Tennessee Shell Co., Inc.

TENNESSEE SHELL CO., INC. 193 Tennessee Shell Company, Inc. and UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America , AFL-CIO. Case 26-CA-4671 June 28, 1974 DECISION AND ORDER On December 18, 1973, Administrative Law Judge Paul E. Weil issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and General Counsel filed cross- exceptions, a supporting brief, and a response to Respondent's exceptions. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' con- clusions,' and recommendations only to the extent consistent herewith. We agree with the Administrative Law Judge that Respondent has violated Section 8(a)(1) of the Act by coercively interrogating its employees regarding their union activities, by soliciting its employees to with- draw their union authorization cards, and by asking employees to use their influence to get other employ- ees to withdraw their union authorizations? We also agree with the General Counsel in his cross-excep- tions, and, as apparently intended by the Administra- tive Law Judge, that a finding of an implied threat to discharge employee Bobby Anderson because of his ' 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, Inc, 91 NLRB 544, enfd. 188 F 2d 362 (C.A. 3, 1951 ).' We have carefully examined the record and find no basis for reversing his credibility findings . Certain errors we perceive in his findings of fact not based on credibility will be discussed hereafter. We agree with the General Counsel that certain inadvertent errors pointed out in his cross-exceptions should be corrected . Thus in sec. 111, A, of the Decision, the two union agents who called on Latendresse on February 28 should be "Riddle and Rayburn." In sec III, E, of the Decision, the seventh sentence of the second paragraph should read "At this point she [instead of "he"] suggested that he call her daughter Odena Huff who might be able to enlighten him." The statement , "Well with all the union cards that have been signed the Union can walk in and take over," should be attributed to James Peach, not Odena Huff. Later on in this section, in the Administrative Law Judge's discussion of the Sullivan Electric rule, the General Counsel conceded that the Administrative Law Judge erred in stating that Judy French told Peabh she had signed a union card There is in fact no evidence in the record that she told that to him or to any other management representative. 2 Our ultimate conclusion regarding the inappropriateness of the issuance of a bargaining order m -this proceeding makes it unnecessary for us to pass on the Administrative Law Judge's resolution of the composition of the bargaining unit, Respondent's "expanding unit" defense, the question of the nature of the February 28 strike, or Respondent's proposal that a representa- tion election be held before consideration be given to granting a bargaining order based on a majority established by authorization cards 3 As discussed infra, the number of employees found by the Administrative Law Judge to have been interrogated is somewhat exaggerated union activity, an additional violation of Section 8(a)(1), is warranted, and that the appropriate remedy be provided therefor. However, we find to be overly broad and subject to misinterpretation the Adminis- trative Law Judge's finding that Respondent told "several" employees that "Anderson would fire him- self by being drunk," or made similar statements con- stituting an implied threat. Employee Judy French testified that Respondent's president, John Latendresse, told her that no one would be fired for signing a union card and that "Bob- by Anderson wasn't even going to be fired, because he would go out some weekend and get drunk and when he reported to work on Monday morning he would fire himself." Anderson was the leading employee sol- icitor of union authorization cards, and it seems clear from the context of this conversation that Latendresse made the statement about Anderson for that reason. Thus, despite the assurance that no one would be fired merely for signing a card, the message was foreseeably conveyed that a leading union adherent would be gotten rid of whenever an opportunity for doing so arose. Employee Debbie Davidson testified that, after she was asked in Latendresse's presence whether she had signed an authorization card and she answered that she had, Latendresse told her that the Company could not afford a union and, among other things, that Bobby Anderson comes in drunk sometimes, and that he would on occasion fail to call in on days he was absent. Latendresse also said that Anderson "was going to keep on until he would get himself fired because he was walking out all the time, and he had quit several times before." While this statement is not exactly a flagrant demonstration of company willing- ness to trammel employee organizational rights, it does, like the statement to French, suggest that, be- cause of Anderson's leadership position in the organi- zational efforts, special attention would likely be paid to his defects as an employee. On the other hand, statements made to other employees that Anderson was low down, no good, and a drunk do not rise to the level of threats of discriminatory discharge, even by implication. We find, then, that the implied threat to discharge Anderson, in violation of Section 8(a)(1), was made to French and Davidson 4 We do not adopt the finding/conclusion of the Ad- ministrative Law Judge that by its antiunion cam- paign Respondent committed unfair labor practices which made the holding of a fair election unlikely. On ° While employee Jimmy Hilliard also testified regarding a statement by a management official that Anderson and those who followed him would end up firing themselves, neither the Administrative Law Judge nor the General Counsel refers to that testimony While the record is not too clear on this, it appears that Hilliard may have included the above in certain testimony he retracted In any event we conclude that the Administrative Law Judge did not credit it 212 NLRB No. 24 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the contrary, we find a conspicuous absence of a pat- tern of unfair labor practices of such gravity and per- vasiveness as to make the Union's apparent card majority a more reliable test of the employees' desire than an election after the application of conventional Board remedies. The Administrative Law Judge found that Respondent's president and vice president, Laten- dresse and Peach, "admittedly" interrogated as least 12 or 13 employees. Respondent admitted only that it interviewed a number of employees. It did not admit to interrogating any employees about their union ac- tivity, but the Administrative Law Judge credited the testimony of several employees that they were interro- gated. Of the 10 employees who testified regarding these interviews, 6 stated that they were asked wheth- er they had signed an authorization card,' I was asked what he thought about a union, and I was asked "what we want out there" in the context of a discus- sion of the union organizing campaign .6 The remain- ing 2, Hilliard and Judy French, stated nothing about being interrogated, and the Administrative Law Judge made no findings in this respect in setting forth their credited testimony, but apparently included them in his total of 12 or 13. Among the eight employ- ees who were interrogated during these interviews, employees Horton and Huff were also interrogated in separate additional encounters with management rep- resentatives. Still, we reach a total of only eight em- ployees interrogated concerning the Union.' Several of the employees who were interrogated at the Latendresse-Peach interviews, plus employees Ar- nold and Hilliard, were asked by representatives of the Company to withdraw their union authorizations, and Latendresse called all the employees together and told them that any of them who had signed authoriza- tions and wished to return them could do so. In fur- therance of the same objective, Foreman Terry Carter asked two employees to use their influence to get other employees to withdraw their cards and told a third that she should have used her influence to stop other employees from joining or signing cards. All three refused. These interrogations and solicitations, together with the implied threat to discharge Anderson, com- prise the aggregate of the unfair labor practices found by the Administrative Law Judge and adopted as modified herein. With one exception, none of the ih- terrogations were accompanied by threats. The excep- 5 Huff, Cherry, Miller, Garza, Rowland, and Davidson 6 Horton and Heyne I Other employees , as discussed next, were asked if they would withdraw their union authorization cards While these could also be considered interro- gations, like the Administrative Law Judge we treat these as a separate category of unfair practices tion is the muted threat against Anderson made dur- ing the interview with employee Debbie Davidson. Judy French, the other employee subjected to the im- plied threat against Anderson, was not interrogated and was specifically assured that no one would be fired for signing a union card.' Neither were the solici- tations to withdraw their cards, nor the requests to influence other employees, accompanied by threats to the employees involved. The latter requests, made only by a low-level super- visor, were manifestly ineffective, as the employees who were asked refused outright. Apparently the so- licitations of withdrawal bore no richer fruit. And While such matters do not affect our finding that Respondent's actions were coercive within the mean- ing of Section 8(a)(1), they are worthy of some consid- eration in exercising the delicate judgment necessary to determine whether the issuance of a bargaining order is necessary to detoxify the atmosphere.' The kinds of unfair labor practices involved here are not ordinarily found sufficient by the Board to warrant a bargaining order, even where relatively numerous in a small unit.10 The particular unfair labor practices committed in the instant case do not lead us to a different result. As we said recently in Green Briar Nursing Home, Inc.:" This conduct, while amply and overtly disclosing the Respondent's hostility to collective bargain- ing, was not of a type which would have such severe or lingering impact as to preclude the ac- curate ascertaining of employee desires through our usual election procedures. The Administrative Law Judge concluded that a bargaining order should be issued for the additional reason that Respondent had violated Section 8(a)(5) of the Act, under the rules set forth in Sullivan Electric Company.12 by refusing to bargain with the Union after ascertaining its majority status by interrogating its employees. We find the Sullivan Electric rule inap- plicable.13 8 Other employees testified similarly regarding assurances against repri- sals Although the Administrative Law Judge credited the testimony of some of these employees in general, he did not mention their testimony in this rejard Cf Central Diagnostic Laboratory, 206 NLRB No 114, at ALJD sec. III, C 2. b Consideration of objective circumstances surrounding the commis- sion of the unfair labor practices involved does not mean that the Board sanctions an inquiry into the subjective reactions of individual employees 10 See, e g , Central Diagnostic Laboratory, supra, Hennessy Service Corpora- tion. 204 NLRB No 52, Motown Record Corporation, 197 NLRB 1255, Blade- Tribune Publishing Company, 180 NLRB 432 11 201 NLRB 503 12 199 NLRB 809 13 Member Kennedy dissented in Sullivan Electric and for the reasons stated in that dissent, as well as the reasons stated by his colleagues, finds TENNESSEE SHELL CO., INC. 195 Sullivan Electric held that an employer who rejects a demand for recognition and an offer by the union to prove its majority status by authenticating the sig- natures on authorization cards, and then learns by interrogating his employees that a majority of them unequivocally supports representation by the union, is no longer free to insist on a Board-conducted elec- tion. The legal significance of the interrogations or poll lies in the fact that the Board had previously held in Linden Lumber 14 that an employer who did no more than reject a demand for recognition and a card showing, regardless of the adequacy of the showing, has a clear right to demand that the majority be estab- lished in a secret-ballot election before he will be re- quired to bargain. When instead of waiting for the Board to conduct an election to verify or disprove the asserted majority, the employer undertakes his own substitute for a Board-conducted election and thereby confirms the union's majority status, Sullivan Electric teaches that he cannot thereafter disclaim the results he himself has obtained. Since it is the employer's conducting of his own poll in response to an assertion of majority status that binds him to the unwanted result, this doctrine will usually be applicable to cases where the polling or interrogation takes place after the demand for recog- nition is made.15 We need not decide under what cir- cumstances, if any, predemand interrogations might be conducted which are so systematic or so manifestly conducted in anticipation of an imminent demand that the same'result should follow. In the instant case, most of the interrogations took place about a week before any union representatives contacted Respondent, and the entire pattern of inter- rogation was less than systematic. Accepting for pur- poses of this discussion the Administrative Law Judge's finding that there were 21 employees in the unit at the time the assertion of majority status and demand for recognition were made, we have already found that a total of 8 employees were interrogated. Of these eight, one, Heyne, was asked only "what we want out there." Latendresse testified that she volun- teered to him that she had signed a card.16 Another, Horton, was asked what he thought about a union, and he answered that he was a union member. Earlier, however, Horton had told Peach, who was present at the interview with Latendresse, that he belonged to a union from his previous job. Thus, there is some ambiguity in the information Horton conveyed to Re- that Respondent did not violate Sec. 8(a)(5) of the Act. 14 Linden Lumber Division, Summer & Co , 190 NLRB 718. 15 See, e g., Soil Mechanics Corporation, 200 NLRB No. 60; Nation- Wide Plastics Co, Inc., 197 NLRB 996 16 The Administrative Law Judge credited this as an admission. Heyne testified that she did not tell him she had signed a card. spondent, and no further questions were asked to es- tablish his desires conclusively. The Administrative Law Judge concluded that the Sullivan Electric doctrine is applicable because after completing its interrogations Respondent knew that at least 14 employees had signed cards. The number 14 includes Judy French, who we have found did not tell any representative of management that she signed a card.17 It also includes employees Anderson and Vinson, whose union sympathies became known to Respondent, not in the course of the interrogations, but apparently because it was no secret that they were soliciting authorizations from the other employees. Employees Vera French, Heyne, Hilliard, and Arnold volunteered to Respondent, without being asked, that they had signed cards. Regarding Vera French, the only testimony was that of Latendresse, who said that he called her into his office and she told him that she had signed something, "she didn't know what it was." Latendresse concluded, however, that it was an au- thorization card. He also testified that she was men- tally handicapped. On the basis of the record evidence, there is room for doubt that Vera French conveyed to Respondent a firm commitment in favor of the Union. In summary, Respondent learned that six employ- ees signed cards by asking them, and was told by four more, including Vera French, that they had signed.18 Horton said he was a union member, but under cir- cumstances making his statement somewhat ambigu- ous. If we include those employees who volunteered the information, Respondent learned in the course of its interrogations that possibly 11 out of the 21 unit employees appeared to support the Union, but had reason to believe that there was some question as to the allegiance of 1 or 2 out of that slender majority. Had Respondent gone on to question enough addi- tional employees to establish by that means an unmis- takable majority preference for the Union, we would then have to consider whether the logic and policy of the Sullivan Electric doctrine would create a duty to bargain once the demand for recognition was made, even though no demand had been made at the time of the interrogations.19 17 General Counsel argues that we should find company knowledge of French's adherence to the Union on the basis of Foreman Carter's testimony that she, unsolicited, said to him, "Terry, don't be mad over us trying to get a union in here." The record does not show when this conversation took place, and it is hardly part of a systematic effort to poll employee sentiment. is The other three, Heyne, Arnold, and Hilliard, were also asked to with- draw their cards. 19 We do not "suggest," as our dissenting colleagues state, that Sullivan Electric is inapplicable where the interrogations precede the demand for recognition On the contrary, we leave to a more appropriate case the deter- mination as to what circumstances, if any, might justify applying Sullivan Electric to such a situation We point out, however, that in examinmg that question we should not be concerned with whether,the interrogations them- selves are lawful or unlawful, and our inquiry into their purpose or motive Continued 196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent independently knew of Anderson's, Vinson's, and probably Judy French's union sympa- thies. But the fact that Respondent "knew" the Union enjoyed majority status through information obtained in the course of interrogations , when added to infor- mation not obtained by interrogation , is not sufficient in itself to take the case out of the Linden Lumber rule.20 For the foregoing reasons we conclude that Respondent did not violate Section 8 (a)(5) when it refused the Union's demand for recognition , and that the issuance of a bargaining order is not warranted. The principal difference separating us from our dis- senting colleagues is that they read Linden Lumber more narrowly, and Sullivan Electric more broadly, than we do. In deciding Linden Lumber, we consid- ered the fact that difficulties had been encountered in attempting to apply a "good-faith doubt" rule for de- termining when a duty to bargain arises. But we were also aware that new difficulties might arise in attempt- ing to apply new rules. We think the majority there decided that the least unsatisfactory solution was, in part, to eliminate the inquiry into employer knowl- edge of majority status. Then , in Sullivan Electric, the Board, Member Kennedy dissenting, recognized what we regard as an exception to the Linden Lumber prop- osition , based on the previously established principle that under certain circumstances an employer may waive his right to insist on a Board election by con- ducting his own substitute for one. But having eschewed, in Linden Lumber, inquiries into employer knowledge as a fact relevant in itself, we thing the Sullivan Electric exception might well swallow up the rule if we found , as our dissenting colleagues would prefer , a waiver of the right to an election whenever an employer's knowledge of major- ity status derived in part from his own inquiries. We thought that approach had been rejected in R & M Electric Supply Co., supra, fn. 20, and we reject it now.21 Finally, contrary to the dissenting opinion , our de- cision does not mean that an election would be re- quired wherever the employer's conduct falls short of requiring a Gissel22 bargaining order.23 should be limited to determining whether they constitute an employer-select- ed substitute for a Board election , which is the proper inquiry under Sullivan Electric 20 R & M'Electnc Supply Co, 200 NLRB No 59 21 We do not understand how our dissenting colleagues can state , in their effort to distinguish R & M Electric Supply Co, from this case, that in that case there was no evidence that the employer " had knowledge, independent of the cards, that the union had the support of a majority of the employees - When the employer there refused recognition , all employees who had signed cards went out on a strike called by the union Moreover, in that case the employer's representatives examined each authorization card and acknowl- edged the authenticity of each employee's signature thereon Nevertheless, no violation of Sec 8(a)(5) was found 22 N L R B v Gissel Packing Co, Inc, 395 U S 575 (1969) 23 See , e g , Tony's Sanitation Service, inc , Si James Sanitation Corporation, ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge as modified below and hereby orders that Respondent, Tennessee Shell Company, Inc., Camden, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order as herein modi- fied: 1. Substitute for the present paragraph 1(a) the fol- lowing: "(a) Threatening to discharge any employee for engaging in activities in behalf of a union." 2. Delete paragraphs 2(a) and (b) and reletter pre- sent paragraph 2(c) and (d) accordingly. 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBERS FANNING and JENKINS, dissenting in part: For the reasons discussed below, we would affirm the Administrative Law Judge's finding that the Respondent's refusal to recognize and bargain with the Union violated Section 8(a)(5) of the Act and that, in the circumstances presented, a bargaining order should issue under the Sullivan Electric 24 rule. According to the credited testimony, on February 21, 1973, Respondent's president, Latendresse, learned that the Union was attempting to organize the plant. The next day Latendresse together with James L. Peach, Respondent's vice president and manager, systematically interviewed approximately I I employ- ees. In the course of these interviews, six employees were specifically interrogated as to whether they had signed union authorization cards. They all responded positively. Additionally, Mrs. Eddie Heyne was ques- tioned about what she wanted and when the union men were coming to town. Jerry Horton was asked what he thought about the Union and he responded that he was a union member and would go along with the majority. During the course of these interviews, Jimmy Hilliard and Vera French volunteered to La- tendresse that they had signed cards. The remaining employee interviewed at that time, Judy French, testi- fied that Latendresse did not ask her if she signed a union card and she did not recall whether she volun- teered such information to him. However, Judy French credibly testified that she informed Foreman Terry Carter that she was a union supporter. Around the time that the interviews occurred, Peach told Je- well Arnold that the Respondent planned on calling her in and talking to her, at which point Arnold told Peach that she had signed a union card. In addition 203 NLRB No 117 24 Sullivan Electric Company, 199 NLRB 809 TENNESSEE SHELL CO., INC to the above, Respondent had independent knowl- edge that employees Bobby Anderson and Mary Vin- son were union supporters. On February 28, 1973, the Union demanded recognition and Latendresse re- fused to look at any authorization cards and declined to grant recognition. Later that day the employees walked out and commenced picketing the plant. Dur- ing the period between February 22 and February 28, Respondent committed several additional unfair la- bor practices including .a threat to discharge the main union adherent, attempts to persuade employees to withdra,v their union authorizations, and a statement to an employee that she should have used her influ- ence to stop other employees from joining or signing cards. Thus, on February 28, when the Union demanded recognition, Respondent had knowledge, obtained largely through its unlawful interrogations, that the Union had the support of at least 14 employees out of a total unit of 21. Respondent's unlawful interroga- tion disclosed eight union supporters, the support of four others was disclosed as a result of Respondent's attempts to ascertain union support, and Respondent independently knew of the union sympathies of two employees. Thus, Respondent's own efforts to ascer- tain the extent of union support led to its knowledge that 12 out of 21 employees in the unit supported the Union. In Sullivan Electric, we held that a bargaining obli- gation arose where, after a proper demand was made, the respondent assured itself through interrogation of its employees that a substantial majority of them had designated the union as their representative. The ma- jority in the present case finds Sullivan Electric inap- plicable on the theory that (1) the unlawful interrogations must be the sole source of Respondent's knowledge of union support; and (2) the interrogations must follow the demand for recog- nition. We disagree. The Board majority stated in Linden Lumber 25 that an employer is not required by the Act to recognize and bargain with a union solely upon the strength of the union's assertion that it represents a majority of the employees involved, notwithstanding that the union predicates its assertion upon an adequate show- ing of signed authorization cards. Thus, an employer faced with a demand for recognition may insist on a Board-conducted election as a means for resolving the question concerning representation. However, it is well settled that where, as here, an employer under- takes a determination which he could have insisted be made by the Board, he may not thereafter repudiate 25 Linden Lumber Division, Summer & Co, 190 NLRB 718. Member Fan- ning dissenting 197 the route that he himself had selected.26 In the instant case, it is evident that when Respond- ent learned of the Union's organizational campaign, it undertook a systematic program of interrogations and interviews to determine whether or not the Union enjoyed the support of the majority of employees and attempted to undermine the majority support that was ascertained. In the circumstances herein, it is clear that Respondent's unlawful interrogations disclosed majority support for the Union, albeit the interroga- tions alone did not disclose all of the majority sup- port. In this regard, our colleagues state that, had Respondent gone on to question enough additional employees to establish by that means an unmistakable majority preference for the Union, we would then have to consider whether the logic and policy of the Sullivan Electric doctrine would create a duty to bar- gain because the interrogation preceded the demand for recognition. This position would condition the ap- plication of Sullivan Electric on the number of em- ployees an employer interrogates regarding their union sympathies regardless of the other circum- stances. There is no lawful reason why Respondent would interrogate additional employees when it al- ready had knowledge of the Union's majority status, and we are unwilling to stimulate or countenance un- lawful activity, i.e., additional interrogations, by adopting our colleagues' view. It constitutes an abuse of the Board's electoral pro- cess to allow an employer to interrogate employees concerning their union sympathies, learn from the interrogations and other sources revealed by its inter- rogation that a union enjoys majority support, and then proceed to an election, claiming that it doubts the union's majority status.27 Linden Lumber, supra, at footnote 25, permits an employer to test a union's asserted majority in an election if he engages in no misconduct. It does not open this route to an employ- er if he engages in violations of the Act, as the Em- ployer did in interrogating the employees here and then rejecting the results. The consequence of the majority's decision is to permit a violating employer to force a union to an election which will be conduct- ed in the shadow of the employer's own misconduct, after that employer knows because of his own investi- gation, including the unlawful conduct, that the union represents a majority. Stated differently, the majority now will compel a union to go to an election in every case in which employer misconduct falls short of re- 16 Sullivan Electric Company, supra, Fred Snow, Harold Snow and Tom Snow, d/h/a Snow & Sons, 134 NLRB 709 27 Mike Velys, Sr, er at , Carpenters, d/b/a R & M Electric Supply Co, 200 NLRB No 59, Member Fanning dissenting, relied on by the majority is readily distinguishable There, the respondent interrogated two out of ap- proximately nine employees, and there was no evidence that it had knowl- edge , independent of the cards , that the union had the support of a majority of the employees 198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quiring the type of bargaining order which would be imposed under N.L.R.B. v. Gissel Packing Co., 935 U.S. 575 (1969), regardless of the employer's knowl- edge of majority. We cannot reconcile this with the employer's statutory obligation to bargain with a ma- jority union, nor with such Supreme Court decisions as Gissel and United Mine Workers of America v. Ar- kansas Oak Flooring Co., 351 U.S. 62 (1956). Our colleagues also suggest that Sullivan Electric should not be applied in a situation where the interro- gations occur, and knowledge of a union's majority status is obtained, prior to the union's demand for recognition. This is a distinction without a difference, since a union which has achieved majority status can be expected to demand recognition promptly thereaf- ter, and the only lawful purpose of an employer's interrogations can be for the purpose of resolving the impending question concerning representation. Our colleagues' approach will require a still further inquiry into the Employer's purpose or motive, the sort of inquiry into subjective attitudes left behind in Gissel. In view of all the foregoing, we would find that Respondent's refusal to bargain with the Union on and after February 28, 1973, violated Section 8(a)(5) of the Act, and that a bargaining order is clearly war- ranted. Joiners of America, AFL-CIO, or any other la- bor organization. WE WILL NOT urge and advise our employees to withdraw their authorizations to any labor orga- nization to bargain on their behalf. WE WILL NOT threaten to discharge any employ- ee for engaging in activities in behalf of a union. TENNESSEE SHELL COMPA- NY, INC (Employer) Dated By DECISION This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennes- see 38103, Telephone 901-534-3161. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had a chance to give evidence, the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice and we intend to carry out the Order of the Board and abide by the following: The Act gives all employees these rights: To engage in self-organization To form, join, or help unions To bargain collectively through representa- tives of their choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things. WE WILL NOT do anything that interferes with or restrains or coerces employees with respect to these rights. WE WILL NOT coercively interrogate employees concerning their or other employees' activities on behalf of UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and (Representative) (Title) STATEMENT OF THE CASE PAUL E WEIL, Administrative Law Judge: On March 14, 1973, UBC, Southern Council of Industrial Workers, Unit- ed Brotherhood of Carpenters and Joiners of America, AFL-CIO, hereinafter called the Union, filed a charge with the Regional Director for Region 26 of the National Labor Relations Board, hereinafter called the Board, alleging that Tennessee Shell Company, Inc., hereinafter called Respon- dent, engaged in certain unfair labor practices. Thereafter the Union filed amendments on May 2 and 4, 1973 On May 4, 1973, the Regional Director, on behalf of the General Counsel, issued a complaint and notice of hearing alleging that Respondent, by various acts and conduct, had violated Section 8(a)(1) of the Act; Respondent failed and refused to bargain with the Union as the collective-bargaining rep- resentative of an appropriate unit of employees of Respon- dent; the employees commenced a strike on February 28, 1973; and the strike was caused or prolonged by the Respondent's unfair labor practices. By an answer which was amended twice, Respondent denied the commission of any unfair labor practices and raised several affirmative defenses to the unfair labor practices charged. On the issues thus drawn the matter came on for hearing before me at Camden, Tennessee, on August 21, 1973, closing on August 24, 1973. All parties were present and represented by coun- sel and had an opportunity to call and examine witnesses and to adduce relevant, material evidence with regard to the issues. During the hearing Respondent withdrew one of the affirmative defenses on which it had relied in its pleadings. TENNESSEE SHELL CO., INC. 199 At the close of the hearing the parties waived oral argument. Briefs have been received from the General Counsel and Respondent. Upon the entire record herein and in consideration of the briefs I make the following: FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent Is a Tennessee corporation engaged in the sale and distribution of mussel shells and the manufacture and sale of decorative items made in part out of mussel shells. Respondent annually sells and ships from its Cam- den, Tennessee, location products valued in excess of $50,000 directly to points located outside the State of Ten- nessee. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act.' III THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent has been in business in excess of 6 years. Its operation consists of procuring, apparently largely by pur- chase, mussel shells from fresh water sources in the United States. Until and including 1970 a portion of these shells were cleaned and shipped to Japan where they were used in the cultured pearl industry. The remaining shells were crushed and sold largely in domestic channels for other uses. In 1970 the Japanese trade, which had been receding because of the absence of a demand for pearls for several years, completely stopped. Respondent at that time had large numbers of shells on hand and commenced the devel- opment of a business of breaking up the shells, dyeing them, and making small ornamental objects of clear resin with shells embedded in it. The process consists of crushing and dying shells, sorting them, and molding the ornamental ob- jects in molds purchased by Respondent and referred to by John Latendresse, Respondent's president, as "designs." Late in 1972 Latendresse, who had kept up his correspon- dence with his Japanese customers, ascertained that the market for pearls, had picked up and that the cultured pearl industry was prepared to purchase shells again. By Febru- ary he had correspondence which indicated that a consider- able market existed and prepared to journey to Japan to seek firm orders for this portion of his product. In mid-February 1973, two of Respondent's employees, Bobby Anderson and Mary Vinson, contacted a local resi- dent of Camden, Tennessee, who was a member of the Boilermakers Union, to find out how to go about organiza- ing a union among Respondent's employees. As a result of their efforts they were furnished with authorization cards by the Charging Party. The authorization cards run to the In- ternational United Brotherhood of Carpenters and Joiners of America, AFL-CIO, rather than to the affiliate which is . the Charging Party. Vinson and Anderson passed out cards among the employees commencing on February 19 and 14 or 15 employees immediately signed and returned cards to the Union.' On February 21 Latendresse, who was traveling, recieved a telephone call advising him that there was a union organi- zation going on . He returned to Camden on the 22d. To- gether with James L. Peach, his then vice president and manager, Latendresse commenced interviewing employees in an effort to find out the extent of the Union's organiza- tion and the reasons therefor. At this time there were some- where between 16 and 24 employees in the unit. On February 27 the union agent held a meeting with the employees at which he informed them of the options that he conceived to exist at that time, either to file a petition for an election with the Board or to demand recognition. He had been informed by the employees of the extensive inter- rogation and other activity which is alleged as coercive, as well as of the fact that immediately after the commence- ment of the union organization a number of Peach's rela- tives appeared to have been placed on the payroll and the office employees had been required to commence using the plant timeclock. Accordingly, the union agent told the em- ployees that if they struck in protest against Respondent's unfair labor practices they would achieve the protection of 'an unfair labor practice strike . He absented himself from the meeting and the employees discussed the situation thoroughly. When he returned he was told that they chose to have him demand recognition and that they would strike if the Union was not recognized . He urged them to consider the matter again and again left the room but on his return was told that this was the employees' opinion. The following day two union agents, Riddel and Guil- hams, called on Latendresse at the plant and demanded recognition. Although there is some disagreement as to what was said during the conversation that ensued, it is clear that Latendresse declined to look at any authorization cards and declined to grant recognition. According to the testimony of the union agents he told them to leave the premises. The union agents left Respondent's premises shortly be- fore the lunchbreak. During the lunchbreak arrangements were made to have picket signs prepared and delivered to the employees at the plant. After lunch the employees all went back into the plant and shortly thereafter, when the picket signs were delivered, walked out and commenced picketing the plant. While there have been some employees who have re- turned to work, the picketing commenced with 13 or 14 employees on the picket line and the Union is still picketing. The General Counsel contends that the strike was caused by Respondent's- unfair labor practices and accordingly that the strikers are unfair labor practice strikers. Although Respondent denied the status of the Union as a labor organiza- tion within the meaning of the Act in its answer, it entered into a stipulation 2 Respondent does not challenge the authenticity of the cards but chal- with the General Counsel of facts constituting a complete description of a lenges the designation to the International rather than to the Southern Coun- labor organization within the meaning of Sec. 2(5). cil of Industrial Workers. 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Refusal To Bargain The General Counsel contends that a unit consisting of all production and maintenance employees at the Camden, Tennessee, plant excluding office clerical employees, pro- fessional and technical employees, watchmen, guards and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of the Act. Although the Respondent denied that the unit was appropriate, with the exception of certain inclu- sions and exclusions, it presented no evidence that any other unit was appropriate. The unit as spelled out is the normal P & M unit in the manufacturing industry and I find it to be appropriate within the meaning of Section 9(b) of the Act. The parties, at the opening of the hearing, stipulated that the following named persons were in the unit on February 28 and occupied the positions set forth after their names: Bobby Anderson Laborer Jewell Arnold Caster Frances Cherry Caster Judy French Caster Vera French Sorter Gregory Garza Laborer Eddie Heyne Caster Jimmy Hilliard Laborer Jerry Horton Grinder Danny Miller Laborer Sam Miller Laborer Galloway Rowland Laborer Rebecca Stone Caster Mary Vinson Caster Debbie Wheatley Davidson Caster Feliceta Weatherford Issues were raised with regard to the following: Judy Bobbitt: The General Counsel contends that Judy Bobbitt, a caster, who was terminated on February 28 is in the unit because she was terminated on the date that the demand was made. The General Counsel's position is based on a decision of the Board in Choc-ola Bottlers, inc., 192 NLRB 1247, a representation case, where, under the cir- cumstances that an employee who came to the polls to vote was challenged because he had been discharged earlier in the day, the Board overruled the challenge stating "[i]t has long been recognized that an employee is eligible to vote in the Board election if he was employed during the eligibility payroll period and on the date of the election," and in a footnote thereto stated "[t]herefore, in identifying the begin- ning of the critical period, we refused to fractionalize the day that the petition was filed." The General Counsel would have me analogize the situation present in the instant case with that in Choc-ola which he cited. I do not believe that the analogy should hold. Here there was no "eligibility peri- od." Nor was the Board engaged in the formality of an election. The demand took place during the course of a contest for the loyalty of the employees and the test implied is whether Respondent knew, or had reason to know, that the Union represented a majority at the time of the demand. If the majority showing hinged on Judy Bobbitt's having signed a card, the employer thus must be presumed to have been aware of a failure of the Union's majority with Bobbitt's termination. The basic issue to be decided is whether the Union is a majority representative The General Counsel has not contended that Judy Bobbitt's termination is unlawful. Accordingly, after her termination her desires with regard to representation should not be allowed to de- cide the issue for the employees remaining. I therefore reject the General Counsel's contention and exclude Judy Bobbitt from the unit and her card from the Union's representative status. Joy Cauthen The General Counsel contends that Joy Cauthen is an office clerical and works in the factory outlet store and has no community of interest with the other rank- and-file employees. Respondent contended at the hearing that she is a plant clerical, but in its brief that she was a dual-purpose employee spending half her time in the retail store and half of her time working in the plant, assembling clocks and removing products from molds. Respondent has a retail store attached to its plant, at which its products are sold to passers-by. Joy Cauthen is listed on Respondent's payroll ledger as "office and clerk (sales)." She started in Respondent's employ at $2 an hour and at the time of the hearing was making $2.30 an hour. She did not punch a timeclock prior to the union campaign, although all the production employees did President Latendresse testified that Cauthen worked in the salesroom, also packed goods, took articles out of molds, and assembled clocks in the plant. She regularly worked Saturdays, when the retail store was open, although few other employees with the exception of David Hodges, whom we shall consider below, worked regularly on Saturdays All of the employees commenced work at 7 o'clock except Cauthen and one other who may have commenced work normally at 8 a in. Cauthen did not work Mondays except on rare occasions. Other than Cau- then only the office girls and Latendresse and James Peach, the vice president, waited on retail customers in the store and on Saturday only Cauthen waited on retail trade togeth- er with either Peach or Latendresse who apparently took turns working on Saturdays. She dressed nicely in street clothes, although most of the persons working in the factory wore work clothing because much of the work is dirty. Judy French, who works in the casting department, testified that she has never seen Cauthen working in the casting area in which she is employed or in the grinding area which is contiguous to the casting area and, further, that she has never seen Cauthen do any production work at the plant but has seen her employed only in the showroom selling mer- chandise at retail. Judy French also testified that the clocks are normally built in the casting room and she has never seen Cauthen working on putting together clocks as Laten- dresse testified. Her testimony in this regard was corrobo- rated by that of,Jewell Arnold, who also worked in the casting department. Eddie Heyne who primarily assembled clocks and did some janitress work testified that she was unaware of Cauthen ever assembling any clocks. The only 3In Garland Knitting Mills of Beaufort, South Carolina, Inc, 170 NLRB 821, the Board in fact fragmented a day In In 4 of that decisibn the Board held that authorizations of two employees which were executed on the same day but after the time of the demand should be counted toward the Union's majority at all times after that day TENNESSEE SHELL CO., INC. 201 persons that she could name other than herself that had assembled clocks were Sam Miller and Terry Carter, a su- pervisor. Odena Huff, whom Respondent contends to have been a supervisor in the packing department, testified that Cauthen took care of the showroom and never performed any work in the packing and shipping department of which she was allegedly a supervisor. I conclude that Cauthen was a clerk in the retail store and performed no duties in the plant. I conclude further that she had no community of interest with the employees in the unit and I shall exclude her from the unit. Fred Dobbs: The General Counsel contends that Fred Dobbs should be excluded from the unit as a casual employ- ee whereas the Respondent contends that he should be in- cluded in the unit as a regular part-time employee. The record reveals that Dobbs is a social security annuitant whose chief employment appears to be working with his wife as an independent shell buyer, traveling around the country for most of each year. The record reveals that he normally works some of the first few months of each year. In the year 1973 he left on April 6 and had not returned at the time of the hearing. The shell buying enterprise is sea- sonal depending on the weather, inasmuch as shells are apparently harvested only in moderate weather. Since 1969 social security annuitants who limit their earnings for social security purposes are not automatically barred from the unit.' A social security annuitant who works regularly on a part-time basis occupies the same position as any other regular part-time employee. Similarily a social security an- nuitant who works regularly on a seasonal basis occupies the same position as any regular seasonal employee. The record reveals that Dobbs works each year from January 1 until the weather permits collection of shells, whereupon he and his wife engage in a shell purchasing business as inde- pendent contractors. He works for a substantial portion of the year. He has a nearly certain expectation of reemploy- ment from year to year. When employed he works beside the year-round employees and under the same supervision doing the same work. Accordingly his exclusion as a sea- sonal from the bargaining unit would be contrary to clear Board policy. I believe that he should be included in the unit and I so find.' David Hodges: The General Counsel contends that David Hodges' work was of an irregular nature and that he should be excluded from the unit as a casual employee. Respondent contends that he was a permanent part-time employee and should be included. The record reveals that David Hodges was a high school student working every day after he got out of school and all of every other Saturday. He worked taking castings out of the mold and carried articles from the pro- duction department to the retail store and to storage bins located in the shipping department. He did not initially punch a timeclock but, after the union organization started, commenced doing so. In the spring or summer of 1973 he joined the Marine Corps of the United States and is present- ly in that service. High school students who work on a regular part-time basis for an indefinite period are normally included in the production and maintenance unit by the Board. The evidence does not support the General Counsel's contention that Hodges was a casual employee; on the contrary it appears that he worked every evening and a considerable amount of overtime. I find that he should be included in the unit. Odena Huff• The General Counsel contends that Odena Huff should be included in the unit , the Respondent con- tends that she was a supervisor and should be excluded. The record reveals that Odena Huff worked in the packing and shipping operation where she packed and shipped orders together with one or more other employees . There is no evidence that she at any time exercised any supervisory functions or that she was ever informed that she had any supervisory authority or that any other employee was ever informed that she had supervisory authority. For about a week in the fall of 1972 Mrs. Huff took the place of Fore- man Terry Carter who went hunting. However there is no evidence that during that time she had or exercised any authority other than the somewhat broad statement that she "did everything that Terry Carter did." The lowest paid supervisor other than Huff received $4 an hour, Huff was paid at the rate of $2.10 an hour, slightly more than some of the production and maintenance employees . She worked the same hours as other production and maintenance em- ployees and took her breaks and lunch with them , and the punched a timeclock, something that other members of su- pervision were not required to do. The Company's records show her as a caster, although they show Terry Carter as a foreman. When President Latendresse first learned of the Union's organization he called about 13 employees into his office and interrogated them, they included Odena Huff. He kept a record or box score of the employees whom he considered to be in the unit and her name was included thereon. When the supervisors were informed how to react to the Union's organizational drive, Odena Huff was not called into the meeting . I find that Odena Huff was not a supervisor within the meaning of the Act and was a rank- and-file employee who belonged in the unit. Jean Johnston: The General Counsel contends that Jean Johnston is a technical employee and should be excluded from the unit. Respondent contends that she is a rank-and- file production employee and should be included . President Latendresse testified that Johnston was employed as a regu- lar part-time employee, that he hired her because she was an artist and had special abilities in mixing and matching colors, and that she worked in the casting room and in sorting the colored chips from which his product was made. Various employees testified that what casting Miss John- ston did consisted of setting colored chips into a mold ex- perimentally to determine how they would look and that ordinarily she would call the regular casters to complete her castings because she lacked the ability to make them herself. Although President Latendresse was hazy as to the period of time Miss Johnston was employed by the Company, the General Counsel placed in evidence her payroll ledger sheet from the Company's records. No entry appears thereon prior to March 9, 1973, on which an entry appears for $80 4 Holiday Inns ofAmerica, Inc. d/b/a Holiday Inn of Oak Ridge, Tennessee, which represents 2 days of work at $5 an hour. There is no 176 NLRB 939 indication when the 16 hours were worked for which she 5 William J Keller, Inc., 198 NLRB No. 172 was paid on March 9. However, on March 16 she was again 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paid $80 and on each succeeding week until April 25. There- after she was paid $40 each week until June 27. Respondent produced four checks which according to Latendresse rep- resented Jean Johnston's payroll checks, one dated Febru- ary 14 is in the sum of $120. In a box on the checks headed "this check is delivered in connection with the following accounts" is written "Art Fee." The second check dated February 21 is in the sum of $40 and is again labeled "Art Pee." The third check dated March 9 is in the sum of $66.22 and the entry in the box is as follows: Salary $80, SS (social security) $4.68, Tax $9.10/$66.22 and the check is in the amount of $66.22. The payroll ledger sheet lists the occupa- tion of Johnston as "designer." If anything is clear it is that Jean Johnston is not a run of the mill rank-and-file employ- ee. The evidence of all witnesses who testified concerning her reveals that she worked hours of her own selection, that she took breaks whenever she chose, and that she did not work regularly at any production job. I conclude that John- ston is a technical employee hired as a designer.6 I conclude that Miss Johnston was retained as a freelance expert prior to the week ending March 9 and Respondent used her artis- tic capabilities in experimenting with the placement of dif- ferent colored chips of mother-of-pearl to make a pleasing looking product. The fee or salary of $5 an hour is complete- ly inconsistent with that of rank-and-file employees who normally begin at $1.85 an hour and work up to $2.10 or $2.20 per hour, whereas the supervisors are paid $4 an hour and $200 a week, respectively. I further believe and find that prior to the week of March 9, after the demand for recogni- tion, no one considered Johnston an employee but that at the time she was placed on the payroll in an attempt to "load" the unit in the Respondent's favor. Assuming that by so doing Respondent changed Johnston's status to that of an employee, nevertheless as of the time of the demand she was not an employee and must be excluded from the unit. Thereafter she became a technical employee and obviously has no community of interest with the production and main- tenance employees. She should be excluded from the unit. Willie Wilson: The General Counsel contends that Willie Wilson is a supervisor, Respondent that he is a rank-and-file employee employed as ,a maintenance man Wilson was paid $3.25 an hour. There is no evidence that he possessed any of the attributes of a supervisor on or before February 28 except the testimony of James Peach that Wilson respon- sibly directed Elgin Peach, James Peach's father during El- gin Peach's brief tenure with Respondent. James -Peach testified that his father was working "under" Willie Wilson and, asked whom he was working with, answered: It would be difficult to say because he was doing a lot of welding. At the time he was the only welder there. So really, I guess you'd say-it's difficult to say now. I'm sure there were some people working with him some helpers and so forth but I don't recollect who. Although this testimony suggests that there were other per- 6 Latendresse testified that she was not a designer because she never made designs, however this testimony is considerably weakened when it became clear that the sense in which he was using the term "designs " was to represent molds I have no doubt that Miss Johnston did not manufacture molds sons working under the supervision of Wilson, i.e., "helpers and so forth," I do not deem it substantial evidence that they were working under the supervision of Wilson. Wilson was not called as a witness and there is insufficient evidence to support the strong suspicion raised by Peach's testimony that Wilson is a supervisor. I note that Wilson's pay of $3.25 an hour, while it is substantially above that of the rank-and- file production workers, is substantially below that of the acknowledged supervisors of Respondent. I conclude that Wilson is not shown to be a supervisor and should be in- cluded in the unit. Commencing on the day on which Respondent became aware of the Union's organization, a number of relatives of Vice President James Peach began to appear at the plant. Randy Peach, a brother of James, according to a company record, was hired on February 22. The record does not disclose how long he continued in Respondent's employ. Milburn Peach worked 3-1/2 hours on a single day on or about February 22 and did not work again until March 3, after which time it appears that he worked regularly at least through the end of March when he was given a raise. Kath- leen Peach, James Peach's aunt, commenced on February 28 and worked 2-1/2 days. She has not worked since.7 Final- ly, James Peach's father, Elgin Peach, appears to have worked around the plant in some capacity at various times since February 22. The General Counsel contends that all of the Peach rela- tives should be excluded from the unit on the grounds that it is obvious that they were all hired to dilute the Union's representative showing and they all received special privi- leges as a result of their relationship with James Peach. Respondent, on the other hand, contends that the four Peach relatives were hired in the normal course of its build- up of employees which will be discussed below, received no special privileges, and were bona fide employees in the unit on the critical date. Milburn Peach • According to the testimony of President Latendresse, Milburn Peach is shown by the company ledg- er to have worked for 3-1/2 hours on February 22 and not again until March 2. There is no substantial evidence in the record as to how long he continued working other than testimony by Latendresse that he received a raise from $1.75 to $1.90 per hour at the end of March.' No explanation is given for the fact that Milburn Peach did not work between February 22 and March 2. The commencement of the strike on February 28 is the only circumstance shown to have intervened. Milburn Peach was not called to testify and the testimony of ' both Latendresse and James Peach was so vague and contradictory that it is almost meaningless, ex- cept where it is supported by Respondent's records to some extent .9 7 Latendresse testified that Kathleen Peach told him that she would not work because of the picket line She has never returned to the plant 8 An exhibit prepared by Respondent for the trial, listing all the employees employed on February 28 has an entry showing termination of Milburn on June 22, 1973 It also shows the termination of Judy Bobbitt on February 28, 1973 Although other employees on that list were apparently terminated in the interim, their termination dates are not shown Accordingly, in the ab- sence of any explanation, I do not consider the entry to have any probative value a There was attached to the affidavit of Latendresse a number of sheets purporting to be photographic copies of timecards of employees covering TENNESSEE SHELL CO., INC. 203 I conclude that with regard to Milburn Peach he was employed on a casual basis for a few hours on February 22 but did not become a regular employee of Respondent until March 2, after the strike began. Accordingly, he was not in the unit on the critical date. Randy Peach, on the other hand, so far as the record shows, commenced work on February 21 or 22, 1973, and was still working at the time of the hearing. While the cir- cumstances surrounding his employment are suspicious it appears that he was in fact a regular, full-time employee and there is no evidence that he received any special privileges by virtue of his relationship with James Peach, his brother. Accordingly, I find that he was a member of the unit on the critical date. Kathleen Peach was, according to a company record, hired on February 28. She worked 2-1/2 days and has not worked since. She was not called as a witness and there is no explanation on the record for that fact. There is no substantial evidence with regard to her hire nor her depar- ture from Respondent's employ.10 In the absence of substantial evidence concerning the employment of Kathleen Peach and in the light of the fact that she worked only a few days, I conclude that her em- ployment was casual. As an occasional employee Kathleen Peach is excluded from the unit. Elgin Peach, the father of James Peach, does not appear on any payroll records of Respondent. According to the testimony of Latendresse he was hired by James Peach and was employed for a short period of time before the strike, then departed Respondent's employ, thereafter returned to the Respondent's employ for another period of time, be- came ill, and left Respondent's employ again. Thereafter he became a contractor with Respondent, for the most part engaged in building equipment as a welder. James Peach testified that the personnel records of his father were de- stroyed. Latendresse testified that they were destroyed by James Peach. Then Peach testified at one time that he and an office clerical employee destroyed them but at another time denied that he had done so. It appears that the elder Peach was receiving a disability pension or a social security pension or both and the General Counsel would have me infer that his records were destroyed in order to save him from any reduction or loss of pension rights. The only docu- mentary evidence that Respondent produced with regard to the employment of Elgin Peach consists of checks issued to him and signed by him. The first dated February 23, 1973, is in the amount of $14.41 and bears the inscription, salary $15.31 and a notation, social security $.90. James Peach readily identified the check as a salary check which he had signed but was unable to state for what period of time the salary was paid or in what amount it was earned by Elgin Peach. A second check, dated March 2, is in the amount of $50.78. There is no statement in the appropriate box of the accounts in connection with which the check was issued. James Peach identified this too as a salary check but, inas- much as he did not sign it, obviously had never seen it before and could not identify for what period of time or at what rate it was a payment. His identification of the check is of little value. The next check in terms of issue date is dated April 6 in the amount of $50 and is labeled "contract labor." Thereafter checks were issued on April 13 for $75, April 24 for $70, April 27 for $70, May 11 for $210, and May 25 for $175. Each of these checks is labeled "contract labor" except the last which is labeled merely "contract." I gather from the testimony of James Peach that his father fell ill in March for a period of time." The name of Elgin Peach did not appear on the list of employees prepared by Respondent in preparation for this hearing and his presence at Respondent's place of business around the critical period appears to have been accidentally revealed during the hear- ing. Nevertheless, Respondent contends that Elgin Peach was an employee in the unit on the appropriate day and should be counted. The evidence before me does not convince me that Elgin Peach at any time was a regular employee within the unit. It appears that he worked perhaps for 1 day in the week beginning or ending' on February 23 and he may have worked 2 or 3 days on the week ending March 2. Thereafter, he worked as a contractor for the period of time between the week of April 6 and the week of May 25. According to the testimony of Latendresse, he returned and has worked as a contractor since May 25. I conclude that Elgin Peach was a casual laborer during the critical period before he was placed on a contract basis. Even if he were to be considered a regular employee, it is apparent, as the General Counsel points out, that he was the recipient of special privileges as the result of his relationship with James Peach. For exam- ple, the destruction of all company records on his behalf to preserve his pension and the establishment of the contract labor relationship which negated any deduction of income tax or social security taxes by Respondent. In neither event is Elgin Peach a member of the unit. It is clear that he had little or no community of interest with the other employees. Accordingly, I shall exclude him from the unit. C. The Union's Representative Standing on the Critical Date February 28. Among the photocopies was one purporting to be for Milburn Peach and shows hun to have worked 5 full days on the week ending Febru- ary 28. This of course directly contradicts the testimony of Latendresse that the ledger which he had before him when he testified showed that Milburn did not work between February 22 and March 2. The photostat was offered with no provenance other than that it had been attached to the affidavit of Latendresse possibly by mistake or to the statement of position furnished by Respondent during the investigatory stages of this case. Other than to reveal a contradiction in Respondent's records and to deepen my suspicion con- cerning the employment of the Peach relatives , the exhibit has no probative value. 10 The only evidence concerning Kathleen Peach's failure to continue working is a hearsay statement offered by Latendresse and his possibly prejudiced deductions therefrom. The parties stipulated that 16 employees were in the unit and disagreed as to 11 others. Of the 11, I have found that Fred Dobbs, David Hodges, Odena Huff, Willie Wilson, and Randy Peach were in the unit and should be counted. Accordingly, the unit on the critical date consisted of 21 employees. The General Counsel produced 15 cards signed by employees designating the International Brotherhood of Carpenters as their collective-bargaining representative. Of ii According to the statement of Respondent's counsel , Elgin Peach was present at the hearing during the time his status was being litigated. He was not called as a witness. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the 15, 1, that of Judy Bobbitt, will not be counted; I have found that she was terminated prior to the demand on Feb- ruary 28. Of the remaining 14, Respondent contends specifi- cally that the card of Vera French should not be counted because of an alleged personal deficiency on her part. How- ever, the evidence does not support Respondent in this con- tention and I reject it. Respondent contends that "It is undisputed that Vera French is mentally handicapped" and adduced hearsay evidence to the effect that she stated to Latendresse that she didn't know what she was signing and would not have signed the card if it had anything to do with the Union. I shall deal with interrogation of Vera French below un- der the heading of 8(a)( 1) allegations . There is no substan- tial evidence that Vera French is mentally handicapped. Latendresse testified "Vera French is classified as socially handicapped, mentally handicapped." Respondent stated at the hearing that it had made an effort to subpena Vera French to testify but she refused to obey the subpena. There is no indication on the record that Respondent has ever been officially apprised that Miss French is socially or men- tally handicapped or that she has ever been so diagnosed. It appears therefore that the Union was designated by 14 out of 21 employees, a clear majority. Respondent contends that because the cards designated the United Brotherhood of Carpenters rather than the Southern Council of Industrial Workers the cards do not support the General Counsel's contention that the Union represented a majority of the employees. The Respondent does not cite any authority in support of the proposition it voices. At the hearing the Charging Party cited Louisville Chair Company, Inc., 161 NLRB 358, enfd. 385 F.2d 922 (C.A. 6, 1967), which I find inapposite and Southbridge Sheet Metal Works, Inc., 158 NLRB 819, in which the Board ordered the respondent to bargain with Sheet Metal Work- ers' International Association, Local 127, AFL-CIO, al- though some of the cards authorized the International rather than the local to bargain on behalf of the employees. In the instant situation the Southern Council is a creature of the International , specializing in representing employees in industrial plants rather than in the building trades; there is no evidence that the employer or the employees were misled by the cards; the objection is hypertechnical and I reject it. D. The Expanding Unit Defense Respondent contends that under the circumstances pre- sented in this case even if the Union is shown to have representation authority from a majority of the employees as of February 28, 1973, its plans for expansion are such that a representative complement of employees had not at that time been achieved. Accordingly, according to Respondent's theory, a majority of employees in the then existing unit would constitute a minority in the ultimate unit and should not be permitted to select a collective-bargain- ing representative in that unit. In support of this theory Respondent relies on the General Extrusion doctrine and cites other cases illustrating applications thereof. The Board in General Extrusion 12 adopted a rule that "a contract does not bar an election if executed (1) before any employees had been hired or (2) prior to a substantial in- crease in personnel . When a question of a substantial in- crease in personnel is in issue , a contract will bar an election only if at least 30 percent of the complement employed at the time of the hearing had been employed at the time the contract was executed , and 50 percent of the job classifica- tions in existence at the time of the hearing were in existence at the time the contract was executed ." Since the adoption of this rule in 1958 litigants have attempted to enlarge its scope far beyond the Board's original intent to limit it to contract-bar situations and as we shall see the Board has not been consistent in its reaction to these attempts . In represen- tation cases the Board has found it necessary to point out "[t]he criteria set forth in General Extrusion are applicable to contract-bar issues and were not intended to govern cases like the instant one [where the employer argued that an election would be premature in a newly established plant] involving an expanding unit, where the issue is whether the present complement is sufficiently representative and sub- stantial to warrant holding an immediate election." 13 It has long been the rule that an employer violates Section 8(a)(2) of the Act by extending recognition to a union either before it has employees at all or at a time when it had not achieved an employee complement representative both in terms of numbers of employees and of the proportion of the ultimate functions of unit employees which were manned at the time of recognition. Perhaps the lead cases in this regard are Englander and Lapeer Metal Products 15 In Young & Greenawalt Co.,16 the Board found that in the circumstance where "only about 25 percent of the average number of employees working during the following 3 months," an employee complement "not large enough ap- parently to operate the plant efficiently once production began" cannot be considered as representative of the em- ployees to be engaged in production and maintenance oper- ations and employer recognition of the Union under the circumstances was premature and constituted unlawful as- sistance in violation of Section 8(a)(2) By 1968 the rule had been firmly implanted in Board law. In Cowles Communica- tions, Inc.,17 the Board stated as follows: The Board has consistently held with court approval that where an employer recognizes a union as the ex- clusive bargaining representative of its employees on the basis of a majority demonstrated by cards or a petition, as here, such recognition is inappropriate and unlawful if it is granted before the employer has re- cruited a work force that can be considered substantial- ly representative of his anticipated complement of employees. [Citing Englander, Lapeer, Young & Greena- walt and other cases .] The basis for the position is that 12 General Extrusion Company, Inc, 121 NLRB 1165, 1167 13 Endicott Johnson de Puerto Rico, 172 NLRB 1676 14 The Englander Company, Inc, 114 NLRB 1034 (modified on other grounds 237 F 2d 599 (C A. 3)). 15 Lapeer Metal Products Co, 134 NLRB 1518 16 157 NLRB 408 17 Cowles Communications, Inc, and Sufsun, Co, Inc , 170 NLRB 1596, 1611 TENNESSEE SHELL CO., INC. 205 otherwise a nonrepresentative initial working force would be permitted to designate the-bargaining repre- sentative which would not be the choice of a majority of the electorate but of an untypical minority. [Emphasis supplied.] The next year 1969 the Board adopted the excellent decision of Judge Benjamin Theeman in Lianco Container Corpora- tion, 1B in which Judge Theeman in an extensive footnote reviewed the authorities and pointed out the circumstances under which the Board had found recognition premature or the contrary. Judge Theeman also pointed out that the Gen- eral Extrusion rule applicable to representation cases is dis- tinguishable in its percentages as well as in its rationale from the rule as it is applied in unfair labor practice cases. At this point the orderly development of the rule received a setback. In Prince Pontiac, Inc., 174 NLRB 919, Judge (then Trial Examiner) A. Norman Somers had before him a premature recognition 8(a)(2) case in which he applied the General Extrusion rule, at the insistence of the General Counsel, relying on the decision of a district court judge in Kaynard v. Cowles, 66 LRRM 2052, 2063, footnote 12, in which the district judge had applied the General Extrusion rule in an injunction proceeding preceding the same Cowles case cited above. In adopting Judge Somers' decision the Board added this footnote 1: complement at the time of the hearing; the nature of the industry; the time expected to elapse before a full, or a substantially larger, complement of employees is on hand; and other variables all militate against a rigid formula and dictate the Board's approach. The Board must often balance what are sometimes conflicting de- siderata, the insurance of maximum employee partici- pation in the selection of a bargaining agent, and permitting employees who wish to be represented as immediate representation as possible. Thus, it would -unduly frustrate existing employees' choice to delay selection of a bargaining representative for months or years until the very last employee is on board. Con- versely, it would be pointless to hold an election for very few employees when in a relative short period the employee complement is expected to multiply many times. 4 By contrast, the Board has held that an employer-union contract will bar an election if 30 percent of the complement employed at the time of the hearing had been employed at the time the contract was executed, and 50 percent of the job classifications has been in exist- ence [Citing General Extrusion I In the election area, as noted, a case- by-case approach is utilized, rather than the General Extrusion, or any other, formula Indeed, elections have been directed where it is not certain that the formula would have been satisfied . See Endicott John- son De Puerto Rico, Inc [supra], General Cable Corporation, 173 NLRB No. 42 While we agree with the Trial Examiner's finding that the Respondent had a representative complement of employees when it executed the contract with Local 815 on September 16, 1967 , we do so on the basis of all the circumstances present herein, including the re- quired percentages set forth in General Extrusion Com- pany, Inc., 121 NLRB 1165, 1168. This is the first case in which the Board had indicated that the percentages set forth in General Extrusion were "re- quired" in any but a contract-bar case and appears to over- rule sub silentio the language in the Endicott Johnson case set forth above. Thereafter in American Beef Packers, Inc., 180 NLRB 634, without citing General Extrusion, the Board, citing Prince Pontiac, decided a case in apparent adherence to the General Extrusion formula. The Prince Pontiac and Ameri- can Beef Packers cases would seem to have laid the issue to rest, but in 1970 the Board again reversed its field in Cle- ment-Blythe Companies, etc., 182 NLRB 502, where the Board had before it an 8(a)(5) refusal -to-bargain case in which the employer contended that an election should not have been conducted because it was in the process of ex- panding. The Board made the following statement: In determining whether the employee complement is "representative and substantial" so as to warrant hold- ing an immediate election, the Board has avoided the use of hard and fast rules.4 The size of the employee is 173 NLRB 1444. Thus it appears that the rigid adherence to the General Extrusion rule in cases other than contract -bar cases again became unfashionable and, in the most recent case that I can find Hayes Coal Co., Inc., 197 NLRB 1162, the Board stated: A determination of premature recognition, however, cannot be predicated on whether existent jobs are tem- porarily unfilled by reason of quit or discharge, or on a possibility that future conditions may warrant an increase in personnel, or on the basis of an increase in personnel subsequent to the granting of recognition. [Footnote omitted.] The correct test is whether, at the time of recognition, the jobs orjob classifications desig- nated for the operation involved are filled or substan- tially filled and the operation is in normal or substantially normal production . [Citing, inter alia, Lianco.] The rule as I now understand it to be is that an employer may not recognize a union unless it has a substantial com- plement of employees engaging in a substantially normal production process, considered on a case-by-case basis. The corollary of this rule is that an employer may not be forced to recognize a union until these tests have been met and in those cases where these tests have been met and the other concomitants of a violation of Section 8(a)(5) are shown to exist an employer may be ordered to bargain with the ma- jority representative of his employees. In the instant case Respondent presented its evidence 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with an eye to the General Extrusion formula. President Latendresse testified that at the time of the hearing there were 104 employees on the payroll in the classifications which he deemed appropriately within the unit . 19 Relying on the designations of employees shown on the company records Respondent contends that at the time of the de- mand the employees were divided into seven job classifica- tions, whereas at the present time there are nine additional job classifications in existence . Respondent therefore would have me find that there was not a representative comple- ment of employees employed at the time the Union de- manded recognition. I have found that there were 21 employees in the unit at the time of recognition and accepting Respondent's evi- dence that there are 104 now, it is clear that the General Extrusion test of 30 percent has not been met. With regard to the classifications however, Respondent, relying again on the testimony of its president, Latendresse, showed that Respondent's employees were in the seven following classi- fications at the time of demand : Laborers, casters, sorters, clock assemblers, grinders, shipping clerks, and designers 2° Since the Union's demand for recognition , Respondent ar- gues, it has added the following new job classifications: Janitors , order pickers, packers, mold eye painters , inspec- tors, maintenance men, welders , warehousemen, and fork- lift operators. Respondent's position has a little surface appeal, but Respondent fails to discriminate between job titles used to describe specifically what the employees are doing and job classifications as they were used formerly. For example, formerly Respondent employed laborers, who did janitorial work, warehousing, and operated the forklift, as well as other jobs which they now do. Also formerly Respondent employed shipping clerks who picked orders, packed them, and shipped them. Now it employs order pickers, packers, and a shipping clerk who do the same work. Formerly Respondent employed Willie Wilson as a maintenance man, as it vigorously contended ; certainly that classification of maintenance man is not new and there is no showing whether there are any maintenance men other than Willie Wilson at the present time. Respondent states that Willie Wilson formerly did its welding but that it now employs welders. However, the only evidence of any weld- ers now employed is with reference to Elgin Peach, who Latendresse testified is a contractor rather than an employ- ee. Mold eye painters, cited by Respondent as a new classifi- cation, do one of the jobs formerly done by the casters, and inspectors, considered a new classification by Respondent, do some of the work formerly done by the shipping clerk or by the casters and sorters. As the Board pointed out in Endicott Johnson de Puerto Rico, supra, separate and distinct job classifications are to be described in terms of the types of skills possessed by the employees . There is no showing that any skill presently being utilized by Respondent's em- 19 Although some obscurity exists with regard to the count of 104 employ- ees, the General Counsel presented no meaningful evidence other than the admissions of Latendresse as to the present employee complement. I there- fore accept the assertion of Latendresse that that number correctly reflects thresent employee complement The classification "designer" was applied only to Jean Johnston whom I have found not to be within the unit Accordingly , it appears that Respon- dent would admit to only six classifications within the unit. ployees was not utilized prior to February 28 21 I find that Respondent has not supported its position with regard to the job classification test 'of General Extrusion. Applying the test for premature recognition set forth in Hayes Coal Co., Inc., I find that at the time of demand the job classifications designated for the operation involved were substantially filled on the critical date. The second test is whether the operation is in normal or substantially nor- mal production. The production of Respondent prior to the demand consisted of two main enterprises ; one, sorting, cleaning, and shipping shells to Japan for use in the pearl industry there, and two, crushing, dyeing, sorting, and using shells inappropriate for the Japanese trade in the manufac- ture of objects of art and bric-a-brac for the domestic mar- ket. These are the same at the present time . Latendresse testified that the difference in his business as contemplated when he received the Union's demand was that the shipping of shells to Japan would resume , after an interval of 1 or 2 years, and that the production of ornamental items would increase due to expressions of interest he had received as a result of his attendance at dealer's shows in the winter of 1972-73. Although challenged to do so, Respondent came forward with no evidence of its receipt of any orders in either field. At the time of the demand he was faced with no more than a possibility that future conditions might warrant an increase in personnel , a possibility of such strength however that he had built up his work force by the addition of a very few employees at that time. Nor can Respondent rely on the fact that there has been an increase in personnel subsequent to the demand for recognition. This test is specifically disavowed by the Board in the Hayes Coal case, cited above. Respondent contends that the rule of Detroit Processing Terminal Division, Nor-Cole, Inc., 151 NLRB 468, that, where the nature and composition of the unit is insufficient- ly established to enable the Board to make unit determina- tions, the Board will dismiss a petition calling for an election in such a unit is applicable herein. However , the record clearly reveals that the nature and the composition of the unit was on the critical date completely established. There is no evidence that any change in the employer's operation other than the gradual accretion of employees was then contemplated by Respondent and the rule affords Respon- dent no defense .22 In line with the observations above, I find that on the critical date the Union represented a majority of the em- ployees in a unit appropriate for collective bargaining as spelled out by the General Counsel in the complaint herein. I find further that there is no valid defense available to the employer in its expanding unit contention. 21 A possible exception may exist in the fact that Latendresse testified that at the present time Respondent is making some of the molds , all of which were formerly purchased However , there is no moldmakers classification listed in Latendresse's testimony; it may be that molds are being constructed by admittedly technical or professional employees with no community of interest with the rest of the unit 22 Similarly, Respondent's reliance on the rule in Noranda Aluminum Inc, 186 NLRB 217, is misplaced That case deals with a unit expansion problem in which the major part of a unit which the Board found to be a highly integrated facility had not yet been put into operation , that part of the integrated plant in which the union desired to represent the employees did not constitute an appropriate separate unit and , accordingly, the Board dis- missed the petition until the entire operation could be considered TENNESSEE SHELL CO., INC. 207 Next, Respondent contends that the Union has a practice of racial and sexual discrimination in its membership and accordingly is not fit to represent the employees in this unit, therefore no bargaining order should issue. This defense generally is based on the decision of the Eighth Circuit Court of Appeals in N.L.R.B. v. Mansion House Corp., 473 F.2d 471 (1973). In that case the court concluded that the claim of racial discrimination allegedly practiced by a union seeking recognition as a representative of a bargaining unit under the Act is a relevant area of inquiry for the Board when the defense is appropriately raised before the Board upon a company's refusal to bargain. The court in its deci- sion pointed out that whether or not the issue of racial discrimination is raised in good faith by the employer, "constitutional limitations on the board's process require recognition of a charge of racial discrimination as an appro- priate ground of inquiry where a union's representative ca- pacity is questioned [but] that a refusal to bargain based on the union's alleged racial discrimination must not rest on pretextual grounds." " The court called for prophylactic pro- cedures to deter pretextual refusal, to bargain with an au- thorized unit on /the alleged grounds that the union is practicing discrimination in its membership , leaving it to the Board to work out such procedures. I am aware of no decisional reaction by the Board to the Mansion House decision . A short answer to Respondent's contention herein could very well be that it is my duty to follow the Board, not the courts, as the Board has frequently pointed out, and until the rule is either adopted by the Board or considered by the United States Supremee Court I should not deal with it. However, I am aware that in the matter of representation cases the Board has promulgated a procedure by which the Mansion House issue may be considered. This procedure has not been adopted by the Board but has been submitted to the American Bar Associa- tion for whatever comment that group chooses to make. As far as I know, no procedure has been promulgated by the Board for consideration of the issue in unfair labor prac- tices. However, the apparent acceptance by the Board of the principle enunciated by the court indicates some form of acceptance of the court's decision. Respondent raised the Mansion House issue by an affir- mative defense that the Board would be in violation of the Fourteenth Amendment of the United States Constitution through the Fifth Amendment due process clause were it to require Respondent to bargain collectively with the Charg- ing Party, based on the Charging Party's "flagrant and per- vasive patterns of discrimination against blacks and women." Required to furnish particulars with regard to this defense, Respondent stated that it relied on the following information to support its defense: (a) Eleven percent of the work force of the United States are black; (b) 41.6 percent of the labor force are women; (c) only 2.9 percent of the membership of the Carpenters Union are black ; and (d) that, when seven locals accounting for one-half of all black workers are left out, only 1.7 percent of the members are black. Further, the Respondent states that it relies on a publication of the United States Department of Labor, Bu- reau of Labor Statistics, dated May 1972, entitled "Minority Workers in Construction Referral Unions" which insofar as it refers to the Carpenters Union is based on a survey of 610 Carpenters locals. Respondent offered no evidence in support of its affirma- tive defense. However, Respondent caused ,subpoenas duces tecum to be issued to various officers of the Carpenters International Union requiring production of copies of all charges claiming violations of Title VII of the Civil Rights Act; all EEOC district directors findings of fact, all deci- sions issued by the EEOC, all letters of determination of the EEOC, and all correspondence between the EEOC and the Charging Party or any of its affiliated locals regarding charges alleging violations of Title VII of the Civil Rights Act of 1964 ; and, in addition, all books and records showing the race, sex, age, religion, and nationality of all members of the Charging Party or any of its affiliated locals or other subordinate labor organizations . At the hearing I quashed these subpenas. Assuming without deciding that the Mansion House de- fense is available to Respondent, the subpenaed evidence, if produced, would not have supported the defense as expli- cated in Respondent's second amended answer . The allega- tion with regard to the black minority is based solely on a report of the Department of Labor dealing with 610 con- struction referral carpenter local unions out of the 2,000 or more local unions affiliated with the Carpenters Interna- tional. The Charging Party herein, on the other hand, is an industrial union without any "referral" characteristics. To play the "numbers game" as Respondent would have us do requires evidence that a greatly {disparate proportion be shown for the organization as a whole and for the Charging Party in particular. Respondent has indeed called for books and records showing the race of members of UBC. However we are assured by counsel for the Charging Party that they maintain no records showing the race of their membership, so this could afford Respondent nothing. It is apparent that Respondent's subpena is nothing but a shpt in the dark . Respondent made no offer of proof that the evidence if produced would show any particular pattern of discrimination or any particular evidence of discrimina- tion against blacks, women, or any other group . The subpe- na and indeed the contention as a whole constitutes no more than a fishing expedition. The evidence called for, if it were produced by the Charging Party, would in no way substanti- ate Respondent's claim which on its face is based on an invalid premise. Accordingly, the Mansion House defense of Respondent must be rejected as being without support .2' The General Counsel contends that a bargaining order should issue in the instant case, although no election has been conducted, based on either of two theories. First, the General Counsel contends that under the Gissel u doctrine the unfair labor practices committed by Respondent during the week between the commencement of the union organi- zation and the demand and refusal to bargain have rendered it unlikely that a representation election could be conducted by the Board because the unfair labor practices were of a sufficiently extensive and pervasive nature to undermine the Union's majority strength and to impede the election pro- 23 The record does not disclose that any of Respondent's employees are black, or that Respondent raised this issue prior to filing its answer to the complaint. u N LR B v. Gissel Packing Co., Inc., 395 U.S 575 (1969). 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cess. Alternatively, the General Counsel contends that un- der the rule of the Board in Sullivan Electric 25 Respondent having polled his employees and discovering that the Union represented a majority must grant recognition to the Union rather than insisting on going to an election. E. The 8(a)(I) Allegations A consideration of the General Counsel's Gissel theory requires a determination of the 8(a)(1) allegations. On February 21 President John Latendresse received a message from his wife that the Union was attempting to organize his plant. He immediately returned to the plant and, commencing on the morning of February 22, called employees into his office and interrogated them about the union activity, or as he put it to find out the trouble. He first called Mrs. Eddie Heyne, one of his older employees, who on entering his office found Latendresse and James Peach. Latendresse questioned her about what she wanted, to which she replied she wanted a raise in pay and better working conditions. Latendresse argued that he was in fi- nancial trouble and tried to show her the company books. He further criticized Bobby Anderson as a drunk and asked her when the union men were coming to town. At this point he suggested that he call her daughter Odena Huff who might be able to enlighten him. According to the testimony of both Huff and Heyne, Huff was then called in and Laten- dresse told her he was trying to find out about the Union, which was trying to come in the plant. She named the union representatives and said they would be in town shortly. Latendresse then asked Huff if she had signed a union card and she admitted that she had done so. According to the testimony of Latendresse, which I do not credit, he began his conversation with both Heyne and Huff by telling them that it did not make any difference whether they had signed a union card, they would not be fired, and the plant would not be closed. He stated with regard to both of them that after he had explained the Company's financial position they volunteered that they had signed union cards and he denied asking them anything. Jerry Horton testified that he was called in to Latendresse's office where he confronted both Latendresse and Peach. Latendresse asked him what he thought about the Union and he told Latendresse that he was a union member and he would go along with the majority. He fur- ther testified that Latendresse told him he could not afford a union and suggested that Horton check his company books. Horton denied any interest in checking the Company's books. Latendresse again testified that he told Horton it did not matter if he signed a card, he would not be fired, and the business would not close. I credit Horton. Frances Cherry testified that she was confronted by La- tendresse and Peach and very much the same type of inter- rogation took place, during the course of which she told Latendresse that she had signed a union card in response to his statement that he "guessed" that she had done so. Laten- dresse testified that he did not remember that Cherry had volunteered that she had signed a card. Although Cherry, 25 Sullivan Electric Company, 199 NLRB 809 who is still employed by Respondent, was not completely consistent in her testimony, she was more so than Laten- dresse in his, and I credit her to the extent set forth above. Latendresse testified that he called Vera French into his office and she volunteered that she had signed a card but did not know what it was. Judy French testified that she was called into Latendresse's office where Latendresse and Peach were pre- sent. Latendresse told her that the Company could not af- ford a union, that no one would be fired for signing a union card, and that Latendresse did not ask her if she signed a card and she did not recall whether she volunteered such information to him. Latendresse also took the occasion to criticize Bobby Anderson, whom he said he would not fire since Anderson will fire himself eventually by getting drunk. Sam Miller testified that he was called into Latendresse's office where he found Latendresse and Peach. Latendresse asked him if he signed a union card and he admitted that he had done so. Latendresse further stated that the Compa- ny could not afford a union and that Bobby Anderson, the ringleader of the Union, was lowdown and no good. Gregory Garza testified that he was confronted by Peach and Latendresse in Latendresse's office. Garza stated that Latendresse asked him if he had signed a union card and he admitted that he had done so, and when Latendresse asked him if he would be willing to withdraw his card Garza answered that he would think about it. When Latendresse asked him who had given him the union card Garza refused to tell him. Latendresse on this occasion told Garza that he had found out there was a union trying to get in the plant and could not afford it. Jimmy Hilliard had a conversation with Latendresse and Peach on the same circumstances as the employees men- tioned above. Hilliard stated that Latendresse said he knew that there were union cards being passed around and he did not care who signed them. Hilliard identified Bobby Ander- son to Latendresse as the individual who had passed out the cards in question. Latendresse argued that the Company could not afford a union and stated that he could not give the employees a raise that he had arranged for that week because of the union. Hilliard volunteered to Latendresse that he had signed a card. Galloway Rowland was similarly interrogated. He testi- fied that Latendresse said that he knew cards were being passed out and asked Rowland if he had signed one. He offered to show Rowland the company books and argued that the Company could not afford a union and Latendresse told him that he could withdraw his union card if he desired to do so. Rowland is still employed by Respondent and his testimony appeared to be delivered with considerable reluc- tance. He stated that he did not remember answering Latendresse's question about whether he had signed a union card-he only laughed or smiled. However, on being con- fronted with his affidavit, he admitted that he had told Latendresse that he signed a union card and that he was telling the truth when he gave his affidavit. So I believe and find that he informed Latendresse, in response to Latendresse's question, that he had signed a union card. Debbie Davidson, also interrogated under the same cir- cumstances, testified that Peach asked her if she had signed a union card and stated that Bobby Anderson would get TENNESSEE SHELL CO., INC. 209 himself fired. Latendresse admitted on the witness stand that he and- Peach interviewed 12 or 13 employees in his office on Feb- ruary 22, but denied that from these interviews he de- termined that a majority of the employees had signed union cards. Although he testified that in each case he reassured the employees that they would not be discharged, that it did not matter whether they signed the union card, and that he would not close the plant down, I do not believe that on February 22 he made these statements. I reached these con- clusions because Latendresse testified that he had no knowl- edge on February 22 that there was any way that the Union could get in except by an election, and he did not consult counsel until that evening . The reassurances he now testi- fied he gave the employees were the normal reassurances that his lawyer would have advised him to give any employ- ee before he spoke to him about the Union, and I did not believe that he was sufficiently aware of the labor laws at the time he initially commenced his polling of the employees to have given them these reassurances. Accordingly, I credit the employees who testified that he did not do so. In addition to the interrogations by Latendresse and Peach in Latendresse's office on the 22d and thereafter, Jerry Horton testified that he was interrogated by Peach on February 21 and that on this occasion Peach asked Horton if he had heard anything about a union, to which Horton pretended surprise. Peach asked Horton if he knew any- thing about the Union to let him know. Horton said that he would not do that and pointed out that he already belonged to a union. Peach admitted talking to Horton but stated that, as he came by Horton's work station, Horton told him "I guess you know there is a lot of union cards floating around." Peach admitted that he was aware of that fact. Horton then said he did not care one way or the other, he would neither fight nor help the Union. Peach denied any mention of a raise or that he asked Horton to let him know if he knew anything about the Union. I did not credit Peach. His testimony regarding the destruction of company rec- ords on his father's behalf reveals that he has no compunc- tions about deceiving the government . I found his demeanor unconvincing and I did not and do not believe his testimo- ny. I credit Horton's in this regard. Odena Huff testified that Peach came to her work station in the late afternoon of February 22 and asked her if she would withdraw her union card. She told him that she would not do so unless the majonty of the other employees did, to which Huff answered, "Well with all the union cards that have been signed the Union can walk in and take over." Peach testified that the conversation was limited to asking Huff to come to Latendresse's office at 4 o'clock so that Latendressecould explain the Company's position. He spe-' cifically denied asking Huff to withdraw her union card. I do not believe him. Sam Miller also testified that Peach asked him to with-' draw his card. Miller refused to do so. Peach denied asking Miller to withdraw his card. I credit Miller. Jewell Arnold testified that Peach came up to her about a week before the strike began and opened a conversation stating, "Well, I guess you know what's going on." She indicated that she did. Peach said that the Company plan- ned on calling her in and talking to her, at which point Arnold told Peach that she had signed a union card and he left. Later he returned and asked if she would be willing to get her union card back . Arnold said she would go along with the majonty . Arnold testified that after Peach talked to her, he turned and talked with Eddie Heyne and Frances Cherry, but she could not hear what he said . Peach admitted talking to Arnold on this date. He said that he approached the employees and told them that the Company would like for them to hear its side of the story at 4 o'clock and that, after they have discussed it, if they chose to do so they could ask for their cards back. He denied asking Arnold if she signed a card or that Arnold had told him that she had done so. He stated that Arnold, Heyne, and Huff were together during this conversation . Eddie Heyne also testified that Peach asked her to withdraw her card and she stated that she would not do so. She stated that Arnold and Cherry were asked the same question in her presence and gave the same answer . According to Peach, Heyne told him that if it would be any help she would be willing to get the card back and he answered that it was strictly her business. Peach then invited her to a company meeting at 4 p.m. He denied that he asked Mrs. Heyne to get her union card back. I credit Mrs. Heyne. Cherry's testimony also corroborated that of Heyne and Arnold. Jimmy Hilliard testified that on the same day he had talked to Latendresse he was called into the back room by Peach who told him that several people who had signed cards were willing to withdraw them and that if Hilliard had signed one it was not too late for him to do so. Hilliard answered to Peach that he "didn't know." Judy French testified that Foreman Terry Carter told her that he had worked in a factory where a union tried to come in and that friends had turned against each other. She testified that Carter asked her to use her influence and try to talk other employees into withdrawing their union cards, French did not answer. Carter testified that he broke up an argument between Vera French and Mary Vinson, and Judy French, who was nearby, said "don't be mad over us trying to get a union in here ." Carter told French that he wasn't mad but he wouldn't have fussing and fighting in the plant ; he had been in a plant where there had been hard feelings; and he would not tell her what to do but he was not going to put up with fighting and arguments . Carter denied that he asked Judy French to use her influence on other employees to get their union cards back . Odena Huff testified that she was asked by terry Carter how she felt about the Union and she did not reply . Later on Carter told her that he felt that she should have used her influence on other girls to get them not to join the Union. She told him that she would not do' that. On another occasion, Huff -testified, Terry Carter told her employees needed a union in the plant. Carter denied ever talking with Huff about the Union. Bobby Anderson testified that on the morning of the demand, February 28, Carter told him that the Company was in financial trouble and he wanted to get the employees to withdraw their authorization cards. Anderson told Carter he did not want to talk about it and walked away. Carter testified that he had a conversation with Anderson at that time, stated that Odena Huff was present and that , respon- sive to no-smoking signs in the shipping department, Ander- son said, "this is where we need a union," and Carter 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD replied, "we probably do." Carter stated this is the only conversation he had with Anderson concerning the Union. I credit the employees who testified that Carter asked them about withdrawing their cards or to use their influence to get other employees to do so. This was a main thrust of the Respondent's campaign before the demand and I believe that he took part in the campaign. On February 22 at 4 p.m., which is quitting time, all the employees were called together by Peach to the Company's showroom. However, just before the meeting started, Laten- dresse talked to his counsel and found that he should not say the things he had planned to say and accordingly when he came out of his office after his conversation with his lawyer he merely said "any of you that have signed union cards and wish to return them can do SO." 26 I conclude that by its campaign of interrogation of admit- tedly at least 12 or 13 employees by Latendresse and Peach and the additional interrogation by Peach and Carter, Re- spondent violated Section 8(a)(1) of the Act. Furthermore Latendresse's statement to several of the employees he in- terrogated that he did not have to worry about Anderson that Anderson would fire himself by being drunk or similar statements constituted an implied threat to the interrogated employees that Respondent would seek an occasion to get rid of union adherents, Anderson having been the leading union adherent and acknowledged to be such by Laten- dresse.27 I find further that by its campaign conducted largely by Peach and Carter to get employees to withdraw their union cards and certain employees who were leaders in the group to use their influence to get other employees to withdraw their cards, capped by Latendresse's statement at the em- ployee meeting that it was not too late,for employees to withdraw their cards, Respondent additionally violated Sec- tion 8(a)(1) of the Act. Here there was no element of inquiry from employees as to the means of withdrawing cards or the feasibility of it, the entire campaign was implanted among the employees by Respondent. I find that by its campaign Respondent committed inde- pendent unfair labor practices which have made the holding of a fair election unlikely under the Gissel doctrine. The coercive interrogation of a clear majority of the employees in the unit, coupled, as I have found, with implied threats of loss of employment are of such a nature that they would have a lasting coercive effect on the employees, not only those to whom they were addressed, but all employees who heard of Respondent's action. Respondent contends that the fact that a majority of the employees went out on strike on February 28 for recogni- tion proves that the Respondent's 8(a)(1) activity had no 26 The testimony of the employees differ as to whether Latendresse told employees that wanted to withdraw their cards to stay and the rest to leave I believe that the testimony of Jerry Horton best characterizes what Laten- dresse said Jerry Horton quoted him as saying that if any of the employees wanted to get their union,cards back they could do so and if they did not thg should go ahead and leave. Of course the coercion implicit in interrogation, as the Board has found, is the implied threat that the Employer, upon ascertaining the identity of union supporters, would in some way retaliate against them. By his mention of Anderson's probable discharge Latendresse managed to make this implied threat more graphic. lingering effect on the employees and was not a major factor in employee intimidation and accordingly a bargaining or- der should not arise. If I were to accept the Respondent's conclusion that the strike was a strike for recognition I might agree. However the General Counsel presented un- controverted evidence that the rationale of the strike was basically that of an unfair labor practice strike. The employ- ees-were informed of their rights by the agents of the Union at an employee meeting shortly before the strike began. They were apprehensive as a result of the interrogation and "harrassment" by management and supervision and upset at what they deemed to be the Respondent's effort to pad the unit by hiring Peach's relatives and by causing the office employees and other excluded employees to commence clocking in and out on the plant timeclock, a rule that had never before been promulgated.28 They deliberately struck to protest these unfair labor practices and to force immedi- ate recognition before the Employer's unfair labor practices and other machinations had the effect of dissipating the Union's majority. I conclude that the strike is an unfair labor practice strike and I reject the Respondent's conten- tion that it proves the ineffectiveness of the Employer's 8(a)(1) activity. The General Counsel also contends that a bargaining order should issue under the Sullivan Electric rule (supra), that an employer who by polling or interrogating employees ascertains that the union represents the majority could not thereafter disclaim the result and refuse to bargain with the union. Here Latendresse testified that only four employees informed him during his interrogations that they had signed cards. However I have found that Latendresse's testimony was not reliable. Latendresse admittedly was certain that Bobby Anderson and Mary Vinson were in favor of the Union and indeed during the course of a number of his interrogations criticized them maliciously. In addition he admitted that he was informed by employees Garza, Heyne, Huff, and Vera French that they had signed union cards. Horton informed him that he was already a union member. Hilliard, Miller, and Cherry told Latendresse they had signed cards. Roland, although he had trouble remembering whether he had answered Latendresse's inquiry about a union card, definitely remembered that Latendresse told him he could withdraw it. Accordingly, I find that Laten- dresse knew of Roland's adherence to the Union. Davidson not only volunteered that she had joined the Union but was asked by Peach to withdraw her union card and Jewell Arnold and Judy French both told Peach that they had signed union cards. Accordingly, by the time the demand was made Respondent's management knew that at least 14 of their employees had signed cards. This information came to them largely as a result of their coercive interrogation. Corroborating this conclusion is the statement of James Peach to Odena Huff: "Well with all the union cards that have been signed the Union could walk in and take over." Peach denied substantially having had this conversation with Huff other than to ask her to come to Latendresse's 2i While it has not been alleged as a violation of Sec. 8(a)(1) and according- ly I make no finding, I have no doubt that the employees were correct in their belief that Respondent by these actions was trying to dilute the Union's majority, or at any rate to give the employees the impression that they had done so TENNESSEE SHELL CO., INC. office for the meeting at which Latendresse was to have given the Company's position concerning the Union. I cred- it Huff. I find that the elements of the Sullivan Electric rule are present here and that, even were there not sufficient warrant under the Gissel rule for a bargaining order, Re- spondent here independently ascertained the Union's ma- jonty status and therefore had a duty to bargain with it on demand. Respondent's counsel advances and urges upon me a proposal, which he apparently had previously advanced to the Board either by way of a law review article or in former cases, that the Board should impose upon every union a mandatory obligation to petition for and participate in an election before the Board would consent to entertain the Union's request for a bargaining order in a case such as this. Counsel envisions that by so doing the Board would achieve all sorts of interesting results. If the Union won it might "diplomatically decline" to file "technical" unfair labor practice charges against employers with whom it must bar- gain collectively, thereby reducing the Board's caseload; the Board could thereby test its conclusion as to- the coercive effect of various 8(a)(1) violations by the employers in- volved and thus might determine that some are not such as to render a fair election unlikely but on the contrary may serve to jell the employees' sentiment in favor of the union. Thus by an analysis of the ratio of union votes to union support the Board could evaluate the relative effectiveness of unfair labor practices committed by employers in the face of a union campaign. I deem counsel's proposal worthy of little or no consider- ation. By requiring the union to petition for such an election the Board would place in the hands of the employer a large measure of control as to the timing of the election while completely removing it from the hands of the union, thus enabling the employer, if he feels he has sufficiently dis- persed the union's majority, to have the election conducted immediately or, on the other hand, if he feels that more time is needed to enable the effect of his unfair labor practices to be felt, the Employer can delay an election by litigating all or any aspect of the union's petition. If the employer loses the election he is no worse off than he was before and still by refusing to bargain can delay the ultimate day of reckoning when he must sit down at the bargaining table. If he wins the election, even though he is ultimately ordered to bargain, he approaches the bargaining table with the knowledge that having successfully coerced his employees he has deprived the union of a 'good portion of whatever economic strength it may have had and demonstrated to the employees and to the union the union's lack of employee support. The union, on the other hand, had nothing whatsoever to gain by such a requirement. If it wins the election, which is quite improbable under the circumstances , it gets nothing more than it should have gotten in the first place and if it loses the election it has still to go through the unfair labor practice hearing and subsequent litigation , except that it is delayed by whatever time it takes to order and conduct the election and deal with whatever objections may result there- from. The Board too can only lose, since it is put to the addi- tional expense of a representation proceeding , the result of 211 which has in all liklihood been affected by the employer's unfair labor practices. With regard to counsel's suggestion that important data might be derived from such a proceeding it is of course impossible that an election could be conducted in a vacuum. Events subsequent to the filing of the charge and direction of the election would almost surely affect the results of the election and confuse any data that might result from such an election. I reject counsel's suggestion. Finally, Respondent contends that the testimony of most of the General Counsel's witnesses should be striken from the record because at the hearing Respondent was denied the opportunity to examine General Counsel 's witnesses based on affidavits given the Regional Office during the latter part of May 1973. The circumstances behind Respondent's argument are these. During the investigation of the charge in this matter Respondent raised as an affir- mative defense a contention that because of certain miscon- duct by the Charging Party it had forfeited any right it might otherwise have had to a bargaining order in this case. Respondent contended that after the strike began the Union intentionally misled the striking employees by tell- mg them that the Board had decided that they were enti- tled to backpay as a result of the instant charges and by misstating the meaning and effect of a document tendered by Respondent to its striking employees, upon which is printed the words "We the undersigned hereby make indi- vidual unconditional applications for reinstatement for em- ployment with Tennessee Shell," to mean that the employ- ees were agreeing to go back to whatever job Respondent wanted to give them under whatever conditions Respon- dent wanted to apply to them . This defense caused the investigators to go back to each of the employees and take a second affidavit from them which dealt solely with that issue. At the hearing, when the General Counsel was called upon for affidavits of each witness as his turn for cross- examination arrived, the General Counsel tenderred to Re- spondent all the affidavits except those dealing with the poststrike issue ; these he tendered to me . In each case I determined that they related in no way to the testimony of the witness and I caused them to be sealed and placed in the exhibit file. The Respondent at no time attempted to present any evidence with regard to this affirmative de- fense, although he pled it in his second amended answer and, at the close of the case , withdrew the defense by amending his answer. Accordingly, the matters concerning which the affidavits deal formed no part of the litigation of this case and are irrelevant and immaterial to the trial of this case. This being the case under the Jencks rule, Re- spondent had no right to the affidavits and the affiants' testimony shall not be stricken. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its operations de- scribed in section I , above, have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow thereof. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Tennessee Shell Company, Inc., is an employer en- gaged in commerce within the meaning o f Section 2(6) and (7) of the Act. 2. UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees employed by the Respondent at its Camden , Tennessee, plant, exclud- ing office clerical employees , professional and technical em- ployees, watchmen, guards and supervisors as defined in the Act constitute an appropriate unit of Respondent's employ- ees for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since February 28, 1973, and continuing to date the Union has been the representative for the purposes of col- lective bargaining of the employees in the unit described above and by virtue of Section 9(a) of the Act is the exclu- sive representative of all the employees in the unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 5. By refusing on and after September 28, 1973 , to bar- gain in good faith with UBC, Southern Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive bargaining representa- tive of the employees in the appropriate unit found above, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8(a)(5) of the Act. 6. By the action set forth above, by coercively interrogat- ing its employees and by urging its employees to withdraw their union authorizations, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act in violation of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 8. The strike of the employees of Respondent which com- menced on February 28, 1973, is and at all times has been an unfair labor practice strike. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent has refused to bargain on February 28, 1973, and thereafter in good faith with the Union as the exclusive representative of Respondent's employees in vio- lation of Section 8(a)(1) and (5) of the Act, I recommend that on request Respondent bargain collectively in good faith with the Union as such exclusive representative of all its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and if an agreement is reached embody such understanding in a signed agreement. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER29 Respondent Tennessee Shell Company, Inc., Camden, Tennessee, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain in good faith with the Union as the exclusive representative of Respondent's employees in the appropriate unit found above. (b) Coercively interrogating its employees concerning their or other employees' activities on behalf of UBC, Southern Council of Industrial Workers, United Brother- hood of Carpenters and Joiners of America, AFL-CIO. (c) Urging and advising its employees to withdraw their authorizations to said Union to represent them for purposes of collective bargaining. (d) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive repre- sentative of Respondent's employees in the appropriate unit found above with respect to wages, rates of pay, hours of employment, and other terms and conditions of employ- ment and if an understanding is reached embody same in a written signed agreement. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Camden, Tennessee, plant copies of the attached notice marked "Appendix." 30 Copies of said no- tice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said no- 29 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. 30 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." TENNESSEE SHELL CO., INC. 213 tices are not altered, defaced, or covered by any other mate- the Respondent has taken to comply herewith. rial. IT IS FURTHER RECOMMENDED that in all respects in which I (d) Notify the Regional Director for Region 26, in writ- have not found a violation the complaint be dismissed. ing, within 20 days from the date of this Order, what steps