Nu-Southern Dyeing & Finishing, Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1969

179 N.L.R.B. 573 (N.L.R.B. 1969)

NU-SOUTHERN DYEING & FINISHING , INC. 573
Nu-Southern Dyeing & Finishing, Inc., and
Henderson Combining Co. and Glass Bottle
Blowers Association of the United States and
Canada, AFL-CIO. Case 11-CA-3764
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
November 13, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On May 6, 1969, Trial Examiner Thomas A.
Ricci issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in unfair labor practices and
recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter,
Respondent filed a statement of exceptions to the
Trial Examiner's Decision and the Charging Party
filed an answer to that statement.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the answer,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Nu-Southern Dyeing &
Finishing Inc., and Henderson Combining Co.,
Henderson, North Carolina, their officers, agents,
in finding, in agreement with the Trial Examiner, that Respondent
violated Sec 8(a)(5) of the Act, we apply the standards governing
previously established bargaining relationships rather than those relating to
initial organization situations (Cf N L R B v Gissel Packing Company,
395 U S 575) The principle has long been established that an employer
may not lawfully withdraw recognition from an incumbent union because
of an asserted doubt of the Union's continued majority unless his assertion
of doubt is raised in a context free of unfair labor practices, and is
supported by a showing of objective considerations providing reasonable
grounds for a belief that a majority of the employees no longer desire
union representation (See, e g , Celanese Corporation of America, 95
NLRB 664, 671-672, Lavstrom Mfg Co. 151 NLRB 1482, 1484 enfd
denied on other grounds 359 F 2d 799 (C A 7), Terrell Machine Co , 173
NLRB No 230 N L R B v Gulfmont Hotel Co, 362 F 2d 588 (C A. 5),
N L R B v The Little Rock Downtowner, Inc. 414 F 2d 1084 (C A 8)
And, Cf United States Gypsum Co. 157 NLRB 652 The burden of
proving the existence of such reasonable grounds rests on the employer
libid) Applying these standards to the facts of this case, we find that
Respondent has not sustained that burden
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on March 18 and 19, 1969, at
Henderson, North Carolina, on complaint of the General
Counsel against Nu-Southern Dyeing & Finishing, Inc ,
and Henderson Combining Co , herein together called the
Respondent, or the Company. The issue presented is
whether the Respondent's refusal to bargain with Glass
Bottle Blowers Association of the United States and
Canada, AFL-CIO, herein called the Union, violated
Section 8(a)(5) of the Act. A brief was filed by the Union
Upon the entire record and from my observation of the
witnesses, I make the following
Findings of Fact
I THE BUSINESS OF THE RESPONDENT
The Respondent is a North Carolina corporation
engaged in the dyeing and finishing of textile products at
its Henderson, North Carolina, plant. During the past 12
months, a representative period, the Respondent shipped
goods valued in excess of $50,000 from this plant to places
directly outside the State of North Carolina During the
same period it caused goods valued in excess of $50,000 to
be shipped to its plant directly from out-of-state sources. I
find that the Respondent is engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act to exercise jurisdiction herein.
II THE LABOR ORGANIZATION INVOLVED
Glass Bottle Blowers Association of the United States
and Canada , AFL-CIO, is a labor organization within the
meaning of Section 2 (5) of the Act
III. THE UNFAIR LABOR PRACTICES
The issue of the case
This is literally a refusal to bargain case A majority of
the employees voted in favor of the Union in January
1967, the Regional Director issued a certification to that
effect in June and in November of that year the parties
signed a 1-year collective-bargaining agreement. As the
contract year was ending the Union asked the Company
to bargain towards a new one and the Respondent refused,
on the stated ground that the Union no longer represented
a majority of the employees. Established Board law has
long been that where the contract of a certified bargaining
agent is about to expire there exists a presumption that
the majority status upon which the exclusive recognition
rests continues to exist' And where, at such a time, an
employer attempts to place the Union's majority status in
issue, it "must demonstrate by objective considerations
that it has some reasonable grounds for believing that the
Union has lost its majority status since its certification "
United States Gypsum Company, 157 NLRB 652 In the
end the question becomes whether the record as a whole
proves the complaint allegation that the Respondent
raised the question of majority, and for that reason
'Celanese Corporation of America, 95 NLRB 664, Terrell Machine
Company. 173 NLRB No 230
179 NLRB No. 96
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refused to bargain, in bad faith, in which event its refusal
becomes a violation of Section 8(a)(5) of the Act
Evidence in support of the complaint
Gary Baldecchi, president of Nu-Southern, one of the
two companies which together constitute the single
employer to whom the Union was certified, is the man
who runs the entire plant, is solely responsible for all
labor relations, and made the decision to withdraw
recognition from the Union. The contract was due to
expire on November 16, 1968, on September 13, Baldecchi
served written notice of intent to forestall automatic
renewal and to end the contract, and on September 24,
the Union responded by requesting negotiations For the
Company, on October 8, Baldecchi told the Union he
would not bargain Called by the General Counsel as a
witness at the start of the hearing 5 months later, he was
asked why he had so refused, and he answered one reason
was an antiunion petition signed by employees, and
"From the very beginning the union never functioned as a
union, as far as handling grievances or even maintaining a
bulletin board, the simplest things, and just general
interest, people never seemed in the plant to even refer to
the union or talk about it, or try to use the grievance
procedure We had little or no contact with the union; in
fact, throughout the contract "
Chief among the facts upon which the complaint rests
for a finding of bad faith in the Respondent are two
incidents. The first is a visit to the plant by Harry Moore,
international representative of the Union, who came to
talk to Baldecchi before the September notice of
termination by the Company He testified that because it
had taken 5 months to achieve a contract in 1967 - from
the certification in June to November when the contract
was signed - he wanted to start talking earlier than the
contract provided According to Moore, in response
Baldecchi said " . he hoped we would just leave him
alone, they were having problems in their operation, there
had been a water shortage, they weren't making any
money, and he just hoped we would let him alone He
didn't want to deal with us, he was small, and he wished
that we would leave him alone." When Moore insisted he
wanted to negotiate, Baldecchi added " . he had
learned a lot since the union had been in there, and that
he had treated these people good now, and he didn't see
any need for the union."
Testifying later, Baldecchi remembered this visit, but
said "It was very casual," "Not much of any real
importance I really can't recall if he had any
complaints - I don't know the purpose of his visit I
can't recall the purpose of his visit I don't know why he
came, I'll put it that way I can't recall."
Reminded by counsel for the Respondent of what
Moore, in his testimony, had attributed to the Company
president, Baldecchi then opened up as follows
I recall saying the fact that I couldn't see how they
were - I don't think I said that - I said I didn't see
how they were making any money on Nu-Southern
employees. I just don't see how they could justify the
expense of keeping this Union in the plant or whatever
have you, because I just didn't think I said that we
were just like a splash in the ocean, or something like
that, that we were so small compared to these other
operations all over the country
As he went on Baldecchi then also remembered that
Moore had come in order to start the negotiations, but
that his position had been it was "just too early even to
discuss the thing "
With this Baldecchi's total testimony, and considering
the demeanor of the two witnesses, I credit Moore's
version of this conversation.
The second principal event upon which the General
Counsel relies is a talk the Company personnel director,
Carlyle Morris, gave the assembled employees on
September 24, 1968. He gathered them in separate groups,
the first and the second shifts in one, and the third in
another and gave essentially the same talk to both. Five
employees testified about Morris' remarks concerning the
Union, and there is a seeming conflict between their
stories and the testimony of several management
representatives who were also present All witnesses
agreed that Morris devoted much of his speech to matters
of safety, accident records, and a severe water shortage of
the moment, and that meetings devoted to such problems
are regularly held each month. The last part of the talk
dealt with continued recognition of the Union and a
petition aimed at unseating it Both groups of witnesses,
employees and management people, recalled Morris said
he had been approached by employees who did not wish
to be represented collectively, he had inquired how this
could be accomplished, the employees who so desired
should sign a petition to that effect, all this should be
done neither during working hours nor anywhere on
company property, and the employees were free to do as
they pleased about it.
There is a question whether the personnel director also
told them the Company preferred not to deal with the
Union and thereby urged them to declare themselves
against it Employee witnesses quoted Morris as follows
Wilbert Hutcherson "He said the company was now glad
that the union would - that they would no longer need
the third party, and the company had been run before the
union, and he thought now they could run it without the
union again." Samuel Rice "We have no intentions of
dealing with a third party " William Jordan " he just
said a third party wouldn't be no good, wouldn't be any
good to us, we didn't need a third party " Earl Parham
11 they could sign a petition, and get the union out, and
frankly speaking, he said, for his part he didn't see why
we needed a third party in there He said he couldn't see
why the employees and the employer couldn't get along
without the union, that we had worked and slaved hard
for our money, and he didn't see why, he said they hadn't
lifted a finger, and he didn't see why they should get any "
James Summerville " . he said if they had got along
so far without a union, he didn't see why we should have a
union, we could do without it, we were just like one big,
happy family ... "
Baldecchi, the president, said he was present and did
not hear Morris say he would be "glad" if the Union were
out, but instead told the employees the Company
"couldn't show any partiality," and the employees should
do as they wished William Granger, a supervisor, who
was also present, testified Morris did not indicate "the
Company's position " Of greater significance, and largely
determinative of whatever question of credibility there
may be, is Morris' own testimony. He denied flatly having
said "we have no intention of dealing with a third party,
or "I don't see why we need a union." Asked to repeat
what he did say, he stated it this way
Well, I said in regards to that that previously I was a
rank and file employee with the Company for 11 1/2
NU-SOUTHERN DYEING & FINISHING , INC. 575
years and I never had to pay a third party, and if I did
pay a third party, I would certainly want some
representation , and I hadn ' t seen any representation in
this plant during the contract.
In some other context these words might be described
as no more than an expression of opinion Coming at the
very moment the personnel director was advising the
assembled employees of the technique of a petition to
remove the Union from the plant, they constituted as
much a clear message that it was the Company ' s desire
that they circulate such a petition and sign it It was for
all practical purpose Morris urging the employees to take
this action to reject collective bargaining Understandably
the employee witnesses could not recall his words with
precision 5 months later , but I must credit their collective
testimony that Morris expressed the opinion a "third
party" was not necessary , that he, at least , preferred not
to have a union , and that it would be better for them to
sign the petition he suggested In the circumstances of the
moment, regardless of whether any employees had
previously told him they were opposed to having a union,
his was direct instigation of the petition and therefore, I
find, a violation of Section 8(a)(I) of the Act. With this
- an unfair labor practice - the genesis of the petition,
the Respondent ' s later reliance upon it as a basis for its
refusal to bargain further with the Union emerges as an
act taken in bad faith . Evidence of dissatisfaction with a
collective-bargaining agent must properly arise in the
employees themselves if it is to carry any weight; the
"employer cannot vicariously raise the question for
them " N L R B v Sanson Hosiery Mills. Inc , 195 F 2d
350 (CA 5)
That Morris intended to implant rejection of the Union
as a desirable objective in the minds of the employees is a
finding made clearer by the attitude expressed a month or
so earlier by Baldecchi when union representative Moore
invited him to begin negotiations He told Moore "he
didn't want to deal with us , he was small , and he wished
that we would leave him alone ." It was this desire that
Morris later evoked in the employees at his September 24
meetings . And the record as a whole shows clearly the
employees take the personnel director ' s words seriously in
this plant He told them not to circulate the petition inside
the plant For the most part they did not , and on those
occasions when Granger , also called Mac, did solicit
signatures inside the building , he did it in the bathroom,
holding the paper folded inside a piece of cloth in order to
conceal it from the supervisors There is no reason to
believe the employees would be less sensitive to Morris'
suggestion that they move in the direction he wished, he is
the personnel director
Affirmative defense, asserted loss of majority
To say, as does Board law, that there exists a
presumption of continued majority when a regular
collective-bargaining contract is about to expire, means
that absent any reason for concluding otherwise an
employer's refusal to continue recognizing the Union as
exclusive agent must be found unlawful Stated differently,
in such a situation it is the employer who must come
forward with a reasonable amount of evidence, proof of
some sort, to rebut the presumption, to show there was
some objective ground for his stated belief that the
employees no longer desired to be union represented It is
an affirmative, or positive proposition that his evidence
must at least tend to indicate If the Respondent's such
"evidence" in this case, argumentative conclusions
repeatedly intermixed with factual assertions, be viewed in
its totality there appears a defense based upon a negative
proposition, rather than a positive, affirmative one The
essential contention is that there was no evidence, during
the contract year, that the Union in fact did represent a
majority The witnesses spoke of there being a void But
this is tantamount to refusing to recognize the
presumption, which takes the place of affirmative,
continuing proof In effect the Respondent either
misconceives or rejects the rule of law upon which the
complaint initially rests The position is unpersuasive both
because as a matter of logic the negative cannot take the
place of the positive, and because industrial peace and
stability, here advanced as reason to discontinue union
recognition, is the very objection towards which the entire
principle of collective bargaining is aimed
That this was truly the Respondent's reason for
questioning majority appears clearly from the statement
Baldecchi made at the hearing when he was called in the
end as a witness for the Company Now he was asked by
Respondent's counsel why he had decided not to bargain
any more
Well, this is really a long process I would say
starting, going back to the original election, in fact, the
list that we received was merely a verification of what I
had felt and known all along
* * * * *
I said I either felt or knew several situations that
existed because going back to the original election
which is a matter of fact or record, the Union barely -
it was a very close election, it was a matter of four or
five votes either way So from the initial countdown,
they weren't very strong, to speak of, based on the
election
And then, of course, we had a tremendous turnover
of people and while these employees weren't involved in
the election and did not even know who the Union was,
certainly did not know who Mr Moore was -
* * * * *
Why I said they didn't know Mr. Moore, he hadn't
been around, so they couldn't have known him or seen
him, shall we say
* * * * *
the Union was what I would consider to be very
dormant during this period
* * * * *
Then, of course, I mentioned earlier about the
bulletin board displays whereby provisions of the
contract they were supposed to let us know of any
leadership in the Union. We had to have somebody to
deal with in the plant, and this was the way to do it, by
posting it on the bulletin board. And I think after the
initial list it became so multilated and changed -
So the leadership list wasn't maintained, in fact, the
bulletin board itself after a while wasn't being
maintained They weren't even posting membership
meeting notices up You can sense in a plant when you
have got a Union, because I have had experience
Before listing the items which Baldecchi called detailed
proof of loss of majority, one more pervasive defense
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argument must be considered in its correct light. It was
the International Glass Blowers Union that was certified,
in the small town of Henderson, in North Carolina, no
officer or full-time representative of the International is
stationed, nor is there any International office there as
such Correspondence received in evidence shows
International Union addresses in Anderson, South
Carolina, and Philadelphia, Pennsylvania There is a
Local 222 in Henderson, and it appears to be also the
bargaining agent for employees of another company,
Lawrens Glass Co , located in that town After the
election among the Respondent's employees the
International told them to pay their dues through Local
222, all members of the Union bear this relationship,
through a local, to the International. And those employees
of the Respondent who went to union meetings attended
meetings of Local 222 The Respondent did not file a brief
to explicate its theory of law, but it is clear from the
record testimony it argues all union activities by its
employees in and through Local 222, all attempts by
agents or officers of Local 222 to deal with the
Respondent with respect to these employees, must be
ignored in this case as though they had never happened
When Baldecchi said the Union was "dormant," he meant
strictly the International. Indeed he admitted telling all
managerial personnel to have nothing to do with any
person in any way associated with Local 222 "Yes, sir,
we made it quite clear to Mr. Matule and Mr Carlyle
Morris that our contract, our dealings were strictly with
the International Union, and not with the Local, and we
would direct our dealings to the International only "
It can only be supposed that for this restrictive and
novel theory of law the Respondent rests upon decisional
precedent holding that an employer is not required to
execute a contract with any labor organization other than
the certified one, not even the local of a certified
international It does not follow from this rule of law that
employees may not join a local of their choice, that they
may not be represented in grievances by union agents
selected from any local's staff, or that any such activities
by them are not union activities in every sense of the
word I find this aspect of the defense totally without
merit
The contract gave the Union the right to use bulletin
boards in the plant and to designate employee
representatives, such as shop stewards or department
committeemen, to handle any complaints or grievances
that might arise Shortly after the agreement was made
the Union posted a notice on the bulletin board listing
approximately 15 such stewards and committeemen It
remained on the board perhaps 4 or 5 weeks - the record
is not clear in this respect - and then disappeared While
it was posted some of the names were marked through, in
pencil or ink; others appeared, apparently added in
handwriting by someone, and some of these also later
appear to have been struck off. Testimony about how
many names were so "scratched off" the list came
principally from Morris The personnel director said he
noticed this defacing of the notice because many times he
searched for persons among the employees to act as union
agents, but could not find any. He started by saying
"Some of them [the employees], a great deal of them,"
asked how their names might be removed from the list.
As he talked he vacillated between many and very few.
the listgot to the place there was not any names on it
that hadn't been scratched out I saw a man's name
pencil marked through . Within a couple of days, the
biggest percent of the names were unrecognizable . . .
With the exception of one or two or three or four "
Supervisor William Granger, of the tubing department,
who works near the bulletin board, said "at one time or
another there had been several names penciled out on the
list " The only names he could remember were those
of Paul Deake and Erwin Pulley, and two persons in his
own tubing department, Charles A Ayscue and Don
Woodruff
Evidence about how many names were thus penciled
through on the posted notice was merged, in the testimony
of both Morris and Supervisor Granger, together with
their further telling about employees whom they invited to
act as union agents and those who turned to them for
assistance in avoiding any responsibility to act for the
Union It is the merger of these three concepts - names
scratched from the list, employees desiring not to be
represented by the Union, and management's inability to
prevail upon them to act as stewards or committeemen -
that the Respondent presents as separate and cumulative
elements of proof of loss of majority In fact, apart from
a confusion in terms, all this involves is an expression of
attitude by a limited number of employees, for the
individuals whose names the two witnesses could recall
constantly recur and place the same persons in all three
aspects of the defense presentation
Clyde Tilloston was one of the prime movers in the
organizational campaign After the original posted list had
disappeared Morris wrote to the Union for a new one,
and Local 222 sent him one, while the matter is not
absolutely clear on the record, it seems to be substantially
a relisting of the original names At the start of his recital
Morris said that when he received this, on January 8,
1968, he talked to Tilloston because "I wanted to
cooperate with him," and that Tilloston replied "he didn't
want any part of it" and how could he "get out of the
Union " Much later in his testimony Morris related this
conveisation differently "I went to Mr Tilloston, and
tried to find out which direction we were going to move in
this time " He then also explained that this was one of
those occasions when " . . if we had a problem I felt like
I wanted the man to receive justice and know he received
justice or what-have-you-some days in between " Tilloston
did not testify, as indeed not a single rank-and-file worker
was called to support the defense, nor any who later
became supervisors Tilloston was made supervisor shortly
after this incident, according to Morris "2, 3 months"
later
Charles Ayscue was also named individually by the two
witnesses. Morris said this was one of the two men he
approached to see if he "would take the responsibility -
. Because we did have not what you would call a
greivance, but I had a normal routine daily problem with
an employee, and I asked Charles if he would sit in on it,
and see that the man did get full justice from a company
standpoint " Morris then added Ayscue said "he was not
interested in being a shop steward," but did "sit in on
one " Ayscue was one of the principal actors in soliciting
signatures to the antiunion petition in September, and was
also promoted to supervisor on November 4
Samuel Rice was also invited by Morris to act, and he
"did come in and sit on some of them", "them" meaning
"problems" as Morris defined them Morris also recalled
a man named Peoples coming to him to say "he was
accepting the committee or some kind of chairman of a
committee " The only other man mentioned by Morris as
an employee expressing antiunion sentiments were Deake
and Pulley, of whom supervisor Granger also spoke, and
Whalley. As to this last man Morris testified he asked the
NU-SOUTHERN DYEING & FINISHING, INC.
man " . . . if he would sit in on this meeting , and this
wasn ' t a grievance - this was a problem that we were
having in the plant with an employee ' s production record
or with his production and I wanted somebody to sit in to
see that justice was done, ...." Finally, there is mention
of one Robert Burnell ; Morris once asked for volunteers
to act concerning a safety problem , Burnell offered, and
"we put him on the safety committee and he toured the
plant with me. .
As to the remaining facts said to support the defense
there is no substantial dispute on the record . Five or six
employees became dues paying members of the Union.
Only two appeared to have attended union meetings,
Tilloston only in the beginning . Two grievances were filed
during the life of the contract , one involving Ayscue and
another concerning vacation pay for employee Parham;
this last was brought to the plant by a Miss Wilkerson,
secretary of Local 222. Both appear to have been settled
amicably . Morris agreed at the hearing "there was no real
cause for grievance to be tried ." Throughout the contract
year two notices of union meetings were posted on the
bulletin board . There was a turnover in the employee
complement , Morris first said " I would estimate it was
better than 100 percent ," but later, asked to estimate how
many of the original employees remained at the end of the
contract , said it would be "hard" to estimate, "well, it
would be a rough guess let ' s say 10 percent." No
records were offered in evidence
Conclusion
I conclude that the refusal to recognize the Union on
October 8, 1968, was not grounded upon a good faith
doubt about its majority status and therefore constituted a
violation of Section 8(a)(5) of the Act, as alleged in the
complaint. The sole element of proof truly falling in the
area of what can be called objective considerations
relevant to the question of majority, is the testimony that
there were some employees who volunteered to
management agents their desire not to act as union agents
and not to be represented by the Union. There had always
been a dissident group, and the number of such persons
who of their own accord expressed this view does not
appear to have been substantial, so far as credible
evidence is concerned. Repeatedly the personnel director
kept saying he could find nobody willing to act for the
Union, that everybody's name was struck from the
original list of selected representatives. These were
conclusionary phrases; other testimony, including some of
his own, indicates only some names were struck from the
list, and all the Respondent's witnesses together could
remember but very few individual employee names to
support the broad assertion. Clearly Morris exaggerated.
Supervisor Granger testified that at the September 24
meeting Morris said he had been approached by "several"
employees; Matule's version is that Morris said "many"
employees had inquired "what the Company's position
was with the Union," but that with respect to those who
had expressed a desire to remove the Union, Morris only
said "several" had asked. That Morris was doing more
than answering questions that day is shown by his further
statement to the employees - as also testified by Matule
. . he felt that due to the fact we had a lot of new
employees in the plant who had been hired during the life
of the contract and were not familiar with the activities
that led up to the negotiating and signing of a contract,
that this subject of the upcoming expiration of the
contract was of general interest to all employees. And this
577
was the reason why he brought it up in the general
meeting."
The petition now called antiunion serves little to prove
loss of a majority in fact, if only because it was company
inspired and born of the Respondent's unlawful conduct.
There is also uncontradicted testimony by several
employees that when solicited to sign, or even when they
signed, the single sheet of paper presented to them
contained no writing of purpose at all, and that in some
instances the solicitors were evasive as to whether they
sought to remove or retain the Union. The principal
solicitors of the petition later given to supervisor Granger
appear to have been Lubie Wallace, Sr., whose two sons
were then supervisors, John [Mac] Granger, a cousin of
supervisor Granger, and Ayscue, promoted to supervisor 2
months later. None of them appeared at the hearing to
offset the testimony of the General Counsel's witnesses. In
any event, there was also a prounion petition circulated at
a later date, and while it is no more probative than that
offered by the Respondent, it does tend to offset the latter
further
A presumption of continuing majority cannot be
quantitatively scaled to the measure of majority scored in
the election. There is no obligation upon employees to pay
dues to the Union of their choice 2 They need not attend
union meetings, and if they do not complain about
working conditions during the life of a contract, the fact
indicates as much satisfaction with and continued
adherence to the Union, as indifference, and especially
rejection:' There were grievances filed, there were notices
of meetings posted, there were employees who functioned
as union representatives inside the plant. The Respondent
cannot avoid the statutory duty to bargain with the
regularly chosen representative of its employees on the
grounds that the Union failed, in the opinion of
management, to keep on proving affirmatively its right to
act as bargaining agent throughout the period of the
contract.'
Most important of all in this case it must be
remembered that union activity means employee activity,
not employer activity. For the most part the Respondent
points to the refusal of employees to accept the personnel
director's requests that they be agents of the Union. It is
the Union which selects its spokesmen, not the employer.
Everything was satisfactory, the waters were quiet. The
truth is Morris went about the plant asking employees .to
stand up and be counted. When he asked Tilloston "which
direction are we going to move," he was asking the man
to declare himself either in support of or in opposition to
the Union. Were it alleged in the complaint it could well
be this statement was pure interrogation, and possibly an
unfair labor practice in itself. Tilloston's answer, as well
'Ni R B v Gulfmont Hotel Company , 362 F.2d 588 (C.A 5)
'United Aircraft Corporation , 168 NLRB No_ 66
'There is no real dispute with respect to the composition of the
appropriate unit Accordingly I find, as alleged in the complaint , and as set
out in the 1967 contract in evidence , that all production and maintenance
employees employed at Respondent's Henderson, North Carolina, plant,
excluding office clerical employees , floormen , shift leaders, formula men,
guards and supervisors as defined in the Act, constitute a unit appropriate
for the purpose of collective bargaining within the meaning of Sec. 9(b) of
the Act
I also find, on the basis of the conclusions reached above , that Glass
Bottle Blowers Association of the United States and Canada, AFL-CIO,
was on October 8, 1968 , and at all times since has been the representative
of the majority of the employees in the above -described bargaining unit,
and by virtue of Sec. 9(a) of the Act, has been and now is the exclusive
bargaining representative of all the employees in said unit for the purposes
of collective bargaining
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as those of the many others the personnel director tried to
smoke out, are the weakest of reeds to carry the burden of
convincing proof resting upon the Respondent.
In the total circumstances revealed by this record, I
also credit the testimony of Samuel Rice, denied ' by
Baldecchi, that one morning in September of 1968, while
the president was driving him to his home to do some
personal work, Baldecchi spoke to him about the Union.
According to Rice's thus credited testimony, Baldecchi
asked "why did I fool around with anything like that, he
said, at my age I should think about my security " I find
that by that statement Baldecchi gave Rice to understand
that continued union activity would endanger his position
with the Respondent, and thereby violated Section 8(a)(1)
of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 111,
above, occurring in connection with its operations as
described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes
burdening and obstructing the free flow of commerce
Upon the basis of the foregoing findings of fact and
upon the entire record, I make the following
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3 All employees of the Respondent's Henderson, North
Carolina, plant in the unit described above constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act
4 The Union was on October 8, 1968, and at all times
thereafter has been the exclusive collective-bargaining
representative of Respondent's employees in the
appropriate unit within the meaning of Section 9(a) of the
Act
5. By refusing to bargain with the above-named labor
organization in good faith the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act
6 By the aforesaid conduct and by threatening to
discriminate against an employee because of his union
activities the Respondent 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 within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in the case, I recommend
that Nu-Southern Dyeing & Finishing, Inc , and
Henderson Combining Co , Henderson, North Carolina,
their officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain collectively in good faith with
Glass Bottle Blowers Association of the United States and
Canada, AFL-CIO, as the exclusive representative of all
employees in the bargaining unit.
(b) Threatening employees with discrimination because
of their union activity or in any other manner interfering
with, restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or assist
any labor organization, to engage in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities
2 Take the following affirmative action which I find
will effectuate the policies of the Act
(a) Upon request bargain collectively with the Union as
the exclusive bargaining representative of all employees in
the appropriate unit described above, with respect to rates
of pay, wages, hours of employment, and other terms and
conditions of employment, and if an understanding is
reached embody such understanding in a signed
agreement
(b) Post at its place of business in Henderson, North
Carolina, copies of the attached notice marked
"Appendix "5 Copies of said notice, on forms provided by
the Regional Director for Region 11, shall, after being
signed by the Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps it has
taken to comply herewith 6
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act , as amended, we hereby notify our
employees that
WE WILL NOT refuse to bargain collectively with
Glass Bottle Blowers Association of the United States
and Canada , AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described
below.
WE WILL NOT threaten to discriminate against
employees because of their union activities, or in any
other manner interfere with, restrain , or coerce our
employees in the exercise of their right to
self-organization, to form, loin, or assist any labor
NU-SOUTHERN DYEING & FINISHING, INC.
organization, to bargain collectively through
representatives of their own choosing and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities
WE WILL bargain collectively, upon request, with this
union as the exclusive representative of all our
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment,
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 in our
Henderson plant, excluding office clerical employees,
579
floormen, shift leaders, formula men, guards and
supervisors as defined in the Act
NU-SOUTHERN DYEING &
FINISHING INC, AND
HENDERSON COMBINING
Co.
(Employer)
Dated By
(Representative) (Title)
This notice must remain for 60 consecutive days from
the date of posting and must not be altered, defaced, or
covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
with the Board's Regional Office, 1624 Wachovia
Building, 301 North Main Street, Winston-Salem, North
Carolina 27101, Telephone 919-723-9211.