# Petition for Writ of Certiorari — General Wood Preserving Co. v. National Labor Relations Board > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2822%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 1016 ## Text QOGEPH ©. wera: IN THE hae... Supreme Court of the Gnited States OCTOBER TERM, 1990 GENERAL WooD PRESERVING COMPANY, INC., Petitioner, V. NATIONAL LABOR RELATIONS BOARD, Respondent. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT CHARLES A. EDWARDS GRAHAM & JAMES P.O. Box 1951 Raleigh, North Carolina 27602 (919) 821-8000 Attorney for Petitioner PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203 -, JR, QUESTIONS PRESENTED 1. Do the remedial powers of the National Labor Re- lations Board encompass the right to order a bona fide successor employer to bargain with a labor organization in the absence of voluntary recognition or certification of the labor organization where such an order is predicated solely upon the commission of unfair labor practices by the predecessor employer? 2. Absent evidence that a bona fide successor employer possessed notice of its predecessor’s commission of serious unfair labor practices, may the duty to remedy those unfair labor practices be imposed upon the successor? TABLE OF CONTENTS Page QURITNONNS PPRUIEUIND istinienscisridancinstbinabccicisescniniens i RE GP GI iisiccbcsianinitibiin ii SAME GH UII coicccrariescckasceicaseacic tetris iv I: I eciicrasicsicinshineiccinisisabcessansaciiniciaailata te a 1 POI cicehapticesiieeibiiiciiin edie ia ri aici 1 STATUTORY PROVISIONS INVOLVED ........ccccsssseseseeeees 1 PRAGUE GUE TU I hi caiahieteintnenitircictinenens 2 REASONS FOR GRANTING THE WRIT .........ccccccsseeseees 6 I. THERE IS SUBSTANTIAL CONFLICT AMONG THE CIRCUIT COURTS OF APPEALS RE- SPECTING THE APPROPRIATE ANALYSIS OF BOARD ACTION ORDERING AN EM- PLOYER TO BARGAIN WITH AN UNCERTI- FIED LABOR ORGANIZATION. .............cc0ee00s 6 A. This Case Poses A Significant Unsettled Question Respecting The Circumstances Where A Bargaining Order Is The Ap- CS TI; Semiaiaictntiietetsesenne sense... 6 B. This Case Poses A Significant Unsettled Question Respecting The Effect Of Inter- vening Events On The Propriety Of A Bargaining Order Remedy ..................000+. 12 C. This Case Poses A Significant Unsettled Question i e Power of The Board to Issue A ining Order Ab- sent A Showing of Majority Support ..... 16 D. This a A Si —— a estion Respecting The per Role o e Appellate Court In the Review of An Administrative Adjudication ................... 18 II. THIS CASE REPRESENTS THE FIRST IN- STANCE IN WHICH ENFORCEMENT OF A BARGAINING ORDER IS SOUGHT AGAINST A BONA FIDE SUCCESSOR EMPLOYER. .... 22 eet. diabainsneeesbaneomneene 30 iv TABLE OF AUTHORITIES CASES Action Auto Stores, Inc., 298 NLRB No. 135 SC RUITED cisecstheciseinntcituiinsnchellpaieiaienith ents MaMa taint casine Am-Del-Co, Inc., 234 N.L.R.B. 1040 enf’ment denied sub nom. Merchants Home Delivery Service, Inc. v. NLRB, 580 F.2d 966 (9th Cir. 1978) . Allied Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383, OD Si, i Se Oe NED citettinsninntacintidadinninccees a v. NLRB, 583 F.2d 765 (5th Cir. PIU scisaiceiiicaceaieaiisiiehiabhntbilssbihilletueialeimanesiinnstene Bates v. Pacific Maritime Association, 744 F.2d 705 I Sa PI oii ccniist cicinnatttnscannhisiedanidiaabiicensoves Bowman Transportation, Inc. v. Arkansas-Best Freight Systems, Inc., 419 U.S. 281 (1974) .... Chandler Motors, Inc., 2836 NLRB 1565 (1978) ..... Conair Corp. v. NLRB, 721 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1241 (1984) ....... Delco-Remy Division, General Motors Corp. v. NLRB, 596 F.2d 1295 (5th Cir. 1979) ........... EEOC v. MacMillan Bloedel Containers, Inc., 503 FA Te GU Gs TU acctcsiticiksccctccssecseccrese Evans Services, Inc. v. NLRB, 81© F.2d 1089 (11th Ry I iach chatscctd acid hndatdcwedibditithamtsenisscbanane er ay v. NLRB, 732 F.2d 60 (6th Cir. RITE scl pinnabdistiindebneamntabeneenennininebasipenntsanteesiees Federal Power Commission v. Texaco, Inc., 417 U.S. Se I salient naatcieinatiaaiaiai a nattaiitibanicions First Lakewood Associates, Inc. v. NLRB, 582 F.2d Be I Wein ctnctiniitiechatbacontbecisiinconiien Fort Stewart Schools v. FLRA, 495 U.S. , 110 S. Ct. 2048, 109 L. Ed. 2d 659 (1990) .......... 19,30 Table of Authorities Continued Page General Wood Preserving Co. v. NLRB, 905 F.2d RE COIR CID, BIFIIOD siccteccncsccniecassicconcsasiastatonsens 1 Golden State Bottling Co. v. NLRB, 414 U.S. 168 ITU neckoniadaninstcciniecencerngenstemagummindennensesstansbans passim Gourmet Foods, 270 NLRB 578 (1984) .................. 18 Hedstrom Co. v. NLRB, 629 F.2d 305 (8d Cir. 1980), cert. denied, 450 U.S. 996 (1981) ................... 13 Highland Plastics, 256 NLRB 146 (1981) .............. 15 House of Cycle, Inc., 264 NLRB 1040 (1982) ........ — Howard Johnson Co. v. Detroit Local Joint Exec- utive Board, 417 U.S. 249 (1974) ...........0000 23 Impact Industries, Inc. v. NLRB, 847 F.2d 379 (7th CR TD sntbiicannvisscissncinbndipeiaiaialninipalctaiiitiiiiass sone 12,14 Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292 (6th CO STI cesses dnntinsnnsdnecictinietes Sick) Weak siisciabeiancaine 8 International Union, UAW v. NLRB, 802 F.2d 969 CF SA SOD in crovcccsisnsintnninsntiitnsnntiitiasisctmmmnstas 7 J.J. Newberry Co. v. NLRB; 645 F.2d 148 (2d Cir. TOURED icctaqivinssavicticissisippsinteiaaasninidlanaabelonsediness 9 J.P. Stevens & Co., 268 N.L.R.B. 63 (1983) .......... 16 J.P. Stevens & Co. v. NLRB, 441 F.2d 514 (5th Cir.), cert. denied, 404 U.S. 830 (1971) .......... 13 John Cuneo, Inc. v. NLRB, 459 U.S. 1178 CRIED: scisiincccsininnsineietsiiaiacimiiitaneadianiilbasaaabininibsinnen 7 Limpert Brothers, Inc., 276 N.L.R.B. 364 (1985), enfd mem., 800 F.2d 1135 reh’g denied, 800 F.2d 333 (3d Cir. 1986), cert. denied, 479 U.S. ROT SEED wiketicncasecsnnctnincnininttiinseassttatentpinenascass 14 Local Union No. 5741, United Mine Workers of America v. NLRB, 865 F.2d 733 (6th Cir. TOD sincistn scttesicinentnshieeinatasahcnrnmtianiitanianigiianiigesess 24 Marlene Industries Corp. v. NLRB, 712 F.2d 1011 RD CI. FD nniinccnnersosnecnnsinntanscncenimnsncsanbinsnen 27 Table of Authorities Continued Mid-South Bottling Co. v. NLRB, 876 F.2d 458 (5th Ci BITTY scianscnsssacscceniecntistsiabasiaitedintntbatistilniintincs M Ward & Co. v. NLRB, 904 F.2d 1156 eG, BROT) cccrccescccvesrcnnscsnsnnsousasenssautenccvenion LIPEED cocsnpnoneeeceesnnenenstonssqnecensssnuensneenstonegsnsenqzceces NLRB v. American Cable Systems, Inc., 427 F.2d ra an Cir.), cert. denied, 400 U.S. 957 TEPUGET cuiiindintnserttipieneneiiabietialtanddienddinaiddantnatbeee NLRB v. American Spring Bed Mfg. Co., 670 F.2d SED GO SE SD Nircitenibcastestiiniinicianionidintinens NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838 CO Ga Wabits rsceisentabicesnitnnnstiintcnisedininaianaeee NLRB v. Appletree Chevrolet, Inc., 608 F.2d 988 CR Soc. Fa viarsiienincsecentnssensneicnsntnnsigniidanmnnniitertaes NLRB v. Atlas Microfilming, Inc., 753 F.2d 313 (3d CP... FUIUE neice eninenitteecneheinstianaeibnitnatnniiiteanesnsen NLRB v. Buckley Broadcasting Co., 891 F.2d 230 (9th Cir. 1989), cert. denied, 495 U.S. __., 110 S.Ct. 2619, 110 L.Ed.2d 640 (1990) ............... NLRB v. Burns International Security Services, eR NLRB v. Cott Corp., 578 F.2d 892 (1st Cir. SIGUE cchciiscstenieiescisidctiieddaatintinaniiiaheelillbaabainntenticessene NLRB v. Creative Food Design, Inc., 852 F.2d 1295 GR SUPE entainesninnsininniinstasnuicdiinemnamiaiinsicon NLRB v. Dadco Fashions, Inc., 632 F.2d 493 (5th CARE. IU siserrsncsetsvenseeanscennninebeneubelinenniibieasecseres RIDGES saniedecseechacseessencentevestnenneenonstenpesentaunaneescesses NLRB v. Fabsteel Co. of Louisiana, 587 F.2d 689 CE Slr TU peieetvinsenunnbehindiiiidaceninonbbibndiaens NLRB v. Fort Vancouver Plywood Co., 604 F.2d rte A Cir. 1979), cert. denied, 445 U.S. 915 | ETE R eee we nnn Sy Se: Keen ON Page 10,23 8,13 24,25 14 9 13,21 Table of Authorities Continued Page NLRB v. Gissel Packing Co., 395 U.S. 575 CEI ccidisvisisescescecovscsscccssssececunecntocecesseccsorsscenes passim NLRB v. Horizon Air Services, Inc., 761 F.2d 22 EE Te SITE cticditdcnhsinendoccsnctescssttioceeseneensnecsnace & NLRB v. Hot Bagels and Donuts, Inc., 622 F.2d CE IE sinctdccccnietnniadsencccbenseestumnene 26 NLRB v. J. Coty Messenger Service, 763 F.2d 92 Sr SE EET i cnleiinclicnnaninceunnnstonsnsgenensnbenenenenee 7,12 NLRB v. Jamaica Towing, Inc., 602 F.2d 1100 (2d a IE Heniareiisetiiaitalicitinanasccteesenesssetinnanetiinseremens 7 NLRB v. Keystone Pretzel Bakery, Inc., 696 F.2d IE SETI ccccanchniineiadtanenepemnenentsanveenenee ) NLRB v. Knogo Corp., 727 F.2d 55 (2d Cir. BIUPED we. * i ie he oe a 2 ~% 4 =, - ag la APPENDIX A UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 88-1331 NATIONAL LABOR RELATIONS BOARD, Petitioner, versus GENERAL WOOD PRESERVING COMPANY; BURKE-PARSONS BOWLBY, Respondents. On Application for Enforcement of an Order of the National Labor Relations Board. Argued: March 8, 1989 Decided: June 18, 1990 Before MURNAGHAN, Circuit Judge, BUTZNER, Senior Circuit Judge, and STAKER, United States District Judge for the Sout\, ; 383 tne lg: id PDT Hiatal papain THER LETT rua : fF HEAT Bt 1 uieiie Fe ie al it i Fas i ily! he i 2g 3s 33 39a If all 18 of those Bowlby unit employees who purport- ediy signed the seven petitions were added to the 7 former Bowlby employees whom General Wood had discrimina- torily refused to hire, then there would have been 25 of Bowlby’s unit employees who had signed the petitions in ood’s unit, and those 25 would have clearly con- can be said with far greater likelihood than not that a majority of the loyees in General Wood’s unit would have been found to have signed the petitions opting for union representation but for General Wood’s discri- minatorily having refused to hire the seven former Bowlby unit employees who had signed the petitions.” Genera! Wood further argues that the unfair labor prac- i Bowlby were not “hallmark’”’ violations and thus were not sufficiently serious to warrant the Board’s issuance of a bargaining order against Bowlby, wherefore the Board's issuance of the one against General improper. was this connection, the ALJ found as to Bowlby and General Wood respectively, that: | 4 1 tE fil i E H i! 1 i itt Ht it H rE E i a if é Ef sea8 to revoke his added to the 7 40a [A] bargaining order should issue against... Bowlby in view of Bowlby’s unlawful interroga- tion, threats, disciplinary warnings and suspen- sion of its employees, and most significantly in its packing of the unit by importing employees to subvert the election process which dissipated the Union’s majority, and also in view of the threats of plant closure, subcontracting out of work, and job loss engaged in by... Bowlby in- cluding its threat of subcontracting and that of unspecified reprisals issued by its president. The threats of plant closure, job loss and subcontract- ing, as well as the unit packing, clearly constitute hallmark violations. The combination of these hallmark violations and the impossibility of rem- edying these violations by Bowlby as a result of its sale of the plant clearly demonstrate[s] that it is no longer posgible to conduct a free and fair election. [Tjhe acts of General Wood by unlawfully refus- ing to hire known union adherents as found herein were clearly calculated to subvert the elec- tion process in order to assure a lack of union support. The passage of time and the turnover of supervisory personnel at General Wood do not serve to obliterate its bargaining obligation as a successor. Keystone Pretzel Bakery, 256 NLRB 234, 335 (981) (sic), enf’d. 696 F.2d 257 (2nd Cir. 1983). We find no published opinion of this Court wherein it dealt ‘with or mentioned “‘hallmark”’ violations. In NLRB v. Jamaica Towing, Inc., 632 F.2d 208, 212-13 (2d Cir. 1980), the court pointed out that so-called “hallmark” vi- clations had been held to include plant closure, a threat of plant closure or loss of employment, a grant of benefits to employees or the reassignment, demotion or discharge | } ™ 4la of union adherents in violation of section &(aX3) of the Act; that such violations will support the issuance of a bargaining order absent “significant mitigating circum- stances”; that such conduct “justifies a finding without extensive explication that it is likely to have a lasting inhibitive effect on a substantial percentage of the work force”; and that ‘‘an array of less serious violations which must either be numerous or be coupled with some other factor intensifying their effect ... fall within Gissel’s sec- ond category and support an order to bargain,’”’ thus ca- tegorizing “hallmark” violations as those falling within Gissel’s first category. In NLRB v. Maidsville Coal Co., 718 F.2d 658 660 (4th Cir. 1983) (en banc), cert. denied, 405 U.S. 1079, 104 S.Ct. 1441, 79 L.Ed.2d 761 (1984), this Court pointed out that: The Supreme Court in Gissel discussed varying factual circumstances with which the Board might be faced when deciding to issue a bargaining or- der vel non without requiring an election. The first set of circumstances consists of ‘‘excep- tional” cases marked by “outrageous” and “per- vasive” unfair labor practices of “such a nature that their coercive effects cannot be eliminated by the application of traditional remedies, with the result that a fair and reliable election cannot be had.” Gissel Packing Co., 395 U.S. at 613-14, 89 S.Ct. at 1940. In this category of cases, a bargaining order may issue even though the Union may not be able to prove that it ever had a majority status among employees. A second set of circumstances consists of “less extraordinary cases marked by less pervasive practices.” Jd. at 614, 89 S.Ct. at 1940. In this category of cases, if the Union at one point during the campaign held a card majority, a bargaining order should issue when: 42a [Tyhe Board finds that the possibility of eras- ing the effects of past practices and of en- suring a fair election (or a fair rerun) by the use of traditional remedies, though present, is slight and that employee sentiment once expressed through cards would, on balance, be better protected by a bargaining or- der. . Id. at 614-15, 89 S.Ct. at 1940; see also id. at 612 n.32. A third category of cases identified by the Court consist{s] of “minor or less extensive unfair labor practices, which, because of their minimal impact in the election machinery, will not sustain a bargaining order.” Jd. at 615, 89 S.Ct. at 1940. In Standard-Coosa-Thatcher Carpet Yarn v. NLRB, 691 F.2d 1183, 1144 (4th Cir. 1982), where the union had es- tablished a card majority, petitioned for an election which it lost and the employer had committed numerous viola- tions of section 8(aX1) of the Act and some violations of section &(aX3) thereof during the union’s campaign, in en- forcing the bargaining order issued by the Board, the Court stated: The Company [employer] responded to the Union’s most recent campaign with threats of plant closure, threats of retaliation against Union activists, and discriminatory discipli ead os thwarting unionization [enforcement of a plant rule in a manner calculated to discourage Union activities among employees]. As is widely rec- inhibitive effect’’ on employees’ formulation and expression of free choice regarding unionization. N.L.R.B. v. Jamaica Towing, Inc., 682 F.2d at 213. It therefore justifies a Gissel order unless a very strong showing negates the inference of 43a lasting effects. Because the record in this case reasonably supports such inferences, we cannot substitute our judgment for that of the Board. When this Court’s language quoted from Standard- Coosa-Thatcher next above is read in relation to that quoted from Jamaica Towing above, it is clear that, without re- ferring to the employer’s violations of section 8(aX3) in Standard-Coosa-Thatcher as “hallmark” violations, this Court held those violations to constitute conduct that the court in Jamaica Towing held to be “hallmark” violations falling within the first category of unfair labor practices described in Gissel. It is further clear that since in Jamaica Towing the court designated an unlawful discharge of an employee in violation of section 8(aX3) of the Act to be a “hallmark” violation, then General Wood’s refusal to hire the seven former Bowlby employees in violation thereof would likewise constitute such a violation. Rigging or attempting to rig an election in which can- didates are standing for election to public office is criminal in most if not all jurisdictions of the United States. It has pervasive, enduring and adverse effects on the electoral process in that it thwarts the law and the public weal and creates doubt in the minds of some voters as to whether the casting of their votes in future elections is not an idle exercise and thus undermines the integrity of the system. Unit packing by Bowlby here, the counterpart of such rigging in a public election, almost certainly had equally pervasive, enduring and adverse effects upon the minds of Bowlby’s employees in the unit. That Bowlby was thwarted in accomplishing its aim of unit packing to swing the election in its favor by the Board’s blocking and re- scheduling the election does not remove those effects of its conduct in so doing. We deem its unit packing to con- stitute a hallmark violation. Bowlby thus committed violations of the Act, including repeated threats of plant closure and loss of employment 44a and sudden enforcement of plant rules in a manner cal- culated to discourage Union activities among its unit, to say nothing of its unit packing—all of which violations fell within the first category of unfair labor practices men- tioned in Gissel—and also committed numerous unfair labor practices that fell within the second category mentioned therein. General Wood, as Bowlby’s successor, thereafter refused to hire the seven former Bowlby employees and thereby committed additional violations of section 8(aX3) of the Act, conduct that fell within that first category, and thereby added its own conduct that tended to have a lasting inhibitive effect on the employees’ formulation and expression of free choice regarding unionization. There was substantial evidence on the record to support the Board’s finding and holding that General Wood was Bowlby’s successor, and the Board’s issuance of the bar- gaining order against General Wood, and the Board com- mitted no error in so doing. | The “Substantial and Representative Complement” Issue ‘General Wood’s claim that there was not substantial evidence on the record to support the Board’s finding and holding that the end of July 1984, instead of a September 1984 date, was the appropriate “substantial and repre- sentative complement” date in respect to General Wood’s work force, and that the Board erred in so holding, is without merit. In Fall River Dyeing, supra, the Court said: In deciding when a “substantial and represent- ative complement”’ exists in a particular employer transition the Board examines a number of fac- tors. It studies “whether the job classifications designated for the operation were filled or sub- stantially filled and whether the operation was in normal or substantially normal production.” See Premium Foods, Inc. v. NLRB, 709 F.2d 623, 45a 628 (CA9 1983). In addition, it takes into con- sideration ‘‘the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work ... as well as the relative certainty of the employer’s expected expansion.” Ibid: Id., 482 U.S. at 48-49. Hutchinson testified that when General Wood purchased the plant, it intended to operate two shifts, and that be- tween September 1 and 15, 1984, two shifts commenced operating there. He also testified that in July 1984, when General Wood was preparing to commence operations, he instructed Greene that he did not want two shifts but rather wanted one shift that could manufacture a saleable product. Greene testified that it was “really sketchy’’ when Gen- eral Wood first commenced to operate the plant as to whether a second shift would be put on; that it was hard to answer whether as of the end of July General Wood’s employee complement was complete, because as of July 27 he was still interviewing for four positions on the pole machine crew; that at that time the whole plant was fully operating with one shift but was not operating to full capacity, because the pole machine department was really required to work two shifts to give the framing depart- ment enough poles to keep dry kilns and the cylinders closed. As to this issue, the ALJ found that: General Wood obtained successorship status at least by thd end of July when it hired employees in the pre-existing classifications and employed a complement of 44 unit employees. I reject... General Wood’s contention that the relevant date for examining the employee complement should be 18 September when it expanded the number 46a of its shifts as this expansion was highly uncer- tain in July according to the testimony of Greene. Considering the factors that must be considered in de- ciding when a “substantial and representative comple- ment” exists as set forth in the above quoted language from Fall River Dyeing, there was substantial evidence on the record to support the ALJ’s finding that the end of July was the appropriate “substantial and representative complement”’ date as to General Wood. The evidence shows that then its job classifications designated for operation of the plant were filled or substantially filled, that the plant was in normal or substantially normal production, that the size of General Wood’s complement then was not appre- ciably smaller than it was in September,™ and that it was questionable at the end of July as to when if ever General Wood’s complement would be expanded beyond that then existing. As stated earlier herein, if the ALJ’s findings of fact have substantial support in the record as a whole then our inquiry ends, and such is particularly true where the tes- timony is conflicting, as it was between that of Hutchinson and that of Greene here, and essential credibility deter- minations have been made by the ALJ. We are not unmindful that an election, and not a bar- gaining order, is the traditional and preferred method for determining the bargaining agent for employees. NLRB v. Apple Tree Chevrolet, Inc., 671 F.2d 838 (4th Cir. 1982). However where, as here, the possibility of erasing the effects of past prac- tices and of ensuring a fair election... by the use of traditional remedies, though present, is * General Wood’s payroli ending July 22 showed a total of 74 em- ployees, including al] employees on its payroll then. Its payroll ending September 16 showed a total of 90 employees, which included all of its employees then on its payroll. 47a slight and .. . employee sentiment once expressed through cards would, on balance, be better pro- tected by a bargaining order, ther such order should issue. Gissel, 395 U.S. at 614-15. For the above reasons, the Board’s motion to correct the Court’s February 16, 1990, decision is sustained; that decision is vacated and is replaced by the within decision;* and pursuant to this Court’s order entered herein on April 30, 1990, the Board’s petition for enforcement of its order against both Bowlby and General Wood is granted. PETITION GRANTED * Shortly after the filing of the Board’s motion to correct the Court’s February 16, 1990, decision, that decision was withdrawn from publi- cation. 48a APPENDIX B UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD Cases 11—CA—11282 11—CA—11376 11—CA—11487 PURKE-PARSONS BOWLBY AND ITS SUCCESSOR, GENERAL WOOD PRESERVATIVE COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, AFL—CIO DECISION AND ORDER On June 30, 1986, Administrative Law Judge Lawrence W. Cullen issued the attached decision. The Respondent, 49a affirm the judge’s rulings, findings,? and conclusions and to adopt the recommended Order as modified.’ eyresattgl yligi p 1isye: : : Me UE 1 i ttl ie | He tnte Hey Et | TH + et seat ebb he ily a Hl Fis LEE ATE is HITE Wye iit ie HA hall shal 50a Wood commenced its takeover of predecessor Bowlby by discriminatorily refusing to hire known union activists and by committing that violation through Production Manager Thomas Greene, who had held the same position with the predecessor. Thus, whatever might be the case had the Respondent General Wood wiped the slate clean and hired an entirely new managerial and supervisory complement, the employees here had received the plain message that supporting the Union was a dangerous proposition re- gardless of who the employer was. Compare NLRB v. Cott Corp., 578 F.2d 892 (1st Cir. 1978), denying enf. to 232 NLRB 312 (1977) (finding extension of Gissel obligation to successor inappropriate where successor hired all the predecessor’s employees, remedied all the predecessor’s 8(aX3) and (1) violations, and committed no violations of its own aside from its alleged unlawful failure to bargain with the union). With respect to the question whether union majority was validly established by a majority of signatures on a petition that stated agreement to be represented by the AFL— CIO and/or an appropriate affiliate, we rely on the follow- ing: (1) the credited evidence that after signatures were obtained on that petition, a subsequent meeting was held at which employees voted to be represented by the Union; (2) the execution in mid-March by the Union and Respondent Burke-Parsons-Bowlby of an election agree- ment pursuant to which the Union was to appear on the Threats,” the judge inadvertently erred in referring to the testimony of “Paul Barnes.’’ The correct reference is ‘Paul Bowens.” *In this Order, the judge recommended the inclusion of a visitatorial clause, authorizing the Board, for compliance purposes, to obtain dis- covery from the Respondent under the Federal Rules of Civil Procedure subject to the supervision of the United States court of appeals en- forcing the Order. Under the circumstances of this case, we find it unnecessary to include such a clause. See Cherokee Marine Terminal, 287 NLRB No. 53 (Jan. 28, 1988). Accordingly, we shall modify the judge’s Order to delete this clause. 5la ballot in the election scheduled for April 6, 1984: (3) the circulation of a letter from President Richard Bowlby to all plant employees commenting that ‘There has been much said in the past few weeks about the Woodworkers Union’’ and urging the employees to vote against the Union; and (4) the absence of evidence of attempts by any employee who signed the initial union authorization petition to re- voke his authorization. In sum, a majority of employees initially agreed that they were willing to be represented by an affiliate of the AFL—CIO, and it was clear who that affiliate was before the Union made its bargaining demand on Respondent General Wood. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as mod- ified below and orders that the Respondent, General Wood Preservation Company, Leland, North Carolina, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order as modified. Substitute the following for paragraph 2(e). “(e) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order.” Dated, Washington, D.C. May 12, 1988 } James M. Stephens, Chairman Wilford W. Johansen, Member ! Mary Miller Cracraft, Member (SEAL) NATIONAL LABOR RELATIONS BOARD etteiiiaaiiiaieiiiii ii 52a APPENDIX C UNITED STATES OF AMERICA BEFORE THE NATIONAL LABOR RELATIONS BOARD DIVISION OF JUDGES ATLANTA BRANCH OFFICE Cases 11-CA-11282 11-CA-11376 11-CA-11487 BURKE-PARSONS BOWLBY AND ITS SUCCESSOR, GENERAL WOOD PRESERVATIVE COMPANY and INTERNATIONAL WOODWORKERS OF AMERICA, AFL-CIO George S. Carson, Esq., of Winston Salem, NC, for the General Counsel. Jeffrey P. Sweetland, Esg., of Riverdale, GA, for the Charging Party. Robert A. Valois, Esq., and Thomas A. Farr, Esq., (Mau- pin, Taylor, Ellis and Adams) of Raleigh, NC, for the Respondent. DECISION Statement of the Case LAWRENCE W. CULLEN, Administrative Law Judge: This case was heard before me in Wilmington, NC, on 28, 29 and 80 October 1985. The original charge in Case 11- CA-11282 was filed by the International Woodworkers of America, AFL-CIO (“the Charging Party” or “the Union’’) on 4 April 1984 against Burke-Parsons Bowlby (“Respondent Bowlby” or “‘Bowlby’’) and the original com- plaint was issued by the Acting Regional Director for Re- 53a gion 11 of the National Labor Relations Board (“the Board”) in this case on 11 May 1984 and alleged that Respondent Bowlby had violated Section 8(aX1) of the Na- tional Labor Relations Act (‘‘the Act’) by interrogating its employees concerning their union activities, sympathies, and desires and by threatening them with plant closure, loss of jobs, sale of the plant, and unspecified reprisals if they selected the Union as their collective bargaining rep- resentative and by promising its employees improved ben- efits if they abandoned their support of the Union and by engaging in unit packing by transferring employees for the purpose of defeating the Union in the scheduled elec- tion. Respondent Bowlby by its answer filed 23 May 1984 denied the alleged violations of the Act. On 8 June 1984 the Regional Director of Region 11 amended the complaint in 11-CA-11282 by deleting the allegation of unit packing. On 5 July 1984 the Charging Party filed an original charge in Case 11-CA-11376 and subsequently filed an amended charge in Case 11-CA-11376 on 7 August 1984. On 14 August 1984 the Regional Director for Region 11 filed an Order Consolidating Cases 11-CA-11287 and 11-CA-11376 alleging that Respondent Bowlby had violated Section 8(aX1) of the Act by interrogating its employees concerning their union activities, sympathies, and desires, and by threatening its employees with loss of benefits, loss of jobs, subcontracting of work, sale of the plant, and unspecified reprisals if they selected the Union as their collective bar- gaining representative and by threatening its employees with plant closure because of their unidn activities and by promising its employees improved benefits if they aban- doned their support of the Union and by engaging in unit packing by transferring employees for the purpose of de- feating the Union in the scheduled election. On 22 August 1984 Respondent Bowlby filed its answer in Cases 11-CA- 11282 and 11-CA-11876 denying the alleged violations of the Act. On 29 October 1984 the Charging Party filed an original charge in Case 11-CA-11487 against Respondent 54a Bowlby and its successor and Party-In-Interest, General Wood Preservative Co. (“Respondent General Wood”’ or “General Wood’’). On 14 December 1984 the Acting Re- gional Director for Region 11 filed a second Order Con- solidating Cases 11-CA-11282, 11-CA-11376 with Case 11- CA-11487 and a consolidated complaint in these cases and added General Wood as a Respondent in these cases as an alleged successor of Bowlby. The consolidated complaint in Cases 11-CA-11282, 11-CA-11376, and 11-CA-11487 al- leges that Bowlby interrogated employees concerning their union activities, sympathies, and desires, threatened its employees with loss of benefits, loss of jobs, subcontracting of work, sale of the plant, and unspecified reprisals if they selected the Union as their collective bargaining repre- sentative, threatened the employees with plant closure and blacklisting because of their union activities, engaged in unit packing by transferring employees to its Leland, North Carolina facility for the purpose of defeating the Union in the scheduled election, and since on or about February 1984 more stringently enforced work rules and policies because of employees’ union activities, all in violation of Section 8(aX1) of the Act. The complaint further alleges that Respondent Bowlby issued written warnings to cer- tain of its employees because of their union activities in violation of Section 8(aX1) and (8) of the Act. The com- plaint further alleges that Respondent General Wood re- fused to hire certain former employees of Respondent Bowlby because of their union activities in violation of Section 8(aX1) and (8) of the Act. Respondent Bowlby by its amended answer filed 24 December 1984 denied the commission of the alleged violations of the Act. Respondent General Wood by its answer filed 3 January 1985 denied that it was a successor to Burke-Parsons and denied the commission of any of the alleged violations of the Act. On 30 August 1985 the Regional Director for Region 11 issued an amended consolidated complaint in Cases 11-CA-11282, 11-CA-11376, and 11-CA-11487 setting out the aforesaid 55a allegations listed above in the original consolidated com- plaint in Cases 11-CA-11282, 11-CA-11376, and 11-CA- 11487 and added allegations that since on or about 8 Feb- ruary 1984 a majority of the employees of Respondent Bowlby in an alleged appropriate unit designated and se- lected the Union as their representative for the purpose of collective bargaining with Respondent Bowlby and that since that date the Union has been the exclusive collective bargaining representative of the employees in said unit and has requested Respondent Bowlby since 9 February 1984 and has requested Respondent General Wood since 22 June 1984 to recognize and bargain with the exclusive collective bargaining representative of the employees in the unit but that said Respondents Bowlby and General Wood have refused and failed to do so. The complaint also alleges that the alleged unfair labor practices are so se- rious and substantial in character and effect as to warrant the entry of a remedial order requiring Respondent Bowlby and General Wood, its successor, to recognize and bargain with it as the collective bargaining representative of its employees in the aforesaid unit. Respondent Bowlby by its answer filed on 9 September 1985 as amended on 25 Oc- tober 1985 and Respondent General Wood by its answer filed on 138 September 1985 have denied the commission of the alleged violations of the Act. Upon the entire record, including my observations of the demeanor of the witnesses, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: Findings of Fact? I. Jurisdiction The complaint alleges, Respondent Burke-Parsons Bowlby admits, and I find that it has been at all times ‘The Findings of Fact include a composite of the testimony of the witnesses and of admitted exhibits. 56a material herein a West Virginia corporation operating a facility in Leland, North Carolina, where it was engaged in wood treatment, that during the 12 months prior to 30 June,? a representative period, it received at its Leland, North Carolina facility goods and raw materials from points directly outside the state of North Carolina valued in ex- cess of $50,000, and in the course and conduct of its op- erations derived gross revenues in excess of $500,000, and that it is now and has been at all times material herein, an employer in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, Respondent General Wood Pre- servative Company admits, and I find that it has been at all times material herein, a North Carolina corporation with a facility located in Leland, North Carolina, where it is engaged in wood treatment and that during the 12 month period preceding the filing of the complaint, a rep- 1esentative period, in the course and conduct of its op- erations, it received at its Leland, North Carolina facility goods and raw materials valued in excess of $50,000 from points directly outside the state of North Carolina and ~ derived gross revenues in excess of $500,000. On the basis of the foregoing admitted facts and the record as a whole, I find that Respondent General Wood has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. The Labor Organization The complaint alleges, Respondents admit, and I find that International Woodworkers of America, AFL-CIO, is and has been at all times material herein, a labor orga- nization within the meaning of Section 2(5) of the Act. 2 All dates are in 1984 unless otherwise stated. 57a III. The Bargaining Unit The complaint alleges, and I find on the basis of the evidence adduced at the hearing through the testimony of Respondent Bowlby’s former Production Manager Thomas P. Greene, who had at all material times served as Respondent General Wood’s production manager, and on the basis of the testimony of Steve Hutchinson, Respondent General Wood’s operations manager, and on the basis of the record evidence, specifically Genera! Counsel’s Exhibits 38 - 41, and on the basis of the unit originally stipulated to by Respondent Bowlby for purposes of the scheduled April election, that the following employees of Respondent Bowlby and its successor General Wood constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9b) of the Act. All production and maintenance employees employed at the Employer’s Leland, North Carolina facility, ex- cluding office clerical employees, technical employees, professional employees, guards and supervisors within the meaning of the Act. IV. The Alleged Unfair Labor Practices In February, certain of the production and maintenance employees of Bowlby engaged in a walkout. Shortly there- after, in February the employees contacted the Industrial Union Department (IUD) of the AFL-CIO and met with Michael Black, the coordinator of the IUD. The employees at that meeting signed petitions seeking union represen- tation. According to the unrebutted testimony of Black which I credit, he told the employees he would need to check to determine which union would best represent their interests and at a subsequent meeting the employees at that meeting agreed by a unanimous voice vote to select the International Woodworkers of America, AFL-CIO, as their collective bargaining agent on the basis of Black’s recommendation. Several of the employees testified that 58a after the advent of the Union’s campaign in February they were interrogated, threatened and promised benefits by Respondent Bowlby and that they were disciplined for var- ious alleged infractions and that shortly prior to the sched- uled April election, Respondent Bowlby brought in employees from other facilities to vote in the election, (thus attempting to “‘pack” the unit in order to dissipate the Union’s majority and defeat the Union’s campaign at the upcoming election which had been scheduled for 6 April). The Union filed charges thus blocking the election. The General Counsel contends that the Union represented a majority of employees in February based on their signing of the petitions at the meeting held by Black in February and on the basis of other petitions signed by other em- ployees. The General Counsel also contends that Respondent General Wood is a successor to Bowlby having completed a transaction for the purchase of assets, in- cluding equipment and materials and having taken over the physical facilities of Bowlby and having hired the ma- jority of its employees and of the supervisors from Bowlby and having acquired and engaged in the same business of treating wood with preservatives for sale to the same cus- tomers. The General Counsel contends that based on the signatures obtained in February, the Union had a majority of employees who desired union representation and that a bargaining order should be entered against Bowlby be- cause of its flagrant and hallmark violations, particularly that of unit packing and threats of plant closure, sale of the business, and subcontracting, and that General Wood acquired the assets and liabilities of Bowlby with full knowledge of the alleged unfair labor practices of Bowlby and further continued the unfair labor practices by its refusal to hire former Bowlby employees who presented themselves for hire because of their support for the Union and that General Wood should be ordered to remedy its unfair labor practices against those employees it failed or refused to hire and further should be ordered to bargain 59a with the Union as a result of the unfair labor practices committed by Bowlby and of which General Wood had knowledge and continued by General Wood as those vio- lations have the inevitable effect of dissipating the Union majority. A. The alleged Section 8(a){1) and (3) violations of Bowlby The General Counsel presented as witnesses a number of employees who testified that they had been interrogated and/or threatened with reprisals concerning their support for the Union by various supervisors and/or members of management of Respondent Bowlby. Although Respondent Bowlby filed an answer in this case consisting principally of a general denial of the commission of the unfair labor practices alleged against it, no one appeared or partici- pated in the hearing on its behalf. The supervisors and/ or members of management alleged to have engaged in the interrogation or threats were not called. The employ- ees’ unrebutted testimony concerning these events is set out below: 1. Alleged Interrogations and Threats (a) Larry Brown who had worked at Bowlby since June 1983 and who was employed as a “pole classer”’ testified that in the second or third week of March his supervisor Gary Wood told him “if we was to get the union in, we would lose all seven paid holidays and we would have to start all over from scratch again.” Brown replied “there was no way we could,” and Wood retorted “‘we could too.”* Larry Brown further testified that on Tuesday, 3 April, Plant Manager Carl Williams told Brown and sev- eral other employees that “if the union was to come in, we might as well start looking for another job and so * The transcript at R. 32, 1. 13 is hereby corrected to read ‘“‘He said we could too.” 60a would he.” Larry Brown’s testimony concerning the 3 April incident involving Williams was corroborated by Michael : | i e a g 3 chine and someone said “union time” and Williams said that “‘we don’t want no union in because if you do, me and you, all of us, we might as well be looking for a job.” (b) Warren Bryant, a forklift operator who had worked for Bowlby from August 1979 to June 1984 testified on 28 or 29 February his supervisor Jimmie Smith asked him and employee Alexander Hall whether they were for the Union, and both said yes, and that Smith then told them he had promised himself that he would quit before he belonged to a union. Bryant replied, “You just as well get ready to quit because we are going to get one anyhow.” Bryant testified further that Smith then said “that every- body get ready to plant a garden because we was all going to be on the soup line,” and also stated that “they would close the plant down before the union would come in.” Smith also told them that Winbourne (Stanley Winbourne, the owner and president of General Wood and a former Bowlby employee) was going to buy the plant. The testi- mony of Bryant concerning the remarks made by Super- visor Jimmie Smith was corroborated by local sales employee Alexander Hall who testified that Jimmie Smith walked up to him and asked what he thought of the Union, to which Hall replied that he was all for it. Smith then told him it would not work, that “they” would sell the ear alg HHT 8 aiiéal Heath PHT LF iH pelle g 8s i Hl : ’ 3: sea eT “? fezi's 23 with the Union, the place would shut down, was an un lawful threat of plant closure and that t Bowlby violated Section 8(a\(1) of the Act I find that came in he would ship out and peeled cheaper was an unlawful threat of subcontracting work if the Union were selected by the employees and that Respondent Bowlby violated Section 8(a\(1) of the Act thereby. B. The 30 March Letter from President Richard Bowlby to the Employees In his 30 March letter to the employees, Bowlby states “There are no problems that exist in this plant that we cannot work out among ourselves without the high risk this union and what it can cost you. You know what you now have. ee oe oe 18 April, sorsoage Meat Bey My Bers Pen. Gregory Burton who was one of the leaders of the campaign among the employees. This letter followed "ee cancellation of the scheduled 7 April election. In the 13 April letter Bowlby informed Burton that warning notices previously issued to employees were being removed, meet- 64a ings between management and the employees would be regularly scheduled and that employees could call or write him at anytime. Analysis I find that the promise of Richard Bowlby to ‘‘work out our problems” was an unlawful promise of benefits in or- der to induce the employees to reject union representation as demonstrated by Bowlby’s letter to Burton and that Respondent Bowlby thereby violated Section 8(aX1) of the Act. I find that Bowlby’s reference to the “high risk’’ the Union would bring and his statement that the employees should not “vote yourself into a sea of trouble,” were unlawful unspecified threats of reprisal if the employees chose union representation and that Respondent Bowlby thereby violated Section 8(aX1) of the Act. 2. The Warnings and Suspension The General Counsel introduced evidence through the testimony of several employees who supported the Union’s campaign and who had engaged in the walkout in February that they received warnings and suspensions. Respondent Bowlby’s Production Manager Thomas Greene who had commenced his own employment with Bowlby in December 1983, contended that he initially commenced issuing dis- ciplinary warnings in January after he settled into his new job and had an opportunity to observe the employees. How- ever, as the General Counsel points out in his brief there was no evidence of the disciplinary actions taken by Greene until after the February 1984 walkout by the employees. Rather, the evidence showed that warnings and in one case a suspension were issued to known union supporters. (a) Warren Bryant engaged in the February walkout by employees, signed the union petition, wore a “‘Vote Yes’”’ pin for about a week, and discussed the Union with other 65a employees in the shipping yard and told them to support the Union for better conditions. On 21 May, Bryant was absent as a result of car trouble and called his foreman, Jimmie Smith, who told him to hurry up and come in. He was unable to get the car fixed and reported the next day and was called into the office by Greene who issued him a written warning for not re- porting to work. He told Greene he had called Jimmie Smith and Greene told him he should have come in any- way. Bryant told Greene he had no transportation and Greene said it was Bryant’s problem. Bryant testified he had never before received a warning for an excused ab- sence. The record evidence shows that employees received warnings only in those instances when they did not call in as shown in the warnings issued to Larry D. Brown and Gregory Burton. (b) Warren Jacobs engaged in the February walkout, attended several union meetings, signed the union petition, passed out union leaflets at the plant gate, and obtained the signatures of several other employees on the Union’s petition. His supervisor, Percy Burns, was aware of his support for the Union. On 21 May, Jacobs received a writ- ten warning from Greene for being late although he had brought a doctor’s excuse. He was unaware of any prior case where an employee was issued a warning when he had a doctor’s excuse. (c) George Jenkins attended the union meeting in Feb- ruary and signed the union petition. He also discussed his support for the Union with employees at work and with his supervisor, Kenny Smith, who had asked him what he thought about the Union. He told Smith he “hoped they got the union in so that it would help in paying better benefits.” On 27 February he stopped the pole machine he was operating because it was raining hard. His supervisor, Kenny Smith, asked why the machine was stopped, and 66a he told him because it was raining too hard. Smith then told him he could wait five or ten minutes until the rain slackened to restart the machine. On 28 February he re- ceived a written warning from Production Manager Greene for being “unwilling to work due to the weather condi- tions.” On 2 March the employee he rode to work with became ill and he asked Smith if he (Jenkins) could leave work early with the other employee and Smith agreed. The next day Smith told him to see Greene who then told him to work harder and faster. On cross-examination he testified that when he had asked to leave early, Smith told him to see Greene who told him to drive his own car every day as he needed him at work, and he then left with the other employee. When Greene was questioned by the General Counsel concerning the rain incident, he testified that other em- ployees had not walked off because of the rain but later acknowledged that he was not certain what had happened as he was not there at the time. (d) Greg Burton was one of the initial leaders of the union movement among Respondent Bowlby’s employees and an active participant as a representative on behalf of its employees. Burton was involved in the walkout of Feb- ruary. It was Burton who initially contacted Mike Kryvosh of the Industrial Union Department (IUD) of the AFL-CIO and later met with Michael Black, a coordinator for the IUD at the International Longshoremen Association’s union hall. Burton signed the union petition and was designated as the spokesman for the employees who signed the petition. He clipped signs on, wore t-shirts saying 100 percent union and spoke in plant meetings held by Wil- liams and Greene. He solicited and obtained the signatures of other employees on the petition for the Union. On one occasion in March he spoke to Greene on behalf of em- ployee Alonzo Green and told Tom Greene he was “ready 67a ” .’ Tom Greene responded there was no union and Greene there were a majority of employees in favor nion, and they were a union whether Greene rec- the Union or not. Greene responded that ‘‘some are leaders, some followers and some agitators.”’ also met with President Bowlby concerning the * complaints in April, and Bowlby replied to Bur- is letter of 13 April wherein he addressed a number i complained of by Burton and informed Burton there was a communication problem between Burton the Company and urged that channels of communi- cation outlined in the letter be kept open. On 13 June Tom Greene gave Burton a written warning 35 $35 Cc yy i a his failure to show up for work on 12 June and also based on the written warning of 12 June which he had first handed to Burton. Greene acknowledged on cross-exami- nation that he did not recall] discussing with Burton the circumstances of the early leaves on 7 and 11 June, and conceded that Burton had called in on one occasion of being late. Analysis I find that the General Counsel has made a prima facie case that the warnings issued to four known union sup- porters—Bryant, Jenkins, Jacobs, and Burton—and the sus- pension issued to Burton were motivated by the demonstrated animus of Respondent Bowlby directed against the Union as evidenced by the unlawful 8(a\1) conduct by Bowlby as found supra. As the General Counsel points in his brief, these actions were taken after the 68a advent of the union campaign and showed Respondent Bowlby’s marked interest in enforcing rules against these employees which had not been enforced in the past. As Respondent Bowlby did not appear and the testimony of the employees was unrebutted with the exception of the testimony of Greene who ultimately conceded he was not familiar with the circumstances leading to certain of the disciplinary actions, I find that Respondent Bowlby has failed to rebut the prima facie case established by the General Counsel. I find that the warnings issued to employees Jenkins, Bryant, and Jacobs and the warnings issued to Burton on 12 June were discriminatorily motivated and that Respondent Bowlby thus violated Section 8(aX3) and (1) of the Act. As the 3-day suspension issued to Burton by Greene on 13 June was in part based on the unlawful warning issued on 12 June, I find that the suspension was also unlawful and that Respondent Bowlby also violated Section 8(aX3) and (1) of the Act thereby. I further find based on the foregoing that Respondent Bowlby’s enforce- ment of its rules as set out above and as referenced in the letter by President Bowlby to Burton was violative of Section 8(aX1) and (8) of the Act. The record as a whole reflects that Respondent Bowlby had not routinely or sys- tematically enforced its rules concerning tardiness, absen- teeism, and work performance in the past until the advent of the Union’s campaign. The unrebutted testimony of the employees concerning the enforcement of these rules after the advent of the Union’s campaign as contrasted with no evidence of their enforcement in the past and as refer- enced in Richard Bowlby’s letter of 13 April and the evi- dence of Bowlby’s union animus has demonstrated by a preponderance of the evidence that Respondent Bowlby’s sudden enforcement of long ignored rules was discrimi- natorily motivated as a response to the Union’s campaign and I find that Respondent Bowlby thereby violated Sec- 69a tion 8(aX1) and (3) of the Act. D. V. Copying and Printing, Inc., 240 NLRB 1276, 1286 (1979). 3. The Unit Packing Allegations It is clear from the evidence that as of 12 February at the advent of the union campaign, the appropriate bar- gaining unit consisted of no more than 64 employees. Respondent Bowlby’s management and supervisors inter- rogated and threatened its employees concerning their union sympathies. It then brought in approximately 25 employees from West Virginia, Kentucky, Ohio, and Vir- ginia and placed them on its list of employees to vote in the scheduled representation election. Both employees Alexander Hall and Greg Burton dis- covered through conversations with certain of these im- ported employees that they were brought in for the express purpose of voting in the scheduled 6 April representation election and would leave the day following the election. As a result of charges filed by the Union, the election was blocked and all but four of the employees left on 7 April as testified to by Burton and as demonstrated by the lack of working hours accorded to these employees on subse- quent lists of employees that continued to carry their names. During the period of their employment at the Leland plant, the imported employees were segregated from the other employees and were housed in a motel paid for by Respondent Bowlby, were fed from specially catered trucks, and were not required to wear shirts or hard hats as required of other employees. Analysis Based on the foregoing unrebutted testimony and the record as a whole, I find that Bowlby engaged in unit packing in an attempt to capture the election and thus 70a violated Section 8(aX1) of the Act. I also find as alleged and contended by the General Counsel that unit packing is a hallmark violation as it is an attack on the entire election process and the essential freedom of choice re- quired for fair elections and is analogous to fraudulent voter registration in public elections. Mazi Mart, 246 NLRB 1151.(1979). C. The Alleged Refusals to Hire by Respondent General Wood The complaint alleges and the General Counsel contends that employees Charles Brown, Oliver Munn, George Jen- kins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton were not hired by Respondent General Wood because they joined or assisted the Union or engaged in other union or concerted activities with other employees for the purpose of collective bargaining and mutual aid and protection. The evidence as set out, supra, reveals that these employees signed the petition and were open union supporters. Several of the employees had been interrogated or threatened and issued warnings. Burton had been sus- pended. On 20 June Stanley Winbourne, president of Gen- eral Wood and a former official of Bowlby, addressed Bowlby’s employees and announced that Respondent Bowlby had been purchased by General Wood, that there would be a brief cessation of work and a shutdown of the plant of approximately 2 weeks, and that the plant would be reopened by General Wood in early July. He assured all of the employees that they would be hired by General Wood and that they should file applications in early July. He also told them that he was not in favor of the Union, but that the decision was up to them. He also told them they would start with clean slates, that their benefits would not be reduced, and if General Wood did well they would be buying new cars each year. Subsequently, on 28 June the Union sent a mailgram to Winbourne stating its con- 7la tinued majority interest, advising of the commission of the aforementioned unfair labor practices, and making a de- mand for recognition. The record evidence reveals that the seven alleged dis- criminatees applied for employment in early July with Gen- eral Wood as requested by Winbourne on 20 June but had not been hired to the date of the hearing although General Wood hired approximately 25 employees from Bowlby’s employee complement in the unit, 10 of a total of 12 of whom had not signed the union petition. Only two em- ployees who had not signed the petition were not hired whereas only four of the 26 employees who had signed the initial union petition at the February meeting were hired. After the establishment of the initial core of em- ployees, General Wood commenced to hire new employees, most of whom had no prior experience at a wood treat- ment plant and ignored the remainder of the experienced employee complement. _ The record demonstrates that the seven alleged discri- minatees litigated at the hearing were experienced em- ployees and most had performed more than one job. Their testimony, which I credit, demonstrates that they had gen- erally not been the subject of disciplinary action with the exception of the warnings and suspension found unlawful, supra. Thus, Bryant had never received a warning or had disciplinary action taken against him concerning his job performance and had worked in the framing department and on the tow line in addition to his duties as a forklift operator. Munn had never been warned or disciplined con- cerning his work performance. Charles Brown was an ex- perienced pole grader who had trained two or three other employees as pole graders and had never been disciplined concerning his work performance. Freddie Brown was a pole framer who had been employed for 5 years by Bowlby and received only one verbal warning for unsatisfactory job performance on a single occasion. He had been eval- uated twice by his supervisor and was never told his work 72a was unsatisfactory. Jenkins was an experienced pole ma- chine operator. Ganey was an experienced forklift operator and had also banded poles. During his 5 year tenure with Bowlby, Ganey had failed to tighten a plug on one occasion which caused an oil leak and $5,000 damage to an engine. However, he had never received any disciplinary action as a result of his work performance. Burton had served as welder helper, worked in the boiler room for 12 months and only 2 or 3 weeks prior to the 20 June closure of Bowlby had been transferred to the position of pole pointer. There was no evidence that Burton had been disciplined for his work performance with the exception of the warn- ings and suspension discussed which related to absenteeism and a warning he had received for smoking in a non- designated as opposed to a restricted area. When the alleged discriminatees filed their applications, none received an interview. When they inquired concerning their prospects, they were referred to Greene who had been hired as the production manager for General Wood. Greene told those who inquired of him that he had no openings. Ganey was told to stay by the phone. None of the seven were recalled to work. Winbourne did not testify. Greene testified at the hear- ing that he had recommended against hiring several em- ployees, but that General Wood Operations Manager Steven Hutchinson had made the decisions. This differed from earlier statements he had made to a Board agent during the investigation of this case. At the hearing Greene tes- tified that he did not recall the reason he had given the Board agent for not hiring Burton or Munn. Greene tes- tified at the hearing that he recommended against the hire of Jenkins because of performance problems with Jenkins’ work. Greene testified at the hearing that Hutchinson had made the decision not to hire Ganey but acknowledged that when he met with the Board agent investigating the case, he had cited the lack of a second shift as the reason 73a for not hiring Ganey. Greene had told the Board agent that Freddie Brown had limited flexibility in the framing work. He further acknowledged that at the time he made various representations to the Board agent he was aware that several of these employees had not been considered by Hutchinson for rehire. Steven Hutchinson, General Wood’s operations manager, testified that he followed Greene’s recommendation not to hire Jenkins and Charles Brown but that he decided not to hire the other alleged discriminatees based on his ob- servations of them when he had worked at Bowlby from 1973 to 1983 in some cases and because of the condition of equipment operated by them in others. Analysis _ I find that the General Counsel has established a prima facie case that the failure of General Wood to hire the alleged discriminatees was motivated by their engagement in concerted .activities in support of the Union’s campaign. It is clear that the seven alleged discriminatees were known union supporters, several of whom had been subjected to interrogation and threats and one of whom had been sus- pended by Bowlby’s Production Manager Greene. It is also clear, and I find, that Greene was in charge of the hiring of new employees or at least effectively recommending such hire as General Wood’s production manager. I find that the circumstances support the inference that Hutch- inson as well as Greene had knowledge of the union ac- tivities of the employees of Bowlby. I do not credit the testimony of Greene or Hutchinson. that the alleged dis- criminatees were not hired for work related reasons. I find Greene’s testimony to be inconsistent in many re- spects and his lack of recall and the lack of documentation of the reasons for not hiring these employees to be det- rimental to his overall credibility as well as his acknowl- edgement that when he met with a Board agent in the investigation of this case, he did not inform him that 74a Hutchinson had allegedly made the hiring decisions as he later testified at the hearing. I also do not credit Hutch- inson’s testimony that his decisions not to hire these em- ployees were based on his past recollection of them in 1983 and prior thereto and as a result of the condition of equipment operated by certain of the employees. I also rely on the statistics cited by the General Counsel that 10 of the 12 non-signers of the petition were hired whereas only 4 of the 26 signers of the petition were hired and find these statistics show a clear pattern of discrimination against the union supporters. I have also considere! the lack of plausibility of Respondent General Wood’s conten- tions and stated reasons for not hiring the alleged discri- minatees (all of whom were experienced employees and the resort to new employees most of whom were inex- perienced in General Wood’s business). I thus find that Respondent General Wood has failed to rebut the prima facie case established by the General Counsel, and I find by a preponderence of the evidence that Respondent Gen- eral Wood violated Section 8(aX3) and (1) of the Act by its refusal to hire as employees Charles Brown, Oliver Munn, George Jenkins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton. Wright Line, 251 NLRB 1083 (1980); Rouse Bertrand Dupont, Inc., 271 NLRB 443 (1984); Douglas, Inc., 227 NLRB No. 128 (1985). See also Chaim Babad, et al, a Co-Partnership, d/b/a Tilden Arms Management Co. and Toby Estates, Inc., a Single Em- ployer, 276 NLRB No. 117 (1985). See also Spencer Foods, 268 NLRB 1483, 1486 (1984), enfd. in relevant part 119 LRRM 3478 (D.C. Cir. 1985), Re: subjecting former em- ployees to more rigid standards than new applicants in hiring evaluations. D. The Majority Issue The record established that as of 12 February there were 64 employees in the appropriate unit as derived from the payroll register of that date listing a total of 86 per- 75a sons minus 21] persons identified by Production Manager Greene as supervisors, office clericals, guards, a procure- ment forester, a quality control inspector, and a dispatcher at the hearing. The signatures of forty-two of the em- ployees were authenticated on the petitions through the identification of their signatures by the employees them- selves, by witnesses who saw the employees place their signatures on the petition, by the comparison of hand- writing samples by the undersigned at the hearing, and by the testimony of the IUD coordinator, Black, who tes- tified concerning the signatures of the employees at a meeting held in February for the purpose of organizing a union. The single purpose authorization petition states that the employees authorize the AFL-CIO or its appropriate affiliate to represent them in collective bargaining with their employer. At a subsequent meeting, according to the unrebutted testimony of Black which I credit, the em- ployees chose the Woodworkers Union as their designated union. There was no evidence of any employee’s attempt to revoke his signature. The lack of designation of the Union at the initial time of signing is not a legal impe- diment to the obtainment of majority status. The authen- ticated signatures of 42 of the 64 employees in the appropriate unit of February clearly gave the Union a majority and I so find. Burlington Industries, Inc., 257 NLRB 712 (1981). E. The Bargaining Order I find that a bargaining order should issue against Respondent Bowlby in view of Bowlby’s unlawful inter- rogation, threats, disciplinary warnings and a suspension of its employees, and most significantly in its packing of the unit by importing employees to subvert the election process which dissipated the Union’s majority, and also in view of the threats of plant closure, subcontracting out of work, and job loss engaged in by Respondent Bowlby in- cluding its threat of subcontracting and that of unspecified 76a reprisals issued by its president. The threats of plant clo- sure, job loss, and subcontracting, as well as the unit pack- ing, clearly constitute hallmark violations. The combination of these hallmark violations and the impossibility of rem- edying these violations by Bowlby as a result of its sale of the plant clearly demonstrate that it is no longer pos- sible to conduct a free and fair election. Regency Manor Nursing Home, 275 NLRB No. 171, fn. 8 (1985); Mazi Mart, supra, at fn. 4. F. The Successor Issue The undisputed evidence clearly establishes that General Wood is engaged in the same business of chemically treat- ing wood including telephone poles, fence posts, pilings, and other items and sells to substantially the same cus- tomers as Bowlby. By the sale of the assets of Bowlby to General Wood on 29 June, General Wood purchased and received the physical facility and plant including production equipment and vehicles and inventory, General Wood com- menced production on 9 July and by the end of July had hired employees in virtually all pre-existing production and maintenance classifications of its predecessor Bowlby. Over 60 percent of General Wood’s employees had been em- ployed at Bowlby, and the supervisory force remained vir- tually unchanged from that of Bowlby including the retention of Greene as production manager. I thus find that General Wood is a successor of Bowlby. Aircraft Mag- nesium, 265 NLRB 1844 (1982). I also find that General Wood obtained successorship status at least by the end of July when it had hired employees in the pre-existing clas- sifications and employed a complement of 44 unit employ- ees. I reject Respondent General Wood’s contention that the relevant date for examining the employee complement should be 18 September when it expanded the number of its shifts as this expansion was highly uncertain in July according to the testimony of Greene. Indianapolis Mack Sales and Service, Inc., 272 NLRB 690 (1984). See also 77a Metropolitan Teletronics Corp., 279 NLRB No. 184, fn. 16 (1986). G. The Bargaining Obligation of General Wood Unrebutted documentary evidence of the mailgram sent by the Union and the testimony of the employees as set forth above concerning the remarks made by Winbourne on 20 June to the employees concerning the Union clearly establishes that General Wood had actual notice of the unfair labor practices of Bowlby prior to its purchase from Bowlby. Moreover, the knowledge of Bowlby’s Production Manager Greene thereof, who was hired by General Wood in the same capacity, is imputed to General Wood. As the General Counsel contends, it is well settled that a successor may be ordered to remedy the unfair labor practices of its predecessor, citing Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1978); and that in appropriate cases the Board has required successor employers to abide by Gissel orders issued against predecessors particularly in cases wherein the successor’s conduct is a continuation of the predecessor’s campaign to erode the Union’s ma- jority status, and this is so even in those cases wherein no prior bargaining order had been issued against the pred- ecessor, citing Carlton’s Market, 248 NLRB 837, 845 (1979), enfd. 642 F.2d 850 (9th Cir. 1981). In the instant case the acts of General Wood by unlaw- fully refusing to hire known union adherents as found herein were clearly calculated to subvert the election proc- ess in order to assure a lack of union support. The passage of time and the turnover of supervisory personnel at Gen- eral Wood do not serve to obliterate its bargaining obli- gation as a successor. Keystone Pretzel Bakery, 256 NLRB 834, 885 (981), enfd. 696 F.2d 257 (2nd Cir. 1988). 1 find a bargaining order should issue against General Wood as a successor of Bowlby in this case. See also Chaim Babad, et al, supra. 78a H. The Effects of the Unfair Labor Practices Upon Commerce The unfair labor practices of Respondents Bowlby and General Wood as found herein have a close, intimate, and substantial relation to trade, traffic, and commerce among the several states and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. Conclusions of Law 1. Respondents Burke-Parsons Bowlby and General Wood Preservative Company are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and General Wood Preservative is a successor to Burke-Parsons Bowlby. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By the interrogation and threats issued to its em- ployees and unlawful promises of benefits by engaging in unit packing found herein, Respondent Bowlby violated Section 8(aX1) of the Act. 4. By the disciplinary warnings issued to its employees George Jenkins, Warren Bryant, Warren Jacobs, and Greg Burton as found herein and by the suspension of its em- ployee Greg Burton, and by the more stringent enforce- ment of its work rules, Respondent Bowlby violated Section 8(aX3) and (1) of the Act. 5. The appropriate unit of the employees of Respondent Bowlby and its successor General Wood is: All production and maintenance employees employed at the Employer’s Leland, North Carolina, facility; excluding office clerical employees, technical employ- ees, professional employees, guards and supervisors within the meaning of the Act. 79a 6. As of 12 February 1984 the Union represented a majority of the employees of Respondent Bowlby in the aforesaid appropriate unit. 7. Respondent General Wood Preservative Company vi- olated Section 8(aX3) and (1) of the Act by its refusal to hire employees Charles Brown, Oliver Munn, George Jen- kins, Waren Bryant, Freddie Brown, John Ganey and Greg Burton. 8. The above violations as found herein have an effect upon commerce within the meaning of the Act. The Remedy Having found that Respondents Bowlby and its succes- sor General Wood have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take the following affirmative actions, in- cluding posting of an appropriate notice, designed to ef- fectuate the policies of the Act. Having found that Respondent Bowlby violated Section 8(aX3) and (1) of the Act by its issuance of written warn- ings to its employees and by the suspension of Greg Bur- ton, it and General Wood as its successor shall be ordered to expunge its personnel records of any reference to said warnings and suspension and to make Greg Burton whole for any loss of earnings or benefits sustained as a result of his suspension. Having found that Respondent General Wood unlawfully failed and refused to hire employees Charles Brown, Oliver Munn, George Jenkins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton because of their union activities, Respondent General Wood shall be ordered to offer to hire said employees. Respondent General Wood shall also make the aforesaid employees whole for any loss of earnings or benefits suf- fered as a result of the discrimination against them, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida 80a Steel Corporation, 231 NLRB 651 (1977). See generally, Isis Plumbing and Heating Company, 138 NLRB 716 (1962). I recommend that General Wood should be ordered to bargain with the Union in order to remedy the violations committed by its predecessor Bowlby which had the effect of dissipating the attained majority status of the Union and rendered impossible the holding of i election and which violations were continued by General Wood by its unlawful refusal to hire union supporters as found herein. I also find under the circumstances of this case involving threats of plant closure, loss of jobs, subcontracting, warn- 7a : : pay. See Hilton Inn North, 279 NLRB No. 9 (1986). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I issue the following recommended: ORDER‘ Respondent General Wood Preservative Company, its officers, agents, successors, and assigns shall: 8la (a) Coercively interrogating employees concerning their union sympathies. (b) Threatening its employees with plant closure, sub- contracting, job loss, loss of benefits, or unspecified re- prisals if they engage in union activities. (c) Promising employees that their problems would be worked out within the Union. (d) Issuing disciplinary warnings or suspensions to its employees and more stringently enforcing work rules be- cause of their support for the Union. (e) Packing the bargaining unit with other employees in order to dissipate the Union’s majority. (f) Refusing to hire employees because of their union activities and sympathies. (g) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies and purposes of the Act. (a) Upon request, recognize and bargain collectively with International Woodworkers of America, AFL-CIO, as the exclusive representative of the employees in the fol- lowing appropriate unit concerning terms and conditions of employment and if an understanding is reached embody the understanding in a signed agreement. The appropriate unit is: All production and maintenance employees employed at the Employer’s Leland, North Carolina facility; ex- cluding office clerical employees, technical employees, professional employees, guards and supervisors within the meaning of the Act. (b) Offer to hire employees Charles Brown, Oliver Munn, George Jenkins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton. 82a (c) Expunge from its files any reference to the un- lawful warnings issued to employees George Jenkins, War- ren Bryant, Warren Jacobs, and Greg Burton and the suspension issued to employee Greg Burton, and notify them in writing of this and that these warnings and sus- pension shall not be used as a basis for future personnel actions concerning them. (d) Make whole said employees Charles Brown, Oliver Munn, George Jenkins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton for its unlawful refusal to hire them and Greg Burton for its unlawful suspension of him with full backpay and benefits with interest in ac- cordance with the recommended “Remedy” with no loss of seniority or other rights and benefits to which they would have been entitled but for the unlawful discrimi- nation against them. | (e) Preserve and, upon request, make available to the Board or its agents for examination and copying all payroll records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. For the purpose of determining or securing compliance with this Order, the Board or any of its duly authorized representatives may obtain discovery from Respondent, its officers, agents, successors, or as- signs, or any other person having knowledge concerning any compliance matter, in the manner provided by the Federal Rules of Civil Procedure. Such discovery shall be conducted under the supervision of the United States Court of Appeals enforcing this Order and may be had upon any matter reasonably related to compliance with this Order, as enforced by the Court. (f) Post at its facility in Leland, North Carolina, copies of the attached notice marked ‘‘Appendix.’’® Copies of said ‘If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading “POSTED BY ORDER 83a notice on forms provided by the Regional Director for Region 11, after being duly signed by Respondent General Wood Preservative Company’s authorized representative, shall be posted by it immediately upon receipt and main- tained for 60 consecutive days in conspicuous places in- cluding all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 11, in writing within 20 days from the date of this Order what steps the Respondent has taken to comply.® Dated Washington, DC. 30 June 1986 /s/ Lawrence W. Cullen Lawrence W. Cullen Administrative Law Judge 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 NA- TIONAL LABOR RELATIONS BOARD.” * Respondent General Wood’s motions to dismiss the Section 8(a\3) allegations against it and for summary judgment with respect to the bargaining order and to strike Genera! Counsel’s request for a visitorial provision are denied. 84a APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights: To organize; To form, joint, or assist any union; To bargain collectively through representatives of their own choosing; To act together for other mutual aid or protection; To choose not to engage in any of these concerted activities. WE WILL NOT coercively interrogate employees concern- ing their union sympathies. WE WILL NOT threaten employees with plant closure, sub- contracting, job loss, loss of benefits, or unspecified re- prisals because of their union activities or sympathies. WE WILL NOT promise employees that their problems will be worked out without the Union. WE WILL NOT issue disciplinary warnings or suspensions to employees or more stringently enforce work rules be- cause of their union activities or sympathies. WE WILL NOT engage in unit packing in order to dissipate the Union’s support. WE WILL NOT refuse to hire employees because of their union activities or support. WE WILL NOT in any other manner interfere with, re- strain or coerce our employees in their rights guaranteed them under Section 7 of the Act. 85a This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board’s office, US Courthouse, Federal Building, 251 North Main Street - Room 447, Winston- Salem, NC 27101. Telephone: (919)761-3212. 86a APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government WE WILL recognize, and on request, bargain with the International Woodworkers of America, AFL-CIO, and em- body in a written agreement any understanding reached therein concerning the terms and conditions of employ- ment for our employees in the following appropriate bar- gaining unit: All production and maintenance employees employed at the Employer’s Leland, North Carolina facility; ex- cluding office clerical employees, technical employees, professional employees, guards and supervisors within the meaning of the Act. WE WILL offer to hire as our employees Charles Brown, Oliver Munn, George Jenkins, Warren Bryant, Freddie Brown, John Ganey, and Greg Burton, and WE WILL make them whole for any loss of earnings or benefits they have sustained with interest and with no loss of seniority or other rights to which they would have been entitled absent our unlawful refusal to hire them, and notify them in writ- ing thereof. WE WILL remove from our records any reference to the unlawful warnings issued to employees George Jenkins, Warren Bryant, Warren Jacobs, and Greg Burton and to the suspension issued to employee Greg Burton, and WE WILL make Greg Burton whole for any loss of earnings or benefits he may have sustained by reason of our un- lawful suspension of him and will notify each of the above employees of these actions in writing thereof. 87a Our employees have the right to join and support International Woodworkers of America, AFL-CIO, or to refrain from doing so. GENERAL WOOD PRESERVATIVE COMPANY Dated: By: (Representative) (Title) This is an official notice and must not be defaced by any- one. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concern- ing this notice or compliance with its provisions may be directed to the Board’s office, US Courthouse, Federal Building, 251 North Main Street-Room 447, Winston-Salem, NC 27101. Telephone (919)761-3212. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_2822%3A1. Public record. Not legal advice.