Vernon Manufacturing Co.

VERNON MANUFACTURING COMPANY 285 Vernon Manufacturing Company and Spencer Indus- tries and Southern Regional Joint Board, Amalga- mated Clothing Workers of America and Amalga- mated Clothing Workers of America, AFL-CIO Caledonia Manufacturing Company and Spencer In- dustries and Southern Regional Joint Board, Amal- gamated Clothing Workers of America, AFL-CIO and Amalgamated Clothing Workers of America, AFL-CIO. Cases 10-CA-9938, 10-CA-10251, 10- CA-10247 (Formerly 26-CA-4604), and 10- CA-10268 (Formerly 26-CA-4785) October 25, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On April 8, 1974, Administrative Law Judge Lo- well Goerlich issued the attached Decision in this proceeding. Thereafter, the Respondents filed excep- tions and a supporting brief, and the General Coun- sel and the Charging Party each filed cross-excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions, the cross- exceptions, and briefs, and has decided to adopt the Administrative Law Judge's rulings, findings, and conclusions only to the extent consistent herewith.' 1. The Administrative Law Judge found that Re- spondent Vernon violated Section 8(a)(1) by initiat- ing and causing the circulation of the decertification petitions because he inferred that, although Attorney McClanahan may have done so "unwittingly," he acted as an agent of Respondent Vernon in aiding employees in that circulation. We disagree. As more fully set forth by the Administrative Law Judge, the record discloses that on November 24, 1972, William Threadgill, a Mississippi lawyer, re- ceived a call from a Caledonia employee who sought his assistance in a decertification proceeding. Threadgill informed the employee that he would be unable to handle the matter but that, if the employee came to Threadgill's office the next day, Threadgill would assist him in locating counsel. The next day Threadgill was absent from his office and his associ- ate, Attorney Taylor B. Smith, kept the appointment. ' The Respondents have requested oral argument. This request is hereby denied , as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. Several persons who identified themselves as Vernon Manufacturing's employees appeared at Smith's of- fice that afternoon and were escorted by Smith to the office of Attorney Hal H. H. McClanahan, who was subsequently retained by the employees to represent them in their decertification effort. On November 24, 1972, the vice president of Vernon Manufacturing and Caledonia Manufacturing, W. C. Landress, learned of McClanahan's retention by the employees and communicated this information to Respondent's attorney, Alexander E. Wilson. By a telephone call on November 24, 1972, Wilson informed McClanahan that he represented Respon- dents and that he understood that McClanahan rep- resented the employees, offered "information or something that he could provide about his client," and mentioned "something to the effect that if this thing-after this thing was over that he might send [McClanahan] some research work or something to do or some case that he had or might have in Missis- sippi." Wilson subsequently telephoned McClanahan on December 4 and 10, 1972, and McClanahan tele- phoned Wilson collect on December 24, 1972. All of these calls concerned the decertification effort. On the basis of the foregoing facts, the Adminis- trative Law Judge inferred that the employees were directed to Threadgill by a representative of Respon- dents Vernon and Caledonia and that hence both Respondents had squired Vernon's employees into McClanahan's office through Threadgill. The Ad- ministrative Law Judge therefore concluded that Mc- Clanahan acted as an unwitting agent for both Re- spondents. We do not find the evidence sufficient to support either the Administrative Law Judge's infer- ences or his conclusion. As to the inferences, there is a total lack of evidence as to why the employees orig- inally decided to contact Threadgill; the record as a whole reveals only the most superficial relationship between McClanahan, Threadgill, and Wilson; and it seems clear that McClanahan's activities on behalf of the employees in the decertification effort had only an incidental effect of furthering the interest of Respondents. Further, even if this relationship be- tween McClanahan and Wilson could have had the potential to develop into a violation of the Act, it was not shown that this had occurred, as the evidence adduced herein did not establish that the communi- cations between them involved anything more than a routine exchange of information. To the extent the suggestion that future work might possibly be re- ferred to McClanahan by Wilson could be a suspi- cious circumstance, it is too ambiguous and uncer- tain to warrant our finding that their dealings were other than entirely ethical. Nor were facts adduced warranting the conclusion 214 NLRB No. 23 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that there was any agency relationship between Re- spondents and McClanahan. The Administrative Law Judge recognizes this by his finding that Mc- Clanahan acted "unwittingly" as Respondents' agent. But, in a situation like that before us herein, an agency relationship must be knowingly entered into; an "unwitting" agency is unknown in Board law or in the general law of agency. Accordingly, we find that the record evidence is insufficient to warrant the inferences drawn by the Administrative Law Judge and we reject his conclu- sion based thereon. As the Administrative Law Judge's finding that Respondent Vernon violated Section 8(a)(1) by initiating and causing the circula- tion of the decertification petitions was grounded on his finding of agency, and as we have rejected that underlying holding, we also reject the conclusion that Respondent Vernon did initiate and cause the circu- lation of those petitions. 2. The Administrative Law Judge also found that Respondent Vernon violated Section 8(a)(l) because Supervisor Smith "suffered and encouraged employ- ees to sign decertification authorizations." Although we agree that Smith's interrogation of and threats to an employee if that employee did not sign the au- thorization violated Section 8(a)(l), we do not agree that her "suffering" employees to sign them amounts to a similar violation. The dictionary. definition of "suffer" in this context is "to allow; permit; tolerate; put up with. . . . " 2 Thus, if employees freely sign such authorizations, the Act requires that a supervi- sor "allow, permit, tolerate, put up with" such activi- ty without interference where, as here, it was done on nonwork time. It would thus appear that the viola- tion of the Act would have occurred had Smith not "suffered" the employees to sign, if they so desired. Her single instance of interrogation and threat is not sufficient to taint the entire solicitation or to require finding that the authorizations were coerced. Ac- cordingly, we do not adopt the Administrative Law Judge's finding that Smith's conduct in "suffering" employees to sign the authorizations was unlawful. 3. The Administrative Law Judge also found that Respondent Vernon violated Section 8(a)(5) by its refusal to bargain with the Union. We find merit in the Respondents' exceptions thereto. As more fully set forth in the attached Decision, the Union was certified at Respondent Vernon on September 14, 1971. On or about November 30, 1972,3 decertification authorizations, which were pre- 2 Webster's New Collegiate Dictionary. 1949 ed. 3 The Administrative Law Judge found that this occurred on November 24, 1972. We find that the record as a whole indicates that the date is November 30, 1972 . However, since we do not find an 8(a)(5) violation, we regard the difference in dates as irrelevant. pared by McClanahan, appeared at Respondent Vernon's plant. Several employees signed these au- thorizations in the plant and many others signed them at their homes on the evening of November 30, 1972. On December 13, 1972, McClanahan filed a decertification petition with the Board on behalf of Respondent Vernon's employees 4 and on December 26, 1972, Respondent Vernon advised the Union that it would no longer be recognized. We have held that a decertification petition, supported by an adequate showing of interest as the Regional Director here found, may raise a real question concerning repre- sentation, and thus relieve an employer of its duty to bargain with the incumbent union until the question concerning representation is resolved.' On the facts before us, we find that Respondent Vernon was un- der no legal compulsion to bargain with the Union; on the contrary, it had the right to decline to negoti- ate with the Union pending resolution of the Union's representative status. While we are not unmindful of Vernon's transgres- sions of Section 8(a)(1) as found by the Administra- tive Law Judge, these violations did not render im- proper or in any way taint the atmosphere surround- ing the decertification activity since we have rejected the finding of agency and there is no evidence that the Respondent actively supported or sponsored the solicitation of the decertification authorizations other than the single instance involving Supervisor Hazel Smith. The order to Shirey to remove her decertifica- tion revocations from the plant 6 occurred around December 7 or 8, a full week after her fellow employ- ees had signed decertification authorizations; addi- tionally, there is no evidence that the employees knew that there would be an imminent effort by Shi- rey to revoke the decertification authorizations. Ac- cordingly, the prohibition against the solicitation of decertification revocations, while unlawful because of its disparate nature, could not have had an impact on the employees' opportunity to make a choice, such as might have occurred if there had been similar disparate action while simultaneous solicitations for or against the Union were in progress. Furthermore. it has long been held that any such repudiation would have no effect on the decertification petition before the Board if the decertification petition was The Regional Director held that case in abeyance and did not dismiss the petition . Accordingly. we understand that it is still pending. 5 Cantor Bros., Inc. 203 NLRB 774 (1973): Telautograph Corporation, 199 NLRB 892 ( 1972) (Members Fanning and Jenkins dissenting). 6 The record discloses that around December 7 or 8. 1972. employee Mar- ion Ann Rogers Shirey , a union supporter . brought three or four decertifica- tion revocations into the plant and laid them beside her machine on a utility shelf which was sometimes used for holding employee handbags and fiir depositing rework materials. After reading the revocations and learning that they belonged to Shirey. Vernon's vice president , W. C. Landress, ordered her to remove them from the plant and she complied. VERNON MANUFACTURING COMPANY otherwise valid.' Consequently, we find that the de- certification authorizations were properly obtained, that they were sufficient to support the decertifica- tion petition, and that the filing of the petition raised a question concerning representation. Accordingly, we find that Respondent Vernon's refusal to bargain with the Union did not run afoul of Section 8(a)(5). In view of our dismissal of the allegation that Re- spondent Vernon refused to bargain in violation of Section 8(a)(5), we find, contrary to the Administra- tive Law Judge, that any unilateral changes effected by it did not constitute violations of Section 8(a)(5). 4. With respect to Respondent Caledonia, howev- er, there is no objective ground shown on which it questioned the Union's continued majority status. We therefore agree with the Administrative Law Judge and find that Respondent Caledonia did vio- late Section 8(a)(5) by withdrawing recognition from the Union and by unilaterally changing the wages and working conditions of its employees without consultation with the Union. 5. As we have reversed the Administrative Law Judge's findings that Respondent Vernon violated Section 8(a)(1) by fostering decertification authoriza- tions and violated Section 8(a)(5) by withdrawing recognition from and refusing to bargain with the Union, we shall modify the remedial order to con- form to these findings, including deletion of the or- der that it bargain with the Union on demand.' We shall, of course, adopt the recommendation that Re- spondent Caledonia be ordered to bargain with the Union upon request and to cease making unilateral changes; however, this is not to be construed as re- quiring that Respondent Caledonia revoke any bene- fits which it has granted to its employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that: A. Respondent Vernon Manufacturing Company, Vernon, Alabama, its officers, agents,. successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating its employees concerning their union activities. (b) Threatening employees.that they would be on slack time if they did not sign a decertification au- thorization. 7 E.g., Vent Control, Inc. of Ohio, Subsidiary of Air Control Products. 126 NLRB 1134 ( 1960). See also Plains Cooperative Oil Mill, 123 NLRB 1709 (1959); Chemical Express, 117 NLRB 29 (1957). B In view of our findings herein, we do not consider or pass upon the unusual remedy recommended by the Administrative Law Judge or his ra- tionale for finding this case distinguishable from others in which the Board has declined to adopt the measures he would find warranted. 287 (c) Prohibiting its employees from bringing onto plant property prounion cards while allowing the cir- culation of antiunion petitions. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its Vernon, Alabama, plant copies of the attached notice marked "Appendix A." 9 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent Vernon's representative, shall be posted by it immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by Respondent Vernon to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent Vernon has taken to comply herewith. B. Respondent Caledonia Manufacturing Compa- ny, Caledonia, Mississippi, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively with Amalgamated Clothing Workers of America, AFL-CIO, as the exclusive representative of its em- ployees in respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment in the following unit: All production and maintenance employees and plant clerical employees at Respondent Caledonia's Caledonia, -Mississippi, plant, ex- cluding all professional employees, office cleri- cal employees, guards, and supervisors as de- fined in the Act. (b) Unilaterally changing working conditions of its employees during any period when its employees are represented by an exclusive bargaining represen- tative within the meaning of Section 9 of the Act. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them in Section 7 of the Act. 9 In the event that this Order is enforced by a Judgment of a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board " shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Amal- gamated Clothing Workers of America, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above with respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its Caledonia, Mississippi, plant, copies of the attached notice marked "Appendix B." 10 Cop- ies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent Caledonia's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by Respondent Caledo- nia to insure that said notices are not altered, de- faced, or covered by any other material. (c) Notify the Regional Director for Region 10, in writing, within 20 days from the date of this Order, what steps Respondent Caledonia has taken to com- ply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. MEMBER J ENKINS, dissenting in part: Unlike my majority colleagues, I would find that Respondent Vernon's refusal to recognize or bargain with the certified bargaining representative of its em- ployees after the expiration of the certification year was not legally justifiable and in fact constituted a violation of Section 8(a)(5) of the Act. It has long been recognized that a Board certifica- tion gives rise to a presumption that majority status once established is continuing. To lawfully withdraw recognition, this presumption must be overcome by competent evidence that the union in fact did not represent a majority at the time of the withdrawal 1 or by the employer's establishing on the basis of ob- jective facts that it had a reasonable doubt as to the union's continuing majority status. This latter test re- quires more than mere evidence of the employer's subjective state of mind.12 For the test to be met, the assertion must be supported by objective consider- ations, that is, "some reasonable ground for believing the union has lost its majority status since its certifi- cation." 13 10 See in . 9, supra. 11 No such evidence is present in this record. 12 Celanese Corporation of America, 95 NLRB 664. 672 (1951). In this case, my colleagues rely solely on the filing of a decertification petition with the Board as the predicate for their conclusion that Respondent Ver- non was legally justified in refusing to bargain with the Union. In so doing, they give effect to a doctrine accepted by a majority of the Board in Telautograph Corporation.14 There the Board majority expressed the view that a decertification petition, supported by an adequate showing of interest and filed in a con- text free of employer unfair labor practices, may raise a question concerning representation and thus relieve the employer of his duty to bargain with the incumbent union until the question concerning rep- resentation is resolved. I have previously indicated my disapproval of such a policy 15 because I do not see how the mere filing of a decertification petition can in any sense be said to supply a reasonable basis for concluding that the union no longer represents a majority of the employees. Such a petition can be properly filed with the Board on the basis of prima facie showing that 30 percent of the unit employees desire such an election. The filing of such a petition in no way reflects or purports to reflect the senti- ments of the unit majority. Even with respect to the authorizations filed in support of such a petition, the Board's function is merely to make an administrative determination of the adequacy of the filing by exa- mining the face of the cards and determining wheth- er or not a sufficient number have been submitted. The nature and purpose of the filing is such that the Board requires nothing more then the bare represen- tation evidenced by the cards themselves that at least 30 percent of the employees in the unit desire an election. This to me is a far cry from any showing that the employer has reasonable grounds for doub- ting a majority of the employees no longer want the union to represent them. Aside from my overall disagreement with this poli- cy, I think the situation here is a particularly inap- propriate one for the application of such a rule be- cause, in my judgment, the decertification petition was not filed in a context free of employer unfair labor practices.16 On the contrary, during the solicita- tion of these authorizations, Supervisor Smith, after asking employee Madden whether she signed an au- thorization, told her that she better sign the decertifi- cation petition because "if you don't, we'll be on slack time." Smith then referred Madden to her 13 Larsirom Manufacturing Co., 151 NLRB 1482. 1483 (1965), enforce- ment denied 359 F.2d 799 (C.A. 7, 1966). See also Emerson Manufacturing Company Inc.. 200 NLRB 148 (1972), and Terrell Machine Company. 173 NLRB 1480(1969). 14 199 NLRB 892 (1972) (Members Fanning and Jenkins concurring only in the result). 15 Cantor Bros.. Inc. 203 NLRB 774. in. 4 (1973): George Braun Packing Co.. 210 NLRB 1028 (1974). 16 Cantor Bros., Inc., supra. VERNON MANUFACTURING COMPANY (Smith's) husband, an employee who had blank au- thorizations available. My colleagues correctly find that this conduct by Smith constitutes unlawful inter- rogation and threat in violation of Section 8(a)(1), but they refuse to find that it had any significant impact on the solicitation of the deauthorization cards. Then still later, apparently after sufficient deauthorization approvals had been obtained, em- ployee Shirey was told by Vice President Landress to remove from the plant certain deauthorization revo- cation forms in her possession. This action requiring that the forms be removed from the premises was in sharp contrast with Respondent Vernon's practice of merely prohibiting the circulation of decertification authorizations during working time." Again my col- leagues recognize the disparate treatment accorded a proponent of the Union and find the action to be unlawful, but they conclude that it has no bearing on the validity of deauthorizations previously obtained or on Respondent Vernon's right to rely on the filing of the petition as justification for its withdrawal of recognition. If my colleagues had applied the proper test and questioned whether or not in these circum- stances Respondent Vernon had reasonable grounds for doubting the Union's majority, I doubt that they would have reached such a conclusion. The involve- ment of Supervisor Smith in the initial solicitation of decertification authorizations and the unlawful effort to "nip in the bud" any efforts designed to show sup- port for the Union lead me inescapably to the con- clusion that Respondent Vernon was predisposed to receiving only such evidence or information which would justify the withdrawal of recognition. Such an approach is not based on objective consideration and can in no sense be said to create a reasonable doubt as to the Union's majority status. For the foregoing reasons, I would find no legal justification for Respondent Vernon's refusal on De- cember 26, 1972, and thereafter to recognize and bar- gain with the Union and further find that, by such conduct, Respondent Vernon violated Section 8(a)(5) of our Act. I would also, predicated upon this find- ing, conclude that certain unilateral changes thereaf- ter instituted by Respondent Vernon likewise consti- tuted violations of Section 8(a)(5) of the Act and pro- vide appropriate remedies for the violations so found. In all other respects, I join in the determinations reached by my colleagues. 17 There is no evidence to indicate that employee Shirey ever passed out the revocations on the line. 289 APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten our employees that they will be on slack time if they do not sign a decer- tification authorization. WE WILL NOT prohibit our employees from bringing onto plant property prounion cards while allowing the circulation of antiunion peti- tions. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees. in the exercise of the rights guaranteed them in Section 7 of the Act. o VERNON MANUFACTURING COMPANY APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL, upon request, recognize and bargain collectively with Amalgamated Clothing Work- ers of America, AFL-CIO, as the exclusive bar- gaining representative of our employees in re- spect to rates of pay, wages, hours of employ- ment, and other terms and conditions of employment in the following unit: All production and maintenance employees and plant clerical employees at Caledonia Manufacturing Company's Caledonia plant, excluding all professional employees, office clerical employees, guards and supervisors as defined in the Act and, if an understanding is reached , we will em- body it in a signed agreement. WE WILL NOT unlawfully make unilateral changes in working conditions of our employees. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the Act. CALEDONIA MANUFACTUR- ING COMPANY 290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE LOWELL GOERLICH, Administrative Law Judge: A copy of the charge filed by Southern Regional Joint Board, Amal- gamated Clothing Workers of America, on January 12, 1973, in Case l0-CA-9938 against Respondent Vernon Manufacturing Company, herein referred to as Vernon, was served on Vernon on January 12, 1973, by registered mail. A copy of the amended charge filed on May 7, 1973, was served on Vernon by registered mail on May 8, 1973. A complaint and notice of hearing was issued on May 17, 1973. A copy of the charge filed on January 12, 1973, in Case 10-CA-10247 (formerly 26-CA-4604), by Southern Regional Joint Board, Amalgamated Clothing Workers of America, against Respondent Caledonia Manufacturing Company, herein referred to as Caledonia, and Respon- dent Spencer Industries, herein referred to as Spencer, was served on Respondents Caledonia and Spencer on January 12, 1973. A complaint and notice of hearing issued on July 13, 1973. An amended complaint and notice of hearing and order consolidating cases in Cases 10-CA-9938 and 10- CA-10247 (formerly 26-CA-4604) was issued July 17, 1973. A copy of the charge filed in Case 10-CA-10251 on June 28, 1973, and a copy of the charge in Case 10-CA- 10268 (formerly 26-CA-4785) filed on June 29, 1973, by the Amalgamated Clothing Workers of America, against Respondents Vernon, Caledonia, and Spencer were served on these Respondents on June 28 and 29, 1973, respective- ly. A complaint and notice of hearing and order consoli- dating cases was issued on August 1, 1973, in Cases 10- CA-9038, 10251, 10247 (formerly 26-CA-4604), and 10- CA-10268 (formerly 26-CA-4785). The foregoing com- plaints charged that the Respondents were a single employ- er; that Vernon unlawfully interrogated employees, threatened its employees that they would be on "slack time again" if they did not sign a card to decertify the Union, solicited employees to sign cards to decertify the Union, initiated and caused to be circulated among its employees in the plant cards and petitions to decertify the Union, and unlawfully restricted employees from bringing into the plant cards to revoke previous authorizations to decertify the Union in violation of Section 8(a)(1) of the National Labor Relations Act, as amended, herein referred to as the Act; and that since on or about December 26, 1972, Ver- non has refused to bargain collectively with the Union as the exclusive representative of all employees in the appro- priate unit. Caledonia and Spencer were also charged with causing the circulation of decertification petitions and the refusal to bargain. Vernon and Caledonia were additionally charged with unilaterally and without notification to or consultation with the Union announcing and granting wage increases and increased benefits in their insurance programs, and making a change in their production processes from a line system to a bundle system. The Respondents filed timely answers to the complaints denying that they had engaged in or were engaging in the unfair labor practices alleged. The cases came on for trial at Vernon, Alabama, on Au- gust 21 and 22, October 24, 1973, and January 17, 18, 24, and 25, 1974. Each party was afforded a full opportunity to be heard, to call, examine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and conclusions, and to file briefs. All briefs have been carefully considered. FINDINGS OF FACT,' CONCLUSIONS, AND REASONS THEREFOR 1. THE BUSINESS OF THE RESPONDENTS Respondent Vernon and Respondent Caledonia are en- gaged in the operation of "cut, make and trim" shops in Vernon, Alabama, and Caledonia, Mississippi, respective- ly. Each is a subsidiary of Respondent Spencer.' Respon- dent Caledonia is, and at all times material herein has been, a corporation with an office and place of business located at Caledonia, Mississippi, where it is engaged in the manufacture and sale of men's clothing. Respondent Caledonia during the past calendar year, which is representative of all times material herein, sold and shipped finished products in excess of $50,000 directly to customers located outside the State of Mississippi. Respondent Vernon is, and at all times material herein has been, an Alabama corporation with an office and place of business located in Vernon, Alabama, where it is en- gaged in the manufacture and sale of men's clothing. Respondent Vernon during the past calendar year, which period is representative of all times material herein, sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. The Respondents Vernon and Caledonia respectively admit and it is found that at all times material herein Ver- non and Caledonia have been and are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED Amalgamated Clothing Workers of America, AFL-CIO, herein called the Union, is, and has been at all times mate- rial herein, a labor organization within the meaning of Sec- tion 2(5) of the Act. The facts found herein are based on the record as a whole and the observation of the witnesses. The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of N. L. R. B. v. Walton Manufacturing Company & Logamdlle Pants Co.. 369 U.S. 404, 408 (1962). As to those witnesses testifying in contradic- tion to the findings herein , their testimony has been discredited, either as having been in conflict with the testimony of credible witnesses or because it was in and of itself incredulous and unworthy of belief. All testimony has been reviewed and weighed in the light of the entire record. No testimony has been pretermitted. 2 Respondent Spencer's motion to dismiss was granted at the trial on the authority of McEwen Manufacturing Company, 172 NLRB 990 (1968), and M. Lowenstein & Sons, Inc., 150 NLRB 737. fn. 2 (1964). VERNON MANUFACTURING COMPANY 291 III. THE UNFAIR LABOR PRACTICES First: Pertinent facts Prior to Thanksgiving 1972,3 according to Martin Lee Smith, husband of Supervisor Hazel Smith, employees dis- cussed among themselves matters in relation to the decerti- fication of the Union. On November 21, 1972, William J. Threadgill, a Columbus, Mississippi, lawyer, received a call from a man "who stated he was calling from Caledonia" and that he worked for Caledonia. Threadgill did not recall his name. The man asked Threadgill if he would handle a matter "involving the employees of the union. They had some sort of claim against the union." Threadgill indicated that he was not in a position to handle the matter but if the man would come to the office the next day he would assist him in locating a counsel . On the next day, since Threadgill was to be absent, from his office, he asked his associate, Taylor B. Smith, to keep the appointment. Several men and one woman appeared in Smith's office on the afternoon of November 22, 1972. Smith escorted the persons to the office of Attorney Hal H. H. McClanahan III "because of the fact he was a young lawyer in town, trying to get established." Smith did not discuss fees with McClanahan. Smith did not remain. McClanahan was told by the employees that they "want- ed to get rid of the union" and were representing "them- selves" and "maybe some other people that wanted to get rid of the union." They identified themselves as employees of Vernon, On November 24, 1972, W. C. Landress, vice president of Vernon and Caledonia, and the "top boss," learned of the decertification movement from Assistant Plant Manag- er Joseph Edward Barnes. Barnes told Landress, "We've got a real bad situation . The plant is in an uproar. Appar- ently there's some material being circulated and some of the employees don't like it or do like it and it's creating problems with me and keeping the work from moving smoothly." Landress replied that he should inform the su- pervisors to prohibit circulation of any material during working hours and to refrain from getting involved.' Barnes also advised Landress that a lawyer named "Flana- gan" was involved in the decertification movement. Later Barnes, by another phone call, corrected the name to Mc- Clanahan of Columbus, Mississippi. Landress imparted this information to Attorney Alexander E. Wilson by phone on the same day. Landress talked by phone with Wilson after each conversation with Barnes . According to Landress, he did not discuss with Wilson whether or not he should contact McClanahan. He left the matter up to Wilson's judgment. Barnes did not inform Landress which employees were involved in the decertification movement or the number of employees involved. On November 24, 1972, McClanahan received a tele- phone call from Alexander E. Wilson, Jr., attorney for Ver- non and Caledonia. Wilson phoned again on December 4 and December 10, 1972. McClanahan phoned Wilson col- lect on December 24, 1972. During the November 24, 1972, phone call, Wilson informed McClanahan that he repre- 3 Thanksgiving occurred on November 23, 1972. 4 The Respondent did not have a no-solicitation rule. sented Vernon and Caledonia and that he understood that McClanahan represented some employees. Wilson offered "information or something that he could provide about his client." During the conversation, Wilson asked McClana- han if the employees were paying him. Wilson mentioned "something to the effect that if this thing-after this thing was over that he might send [McClanahan] some research work or something to do or some cases that he had or might have in Mississippi." Shortly after the November 24, 1972, conversation, Mc- Clanahan prepared decertification authorizations naming himself as the employees representative for decertification purposes. In the later part of November, these authoriza- tions appeared at the Vernon plant. According to Martin Lee Smith, a presser, husband of Supervisor Hazel Smith, the decertification authorizations appeared one day in a pants bin in the shipping depart- ment, at which time he signed an authorization dated No- vember 30, 1972.5 He observed them when returning to the plant at lunchtime with his wife at about 12:20 p.m. People were "lined up hollering union papers to get the union out"; 50 or 75 were lined up "grabbing the papers." Smith passed out "75 or 100" during which he consumed 10 or 15 minutes. After signing the authorizations, the employees placed them in a separate bin. Nothing was said as to whether McClanahan was going to be paid. Smith had taken 8 or 10 blank authorizations with him. That evening, November 30, 1972, together with Anderson Burgess, husband of Supervisor Sue Burgess, he solicited employees' signatures at their homes. When Smith re- turned from the card-signing adventure, his wife asked him, "Where have you been so long?" He answered, "I have been to get cards signed to get the union out." His wife responded, "Well, don't tell me no more because I've got nothing to do with it." 6 Burgess also was asked by his wife, Supervisor Sue Bur- gess, where he had been. He told her that he "went with Martin Lee to get some papers signed." She replied, "I don't want to know nothing about it." Smith returned the signed decertification authorizations to the bin where he had obtained them. Supervisor Hazel Smith, in answer to employee Margie Lee Madden's inquiry, said that she had not signed a de- certification authorization, and asked, "Did you?" After receiving a negative response from Madden, Smith said, "You had better because if you don't we'll be on slack 5 The authorization read: I have not received the benefits promised me by the Amalgamated Clothing Workers and do not wish to be represented by the Amalga- mated Clothing Workers any longer. I therefore designate Hal H. H. McClanahan Ill to take such action as is necessary to decertify the Amalgamated Clothing Workers at my employer's plant. I work at Vernon Manufacturing Company. 6 In regard to this incident. Supervisor Hazel Smith first testified that she first learned of her husband's involvement when testimony was submitted in this case. Later she admitted that he had told her he had been absent solicit- inB card signers to vote the union out.' '7 Sue Burgess testified: " . . . like I say I don't remember. He said that him and Martin Lee were going somewhere. Q. To get those papers. the decertification papers? A. Well, he said something about them, I don't remember what it was. 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time." Smith referred this employee to her husband, Mar- tin Lee, who had authorizations "if [she] wanted to sign one." Martin Lee worked "downstairs." Employee Bobby Rogers observed six or eight girls on line 6 reading decertification authorizations in the presence of Supervisor Hazel Smith. The authorizations were passed up the line to Smith by the employees. Smith placed them in a notebook.e During this same period, employee Patsy Irene Rogers testified that she saw six or seven such solicitors. One soli- citor, Clyde Mason, obtained the signature of employee Elwanda Glasgow 9 within the observation of Supervisor Amy Andrews. Adele Carr testified that the supervisor over the front pocket section was present when an employee shouted a solicitation and delivered an authorization to another em- ployee.10 During this period around December 7 or 8, 1972, Mar- ion Ann Rogers Shirey brought three or four decertifica- tion revocations into the plant and laid them beside her machine on a utility shelf which separates her machine from the employee's machine next to her. The shelf was sometimes used for holding employees' handbags and also was used as a place to deposit rework material. About 7 o'clock, Assistant Manager Barnes appeared at Shirey's work station. Supervisor Bobby Pennington had reported to Barnes that Shirey had started "papers" down the line. Barnes cautioned Shirey not to pass the papers down,the line and immediately called Landress. About 10 o'clock on the same day, Landress appeared at Shirey's work station and, after having read the revoca- tions, asked to whom they belonged. Shirey responded that the revocations belonged to her. Landress said, "I want you to get them out of here. I won't have them being passed out on the line during working hours." Shirey in- quired as to where she should put them. Landress replied, "I don't care just get them out of my plant. I won't have that propaganda in this plant, in the sewing area." Shirey took the revocations to her car. About 30 minutes later, Landress returned to Shirey's work station and said, "Mar- ion, I don't care what you or anyone else does outside of this plant but I won't have that propaganda in this plant." 11 8 Smith denied her conversation with Madden and conversations with any employees about decertification . She denied that she had seen a decertifica- tion authorization , and she denied that she knew that her husband had taken part in "decertification work." In view of Smith's contradictory state- ments, her husband 's testimony that he had told her of his solicitation, the fact that she returned from lunch with her husband while a substantial number of employees (50 to 75) were "hollering" against the union, and authorization signing was then occurring , the fact that her husband did have cards in his possession , and giving due consideration to demeanor, it is found that Smith is not a reliable witness and where her testimony conflicts with that of other credited witnesses it is not credited . The testimony of those who testified that they had seen no cards passed up and down the line and had not seen Smith with authorizations has been weighed . In this re- gard , it is significant that employee Dixie Gail Black was handed an author- ization while at her machine which would tend to confirm Rogers' testimo- ny. Respondent's witness , Billy Jean Harrington , also was given an authori- zation at her machine. 9 In view of the testimony of Clyde Mason and Elwanda Glasgow. these incidents are not deemed proved by a preponderance of evidence. 10 In view of Adele Carr's testimony , it is deemed that this incident has not been proved by a preponderance of the evidence. Some time in December McClanahan received a com- munication from Assistant Secretary of Labor W. J. Ur- sery, Jr., enclosing an inquiry from the Union as to wheth- er or not Form LM 20 had been filed by McClanahan with respect to his activities at Vernon and Caledonia. In re- sponse, on December 24, 1972, McClanahan forwarded two Forms LM 20, naming Caledonia Manufacturing Company in one and Vernon Manufacturing Company in the other as parties with whom he had made an agreement or an arrangement through Alexander E. Wilson, Jr., on November 24, 1972. Among other things the forms recited, "The agreement or arrangement, as such, is entirely oral and any expenses in addition to the fee I charged the em- ployees was to be paid." A note was added: "It is the posi- tion and opinion of the undersigned that this particular report does not have to be filed since he was retained by the employees of the above plant, not the employer, and that the activities mentioned in Item 8 were not undertaken pursuant to an agreement or arrangement with the employer, and that the reason for the submission of this report is to protect the interests of said employees." McClanahan was unlearned in the field of labor law. McClanahan explained his reason for filing Form LM 20 as follows: And the difficulty was this. Under the applicable act the LM 20 has to be initially submitted within 30 days after the initial agreement, if any, with an Em- ployer. I got the letter on December 23rd. Mr. Wilson had called me on November the 24th. So, consequent- ly December the 24th was the 30th day. And I did as much research as I could. And to be quite frank with you, Your Honor, at the time I did not know if what he had said one way or the other about a possible work later which was not connected with this could in some instance be ascribed to an agreement or an ar- rangement pursuant to an agreement with an employ- er. As far as I was concerned, I did not have it. But I'll be equally candid with the Court, sir. The way that law is phrased and from what I could find, just within 24 hours, I didn't know. So I submitted this report under protest exactly the way it's stated here. .. . At this point I didn't know. And I figured that I had better submit this the way it was, especially with the one-day deadline facing me. In the meantime, Wilson phoned Threadgill, whom he had met "20-odd years ago," and reminded him of their association at that time. Wilson inquired if he knew Mc- Clanahan. Upon Threadgill's affirmative answer, Wilson asked him what "kind of fellow" he was and whether he knew him "well enough to talk to him." Once again receiv- ing an affirmative answer, referring to the LM 20 Form, °° Landress' version of the incident differed in some respects. Landress declared that the revocations were on top of some pants and their presence was interfering with the work flow. He said that he told Shirey "to get them out of the work area." At the second conversation he told her. "I Iwon'tl have any Union or non-Union propaganda going up and down the line during working hours." Shirey's version is credited. VERNON MANUFACTURING COMPANY 293 Wilson asked Threadgill to talk to McClanahan and "ex- plain that it's not necessary to file the form." Threadgill said that he would be glad to talk to McClanahan. About 2 days later, when McClanahan was using some of the books in Threadgill's library, Threadgill inquired about the form. McClanahan showed Threadgill the correspondence from the Department of Labor. Threadgill said, "Well, unless you're employed by the company, it would appear to me that it's not necessary to file the form." McClanahan re- plied, "Well, I'm not sure what this means. I'm not going to take any chances, and I'm going to file it under protest." In his phone conversations with Wilson, McClanahan obtained information from Wilson which he needed to file a decertification petition; from time to time Wilson made suggestions and offered information in this regard. Wilson and McClanahan also discussed the filing of Form LM 20. On one occasion McClanahan called Wilson collect 12 to ascertain where the decertification forms should be filed and the unit description. McClanahan testified that he had received a fee from the Vernon employees. He testified, "I have not been promised any money, other than from the employees." During the trial, Wilson counseled Martin Lee Smith and Anderson Burgess, husbands of Vernon supervisors, to leave the courtroom when faced with service of a subpoena ad testificandum being prepared by the General Counsel. After Landress had learned of the decertification move- ment at Vernon, he advised Caledonia Assistant Manager William Pennington that a decertification movement had commenced at Vernon and told him "what he should do .. . if a similar thing happened .... " Some time later Pennington informed Landress that "he had heard, he did not know the person, he heard that some activity was going on at Caledonia." Second: The withdrawal of recognition and the alleged uni- lateral changes in working conditions Around December 4, 1972, Landress received a letter from Attorney McClanahan, stating that he had "been re- tained by more than half of your employees to maintain a decertification against the Amalgamated Clothing Work- ers, the current bargaining representative." Around De- cember 22, 1972, a similar letter was received by Landress in respect to Caledonia.13 Upon receiving the letters, Lan- dress did nothing to ascertain whether the claims of majori- ty made therein were true. He mailed the letters to Attor- ney Wilson. With respect to Caledonia, his refusal to bar- 12 The fact that McClanahan had phoned Wilson collect on the day before Christmas is indicative of the cozy relationship which was developing be- tween Wilson and McClanahan. 13 While McClanahan's letter to Caledonia recited that he had "been re- tained by a majority" (Cal. Exh. 1) of the employees, another letter dated February 22, 1973, addressed to W. O. Crittenden. U.S. Department of Labor, recited that McClanahan represented "approximately fifty percent of the employees at Caledonia Manufacturing Company." (G.C. Exh. 15) Obviously, had Caledonia inquired of McClanahan. he must have denied his majority claim in his letter of December 22, 1972. In the Crittenden letter , McClanahan explained, "Similarily I have au- thorizations from approximately fifty percent of the employees at the Cale- donia plant . These authorizations , however, have not been submitted to the Regional Director of the NLRB in Memphis , since the unfair labor practice charge was filed previous to my filing my petition for decertification at this plant." gain was based on "the naked assertion by Hal H. H. Mc- Clanahan that he represented a majority of [the] employ- ees." On December 13, 1972, a decertification petition was filed with the Board for the Vernon employees by Hal H. H. McClanahan 111, in which was recited that the peti- tion was supported by 30 percent or more of the employees in the unit. On December 26, 1972, the Respondents through their attorney, Wilson, advised the Union that it would no longer recognize the Union.14 Landress had given Wilson the authority to write the letter the day it was writ- ten. In respect to both Vernon and Caledonia, Landress "made no effort to ascertain whether or not McClanahan in fact did represent the majority of the employees." No decertification petition was filed for the Caledonia employ- ees.15 During the fore part of May 1973, Landress addressed the employees at Vernon and Caledonia in separate meet- ings. Landress announced among other things that "[i]f we didn't increase wages we wouldn't be in business very long, and we had to go ahead and do that and keep personnel and people from leaving the plant and going to work else- where; otherwise, we wouldn't have anything to talk about." Landress continued, "I did say that we were in- creasing the hourly wage rate by fifteen cents an hour and that we were increasing the employees insurance benefits by paying the employees part of those insurance benefits, and that we were going to put in an individual bundle system to replace the old line system. This was being done for competitive reasons." These benefits were put into ef- fect. During negotiation sessions, the last one of which oc- curred on November 14, 1972, the Employers had not of- fered as much as the benefits later put into effect 16 and had refused the Union's demand for an individual bundle system. During the period from May 16, 1972, to August 23, 1972, no negotiation meetings were held because the plants were under option to buy, subject to the Union's agreement given to Levi Strauss. The negotiations thereaf- ter bogged down over the matters which the Respondents unilaterally gave the employees in May 1973. Stephen L. Leach, associate southern director of the Union , testified that these were "some of the most important areas" of the negotiations and that, had the Respondents made offers in terms of the granted benefits, serious consideration would 14 Wilson in part wrote: "We have been informed in the case of Vernon Manufacturing Company, that a petition has been filed with the National Labor Relations Board in Atlanta and given the number 10-RD-456. We are also in receipt of a letter from a man by the name of McClanahan. advising that he has been retained by a majority of the employees at Cale- donia Manufacturing Company to represent them in connection with the decertification petition." 15 In response to the Union's request to bargain at Caledonia dated Feb- ruary 2, 1973, Wilson wrote on February 3. 1973. in part: "As stated to you in my letter of December 26. we have been advised that an individual repre- sents more than 51 %, of the employees in the bargaining unit. I can only surmise that his failure to file a decertification . if that is the case. is due to the smoke screen which has been raised by your Union. both at Vernon and Caledonia. In any event. Caledonia Manufacturing Company considers that a question concerning representation exists, and, consequently, respectfully refuses to recommence negotiations." 16 The Respondents had offered a 10-cent wage increase which the Union had accepted. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have been given them and "the other issues would have fallen into place at that time." The Union was certified at Vernon on September 14, 1971, and at Caledonia on November 8, 1971. Landress testified, "I would prefer not to operate a plant with a union." IV. CONCLUSIONS AND REASONS THEREFOR First: The alleged 8(a)(1) violations The General Counsel's claim that Vernon Supervisor Hazel Smith interrogated employee Madden as to whether she had signed a decertification authorization, that Smith threatened Madden that she would be "on slack time" if she didn't sign a decertification authorization, and that Smith suffered and encouraged employees to sign decertifi- cation authorizations is supported by the credible evidence in the record. By such misconduct on the part of Smith the Respondent violated Section 8(a)(1) of the Act." As to whether the General Counsel's claim that Respon- dents Vernon and Caledonia "caused to be circulated among the employees in the plant, cards and petitions to decertify the Union" is sustained depends upon the rela- tionship between Respondents' attorney, Wilson, and Mc- Clanahan. In this respect, the credible evidence indicates that McClanahan, although perhaps unwittingly, acted as an agent for Respondents Vernon and Caledonia. Caledonia is located in Mississippi and Vernon in Ala- bama. Nevertheless, it was the Vernon employees who con- tacted Threadgill, a Mississippi lawyer, although it seems more reasonable that they would have retained an Ala- bama lawyer practicing in their own community. That they did not is the more significant, in that Threadgill was first contacted by a man from Caledonia, Mississippi, and was also known to Wilson. Additionally, an inference that the employees at Vernon were directed to Threadgill by a rep- resentative of the Respondents is strengthened by the fact that Wilson solicited Threadgill's good offices in counsel- ing McClanahan, which Threadgill obliged. For Threadgill to have been contacted and to have intervened strongly presupposes that Threadgill knew the source of his first contact. Moreover, Wilson's quick knowledge of Mc- Clanahan's retention as counsel for the Respondents' em- ployees and his hasty phone call, placed before any decerti- fication demands, further supports the inference that the Respondent had squired the Vernon employees into Mc- Clanahan's office through Threadgill. In any event, Wilson's communications to McClanahan were of such a character as to cause McClanahan to be- lieve that he was furthering the Respondent's cause. Of this he was so persuaded that he filed the Form LM 20 with the Labor Department. Thus, his activities after Wilson's con- tact on behalf of the Respondents' employees was encour- aged, conditioned, and abetted by the Respondents. There is little doubt that the Respondents made an unlawful in- trusion into the activities of McClanahan and his clients. The Respondents, through Wilson, who was given full au- thority to act, embraced and utilized McClanahan to fur- ther their preference to operate without a union. The Gen- eral Counsel's claim is well taken that the Respondents "caused to be circulated among the employees in the plant, cards and petitions to decertify the Union," and the Re- spondents' efforts in this regard were in violation of Sec- tion 8(a)(1) of the Act.l$ Cf. N.L.R.B. v. Birmingham Pub- lishing Company, 262 F.2d 2, 7 (C.A. 5, 1958). In the light of Respondent Vernon's sufferance in re- spect to its employees' decertification activities, Landress' restrictions placed on employee Shirey for possessing de- certification revocation authorizations at her work station were discriminatory and were in violation of Section 8(a)(l) of the Act. "Discrimination consists of treating like cases differently." Frosty Morn Meats, Inc. v. N.L.R.B., 296 F.2d 617, 621 (C.A. 5, 1961). Second: The refusal to bargain A. Vernon Manufacturing Company In the recent case of King Radio Corporation, 208 NLRB 578, 582, the Board reiterated the law applicable to the withdrawal of recognition where a union has been properly certified. The law applicable to the withdrawal or failure to honor the certification of a union has been succinctly stated in Laystrom Manufacturing. Co., 151 NLRB 1482,.1483, as follows: Absent unusual circumstances, there is an irre- buttable presumption that the majority status of a certified union continues for 1 year from the date of certification. After the first year the certification still creates a presumption of majority status, but the presumption is normally rebuttable by an affir- mative showing that the union no longer commands a majority. Moreover, where the certificate is a year or more old an employer may withhold further bar- gaining without violating the Act and insist that the union reestablish its statutory representative status if, but only if, he in good faith has a reasonable doubt of the union's continuing majority. Two prerequisites for establishing whether or not an employer was acting properly in questioning a certi- fied union's majority status, as set forth in Celanese Corporation of America, 95 NLRB 664, 673, are (I) that the employer has "some reasonable grounds for be- lieving the union had lost its majority status," and (2) "the majority issue must not have been raised by the employer in a context of illegal antiunion activities, or other conduct by the employer aimed at causing disaf- fection from the'union or indicating that in raising the majority issued the employer was merely seeking to gain time in which to undermine the union. 17 "[The] established rule [is) that an employer cannot engage in conduct calculated to erode employee support for the union" N.L.R.B. v. Deutsch Company, Metal Components Division, 445 F.2d 902, 906 (C.A. 9. 1971), cert. Respondent Vernon maintains that the "reason for the refusal given on December 26 and at all times thereafter denied 405 U.S. 988 (1972). See also N.L.R.B. v. Elias Bros. Big Boy. Inc. Id McClanahan's confusion as to who really was the former Justice Gold- 327 F.2d 421, 422 (C.A. 6, 1964). berg has been weighed and given consideration. VERNON MANUFACTURING COMPANY 295 was that McClanahan had notified the Respondent that he represented a majority of Respondents' employees and that he was seeking a decertification." 19 In order for this reason to partake of validity, the Respondent must present "some reasonable grounds for believing the union had lost its ma- jority status." This burden is not sustained by submitting a lawyer's letter of claim 20 without other objective proof or the mere filing of a decertification petition. In Rogers Mfg. Co. v. N.L.R.B., 486 F.2d 644, 647 (C.A. 6, 1973), the court said: This Court has recently held that under some circum- stances an employer may be warranted in refusing to bargain with a union about whose majority he has a good faith doubt . . . but the mere filing of a decertifi- cation petition is of itself insufficient justification. [Em- phasis supplied.] A reasonable doubt requires a more firm foundation than disclosed in this case. See N.L.R.B. v. Rish Equipment Company, 407 F.2d 1098, 1101 (C.A. 4, 1969). Moreover, the Respondents' withdrawal of recognition was flavored with violations of Section 8(a)(1) of the Act. Thus the Respondents' insistence was "raised by the em- ployer in a context of illegal antiunion activities or other conduct by the employer aimed at causing disaffection from the union." Indeed, it is obvious from an examination of the record as a whole that the withdrawal of recognition was for the purpose of gratifying the Respondents' prefer- ence to operate without a union and to banish the Union from the plant. Its purpose in this respect was further dis- closed when it unilaterally granted employees benefits ex- ceeding those it had offered the Union during negotiations after it had withdrawn recognition. Such a tactic adminis- tered the coup de grace to the union movement. Thus it is found that by refusing to bargain with the Union on and after December 26, 1972, the Respondent Vernon violated Section 8(a)(5) of the Act. A real question of representation did not exist. B. Caledonia Manufacturing Company Respondent Caledonia's refusal to bargain was "based on a letter received from McClanahan dated December 22, 1972," or, as described by Landress, "the naked assertion by Hal H. H. McClanahan that he represented the majori- ty of [the] employees." 21 McClanahan's naked assertion was that he had been "retained by a majority." He made no claim that he had in his possession decertification au- thorizations from a majority of the employees. Had Lan- dress inquired of McClanahan the basis for his claims no doubt McClanahan would have replied as stated in his let- ter to W. 0. Crittenden, "I represent . . . approximately 19 In its brief, Respondent Vernon cites no Board or court authority for its claim that it is excused from its bargaining obligations. 20 McClanahan's letter made no claim that he had in his possession decer- tification authorizations of a majority of the employees, it merely asserted that he had been "retained by more than half." Such an assertion could easily have been based on oral representations by clients. 21 In its brief, Respondent Caledonia cites no Board or court authority for its claim that it is excused from its bargaining obligations. fifty percent of the employees of the Caledonia Manufac- turing Company." (Emphasis supplied.) But Landress, as in the case of Vernon, was more interested in gratifying his preference for a nonunion shop than in questioning his adventure in that direction. The Respondent's state of mind lacked that ingredient which is required to satisfy a reasonable doubt in good faith. What has been said in respect to Vernon, except for the commission of unfair labor practices by Supervisors Smith and Landress, applies here. The Respondent has nei- ther offered credible evidence that it had reasonable grounds for believing the Union had lost its majority status nor supported its claim by acceptable objective consider- ations. Accordingly, it is found that by refusing to bargain with the Union on December 26, 1972, and thereafter Respon- dent Caledonia violated Section 8(a)(5) of the Act. A real question of representation did not exist. Third: Respondents' unilateral changes in wages and work- ing conditions Having found that the Respondents were obligated to bargain with the Union in conformity with Section 8(a)(5) of the Act on and after December 26, 1972, it follows that it was unlawful for the Respondents to unilaterally change, without consultation with the Union, the designated bar- gaining agent, the wages and working conditions detailed above. Accordingly, by such unilateral changes without consultation with the Union the Respondents violated Sec- tion 8(a)(5) of the Act. N. L. R. B. v. Benne Katz, d/b/a Wil- liamsburg Steel Products Co., 369 U.S. 736 (1962). CONCLUSIONS OF LAW 1. The Respondents are employers engaged in com- merce within the meaning of Section 2(6) and (7) of the Act and it will effectuate the purposes of the Act for jurisdic- tion to be exercised herein. 2. The Union -is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees including shipping and receiving employees, pressing employees, and janitorial employees employed by Respondent Vernon at its Vernon, Alabama, plant, but excluding all office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since September 14, 1971, the Union has been, and is, the representative of a majority of the em- ployees in the unit described in paragraph 3, above, for the purpose of collective bargaining and, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representa- tive of all employees in said unit for purposes of collective bargaining. 5. All production and maintenance employees and plant clerical employees at Respondent Caledonia's plant in Cal- edonia, Mississippi, excluding all professional employees, office clerical employees, guards, and supervisors as de- fined in the Act constitute a unit appropriate for the pur- pose of collective bargaining within the meaning of Section 9(b) of the Act. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. At all times since November 8, 1971, the Union has been, and is, the representative of a majority of the em- ployees in the unit described in paragraph 5, above, for the purpose of collective bargaining and, by virtue of Section 9(a) of the Act, has been, and is, the exclusive representa- tive of all employees in said unit for the purpose of collec- tive bargaining. 7. By interfering with, restraining, and coercing employ- ees in the exercise of their rights guaranteed them by Sec- tion 7 of the Act, the Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. By refusing on and since December 26, 1973, to bar- gain with the Union as the exclusive bargaining agent of the employees in the appropriate unit, each Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. 9. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED REMEDY It having been found that the Respondents have engaged in certain unfair labor practices, the conventional cease- and-desist and affirmative relief orders are recommended. However, the Union seeks more than the conventional remedies and insists that the nature of the Respondent's misconduct requires retroactive imposition of the benefits granted to employees as of December 26, 1973. The Union asserts that the "Employers' refusal to bargain was not only in bad faith, but it was for the purpose of undermin- ing the Union, and the employer should not be allowed to benefit from his violation of the Act." There is justification for the Union's position.22 The Respondents' tactics were obviously governed by Landress' preference to operate without a union. Thus, the Respondents aided and abetted a decertification move- ment and based upon a lawyer's letter, without proof as to the truthfulness of the claims therein (in fact this proof, if it indeed existed, was tainted by the Respondents' own wrongful acts), withdrew recognition with alacritous dis- patch and thereafter refused to bargain with the Union. Moreover, when the bid for decertification failed, the Re- spondents granted benefits unilaterally, triggered, they said, by a growing reluctance of employees to work with the extant slim economic benefits afforded them. These benefits unilaterally granted exceeded by 5 cents an hour the wage increase accepted by the Union during negotia- tions and satisfied the Union's collective-bargaining de- mands for increased insurance benefits and bundling. 22 "In fashioning an appropriate remedy, we must be guided by the prin- ciple that the wrongdoer , rather than the victims of the wrongdoing, should bear the consequences of his unlawful conduct , and that the remedy should be `adapted to the situation that calls for redress."' Transmarine Navigation Corporation, 170 NLRB 389 (1968). Moreover, "lilf a party who unlawfully refuses to bargain is permitted to retain the fruits of unlawful action . the Act is rendered meaningless , and defiance of the board's Orders is encouraged." N. L. R. B. v. Warehousemen's Union Local 17, International Longshoremen's & Warehousemen's Union, 451 F.2d 1240 (C.A. 9, 1971). These benefits had been unobtainable through collective bargaining. Thus, the Respondents drove home to their employees the uselessness of the Union as a bargaining instrumentality, for they demonstrated that they would give the employees more without the Union than they would offer with a Union. This was the Respondents' coup de grace administered to chill the union affection of its employees. Under these conditions, employee interest in the union must necessarily wane. Cf. N.L.R.B. v. Tiidee Products, Inc., 426 F.2d 1243 (C.A.D.C., 1970). Additional- ly, from the refusal to bargain an employer reaps what "he considers an economic benefit." Idem. In order that the Act may be effectuated, the forced di- minution of the Union's bargaining power resulting from the Respondents' unfair labor practices ought to be re- paired and the benefits which were lost to employees through the Respondents' misconduct ought to be al- lowed.23 The Board has recognized these salutary objec- tives, for it has said in Summit Tooling Company, 195 NLRB 479, 481 (1972), "If the Union must bargain devoid of all economic strength . . . we would perpetuate the situ- ation created by Respondent[s] . . . which prevented the Union from bargaining meaningfully. To assure such meaningful bargaining we must, therefore, restore some measure of economic strength to the Union." While full repristination of the Union's economic strength is impossible, in the instant case, the Union's pres- tige and economic strength as a moving cause will be markedly enhanced by requiring the Employer to retroac- tively put into effect the benefits granted employees in May and July 1973. Moreover, it will deter like misconduct on the part of these Employers, for here the unfair labor practices were machinated for the purpose of thwarting the collective-bar- gaining aspirations of the employees and depriving the Union of credit which would have accrued to it through bargaining collectively for employees and procuring the benefits unilaterally granted. Their tactics were a lethal blow to the Union's prestige and its usefulness as a bar- gaining instrumentality. It may not be gainsaid that when the Union again sits at the bargaining table with the Respondents it will have lost that bargaining power and strength which has been drained because of the Respondents' unilateral grant of benefits and its immobilizing of the Union. The time fac- tor, which may involve a long delay before the Respondent is required to bargain, also will have eroded the Union's support. Additionally, the Respondents are gaining and will gain "a second benefit from [their] original refusal to comply with the law: [they] may continue to enjoy lower labor expenses after the order to bargain either because the union is gone or because it is too weak to bargain effective- ly." N.L.R.B. v. Tiidee Products, Inc., supra at 1249. Thus, the Act's aim to encourage "the practices and procedures of collective bargaining" has been flouted. The Act further anticipates that the free organization of employees is a correction of "the inequality of bargaining 23 In Winn -Dixie Stores. Inc., 147 NLRB 788, 792 (1964), it was said that those who suffer losses by reason of a Respondent's unfair labor practices should be "reimbursed for such losses until such time as the Respondent remedies its violation by doing what it should have done in the first place." VERNON MANUFACTURING COMPANY 297 power between employees who do not possess full freedom of association or actual liberty of contract, and employees who are organized in corporate or other forms of owner- ship association." Without the strength derived from em- ployee support, a collective-bargaining agent's attempts to participate in collective bargaining is an exercise in futility, a condition which the Respondents' unfair labor practices have fostered. The situation calls for a meaningful remedy. In the face of these deteriorative influences the "Act re- quires more than pro forma bargaining, but pro forma bar- gaining is all that is likely to result unless the Union can now bargain under conditions essentially similar to those that would have been present had Respondent bargained at the time the Act required it to do so." Summit Tooling Company, supra at 481. The Respondents' restraint in offering the benefits later granted obviously caused an extension of bargaining be- yond the certification year and set the scene for the decerti- fication movement which the Respondent unlawfully aided and abetted. Had the Respondents not been bent on com- mitting unfair labor practices as a means of paralyzing the Union's effectiveness, there seems little doubt that an agreement would have been reached and a contract execu- ted incorporating the 15-cent wage increase, the additional insurance benefits, and the bundling system. Indeed, dur- ing the period of restraint, the Respondents' bad faith was accentuated by its withholding benefits from its employees although it claimed granting of such benefits was an eco- nomic necessity. Thus its putsch against the Union was so pronounced that it was willing to risk losing some of its employees 24 rather than deal with the Union in good faith. Had the law been complied with, the employees would now no doubt be enjoying the benefits allowed the employees in May and July 1973 under union contracts. Unlike the case of Ex-Cell-O Corporation v. N.L.R.B., 449 F.2d 1046 (C.A.D.C., 1971), the benefits which the em- ployees would have received and did not receive here are not speculative, but are subject to easy computation. The only speculative issue is the determination of the date on which the parties would have reached an agreement. Had the Respondents acted in good faith, it may not be gain- said that, in the light of the facts in this record, an agree- ment would have been reached prior to the Respondents' 24 Apparently the Respondents' wage rate was low, for Landress testified. "We were considerably under the floor that the wage board had set up." refusal to bargain. Subsequent events so verify, for addi- tional benefits were in the offering. . . . it rest[s] upon the tortfeasor to disentangle the consequences for which it was chargeable from those from which it was immune . [ N.L.R.B. v. Remington Rand, Inc., 94 F.2d 862, 872 (C.A.2, 1938).] "The most elementary conceptions of justice and public policy require that the wrongdoer shall bear the risk of the uncertainty which his own wrong has created." Bigelow et al. v. RKO Radio Pictures, Inc., 327 U.S. 251, 265 (1946). Any uncertainty here must be attributed to the Respon- dents' misconduct and contrivance. On the date of the Respondents' refusal to bargain, by their own wrongful acts, the Respondents, with finality, foreclosed a settlement of the bargaining issues pending between the parties. The consequences of the Respondents' wrongdoing, which was easily foreseeable, was the depriva- tion of the specific benefits to employees noted above and the diminution of the Union's bargaining power. If there is any uncertainty as to when the benefits would have been effectuated had the Respondents fulfilled its bargaining obligations it must be attributed to the Respondents. There is nothing credible in the record which persuades that, had the Respondents placed the benefits which were later put in effect on the bargaining table, an agreement would not have been reached between November 14, 1972, the date of the last bargaining session, and December 26, 1972, the date of the refusal to bargain.25 Thus, December 26, 1972, is a reasonable date to choose as a date from which retro- active benefits should be imposed. Accordingly, it is recommended that the Respondents' employees be reimbursed for the benefits made effective in May and July 1973, retroactively from December 26, 1972, with interest thereon at 6 percent per annum in conformity with the Board's formula. F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). This includes the increases in wage and insurance benefits and any economic advantages which would have accrued to the employees by the institution of bundling on December 26, 1972. [Recommended Order omitted from publication.] 25 Stephen L. Leach, associate southern director of the Union, testified that if the Respondents had made the proposals later put into effect "the other issues would have fallen into place at that time."