Board processes, Respondent avoided the precondition that it establish good - faith doubt and sufficient objective bases therefor, and also avoided significant Board-imposed safeguards to freedom of choice. Further, the deficiencies in Respondent's poll tended, almost without exception, to improve the prospects of the Union loss which Respondent wished to bring about; while not a single deficiency tended to improve the Union's chances. Particularly because the poll was admit- tedly decided on by, inter alia, Respondent's counsel and its industrial relations manager, I cannot believe that either Respondent's decision to use its own "election" procedures or their built-in bias was merely accidental. Further, I agree with counsel for the General Counsel that Struksnes Construction Co., 165 NLRB 1062, calls for a finding that Respondent's conduct of the poll violated Section 8(a)(1) of the Act. Struksnes stated that "any attempt by an employer to ascertain employee views and sympathies regarding unionism generally tends to cause fear of reprisal in the mind of the employee if he replies in favor of unionism and, therefore, tends to impinge on his Section 7 rights." The Board went on to say: other and because it made and maintained a record of the names of employees who "refused" ballots and of employees who failed to vote for other reasons; and, for the reasons previously stated, failed to meet the underlined portions of criterion (5) as well. Further, I conclude that Respondent failed fully to meet criterion (1) in that it had no good-faith doubt (nor was it presented with objective considerations which reasonably warranted such a doubt) of the Union's majority and conducted the poll in an effort to procure a Union loss. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act on April 26, 1973, by conducting a poll among its employees about whether they wanted the Union to continue to represent them. 4. At all relevant times, the Union has been and is the duly certified exclusive bargaining representative within the meaning of Section 9(a) and (c)(1) of the Act, in the following appropriate unit: All production and maintenance employees at the Respondent's North Augusta, South Carolina, plant, excluding all office employees, professional employees, guards and supervisors as defined in the Act. 5. Respondent violated Section 8(a)(5) and (1) of the Act by failing and refusing, on and after May 7, 1973, to recognize and bargain with the Union as the exclusive bargaining representative of the employees in the aforesaid unit. 6. Such unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 7. Respondent did not, in violation of Section 8(a)(5) and (1) of the Act, fail to bargain with the Union in good faith between February 6, 1973, and May 3, 1973. Absent unusual circumstances, the polling of em- ployees by an employer will be violative of Section 8(a)(1) of the Act unless the following safeguards are observed: (1) the purpose of the poll is to determine the truth of a union's claim of majority, (2) this purpose is communicated to the employees, (3) assurances against reprisal are given, (4) the employees are polled by secret ballot, and (5) the employer has not engaged in unfair labor practices or otherwise created a coercive atmos- phere. [Emphasis supplied.] Respondent here failed to meet criterion (4) because it failed to protect some voters' privacy as between each 75 Cf. Jif-E-Mart, 205 NLRB No. 116. 76 N.L. R.B. v. Fleetwood Trailer Co., Inc., 389 U.S. 375 (1967); N.L.R.B. v. Jemco, Inc., 465 F.2d 1148, 1150-52 (C.A. 6), cert. denied 409 U.S. 1109; THE REMEDY Having found that Respondent has violated the Act in certain respects, I shall recommend that Respondent cease and desist from such conduct, and like or related conduct. By way of affirmative relief, which I find is also appropriate here, I shall recommend that Respondent bargain with the Union, on request, and post appropriate notices. Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I recommend the following Order: Cavalier Division of Seeburg Corp., 192 NLRB 290, 290, enfd. 476 F.2d 868, 876-878 (C.A.D.C.). JACKSON SPORTSWEAR CORP. 909 ORDER77 Respondent Jackson Sportswear Corporation, its offi- cers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Polling or otherwise interrogating its employees about their union views in a manner constituting interference, restraint, and coercion. (b) Refusing to recognize or bargain collectively with United Wholesale and Production Workers Union, Local 586, affiliated with the Retail , Wholesale and Department Store Union, AFL-CIO, as the exclusive bargaining representative of all production and maintenance employ- ees at the Respondent's North Augusta, South Carolina, plant, excluding all office employees, professional employ- ees, guards, and supervisors as defined in the National Labor Relations Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with 77 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all pruposes. the above-named Union as the exclusive bargaining representative of the employees in the above-described unit, and embody in a signed agreement any understanding reached. (b) Post at its North Augusta, South Carolina, plant copies of the attached notice marked "Appendix." 78 Copies of said notice, on forms provided by the Regional Director for Region 11, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that the notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT Is ALSO ORDERED that the complaint herein be dismissed insofar as it alleges that Respondent violated Section 8(a)(5) of the Act prior to May 3, 1973. 78 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."