Kent Corp.

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kent Corporation and International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, For- gers and Helpers, AFL-CIO. Case 10-CA-11032 February 9, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On September 8, 1976, Administrative Law Judge Jennie M. Sarrica issued the attached Decision in this proceeding. Thereafter, the Respondent and Interve- nor 1 filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge 2 and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Kent Corpora- tion, Pinson Valley, Jefferson County, Alabama, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. allegations that Kent Corporation, hereinafter referred to as Respondent or the Employer, committed unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. In its answer dated January 22, 1975, Respondent admitted the factual allegations of the complaint but denied that its refusal to bargain with the Charging Party was a violation of the Act on the ground that the underlying Board election and certification were invalid. As an affirmative defense to the allegations of the complaint, Respondent reasserted the objections it had filed in the underlying representation proceeding and, in addition, certain additional objections to the conduct of the election based upon allegedly newly discovered evidence were advanced. Upon consideration of the response to the Board's Notice To Show Cause why the General Counsel's Motion for Summary Judgment should not be granted, the Board, on June 27, 1975, issued an order denying said Motion for Summary Judgment and remanded the case to the Region for the purpose of "scheduling a hearing on the issues raised by the Respondent's objections to the election in Case 10-RC-9556 before a duly designated Administra- tive Law Judge" and further ordering that following service on the parties of the Decision of the Administrative Law Judge, "the provisions of Section 102.46 of the Board's Rules and Regulations Series 8, as amended, shall be applicable."' Representatives of all parties were present and participated in the hearing.2 Intervenor, Employees Association of Kent-Supermatic, formally ap- peared at the hearing herein represented by counsel. x 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 credtbdi- ty 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 (1950), enfd 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. The Respondent's request for oral argument is hereby denied as the record, exceptions, and briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE JENNIE M. SARRICA, Administrative Law Judge: Upon due notice, this proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), hereinafter referred to as the Act, was heard before me at Birmingham, Alabama, on August 25 and 26, 1975, pursuant to a complaint issued on January 13, 1975, based on charges filed December 2, 1974, by International Brotherhood of Boilermakers, Iron Shipbuilders, Black- smiths, Forgers and Helpers, AFL-CIO, hereinafter re- ferred to as the Charging Party or the Union, presenting 228 NLRB No. 12 I Concurrently, certain additional matters were raised and disposed of in this proceeding, including certain requests advanced under the Freedom of Information Act, applications to take depositions, the submission of interrogatories, motions to quash these, orders denying the applications and granting the motions to quash, and various related communications and responses. A petition to revoke subpoena ad test fcandum dated August 14, 1975, directed to Edward J. McDermott and issued on August 8, 1975, was filed with the Chief Administrative Law Judge by the General Counsel. By telegram dated August 19, 1975, the parties were advised that the petition to revoke the subpena was referred for ruling to the Administrative Law Judge designated to conduct the hearing in this proceeding. Noted and corrected in the record is the inadvertent reference in that telegram to "Respondent's petition to revoke subpoena" instead of to "the General Counsel's petition to revoke subpoena." At the outset the General Counsel withdrew this petition to revoke the subpoena ad tesnficandum on the ground that the General Counsel had since granted permission for McDermott to appear and testify. Noting that the subpena had not been honored , Respondent elected to proceed with the hearing and to decide at a later time during the hearing whether it would seek a continuance in order to obtain court enforcement of its subpena. 2 Counsel for the General Counsel stated that both attorneys from the Board's Regional Office who had entered their appearances in this proceed- mg were present and appearing "as representative of the Regional Office to see that the evidence produced during the objections are made available to the Administrative Law Judge . . . and not supporting any preconceived positions." General Counsel further stated, "Our services are equally at the disposal of the Administrative Law Judge and all parties in this hearing room." As the formal papers supporting the proceeding, counsel for the General Counsel then produced only the Board's order of June 27, 1975, denying Motion for Summary Judgment together with documentation KENT CORPORATION Based on the entire record ,3 including my observation of witnesses and after due consideration of the arguments presented in briefs filed by Respondent, the Charging Party, and Employees Association of Kent-Supermatic, hereinafter also the Intervenor, or the Association, I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION It is alleged in the complaint and admitted by Respon- dent that Kent Corporation, an Alabama corporation, with an office and place of business located at Pinson Valley, Jefferson County, Alabama, is engaged in the manufacture and sale of steel shelving and grocery checkout counters. During the preceding calendar year, a representative period, Respondent sold and shipped finished products valued in excess of $50,000 directly to customers located outside the State of Alabama. Respondent admits and I find that it has been at all times material herein engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE UNION Respondent admits, and I find, that International Broth- erhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Posture of the Case Respondent admits, and I find, that the following unit of employees is appropriate for collective-bargaining purposes within the meaning of Section 9(b) of the Act: All production and maintenance employees employed by Respondent at its Jefferson County, Alabama, plant, including cafeteria employees and leadmen ; but exclud- ing office clerical employees, the draftsmen, profession- al employees, salesmen, guards, and supervisors as defined in the Act. relating to notice and date for the hearing ordered therein. Respondent objected to G.C. Exh. I as incomplete in that it did not include the complaint, the answer, and the objections in the underlying representation case. The General Counsel took the position that , under the specifications of the Board's order, the purpose of the hearing was to take evidence in Case 10-RC-9556 and that, despite the use in the caption of that order and in subsequent notices of the case designation 10-CA-11032, there was no indication that the merits of the complaint case were to be considered. Respondent and the Charging Party contend that the parties were present to litigate the issues raised by the complaint and the defenses advanced by the answer thereto to which the procedures for Sec. 10 of the Act rather than Sec 9 were applicable. Upon my ruling in agreement with the objecting parties that it was the complaint case that was being litigated (see Medical Ancillary Services, Inc, 212 NLRB 582, fn. 2 (1974), and cases cited therein), and that the proffered G.C Exh. I was incomplete and inadequate documentation thereof, counsel for the General Counsel explained that the formal docu- ments in the complaint case had been forwarded to the Board in Washing- ton, D.C, together with the Motion for Summary Judgment , and had not been returned with the order denying that motion . Therefore, he argued, the formal documents in support of the complaint proceeding were already a part of the record and were unavailable for him to present. Thereupon, the 73 Respondent also admits that on May 17, 1973, in an election by secret ballot conducted under the supervision of the Regional Director for Region 10, a majority of the employees in the unit described above designated and selected the Union as their representative for the purpose of collective bargaining with Respondent with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and that on September 26, 1974, the said Regional Director of the Board certified the Union as the exclusive collective-bargaining representative of all the employees in the aforesaid unit. Respondent further admits that on or about November 4, 5, and 25, 1974, and thereafter, the Union requested Respondent to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment of the employees in the appropriate unit and that, on or about November 4, and at all times thereafter including specifically November 5 and 25, 1974, Respondent has refused and continues to refuse to bargain collectively with the Union as the exclusive representative of the said unit of employees. As noted above, Respondent denies that at all times since September 26, 1974, the Union has been and is the duly certified representative of the employees in the described unit and denies that by its conduct it has violated Section 8(a)(5) and (1) of the Act, on the ground that both the election and the subsequent certification are invalid. In its brief, Respondent asserts that: It is not open to the Administrative Law Judge to question the legal sufficiency of the objections or the evidentiary sufficiency if undisputed credible evidence of the facts alleged has been presented. That the Board has already decided (by its Order Denying Motion for Summary Judgment). The Administrative Law Judge's primary function as we view it is to admit and exclude evidence according to the Federal Rules of Evidence, and to make the preliminary findings of fact ... . I see no warrant for reading such a limitation into the Board's order and I hereby reject the restrictions Respon- dent would place upon my authority and responsibility.4 parties undertook to assemble from their respective files sufficient copies of such documents to enable the parties to proceed with the hearing. Such copies were designated G.C. Exh. 2(a) through (w). In connection with receipt of such documentation in evidence as part of the formal pleadings, it was agreed by the parties that the documents could be supplemented by those previously made a part of the record with the Motion for Summary Judgment and by appropriate additions from the formal files of this case located in Washington, D.C., particularly those documents relating to proof of service, and excepting matters in issue relating to lack of service of the so- called supplemental Excelsior list. G.C. Exh. 2 as assembled by the parties at the hearing herein has never been received by the Administrative Law Judge with the exhibits and records in this case. In view of the foregoing, including the apparent intent and agreement of all parties hereto that those documents be a part of this record regardless of their source, no further search will be made for the missing copies of documents which composed G.C. Exh. 2, but such exhibit is hereby reconstituted from documents which are contained in the formal file in this case. 3 Errors in the transcript have been noted and corrected 4 See Wellman Industries, Inc., 211 NLRB 639 (1974); Sumter Plywood Corporation, 215 NLRB 277 (1974). 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Objections The objections filed by the Employer in the underlying representation case on which the Regional Director issued his Supplemental Decision and Order fording each to be without merit and on which Employer's request for review was denied by the Board on the ground that the objections raised no substantial issues warranting review ,5 but on which the Board's order of June 27, 1975, directed this hearing, are considered first. 1. It is asserted in Objection I that: The incumbent union, Employees Association of Kent-Supermatic, was not furnished with a copy of the Excelsior list of names and addresses of employees in the bargaining unit until a few minutes before the election was held. The employer says that the election was therefore not conducted in accordance with the Board's Excelsior rule and an unfair advantage was thereby given to the petitioning union . The Board agent conducting the election announced to the incumbent union shortly before the polls were opened that he was sorry that the Board had neglected to furnish this list and that it was a careless oversight. In his Supplemental Decision dated May 16, 1974, the Regional Director found that the Board agent had refer- ence to the alphabetized eligibility list prepared from the original and supplemental Excelsior lists utilized solely for use during the polling. A copy of this list had been furnished to the Union and the Employer approximately 3 days before the election but was not given to the Intervenor until the election conference. As this alphabetical list was intended to be used only at the election itself, the Regional Director found that the Intervenor's lack of access to it prior to the preelection conference was not prejudicial and in no way affected the results of the election. Intervenor's president, Thomas A. Mitchell, testified that, when the list was handed to him, the Board agent advised that this was a list of the people eligible to vote in the election and apologized for not supplying this list before that day. Mitchell, together with the Intervenor's attorney, examined the alphabetical list and discovered that it contained names not appearing on the computer printout list previously received by him from the Board . Ed Simrell, vice president of finance of Kent Corporation , testified that at the preelection conference, when the Board agent presented the typewritten alphabetical list of names to Mitchell, the Association's attorney requested and was granted 10 minutes to go to the office with Simrell and verify the list. Simrell, along with the attorney and Mitchell, examined the alphabetical list of employees and compared it with the two computer printout lists as well as with Respondent's payroll records . This was done at the request of the Intervenor's attorney. Simrell indicated that together 5 Intervenor filed objections to the conduct of the election substantially identical to those of Respondent both in number and content and also filed a request for review with the Board which was disposed of in like manner in the same telegraphic ruling. Although there were no objections raised to the intervention of the Association, its interest as a participant in this proceeding is merely a colorable one limited to its having been one of the unions involved in the underlying election, and not, as was suggested, a party with the status to advance allegations that its ojections were never investigated or they ascertained there were present on the alphabetical list names of a number of former employees who had been discharged, several who had been 90-day employees and had been laid off, and others who Respondent assumed had quit their jobs. Also included were former employees who were the subject of pending unfair labor practice charges. The official copy of this list of names is used to record, by a checkmark, the individuals voting and to designate the challenges, and the testimony reveals that the Respondent and the Intervenor both challenged the identical voters. The presentation to the Intervenor of the eligibility list at the preelection conference is a matter not encompassed by the Board's Excelsior requirements. Although the Interve- nor did not receive this list at the same time it was provided to the other parties, the Intervenor was given the opportuni- ty to preview it for the purpose of checking with Respon- dent's employment records and identifying those voters whom it would challenge. Clearly, aside from possible inconvenience, no prejudice was occasioned by the Interve- nor's inadvertent tardy receipt of the eligibility list in comparison with when others received it, and the objection, insofar as it is based on this incident, is without merit. It is recommended that the Regional Director's decision be adopted in this respect. In dealing with the allegations made in Objection 1, insofar as it is asserted that the Intervenor was disadvan- taged with respect to the Excelsior list, the Regional Director reported in his May 17, 1974, decision that "the Intervenor received its mail through the Kent Corporation's post office box. The notice of the April 12, 1973.. . hearing was sent to that address and the Intervenor appeared at the hearing with its attorney. The Intervenor never submitted another mailing address and the evidence indicates that it customarily received its mail through this Post Office Box." The Regional Director held that the Employer and the Intervenor , the objecting parties, were solely responsible for any failure of receipt of that list by the Intervenor; that by choosing to receive its mail through the Employer's post office box, the Intervenor , with the Employer's apparent approval , accepted as its agents the Employer's mail handling employees ; and Intervenor, through those designated agents, had received the list in question. The Regional Director reasoned that to allow the objecting parties to rely upon the misfeasance or nonfea- sance of their designated agents as a basis for setting aside the election would be comparable to, and governed by, the principles applicable to reliance upon one's own miscon- duct as a basis for invalidating an election. No evidence was presented to establish that Intervenor has received mail through the Kent Corporation post office box other than communications it received from the Board. Other evidence establishes that, in completing the appear- ance sheet for the representation case hearing (form NLRB 1801), neither the Intervenor's attorney nor its representa- are now being jointly heard . Further, it should be noted that this is the same Association from which the Board has ordered Respondent to withdraw and withhold recognition because of Respondent's unlawful assistance by a decision reported in 212 NLRB 595. See sub nom. Kent Corporation v N LR B., 530 F.2d 612 (C.A. 5, 1976), reversing 86 LRRM 2801,74 LC § 10,220 (D.C. Ala., 1974), and supporting the Board in ancillary proceeding involving the Freedom of Information Act, 5 U .S.C. Sec. 552. KENT CORPORATION tives executing that document - President Mitchell, Secretary-Treasurer Carlton Smith, and board member George A. Prayton - supplied any address whatsoever. As indicated in the Regional Director's decision, the initial Excelsior list was served on the unions on April 25, 1973. It was mailed to the Employees Association of Kent-Super- matic in care of Kent Corporation, Post Office Box 6496, Birmingham, Alabama 35217. The postal return receipt, form 3811, a copy of which is contained in the Board file, bears on its face under the printed words "official business" the typewritten words "10-RC-9556 Election Elig. List to Empl. Assn. of Kent-Supermatic." The reverse of this card shows "date delivered 4-27-73" and is signed "Kent Corporation, Patrick O. Ray." As indicated by the Region- al Director, and confirmed by testimony at the hearing, Ray was the employee who picked up mail for Kent Corporation. The Intervenor acknowledged receipt of a copy of this list. Thereafter, the Employer furnished a second list containing additional names and addresses to supplement the first Excelsior list, and the Regional Office of the Board mailed this list by certified letter on May 1, 1973. Postal registration 076803 was assigned the mail intended for the Intervenor, using the same address as was used for the first Excelsior list. Again the postal return receipt carried on its face the typewritten words "10-RC- 9556 Cor. Names to E.E. List, to: Employees Assn of Kent- Supermatic." On the reverse of this form, the delivery date of "5-3-73" is entered along with the signature "Kent Corporation, Patrick O. Ray." Postal service form 3877, entitled "Application For Registration or Certification," utilized in the Regional Office to keep a log of the day's special mailings, reveals an entry made on the date April 15, 1973, for certified mail, "mailed in lobby." Postal registration numbers entered thereon indicate that the first Excelsior list was mailed to both participating unions on that date and that Intervenor's mailing was sent to "Employees Association of Kent- Supermatic." No address is listed. A similarly identified document bearing the date May 1, 1973, and the words "mailed in lobby" contains an entry stating that the supplemental employee list was sent to "Kent Corpora- tion."6 At the hearing herein, a U.S. Postal Service employee, Thomas Martin, superintendent of window service at the Tenant branch where the box in question is located, identified a mail arrival notice, postal office form 3849, taken from the official files and bearing a number corre- sponding with the certified number on the return receipt for the supplemental employee list, the signature of Patrick O. Ray, and the date delivered as May 3, 1973. This notice carries the name and address, Kent Corp., Box 6496, entered by a postal clerk. The witness testified that an unidentified postal clerk, other than the one signing as s In contrast the affidavit of service of this item signed by E. J. McDermott and subscribed by Anme W. Walker on May 2, 1973, carves the designation "Employee Association of Kent -Supermatic c/o Ketn (sic) Corporation," etc. McDermott did not appear pursuant to Respondent's subpena and Respondent took no steps to enforce the subpena, nor did it request a subpena for Walker. However, subsequently, a medical statement concerning McDermott's inability to appear in court together with a copy of a letter from him to Respondent's attorney which were received in the Regional Office were forwarded to my office in Washington as the registered 75 having delivered the piece of mail, entered the name and address on the postal notice slip.7 He observed that this clerk should have but failed to check whether a return receipt for the certified mail was requested. Martin further testified that such notices are used for the purpose of notifying the boxholder of the fact there is additional mail to be picked up. He stated that under correct procedure the name and address appearing on the notice can be taken directly from the envelope and should be that which is contained on the item to be picked up. However, the clerk handling mail for Box 6496 would know, as part of his duties, that it belonged to Kent Corporation. The witness was in charge of, but personally did not perform any of, the perfunctory duties concerning which he testified. Patrick O. Ray, the employee who picked up the mail at the post office box of Respondent, had no independent recollection of the transaction involving the piece of mail for which the receipts were entered in evidence. He testified that he normally would not look at the face of the certified mail receipt card, but would merely check the address on the mail with that on the notice and that usually he did look to ascertain whom the mail was from but never kept a mail log. Ray recalled receiving a number of pieces of mail from the Board but could not say positively that he did look at the envelope to ascertain that it was addressed to the Kent Corporation rather than to the Employees Association of Kent-Supermatic. Ray further testified that his procedure was to give all mail to an office employee who was responsible for its distribution at the plant. Simrell testified that in 1973 the procedure was for Ray to pick up the mail and deliver it to Barbara Sergent who opened and distributed the mail. He identified himself as the individual who was designated to receive all communi- cations from the Board, and further stated that any mail from the Board, even if addressed to the Association, would have been placed on his desk by Sergent, because he was the only one who could take mail for the Association into the plant and give it to the Association's president. However, he asserted that the initial Excelsior list was the only piece of mail received by him which was addressed to the Association. Simrell further testified that Sergent placed the supplemental employee list of 18 names together with the envelope on his desk. He stated that he was positive the envelope was addressed to Kent Corporation and that he filed this piece of mail with the Respondent's other correspondence from the Board. Simrell was the individual who directed the preparation of both the initial Excelsior list of 65 names and the supplemental list. He testified that both lists were prepared pursuant to directions received by him from the Respon- dent's attorney. With respect to the supplemental list, he was told to supply the names and addresses of all employees not on the first list and not on the active payroll letter had been addressed to the Administrative Law Judge . These papers have been placed in the exhibit file as AU Exh. 2, as I have considered these matters a plausible explanation for Respondent 's not seeking compliance with its subpena, and therefore make no adverse inference therefrom. 7 He identified the signature appearing on the notice in the block designated "delivered by" as that of a former postal employee, now deceased, but could not identify through the handwriting which of the postal clerks under his supervision had entered the name and address thereon other than his assurance that it was not the deceased. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because they were laid off, had quit, or were the subject of unfair labor practice charges . Subsequently, he was advised by this attorney that the list had been given to the Board. Simrell stated the first Excelsior list was received in an envelope addressed to the Association, and that he took it to the president of the Association. Simrell admitted that he knew the first list he prepared and delivered to the Intervenor to be the list of the qualified voters and also knew the supplemental list to be additional names of qualified voters. He further admitted that when he received the second list in the mail he recognized it as being the supplement to the first employee list. He also was aware that he had prepared for the Board and supplied to the attorney only three copies of each list, and that he had not received from the Board a copy of the first list for the Employer's files. Nevertheless, Simrell asserted, he had "no notion" that the supplemental list he received from the Board was supposed to go to the Employees Association of Kent-Supermatic. Simrell claimed that when he received the supplemental list he thought perhaps he should have received for Employer's files a copy of the first list. Mitchell testified that he never received the supplemental employee list. He further testified that during that period the Association was receiving its mail from the Board through the Kent Corporation although he had never requested the Board to send the Association's mail in care of Kent Corporation. Admittedly he also received other information concerning Board matters through the Re- spondent; some by mail delivered by Simrell including information that an election was being held and some by information conveyed by Simrell, e.g., the notice of hearing. When Simrell handed him the first Excelsior list, Simrell said it had come through the mail to the Association in care of Kent Corporation. Mitchell did not see the envelope. Specifically, with respect to the hearing conducted in the representation case, it was his recollection that he was told by Simrell the hearing was going to be held, and Simrell did not tell him at that time that he had received anything in the mail addressed to the Association notifying them of the hearing. Mitchell admitted that he did not inform anyone at the Board it was sending the Association's mail to the wrong address, and that he never raised this question to anyone. Nor did he ever give an address change or correction to the Board . Mitchell testified that subsequent to the time the problem of service of documents on the Association was raised, the Board has addressed the Association's mail to his home address at 462 Fourth Street, Thomas, Alabama, which is his correct address .8 Interve- nor's attorney, Tom Coleman, testified that he gave no address on the appearance sheet when he appeared at the representation hearing; that he did not contact the Board regarding where the Association's mail was being sent, as he did not know, and that he did not obtain a copy of the transcript of that hearing, and had no prior knowledge of the error in Mitchell's address therein. A completed NLRB form 700, entitled "Election Order sheet," was utilized in the representation case. The parties to whom this was sent, by regular mail, together with the addresses utilized, appear on the face of that document. Here again the Association's address was listed as "in care of Kent Corporation, Post Office Box 6496, Birmingham, Alabama, 35217." Mitchell could not recall whether or not he had received that document but admitted that he had received knowledge concerning all the information con- tained thereon. A part of that document states that the eligibility list, pursuant to the Board's Excelsior require- ments, would be provided by the Employer by April 25, 1973, and that the list would be sent to the Association at the Kent Corporation post office box. The form provided in the alternative that the list could be picked up at the Board's Regional Office. The initial question raised by these circumstances is whether the Intervenor ever received the supplement to the Excelsior list of names and addresses of employees in the unit during the relevant period preceding the election. There is no specific evidence that Mitchell ever actually received that list. On the contrary, uncontradicted testimo- ny is to the effect that Respondent received the supplemen- tal list from the Regional Office of the Board and merely placed it in the Respondent's file; that the official who did so had prepared the initial employee list as well as the supplement thereto for the Board; and that he had received from the Board for the Intervenor, and personally conveyed or delivered to its president, other communications from the Board including, specifically, the initial name and address list of unit employees. It is claimed that the supplemental list was not delivered in like fashion to the Intervenor because the envelope was addressed to the Employer rather than to the Intervenor in care of the Employer. Respondent's official admittedly had that envelope in his possession when he purportedly placed the supplemental list in Respondent's file. However, Re- spondent has failed to come forth with that envelope. Simrell's testimony in this respect - consisting of assertions, conclusions and explanations of his mental observations, decisions, and actions - arises out of a context which affords no opportunity for contradictions, as there were no other participants or observers except to the extent that Ray had an opportunity to see the envelope when he accepted it from the post office. In my view, Ray's testimony does not measure up to corroboration of that of Simrell. The mere absence of direct contradiction, however, does not require that Simrell's testimony be accepted as absolute fact. On the face of it, and in the context of this case, Simrell's testimony is clearly self-serving and support- ive of Respondent's objective and interest in this case. Although this factor does not refute Simrell's testimony, it does go to the weight to be accorded it. Moreover, I find it incongruous that the individual charged with the responsi- bility of handling all correspondence for Kent Corporation from the Board and the one who received instructions from Respondent's attorney in these matters, including direc- tions for preparation of the Excelsior list, would not have known that the supplemental list was intended for the Intervenor, even if the envelope addressee was erroneous. Nor can I imagine that he would have disposed of any envelope which might justify his failure to transmit the supplemental list to the Intervenor. In all these circum- 8 As a witness at the representation case hearing, Mitchell recalled he had stated his home address on the record as "462 Fourth Street, Thomas." However, the transcript contains the address "46246 Thomas" only. KENT CORPORATION 77 stances, I seriously doubt Simrell's credibility as to the addressee on the envelope and what he did with the supplemental Excelsior list. When the postal certified mail notice and receipt relating to delivery of the supplemental list are compared with those relating to the initial Excelsior employee list, there is no reason to conclude that the envelope containing the supplemental list differed in any way from that containing the original list of names which admittedly was addressed to the Intervenor, in care of the Employer, at the latter's post office box. Indeed, the face of the return receipt for the supplemental list specifically designates the Intervenor as the party to whom the material was sent. The only documentary evidence suggesting a contrary conclusion are the log of certified mail maintained in the Regional Office of the Board and the mail arrival notice placed in the box by the post office clerk. The clerical entry on both records the name of Kent Corporation rather than that of the Intervenor. I do not accord to these clerical entries, which themselves do not qualify as proof of service and which, in the first instance, have as a major purpose the recording of postage fees, and in the latter situation merely serve as notice to the boxholder to pick up additional mail, evidentiary weight sufficient to overcome the inference required by the entry on the face of the return receipt which accompanied the envelope containing the supplemental list, that the envelope was, consistent with the return receipt, addressed to the Intervenor. I find that the self-serving testimony of Simrell in this respect is outweighed by the conclusions required by the documentary evidence. Ac- cordingly, on the basis of the entire record, I find that the supplemental list of unit employees, in an envelope ad- dressed to the Intervenor in care of the Respondent, was received by Respondent. Although consistency of conduct would suggest that Simrell, absent some special purpose, would have delivered the Intervenor's mail to Mitchell as he had done before, it is unnecessary to determine here whether he in fact did so. For, as indicated above, this was not the only item of correspondence sent by the Regional Office to the Interve- nor in care of the Employer, at the latter's post office box. Prior correspondence had been received from the post office by employees and an official of the Respondent, each acting in this respect on behalf of the Intervenor. Thus, they had held themselves out as agent for the Intervenor in these official matters. Although the evidence does not establish that the Intervenor ever informed the Regional Office that its mail was to be addressed in this manner, neither does it appear that the Intervenor, either before or after having received communications from the Board through this address, advised the Board that its mail was to be sent to any other address . Indeed, upon entering its appearance at the representation case hearing after receiving notice thereof through the Kent Corporation, Intervenor supplied no official address for service of notice and made no 9 Cf. The Coca Cola Company Foods Division, 202 NLRB 910 (1973), where the Board found "failure of the petitioner to receive the list was due to a misaddressed letter on our part, we can only conclude that the petitioner was prejudiced." In that case the Postal Service refused to turn the letter over to the petitioner because, although it was sent to the correct address, it was addressed to the wrong union , i.e., Local 333 instead of Local 444. 10 N. L R B v. Wyman-Gordon Co., 394 U.S. 759 (1969). request that communications be made in any other manner. Even its attorney failed to supply an address on the appearance sheet executed at that time. Mitchell's recital of his name and address in connection with his appearance in that case as a witness does not constitute a designation or change of address for receipt of official communications by the Intervenor. However, the fact that the address given was erroneously transcribed by the court reporter, in the context of this case, does support the conclusion that the employee list supplied by the Employer in the underlying representation case was sent to the only known address for the Intervenor then available to the Board, and to one at which prior communications had been successfully deliv- ered. As indicated above, the Regional Director, in rejecting Objection 1, relied on a theory of agency misfeasance or nonfeasance and equated this to Board precedent refusing to permit an objecting party to rely upon its own miscon- duct. I do not interpret the Board's order directing a hearing on this matter as rejection of this theory. Rather, I regard that order as an indication that the Board required more factual information or at least assurance of a lack of significant countervailing circumstances. I find in the evidence presented further support for the Regional Direc- tor's conclusion.9 Consideration of the issue involved also points to the fact that, under the Supreme Court's Wyman-Gordon decision,10 the parties to the underlying representation proceeding are governed by the provisions contained in the Decision and Direction of Election. The decision issued herein on April 18, 1973, set forth the applicable requirement.11 As relevant herein, that requirement is that "the Regional Director shall make the list available to all parties to the election." There is no hard-and-fast rule set forth as to how the list shall be made available. The, Board's own election order sheet allows for the possibility that such list could be picked up at the Regional Office by the interested party.12 Surely it is literally made available when it is accepted on behalf of an interested party by persons who have perviously so acted. It is not the Board's responsibility to ascertain the credentials of an agent for that purpose. Accordingly, for this addition- al reason I find that any failure of the Respondent, as agent, to deliver the supplemental list of employees' names and addresses to the Intervenor is an insufficient basis for nullifying the election on Respondent's request. Further, it may be deemed appropriate to consider the facts in this case in their total context and in the light of the purpose of the Excelsior rule, which was to accord unions an opportunity to have access to and present their views by contacting unit employees. The Intervenor, whose alleged nonreceipt of a supplement to the original Excelsior list is "See also Excelsior Underwear Inc and Saluda Knitting Inc., 156 NLRB 1236 (1966). 12 Cf. Ben Pearson Plant, Consumer Division, Brunswick Corporation, 206 NLRB 532 (1973), where this was done by one of the unions. However, the other union there had earlier obtained the list directly from the employer and confusion existed as to when the list had been received by the Board and why an equal opportunity to obtain the list had not been presented. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complained of in this objection, was not only the incum- bent union with its officers working on the premises 13 but, as has since been established after litigation, was also an assisted union.14 This factor not only casts further doubt upon the bona fides of the claim of nonreceipt of the supplemental list, but it also further weakens the signifi- cance of any such omission as a factor affecting the fairness of the election. In the event that the impact, or question of substantial compliance with the Excelsior requirements, is deemed determinative, as has been suggested, the evidence establ- ishes that the first employee list supplied by the Employer contained the names and addresses of 65 employees, the supplemental list contained 18 additional names and addresses, and the voting eligibility list used during the poll contained these 83 names. At the election 26 ballots were challenged by the Intervenor and the Respondent, and unfair labor practice charges had been filed involving all but I of the 26 individuals casting challenged ballots. Analysis of documentary evidence reveals that the 11 ballots challenged were of persons whose names did not appear on either list. Ten ballots were of individuals whose names were included on the supplemental list, and five were on the first list. Of the 11, 4 were found to have been discriminatees and eligible to vote, and 7 were found ineligible.15 Of the 10 on the supplemental list, no charge was filed with respect to 1, and he was found ineligible to vote ; the other 9 were the subject of charges and, of these, 7 were subsequently found to have been discriminatees and eligible. No complaint issued with respect to the other two included in the charges, and they were determined ineligi- ble to vote. Of the five challenges whose names appeared on the first list, all were the subject of charges . No complaint was deemed warranted in their behalf and they were found ineligible. One employee on the supplemental list voted unchallenged. The remaining seven on the supplemental list neither voted nor filed charges. Their eligibility, as well as that of the one who successfully voted , is presumed for purposes of this analysis. Thus, disposition of the unfair labor practice case and the challenges reveals that the maximum number of eligible voters on the first list was 58 (63 minus those whose charges were dismissed), and the maximum number of possible eligible voters on the supplemental list was 15, (7 discrimi- natees, I unchallenged voter, and 7 who neither voted nor filed charges). To determine the percentage accuracy of the first list it is necessary that we add the 4 eligible voters whose names were not on any list to the 15 on the supplemental list. This gives an accuracy of approximately 67 percent, well below what the Board heretofore has regarded as substantial compliance.1° However, this factor relates to the adequacy of the Excelsior list, responsibility for which rests with the Respondent Employer herein . Here again, Respondent should not be permitted to rely on its own failure to carry out its responsibility as a basis for rejecting the results of an election not to its liking.17 13 The Brunswick case, id, establishes this to be a relevant factor in considering the impact of late receipt of an Excelsior list. 14 See Nathan's Famous of Yonkers, Inc, 186 NLRB 131(1970). 15 No complaint was deemed warranted on behalf of six of these, and the complaint on behalf of one was dismissed in the decision in that case. See 2. Objection 2 contains the allegation that: During the election campaign, the Company received a bomb threat which subsequently resulted in the conviction of the person who made the threat on his plea of guilty ; this bomb threat was widely disseminated among the employees and destroyed the laboratory atmosphere for holding a Board election . On informa- tion and belief the petitioning-union posted bond for the person convicted, which fact was also widespread knowledge among the employees before the election, and created an atmosphere of fear. The employer avers that the union ratified and adopted its conduct by its championing the cause of the guilty person if it did not, in fact, authorize it. In addition, the petitioning-union, in any event, created the impression of condoning and encouraging such conduct by its conduct during the campaign. Testimony presented at the hearing herein supports the finding in the Regional Director's decision that a former employee of Respondent, discharged before the election eligibility date, telephoned a bomb threat on March 23, 1973; that said employee was arrested and pleaded guilty; and that the attorney for the petitioning Union in the representation case, upon the request of the union agent, arranged for that individual's release on bond through a bonding company. The evidence further reveals that the petitioning Union made this request to its attorney at the urging of the family of the incarcerated man and that this was the extent of the Union's involvement with that individual. The telephone operator who received the verbal message that there was a bomb in the plant reported the call to Respondent's officials. Neither the telephone operator nor the two office employees she told of this call were in the unit involved. Employer officials reported the threat and the plant was searched by officers of the law. Employee David Clements, a unit employee, learned of the reported bomb threat when he reported to work that day from Ellis Knight, an employee on the paint line, who knew the caller "quite well." Clements testified he also heard later that the Union had arranged bail for the individual who had made the bomb threat. However, he could not name an individual who had any information concerning this matter. Turner Duke, a vice president of Respondent who was involved in identifying the caller and who arranged for the law enforcement search, testified that he attributed the bomb threat to the Union because that was the only "problem" in the plant at that time . He also testified that there was a widespread rumor among employees that the bomb threat scare was made by the Union to help in winning the election. However, he could not remember who told him of such rumor. On further questioning, he identified the rumors as being among the female employees in the office. Pressed for more particulars he stated that they asked him if there was a bomb threat. Duke admitted Kent Corporation, 212 NLRB 595 (1974). 16 See Ponce Television Corporation (WRIK-TV-Channel 7), 192 NLRB 115 (1971). Cf. West Coast Meat Packing Company, Inc., 195 NLRB 37 (1972), considering special reasons for the errors . Cf. Kentfleld Medical Hospital, 219 NLRB 174 (1975). 17 Compare Hamlin-Overton Frame Company, Inc., 219 NLRB 696 (1975). KENT CORPORATION 79 that there were only two who spoke with him about the bomb threat. One he identified as Linda who wanted to know if there was any danger; he told her he had already reported the matter and it had been cleared. Finally, he admitted that the two office employees who spoke with him were only concerned about their own safety. I discredit Turner Duke's testimony that there was a widespread rumor among employees regarding the bomb scare or the Union's alleged role and purpose in this regard. Indeed, his own testimony belies the assertion that he had knowledge of the existence of any rumor. While the telephone operator told other office employees of this exciting event, there is no evidence that they communicated such information to employees in the unit. Indeed, it would appear that there was little contact between office and plant employees as even the mail distribution employee could not go into the plant to distribute mail. The one unit employee who testified to having been informed of the incident when he reported to work after the event, and after the police search of the plant, and to having been told by an unidentified person that the Union had arranged bail for the person charged with the bomb threat hardly establishes that any widespread rumor existed or that an atmosphere of fear was thereby engendered. Nor does it establish that the Union was in any way responsible for the threat, that it adopted such conduct, or the existence of a rumor to that effect. Upon the basis of the foregoing, I conclude, in accor- dance with the decision of the Regional Director, that the conduct complained of, which occurred almost 2 months before the election, did not create an atmosphere of fear so as to preclude the holding of a fair election. 3. The allegation stated in Objection 3 is that: During the election campaign, there was a constant campaign of anonymous threatening phone calls, which, in conjunction with Ground No. 2, destroyed the laboratory atmosphere necessary for the election. No evidence was presented to support this objection and the Regional Director's conclusion that it was without merit stands uncontradicted.18 4. In Objection 4, it is asserted that: Upon information and belief, the Board agent during the campaign told employees of the employer in the bargaining unit that he would remove their names from the list of persons claiming to have been unlawfully discriminated against by the employer, but in that event, such employee might lose his job. The Board agent, acting in the line and scope of his authority as 18 Respondent's failure to present evidence to establish prima facie objectionable conduct beyond the mere assertion is regarded as abandon- ment of this objection. See Allied Stores of Ohio, Inc., 187 NLRB 873 (1971). In connection with this, and all other objections being considered, I reject the suggestion in Respondent's brief that, because this hearing was conduct- ed under Sec 10(b) of the Act, the General Counsel must bear the burden of proof on all issues of fact. The pleadings in this case bear the General Counsel's burden of proof. The issues of fact being heard are by way of defense and the burden is upon the Respondent to substantiate its defense 19 In support of this offer, Respondent cited Rule 804(a)(4) of the Federal Rules of Evidence . Two statements from Blackmon 's doctor were received in such, thereby unlawfully interfered with the free dis- crimination of employees and prevented a fair election. In support of this objection, Respondent proffered in evidence, as testimony of one Miles Blackmon, a portion of the official transcript in a prior unfair labor practice case, together with a statement of Blackmon. These were rejected.19 Respondent did not present the testimony of any of the persons supposedly present during the alleged incident covered by the statement, i.e., the named Board agent, Donald Howard, employee John Sailors, or Black- mon's relative, Andrew Blackmon. Respondent did present in support of this objection the testimony of Clements who stated that he was present when Blackmon gave the rejected statement and when he signed it. Clements stated that the Blackmon statement was given verbally to Supervisor Deaton, who wrote it down and then requested Blackmon to sign it. The supervisor asked Clements and Goodwin, both officers of the Association who were present during the taking of the statement, to sign as witnesses. The handwritten document was then taken by Deaton. Later a typewritten copy was presented to each of the three employees to sign, and a copy thereof was provided to each of the Employees Association's officials, including Mitchell. Clements testified that he did not show his copy to anyone other than to those who signed it and that he did not see other copies of the statement around the plant. To his knowledge the statement was never posted on the bulletin board. However, Respondent elicited from Cle- ments by leading questions the following testimony: Q. (By Mr. Stelzenmuller) let me ask you if follow- ing your signature on that thing, you discussed the subject matter of that freely with the other employees and that they discussed it with you? A. Yes, sir, I did. Q. Was the subject matter of that statement com- monly talked about? Was it common knowledge in the plant? A. Yes, sir. Q. Was that a matter of conversation and interest all throughout the period up to the election? A. Yes, sir. The Blackmon statement, as the subject matter of this testimony, was received in evidence.20 In his supplemental decision, the Regional Director held that, assuming a misunderstanding did occur as asserted in the objection, there was no evidence that it had a coercive effect upon the employees' free choice, and further that any dissemination of such misunderstanding by the Intervenor evidence under Fed R Evid., Rule 104(a). The statements received reveal that Blackmon had undergone surgery on August 8, 1975 , and was to have bed rest for 6 to 8 weeks following surgery, and as of the day before the hearing herein, Blackmon was unable to engage in any activity which would require him to sit or stand. I ruled that there was no showing Blackmon was unavailable and unable to testify because, if Respondent deemed his testimony necessary, the hearing could be adjourned to Blackmon's bedside for his testimony consistent with the limitations stated by his doctor. Respondent did not avail itself of this opportunity. 20 1 reject Respondent's contention that, having received the statement in this context, the statement is proof of the matters contained therein 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD could only have adversely affected the petitioning Union which won the election.21 I find no support in the evidence presented for the specific allegations of Objection 4.22 With respect to the testimony concerning the distribution of the statement and the dissemination of the subject matter covered by it, I fmd such testimony to be reasonably within the scope of the allegation. Clearly the subject matter was disseminated to employees in the first instance by Respon- dent itself when the superintendent chose to have employ- ees act as witnesses to the taking of the statement and provided them, as well as other officials of the Intervenor, with a copy of the statement they had witnessed. But Respondent has no standing to complain of its own conduct. It is clear that the employees whom Respondent so informed did not, so far as the record shows, distribute or post their copies as might have been expected. The extent to which they engaged in conversation with fellow employees and what they may have said about this "subject matter" is not apparent from the testimony quoted above , which itself warrants little weight in view of the manner in which such testimony was elicited. On the basis of the foregoing I fmd, in the evidence relating to the conduct complained of in Objection 4, insufficient cause for nullifying the election. C. Other Election Incidents In addition to the evidence presented relating to the objections of Respondent previously considered in the underlying representation case, evidence was received over the General Counsel's objections concerning two matters not covered by the specific objections but advanced as affirmative defenses. The first is based on the Supreme Court's decision in Savair.23 The second is an allegation of electioneering in the polling area. Both are in the nature of objections advanced to nullify the election. To warrant consideration at this stage of the proceeding, such belated objections must involve matters that are newly discovered or previously unavailable or must involve special circum- stances.24 Additionally, to justify receipt ofsuch evidence it must be of such a nature as would probably change the outcome of the litigation.25 The Supreme Court's decision in Savair came down on December 17, 1973, almost 10 months after the May 25, 1973, election herein, and modified a longstanding line of case precedent relating to waiver of initiation fees in an election context. I accept this as a special circumstance justifying belated objections.26 Documentary evidence relating to this objection consists of a union handbill which states, as relevant here: It has been said that your Union dues would be more than you would gain in Wages under a Union contract. The Boilermakers Constitution allows different amounts to be charged as dues and Initiation fees as voted on by the Members. I have explained before that your Initiation fee would be Six ($6.00) dollars and the monthly dues would be $5.75 and that still stands. Hoover Wilson, the Charging Party's business agent who was involved in the election campaign, testified that at the one and only union meeting with Respondent 's employees held at the end of March 1973, in response to an inquiry regarding initiation fees, he advised that he could arrange for a "special dispensation" with the International in the amount of $6 and that it would apply to "employees employed and coming into the Union . . . after the contract was signed. The initiation fee would be $6 and the dues would be $5.75 a month. For new people joining the Union, entering the bargaining unit after the contract, the initiation fee would be $15.00." Wilson testified that this meeting was held to report what the Union had done with the employees' authorization cards to secure bargaining rights and what procedures the Union would use in establishing an employee committee and negotiating a contract. He further testified that the only reference to an election at that meeting was his report that he had filed a petition asking for an election ; that, in referring to the initiation fee, nothing was said regarding the election; that he did not try to get employees to sign membership applications, authorization cards, checkoff cards, or any- thing for the Union at that meeting; that authorization cards were not applications for membership ; that authori- zation cards had already been signed and a petition filed with the Board at that time; and that he did not ask employees to do anything to qualify for the "special dispensation" on initiation fees. Wilson explained that such reductions from the established $15 initiation fee would be pursuant to his request to assist employees coming into membership at one time as a group; that it takes a week to 10 days to obtain such "special dispensation" from the International; and that he would take employees into membership when this was received. He never did request permission for the initiation fee reduction in this case. Respondent presented the testimony of employee Eliza- beth A. Goodwin who attended the one meeting conducted by the Union. It was her testimony that she "didn't really pay that much attention to anything except this. Mr. Hoover Wilson said that the ones that joined the Union would not have to pay a fee. The ones that did could not join the Union when it came in would have to pay a fee." As she recalled it, Wilson did mention a sum of money in connection with the fee but she could remember how much. 2t Respondent cites Sterling Faucet Company, Texas, Division, A Subsid- iary of Rockwell Manufacturing Company, 203 NLRB 1031 (1973), and Sonoco Products Company v. N.LRB., 443 F.2d 1334, 1336 (C.A. 9, 1971), as precedent requiring rejection of this finding of the Regional Director. In view of my holding infra I find it unnecessary to resolve this issue. 22 Accordingly, I do not consider Delta Drilling Company v. N.LR.B, 406 F.2d 109 (C.A. 5, 1969); D & N Delivery Co ration 201 NLRB 277 (1973); or Glacier Packing Co, Inc., 210 NLRB 571 974), relied on by Respondent, applicable. s N.LR.B. v. Savair Manufacturing Co., 414 U.S. 270, 272-274 (1973). 24 See Krieger-Ragsdale & Company, 159 NLRB 490, 496-498 ( 1966), enfd 379 F.2d 517 (C.A. 7, 1967), cert. denied 389 U.S. 1041(1968). 25 Pyrofax Gas Corporation, 185 NLRB 258 (1970). zs In its brief Respondent claims it made an additional objection based on the holding in the Savair case and attempted to file it with the Regional Director within 5 days after the challenged ballots were opened and tallied, but that the Regional Director refused to accept it for filing and returned the document to Respondent. I note that the Regional Director's supplemental decision ruling on the challenges issued on May 16, 1974, well after the Savair decision. However, no contention is raised that Respondent should have made its Savair objection before the decision on its other objections, and I make no ruling thereon. KENT CORPORATION 81 No one asked her to join the Union at that time and she did not see anyone else do anything to join the Union. Employee Ben James Mullins, Jr., testified that he attended the same meeting and that someone asked Wilson "about the fee or something that they might have to pay. I know he said it was a hundred dollars for those who joined later but not those who participated in the meeting now. They wouldn't have to pay the hundred dollars." Mullins asserted Wilson did not mention the election when he mentioned the initiation fee. Annie Ruth Weeks testified that Wilson said, "people that went ahead and joined wouldn't have to pay the regular fee if the union came in. ... The ones that went ahead and joined wouldn't have to pay one after the union came in. If you did wait, you would have to pay the regular initiation fee." When asked whether this was after a contract was signed or after what event, the witness replied, "I don't know." She further stated that she could not remember other remarks made at the meeting except that someone asked about fees, and that she did not recall any of the remarks being made about initiation fees or whatever fees were discussed. None of the witnesses who testified about Wilson's remarks had a clear recollection of the meeting generally and the specialized recollection of each on the subject of union fees does not corroborate that of any of the others. On the other hand, Wilson's testimony in this respect is corroborated by the testimony of employee John Sailors and is consistent with the documentary evidence and his other actions with respect thereto. I credit Wilson's straight- forward and supported testimony and find no basis on the credited evidence presented for nullifying the election under the Savair decision.27 The substance of the evidence presented by witnesses of Respondent to support the assertion of voting line cam- paigning is as follows. Some eligible voters in one of the lines while they were located approximately 10 feet from the balloting table and 15 feet from the witnesses, who were in a converging line, stated in loud voices, "[I ]f you don't vote for the Boilermakers you will be making a big mistake." The incident is denied by one of the alleged participants. Mitchell, who acted as the Intervenor's election observer, testified that at one point he called to the attention of the Board agent conducting the election the fact that a lot of people were talking in the voting line and that the Board agent quieted them down for a while, but they started talking again. Mitchell could not understand what was being said by the employees in the line. All of the individuals who allegedly offended in this manner were employee voters; none was an officer or representative of any of the parties. Respondent has advanced no allegation that this objec- tion is based on newly discovered or previously unavailable evidence. Indeed, the Certification of Conduct of Election form is signed by the Board agent and an observer for each of the parties, including one Jesse A. Lester for the Employer. Moreover, the evidence, if presented as an offer of proof, would not have warranted a conclusion that the conduct involved was of such a nature as would probably change the outcome of the litigation 28 Accordingly, I now am of the view that the General Counsel's objection to its presentation should have been sustained, and hereby reverse my ruling in this respect. CONCLUSIONS OF LAW 1. Kent Corporation is an employer engaged in com- merce and in activities affecting commerce within the meaning of Section 2(2),(6), and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees em- ployed by Respondent at its Jefferson County, Alabama, plant, including cafeteria employees and leadmen; but excluding office clerical employees, the draftsmen, profes- sional employees, salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Since September 26, 1974, the above-named labor organization has been and now is the certified and exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about November 4, 1974, and at all times thereafter, including specifically November 5 and 25, 1974, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employees of Respondent in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respondent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act, I shall recommend that it be ordered to cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. In order to insure that the employees in the appropriate unit will be accorded the services of their selected bargain- ing agent for the period provided by law, I shall construe the initial period of certification as beginning on the date Respondent commences to bargain in good faith with the 27 See Irwindale Division, Lau Industries, A Division of Phillips Industries, Inc., 210 NLRB 182 (1974), Gibson's Discount Center, a Division of Scrivner- Boogaart, Inc., 214 NLRB 221 (1974); L D McFarland Company, 219 NLRB 575 (1975). 28 See fn. 25, supra. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union as the recognized bargaining representative in the tion shall be deemed to begin on the date the Respondent appropriate unit.29 commences to bargain in good faith with the Union as the Upon the foregoing findings of fact, conclusions of law, recognized collective-bargaining representative of its em- and the entire record, and pursuant to Section 10(c) of the ployees in the appropriate unit 32 Act, I hereby issue the following recommended: ORDER30 The Respondent, Kent Corporation , Pinson Valley, Jefferson County, Alabama, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and conditions of employment with International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by Respondent at its Jefferson County, Alabama, plant, including cafeteria employees and leadmen; but exclud- ing office clerical employees, draftsmen, professional employees, salesmen, guards, and supervisors as defined in the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employ- ees in the aforesaid appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Pinson Valley, Jefferson County, Alabama, copies of the attached notice marked "Appen- dix." 31 Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by Respondent's representative, shall be posted by Respon- dent 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 notices are not altered, defaced, 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 the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that, for the purpose of determin- ing the duration of certification, the initial year of certifica- zs See Mar-Jac Poultry Company, Inc., 136 NLRB 785 (1962), Commerce Company d/b/a Lamar Hotel, 140 NLRB 226,229 (1962), enfd. 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (C.A 10, 1965). 30 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. 31 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." 32 See Capital Rubber & Speciality Co., Inc, 198 NLRB 260 (1972). APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concern- ing rates of pay, wages, hours, and other terms and conditions of employment with International Brother- hood of Boilermakers , Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above- named Union, as the exclusive representative of all employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other terms and conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees em- ployed by Kent Corporation at its Jefferson County, Alabama, plant, including cafeteria em- ployees and leadmen; but excluding office clerical employees, draftsmen, professional employees, salesmen, guards, and supervisors as defined in the Act. KENT CORPORATION