Roman Cleanser Co.

National Labor Relations Board - Board Decisions

Mar 10, 1971

188 N.L.R.B. 931 (N.L.R.B. 1971)

ROMAN CLEANSER COMPANY 931
Roman Cleanser Company and International Chemical
Workers Union . Case 10-CA-8418
March 10, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
BROWN
On October 28, 1970, Trial Examiner Melvin Pol-
lack issued his Decision in the above-entitled pro-
ceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner further
found that Respondent had not engaged in certain
other unfair labor practices as alleged in the com-
plaint. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner, only to the extent consistent here-
with.
1. The Trial Examiner found, and we agree, that
Respondent violated Section 8(a)(1) by coercively in-
terrogating employees and engaging in surveillance of
their union activities.
2. The Trial Examiner further found that Respon-
dent violated Section 8(a)(3) and (1) of the Act by
closing its East Point, Georgia, plant, discharging em-
ployees, and removing operations previously per-
formed at that location to its plant at Wilson, North
Carolina. The Respondent excepts, contending its de-
cision to close the East Point facility was made prior
to the advent of union activity and was based solely
on economic considerations. We find merit in
Respondent's exceptions.
Respondent, prior to the closedown at East Point,
operated two plants in Detroit, two in North Carolina,
one in Texas, and two in Georgia. The Georgia plants,
which are the subject of the instant complaint, are
located at Griffin and East Point. At East Point, Re-
spondent manufactured plastic bottles. The Griffin
plant manufactured and sold industrial and house-
hold cleaning products.
Both Georgia plants were subjected to an organiza-
tion drive which began in late April 1970.' Shortly
thereafter the Union obtained signed authorization
cards from 7 of the 8 East Point employees and 5 of
the 10 Griffin employees. On June 10, the Union
wrote Respondent advising that it represented a ma-
jority of the employees at both plants and requesting
bargaining. This letter was received by the East Point
plant foreman, Armstrong, on June 11. That same
day, Armstrong spoke by phone with officials at
Respondent's headquarters in Detroit and informed
them of the Union's letter. Following the second shift
on June 12, the machinery at East Point was shut
down pursuant to instructions from Respondent's
president, Riccardi, and final paychecks were distrib-
uted to the employees. Shortly thereafter, the bottle-
making machinery was moved to Respondent's Wil-
son, North Carolina, plant where those operations are
now performed. The Griffin plant continued in opera-
tion, and upon closure of the East Point facility em-
ployees at Griffin were advised that their plant would
remain open irrespective of whether or not they joined
the Union?
At the hearing Respondent's president, Riccardi,
testified without contradiction that the decision to
terminate operations at East Point was made prior to
the organization drive and was based solely upon eco-
nomic considerations. More specifically, he testified
that when the East Point facility began producing
bottles in 1967, that operation occupied a small part
of the facility. Respondent planned to enlarge pro-
duction operations at this site by consolidating the
Griffin operation through transfer to East Point and
through manufacture of additional products. Pur-
suant to its plans for East Point, Respondent ordered
and received additional equipment which arrived at
East Point in the years 1969 and 1970. In the interim,
however, Respondent's economic position was ad-
versely affected by a fire at its main plant in Detroit
which destroyed one-third of that facility and by com-
petition resulting from the introduction of enzyme
wash products which caused Respondent' s sales to
drop in 1969 between 19 and 20 percent with its prof-
its being reduced by 90 percent. As a result Respon-
dent reviewed its overall operations early in 1969 and
decided to curtail nonprofit activities at all plants. In
April 1969, Respondent decided to close its plant in
Tampa, Florida, and the East Point facility in Georgia
because the expansion plans had to be abandoned.
Substantial savings could be effected by transferring
1 All dates refer to 1970, unless otherwise indicated.
2 Although there was no history of bargaining for either of the Georgia
plants, Respondent has had a 25-year bargaining history with Teamsters at
its Detroit, Michigan , bottle-making plant, and a 7-year history at its Detroit,
Michigan , plastics operation
188 NLRB No. 136
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the East Point bottle -making operation , which was
losing $400 to $700 a month , to Respondent 's plant at
Wilson , North Carolina . This decision was not firm
but was held in abeyance for several months to give
Respondent an opportunity to see if conditions would
improve . By 1970 Respondent 's financial position had
not improved and discussions were initated with pro-
spective buyers of the East Point plant . In March,
Respondent decided to close the East Point plant at
its inventory date in May .3 However , the closing date
was postponed to the next inventory date , June 12,
because the special maintenance crew , needed to
transfer the East Point bottling equipment to the Wil-
son plant , was needed to effect repairs at the main
Detroit plant . The Tampa plant was scheduled to shut
down in September 1970, when its lease expired.
The Trial Examiner , in finding the 8 (a)(3) violation,
rejected Respondent 's economic defense and inferred
from the timing of the closure that it was discrimina-
torily motivated . He viewed the legitimate reasons
offered by Respondent as unconvincing because (1)
Riccardi 's testimony was not confirmed through in-
troduction of documentary evidence ; (2) Riccardi's
testimony gave no details concerning Respondent's
efforts to sell the East Point plant at an earlier date;
(3) machinery other than the bottling -making machin-
ery remained at the East Point plant at the time of
hearing ; and (4) certain actions of Foreman Arm-
strong, prior to the closedown , were inconsistent with
any prior decision on Respondent's part to terminate
operations at that location.
Contrary to the Trial Examiner , we are not per-
suaded that the foregoing provides adequate justifica-
tion for rejection of Respondent 's defense. The
economic reasons offered by Respondent in support
of its decision to terminate the East Point operation
were plausible . The fact that Riccardi's testimony was
not corroborated through introduction of documenta-
ry evidence as to the Company's business position
furnishes no reason to disregard such testimony.
Riccardi 's account was based on personal knowledge
and was not self-contradictory . The General Counsel
apparently made no attempt to examine and intro-
duce Respondent's business records . He seemed con-
tent to rest his case on the evidence then in the record.
The Board has held that such oral testimony cannot
be challenged on the ground that it does not consti-
tute the best evidence . See Baker Machinery Company,
184 NLRB No. 39 , fn. 1. See also N.L.R.B. v. Drennon
Food Products Co., 272 F.2d 23 (C.A. 5).
Nor do the other factors relied on by the Trial
Examiner cast doubt upon the economic reasons as-
signed by Respondent for the closedown . Thus, al-
though the Trial Examiner states that Riccardi gave
no details concerning Respondent's alleged efforts to
sell the East Point plant, clear and uncontradicted
testimony establishes that Respondent, about 2
months prior to the closedown, unsuccessfully nego-
tiated with Polyco Manufacturing Company in regard
to such a sale under an arrangement whereby that
company would supply the Respondent with bottles
at its five plants. With respect to Re"spondent's failure
to remove certain equipment at East Point, the record
shows that the only machinery which remained was
the filler and capper and storage vats which do not
qualify as the type of high investment equipment that
could economically be moved and used under profita-
ble conditions at other of the Respondent's plants.
Finally, the Trial Examiner reasoned that certain ac-
tions of Armstrong, which the Trial Examiner inter-
preted as inconsistent with any prior decision to close
the East Point facility, contradicted Riccardi's expla-
nation. However the Trial Examiner's position in this
regard presumes that Armstrong had prior knowledge
of the decision to close the East Point plant. There is
no evidence that Armstrong possessed such knowl-
edge. The Trial Examiner stated that he did, based
solely upon his reading of Armstrong's testimony as
containing an admission that Armstrong knew why
the plant was closed. However, the record shows that
Armstrong testified that he did not know the reason
the plant was closed. Thus, since the record does not
support the Trial Examiner's finding that Armstrong
was aware of the high level management decision to
terminate operations at East Point at any time mate-
rial, his actions, even though apparently inconsistent
with that decision, are hardly relevant to an assess-
ment of the validity of the economic reasons assigned
by Respondent for its actions.
In sum , as we view the record, no persuasive rea-
sons appear to warrant rejection of Respondent's
claim that its economically oriented decision to termi-
nate the East Point operations predated the Union's
organization drive 4 We therefore shall dismiss the
allegation that Respondent violated Section 8(a)(3)
and (1) of the Act by closing the East Point plant,
discharging employees at that location, and transfer-
ring the bottle-making functions to the Wilson, North
Carolina, plant.
REMEDY
We are in agreement with the Trial Examiner that
it will effectuate the policies of the Act to order Re-
spondent to cease and desist from engaging in the
conduct herein found to be in violation of the Act.
However, we do not find that it will effectuate the
policies of the Act to issue a broad 8(a)(1) order in the
See, e .g , Sy1co Corporation, a Division of Marlene Industries Corporation,
3 Respondent maintained its books on the basis of 4-week penods 184 NLRB No 82.
ROMAN CLEANSER COMPANY
circumstances of this case.
Furthermore, in view of our finding that
Respondent's closedown and relocation of the East
Point bottle-making operation was not unlawful, we
shall delete from the Trial Examiner's Decision that
portion of his recommended Order attempting to rem-
edy these alleged violations, viz, requiring backpay,
offers of reinstatement, the restoration of bottle-mak-
ing operations to East Point, and bargaining with the
Union upon request.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, Ro-
man Cleanser Company, Griffin, Georgia, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees regarding
their union activity and engaging in surveillance of
union activity.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act.
(a) Post at its plant in Griffin, Georgia, copies of the
attached notice marked "Appendix."5 Copies of said
notice, on forms provided by the Regional Director
for Region 10, after being duly signed by
Respondent's authorized representative, shall be post-
ed by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to its employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it
alleged unfair labor practices not found herein.
5 In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted By Order Of The
National Labor Relations Board " shall be changed to read "Posted Pursuant
To A Judgment Of The United States Court Of Appeals Enforcing An Order
Of The National Labor Relations Board."
933
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees con-
cerning their union membership or sentiment,
engage in surveillance of union meetings, or in
any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of
their rights of self-organization under the Act.
All our employees are free to become or remain, or
to refrain from becoming or remaining, members of
any labor organization.
ROMAN CLEANSER COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Peachtree Building, Room 701, 730
Peachtree Street , NE., Atlanta, Georgia 30308,
Telephone 404-526-5760.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK, Trial Examiner: This case was heard on
September 1, 1970, at Atlanta , Georgia , pursuant to charges
filed on June 17, June 30, July 7, and July 23, 1970, and a
complaint issued on August S and amended on August 21,
1970. The complaint, as amended , alleges that Respondent,
Roman Cleanser Company, refused to bargain collectively
with the charging Union , International Chemical Workers
Union, in violation of Section 8(a)(5) and ( 1) of the National
Labor Relations Act, as amended , discharged eight employ-
ees in violation of Section 8(a)(3) and ( 1) of the Act, and
engaged in interrogation , surveillance , and threats , in viola-
tion of Section 8(a)(1) of the Act. The General Counsel and
the Respondent have filed briefs which have been fully
considered.
Upon the entire record , and my observation of the wit-
nesses as they testified , I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Respondent , a Michigan corporation , was at all relevant
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
times engaged in the manufacture of plastic bottles at East
Point , Georgia , and in the production and sale of industrial
and household products at Griffin , Georgia . Respondent,
during the year preceding the issuance of the complaint,
sold and shipped finished products valued in excess of
$50,000 to customers located outside Georgia . I find that
Respondent is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
About April 25 , 1970,1 Union Representative McAllister
spoke to John Blanton , a machine operator at the East Point
plant , about what the Union could do for the employees and
gave him union authorization cards. Blanton subsequently
returned to McAllister cards signed by seven East Point
employees , including himself.2
McAllister also met with Griffin employees Drewery,
Fisher , and Fuller . He gave each of them an authorization
card and gave Drewery "extra" cards. Several days later,
McAllister received six signed cards in the mail postmarked
June 5 , at Griffin?
On June 11 , Foreman John Armstrong of the East Point
plant received a letter dated June 10 from McAllister, stat-
ing that the Union represented a majority of the production,
maintenance and warehouse employes and the truckdrivers
at the Griffin and East Point plants, offering to prove the
Union's majority status "by submitting signed authoriza-
tion cards to a mutually selected impartial person," and
expressing the Union 's desire "to institute negotiations. 114
That same day, Armstrong notified an official of Respon-
dent in Detroit about the union letter . He asked the East
Point employees if they had signed union cards and learned
they had done so. Armstrong remarked to employee Blan-
ton that he knew about five employees at the Griffin plant
who "wouldn 't go" for the Union. Later that day Armstrong
received a telephone call from Respondent's president, Paul
Riccardi , and read the Union's letter to him . The next day,
Friday, June 12 , Armstrong asked employees Blanton and
Akers if they had received letters to attend a union meeting.
They said they had.
The East Point plant worked three shifts. At the end of
the second shift on June 12, about 4 p.m., pursuant to in-
structions from Riccardi , Armstrong had the machinery
shut down , gave the employees their paychecks , and told
them, "Well , fellows, we've changed the mode of opera-
tions , we're going to buy our bottles from now on instead
of making them. '
On June 13 , President Riccardi talked to each employee
at the Griffin plant , telling him that East Point had closed
but that Griffin would stay open , and that he could join or
not join the Union , "whatever he saw fit." He did not say
why the East Point plant had been closed. Several days
1 All dates hereafter are in 1970 unless otherwise stated
2 An eighth employee, Larry Fulcher, was hired on June 10
3 Five of these cards were received in evidence According to the General
Counsel, the sixth card was not offered as the signer quit prior to the Union's
request for recognition
McAllister also filed a representation petition with the Board's Atlanta
office on June 10 On July 29, the Atlanta office approved the Union's
request to withdraw the petition without prejudice.
later, the Griffin employees signed and turned in a petition
stating that they did not want to join a union.
The Union held a meeting at the Holiday Inn in Griffin
on Sunday , June 14 . As Blanton arrived at the Holiday Inn,
he saw President Riccardi, Foreman Armstrong , and Fore-
man Dozier Ratliff of the Griffin plant. Riccardi said to
him, "Hello, Mr. Blanton, you're a good man." These offi-
cials walked around the building during the meeting, and
Armstrong looked into the meeting room . After the meet-
ing, which lasted about 1 1 /2 hours, the employees observed
the officials in a parked car.
The bottle-making machinery at East Point was sent to
Respondent's plant at Wilson, North Carolina, and Fore-
man Armstrong was detailed to that plant to instruct em-
ployees how to operate it.
B. Analysis and Conclusions
1. Interference, restraint, and coercion
Foreman Armstrong interrogated East Point employees
about their signing of union cards and about letters to at-
tend a union meeting. This interrogation was followed, as
I find below, by the discriminatory closing down of the East
Point plant . In this setting , Armstrong's questioning of em-
ployees concerning union sentiment and activity must be
deemed coercive.
President Riccardi and Foremen Armstrong and Ratliff
were present at the Holiday Inn before, during, and after the
union meeting held on June 14. Armstrong looked into the
meeting room . As Respondent offered no explanation for
the presence of its officials at the Holiday Inn , I find that
Respondent 's surveillance of the union meeting was delib-
erate and calculated to restrain the employees in the exer-
cise of their rights under the Act. Royal School Laboratories,
Inc., 138 NLRB 818.
Foreman Armstrong told Blanton on June 11 that he
knew about five Griffin employees who "wouldn't go" for
the Union. Armstrong' s remark may have been only an
expression of opinion and, in any event, does not indicate
that any information he had about the union sentiment of
the Griffin employees was obtained surreptitiously. I there-
fore find no merit to the allegation in the complaint that
Armstrong's remark created an impression that Respondent
was keeping the union activity of its employees under sur-
veillance.
In view of the foregoing, I find, as alleged in the com-
plaint, that Respondent violated Section 8(a)(1) of the Act
by coercively interrogating its employees concerning union
activity, and by surveillance of a union meeting.
2. The discriminatory discharges
Respondent closed down the East Point plant and dis-
charged the employees at that plant the day after it received
the Union's request for recognition and ascertained that
virtually all the East Point employees had designated the
Union as their bargaining representative. President
Riccardi's explanation for closing the East Point plant and
transferring the bottle-making machinery to Respondent's
plant in Wilson, North Carolina, may be summarized as
follows:
Respondent at all relevant times operated two plants in
Detroit, two in North Carolina, two in Florida, one in Tex-
as, and the East Point and Griffin plants in Georgia. It
purchased the East Point plant in 1965, a plant in Detroit
in 1967, and a plant in North Carolina in 1968. The bottle-
making operation at East Point, which began in October
ROMAN CLEANSER COMPANY 935
1967, occupied a small part of the facility. Respondent plan-
ned to enlarge this operation, to transfer the Griffin opera-
tion to East Point, and to manufacture additional products.
In 1968, Respondent placed orders for a filler, a capper, a
labeling machine, and four to six storage tanks. This equip-
ment was received at the East Point plant throughout 1969
and into 1970. A fire in December 1968 destroyed one third
of Respondent's main plant in Detroit, and the introduction
of wash product enzymes in 1969 dropped Respondent's
sales of bleach between 19 and 21 percent and reduced its
profits by 90 percent. Respondent reviewed its over-all op-
erations early in 1969 and decided to curtail "non-profit
activities at all plants ." A "final decision" was made in April
1969 to close Respondent's plant in Tampa, Florida,' and
also to close down the East Point operation because
Respondent's expansion plans had to be abandoned and
substantial savings could- pbe effected by transferring the
bottle-making operation, which was losing $400 to $700 a
month at East Point, to Respondent's plant at Wilson,
North Carolina. Respondent held "in abeyance" the deci-
sion to transfer the East Point operation to Wilson to "give
ourselves a little more time to see if things might come
back."Respondent's financial position did not improve and
Respondent, early in 1970, initiated discussions with pro-
spective buyers of the East Point plant. Respondent, in
March, decided to close the East Point plant on its "invento-
ry date" in May .6 The closing date was postponed to the
next inventory date, June 12, because the special mainte-
nance crew , which would transfer the East Point bottle-
making equipment to the Wilson plant, was needed to effect
repairs at the main Detroit plant.
Respondent introduced no documents in support of
Riccardi's testimony concerning the alleged loss of money
on the bottle-making operation at East Point, and Riccardi
acknowledged that there were no minutes of Respondent's
purported `final decision" in April 1969 to close the East
Point plant .7 Riccardi gave no details concerning
Respondent's alleged efforts to sell the East Point plant and
Respondent offered no other evidence on this point. The
machinery purchased for the East Point plant-other than
the bottle-making machinery transferred to Wilson and a
labeling machine shipped to Detroit-was still at the East
Point plant at the time of the hearing and, so far as the
record shows , Respondent has made no effort to relocate or
sell it . A notice posted at the East Point plant some time
before the closing advised the employees that the plant
would operate 6 days a week until further notice, and em-
ployee Akers credibly testified that Foreman Armstrong
told him 2 or 3 weeks before the plant was closed that the
plant would operate on a 6-day week until December or
even later . Armstrong testified that he did know why the
plant was closed and the record shows that he hired three
new employees during the last week of operation. He said
nothing to the employees about transferring the operation
to Wilson when he discharged them. For the foregoing
reasons, I reject Riccardi's unsupported testimony that
Respondent closed down the East Point plant on June 12
pursuant to the prior decision to abandon its plans for ex-
pansion of the plant and to transfer the bottle-making oper-
ation to its Wilson plant.
5 Riccardi testified that the Tampa plant would be closed about a week
after the hearing on September 1, when its lease expired
e Respondent maintains its books on the basis of 4-week periods
Sylco Corporation, 184 NLRB No. 82, cited by Respondent in its beef,
is clearly inapposite . In that case , the employer introduced a financial analy-
sis which was presented to company officials considering whether an opera-
tion should be terminated Contemporaneous letters were also introduced
into evidence showing that the officials decided to terminate the operation
Under all the circumstances, including Respondent's
knowledge that the East Point employees supported the
Union, the closing of the plant the day after the Union
requested recognition, the transfer of the bottle-making op-
eration to another plant, and Respondent' s unconvincing
explanation for the close down, I find that Respondent
discharged the East Point employees and transferred the
bottle-making operation to its Wilson plant, in reprisal for
the employees' support of the Union, thereby violating Sec-
tion 8(a)(3) and (11) of the Act.8
3. The refusal to bargain
The parties stipulated that Respondent employed 10 em-
ployees at the Griffin plant and 8 employees at the East
Point plant in the 2-plant unit which the Union on June 11
claimed to represent. Five cards purportedly signed by Grif-
fin employees and seven cards signed by East Point employ-
ees were received in evidence. Respondent contends that the
Griffin cards were not sufficiently authenticated and that
the East Point cards were invalid because solicited by John
Blanton, allegedly a supervisor under the Act. Union Repre-
sentative McAllister testified that he gave cards to three
Griffin employees and "extra cards" to one of them, and
that he later received in the mail signed cards from these
three employees and other Griffin employees. The five Grif-
fin cards in evidence are all postmarked June 5, 1970, at
Griffin. Respondent makes no claim that the signatures are
not authentic. I find that the Griffin cards are probative of
the Union's majority status. Hunter Engineering Company,
104 NLRB 1016, 1020-1021; cf. I. Taitel And Son., 119
NLRB 910, 912, enfd. 261 F.2d 1, 4 (C.A. 7).
Blanton worked on the second shift with two other em-
ployees. Blanton set up the plastic molding machines and
inspected the bottles, another employee ran a box -making
machine, and the third employee `took bottles off the line.
Blanton was in charge of the shift. On occasion, for example
if working with only one other employee, he adjusted as-
signments. He taught new employees how to set the ma-
chines up, how to make boxes, and how to inspect bottles.
He saw to it that boxes were made right, that bottles were
inspected correctly, and, if a machine broke down and he
could not repair it, he called Foreman Armstrong at home.
If a machine broke down at a time when Armstrong was not
available, Blanton would send the other men home . Blanton
at times advised men he knew about vacancies at the East
Point plant and referred them to Foreman Armstrong for
employment. Armstrong interviewed and hired Reynolds
after Blanton told him Reynolds would "probably make a
good man." Armstrong hired Akers under similar circum-
stances. At Blanton's request, Armstrong transferred an em-
ployee from his shift. And at the complaint of Dewey
Baugh , Blanton's counterpart on the third shift, Armstrong
discharged an employee on Baugh's shift.
Armstrong alone hired and fired employees at the East
Point plant, and he alone assigned employees to their jobs
on the different shifts. The production operations were sim-
ple and quickly learned. Thus Doug Thomas testified that
it took only 10 to 15 minutes for him to learn how to operate
the boxing machine, that "there's nothing to it." Terry Gray
similarly testified concerning inspection of bottles. While
Blanton was responsible for the smooth running of the shift,
the operations were not such as to require him to make other
8 As the bottle -making operation was transferred to another plant of Res-
pondent , I find the closing down of the East Point plant was not a partial
closing of a business within the meaning of N L R B v. Darlington Mfg. Co.,
380 U S. 263
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than routine decisions? His recommendations to Arm-
strong on the hiring of employees were similarly routine. If
Blanton complained to Armstrong about an employee's
work or behavior, the action to be taken was entirely within
Armstrong's discretion. I therefore find that Blanton was
not a supervisor under the Act, and that the East Point cards
are robative of the Union's majority status.
I find, accordingly, that the Union represented 12 of the
18 employees at the Griffin and East Point plants when it
demanded recognition on June 11, 1970.
The Appropriate Unit
The Union requested recognition as the collective-bar-
gaining representative of the production , maintenance, and
warehouse employees and truckdrivers at the East Point
and Griffin plants . Respondent in addition to those two
Georgia plants also operated plants in Michigan, North
Carolina, Florida, and Texas. The Griffin and East Point
plants are about 45 miles apart , have separate immediate
supervision, and do not interchange employees. Approxi-
mately 40 percent of the East Point bottle production was
used by the Griffin plant; the remainder was sent to other
plants. Griffin obtained approximately 50 percent of its
bottles from East Point and the balance from Respondent's
Detroit operation and from suppliers. I find that the opera-
tions of the Griffin and East Point plant were essentially
separate and that the 2-plant unit requested by the Union
was not appropriate for purposes of collective bargaining.
I therefore find that Respondent did not violate Section
8(a)(5) of the Act by its failure to acknowledge the Union's
bargaining request and its commission of unfair labor prac-
tices following that request. Joslin Dry Goods, 118 NLRB
555, 558-559.
CONCLUSIONS OF LAW
1. Respondent violated Section 8(a)(1) of the Act by coer-
cively interrogating its employees concerning their union
activity, and by engaging in surveillance of union activity.
2. Respondent violated Section 8(a)(3) and (1) of the Act
by discharging its East Point employees because of their
support of the Union.
9 Section 2(11) provides: "The term `supervisors' means any individual
having authority, in the interest of the employer to hire, transfer, suspend,
lay off, recall , promote , discharge, assign , reward, or discipline other employ-
ees, or responsibility to direct them, or to adjust their grievances, or effective-
ly to recommend such action , if in connection with the foregoing the exercise
of such authority is not of a merely routine or clerical nature, but requires
the use of independent judgment"
3. Respondent did not refuse to bargain with the Union,
in violation of Section 8(a)(5) and (1) of the Act.
THE REMEDY
I shall recommend that Respondent cease and desist from
the unfair labor practices found and from in any other
manner interfering with , restraining, or coercing its employ-
ees in the exercise of their rights under the Act; that it
resume its bottle -making operation at the East Point plant
and reinstate the discriminatorily discharged employees
with back ay computed according to the formula set forth
in F. W. Woolworth Co., 90 NLRB 289 and Isis Plumbing &
Heating Co., 138 NLRB 716; and that it post an appropriate
notice.
The Union, before the closing of the East Point plant, had
obtained authorization cards from all but one of the em-
ployees at that plant . The East Point employees , as Respon-
dent concedes in its brief , constitute an appropriate
collective bargaining unit. As the Union 's representation
petition of June 10 was supported by a substantial showing
of interest at both the East Point and Griffin plants, the
Board would have directed separate elections had it found
that a 2-plant unit was not appropriate. Respondent's un-
lawful closing of the East Point plant led to the withdrawal
of the petition and rendered uncertain the possibility that
traditional remedies can ensure a fair election at that plant
in the future . The Union's authorization cards therefore
provide a more reliable test of the East Point employees'
desires and better protect their rights than an election. In
these circumstances, in order to restore the status quo ante
required in order to vindicate employee rights and prevent
Respondent from profiting from its own unfair labor prac-
tices, I shall recommend that Respondent , upon the Union's
request, bargain collective with it as the representative of
the East Point employees." Cf. Hickman Garment Company,
184 NLRB No. 99 ; Sayers Printing Company, 185 NLRB
No. 120.
[Recommended Order omitted from publication.]
iU As the Union did not represent a majority of the Griffin employees, a
bargaining order is not warranted for that plant.